2018: another year in prose and pictures (#lifeofabarrister)
This is a belated follow up to my first post “2017: a lawyer’s year in prose and pictures”. Again, it is a bit of a travelogue, capturing themes and ideas along the way.
I was persuaded to do so because “you can’t be what you can’t see”.
Late last month, the Hon. Jane Mathews AO, a trailblazer for women in the Australian legal profession, died. I was terribly sorry to miss her State Memorial Service, which was, by all accounts, very moving (I was appearing at a hearing of the ICAC).
Jane was the first female appointed to the judiciary in New South Wales when she was made a District Court judge in 1980. She was later the first female appointed to the Supreme Court, and subsequently the Federal Court of Australia, and President of the Commonwealth Administrative Appeals Tribunal. For many years, Jane was a solitary figure on the bench. Not much had changed even by the time I joined the NSW Bar in 1995.
Jane was no nonsense (although she had a terrific sense of humour). She was also a lover of music (in particular Wagnerian Opera, being a devoted attendee of the Ring Cycle in Bayreuth). She was a mentor and friend to many of us, and she will be sorely missed.
January 2018
Much of January consists of mandatory holiday-time for the members of the Australian Bar. Most law courts close in late December, and no long hearings are listed until February.
On a temporary break from my work for a NSW government agency (responding to an inquiry by the NSW Ombudsman), I again used part of January to travel to Hong Kong to participate in the Asian Financial Forum (15–16 January 2018).
My companions this year were my eldest son, an Economics student at Sydney University, and my brother, Tim Hogan-Doran, International Tax Partner at Shine-Wing Australia and National Treasurer of the Australia China Business Council.
The AFF promotes itself as a kind of “Davos of the East”, bringing the most influential leaders of the global financial and business community to discuss developments and trends in the dynamic markets of Asia.
The 2018 AFF “Steering Growth and Pioneering Innovation: Asia and Beyond” was opened by HKSAR CEO Carrie Lam, and guest speakers on the first day included David Lipton, Deputy Managing Director of the International Monetary Fund on the financial outlook including risks with rising geopolitical tensions, and Kelly O’Dwyer, the Australian Minister for Revenue and Financial Services who spoke about the new corporate collective investment vehicles regulations, and the Asian Funds Passport initiative.
Summaries of the many interesting sessions are available on the AFF website.
One of the more intriguing sessions was “Banknovation: How Techfin and Fintech Transform the Future of Banking”. Learning of the success of Chinese insurance giant Ping-An (中国平安) — which is using mass surveillance technologies and lie detection technology to manage car accident insurance claims — was as astonishing as it was unsettling. Forbes Magazine reported that Ping An had $94 billion in premium revenue, has a market capitalization at $180 billion, is 74% larger than the country’s old standard, China Life, and 64% above the largest listed pan-Asia insurer, AIA. By this measure it is the world’s largest insurer except for Berkshire Hathaway.
I fear the future for insurance is distinctly Orwellian.
I also had a great catchup with my flatmate from University, Fiona Nott, now CEO of the Women’s Foundation.
This is an NGO dedicated to improving the lives of women and girls in Hong Kong.
Fiona is also Deputy Chair of the Australian Chamber of Commerce in Hong Kong.
February 2018
As foreshadowed, the big hearings kick off in February.
In 2018 what promised to be the biggest hearing of them all commenced in Melbourne, with the opening of the Commonwealth Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
With an optimistic statistic, the Australian Financial Review reported that on day one of the high profile commission, 13 of the 29 barristers’ appearances were women.
The Commission was established on 14 December 2017 and over the following 12 months the Commission’s team, led by the Victorian Bar’s Rowena Orr QC and others, pursued the wide-ranging terms of reference culminating in the submission of the final report by the Commissioner, the Honourable Kenneth Hayne AC QC on 1 February 2019.
For even experienced counsel, appearing for entities and witnesses the subject of scrutiny by a Royal Commission can be quite daunting (I’ve prepared a checklist which may be useful).
Unlike most court hearings, hearings of Royal Commissions and public inquiries are now routinely live-streamed. They draw significant attention from the media and the public. Traditional markers of predictability — such as relevance and prohibitions against hearsay — are abandoned in favour of a roving ‘fishing’ expedition.
I was part of the counsel team briefed for the Commonwealth Bank of Australia (Australia’s largest bank), instructed by Clayton Utz.
I led the team appearing for CBA’s mortgage broking subsidiary Aussie Home Loans (my junior was the always unflappable Joanne Shepard).
The pace of such inquiries can be especially gruelling: documents and witnesses are required at short notice, and legal teams often work through the night attempting to meet deadlines that strain even the most relaxed of OH&S regulation.
This is no exaggeration; after 2 weeks of all day & late night conferencing, as our own COB deadline for response loomed (and passed), I worked alongside my instructing partner from 9am on Friday, and only left his office at 5am on Saturday, and then returned again (after a short kip and a school sport drop off) for another session. The problem of over-working seems not to be isolated.
March 2018
On 5 March 2018, Jeffcott Chambers in Adelaide opened at its new site at 24 Flinders Street. Jeffcott Chambers has a proud history, with many former members serving the community as judges or Members of Parliament.
I joined Jeffcott as an Associate Member (a term used for a barrister whose primary residence is out of state but does work in-state from time to time).
I hope readers enjoy the photographs of Jeffcott’s new heritage site which are displayed on the new website www.jeffcottchambers.com.au.
I built that website using Squarespace’s easy design tools and recommend it for chambers and barristers. It’s simple, so very simple, that even a barrister can do it! (with apologies to Tom Lehrer).
When in Adelaide for work, I also like to visit with another of my three brothers, Dr Jon Hogan-Doran (Tim’s twin), who is a geriatric oncologist at Royal Adelaide Hospital and runs a clinic each month in Broken Hill (for the uninitiated, a frontier mining town in the far west of New South Wales in the Australian outback).
Hearing of the trials and tribulations in cancer treatment quickly brings clarity and perspective to one’s more trivial complaints.
At the end of March, I flew from Adelaide to Brisbane, to appear in a judicial advice application in the Supreme Court of Queensland. My client was based in Melbourne, my instructing solicitors were based in Canberra, and here we all were in Queensland (being the residence of the trustee).
In a first for me, perhaps even for Queensland, both sides were represented by female counsel: after our initial hearing, my junior counsel, Borcsa Vass, and I joined our opponents Rebecca Treston QC and Kirsty Gothard for a delightful meal to celebrate!
April 2018
A big part of my legal practice, informed by my earlier experience as a non-executive director of industry superfund Club Plus Super, is in the area of risk and regulation of financial services businesses.
The catchily named Risky Women is a global network connecting, celebrating and championing women in risk, regulation and compliance.
At the Thomson Reuters Australian Regulatory Summit in Sydney in April, I was invited by Kimberley Cole, Head of Solutions Sales Asia, Financial & Risk and Founder of Risky Women to attend a lunch to launch their new podcast channel — Risky Women Radio. The lunch featured recording of an interview with well-known Australian Non-Executive Chair and Director and Sustainability Advisor, Sam Mostyn.
You can follow on Twitter @RiskyWomen and read more about the network here: http://solutions.refinitiv.com/RiskyWomen.
In late April 2018 I was all set to travel to Washington for meetings of the International Bar Association and the International Monetary Fund’s Spring Meetings. Alas, my father fell ill and was admitted to the emergency ward as I was due to depart. I’m glad I turned back. Following surgery and many days in hospital, he eventually made a full recovery (and happily celebrated his 80th birthday this October 2019!).
May 2018
On 2 May 2018, I joined my colleagues from the UNSW Centre for Law, Markets & Regulation (where I served as an Adjunct Associate Professor) to speak at its seminar on Enforcing the new Banking Executive Accountability Regime. The so called “BEAR” regime amends the Banking Act 1959 (Cth) to impose accountability, remuneration, key personnel and notification obligations on authorised deposit-taking institutions. It is intended to make senior bankers more accountable for management decisions, and includes criminal liability amongst its sanctions.
May also meant it was time to head to Canberra for witness conferences and hearing preparation, but also just in time for the Federal Budget.
One journalist colourfully set the scene:
“the Treasurer is finetuning his 30-minute budget speech and perhaps rehearsing the killer line he hopes will dominate the news coverage. Lobbyists from a range of interest groups are shuffling around Parliament House, preparing to grin or whinge about various budget measures. The baristas at Aussies, the Parliamentary cafe, are preparing for their busiest day of the year — and hundreds of journalists are preparing for six hours in the political slammer.”
The political slammer aka the “Budget Lockup” is the peculiar Canberra tradition wherein reporters are locked away in an enforced digital detox for 5 hours during which they must read and digest a veritable forest of budget documents.
My lunch hosts, Barton Deakin Government Relations, and dinner hosts, Clayton Utz, are experts in connecting with key figures across the Parliament. They delivered rapid insights into the budget measures and their anticipated impacts on the public sector, industry, and communities. During our Budget Dinner, the Treasurer and the Prime Minister addressed their key themes — returning the budget to surplus, lowering taxes, delivering more jobs and guaranteeing essential services to individuals and local communities etc.
Later in May I was appointed by the Economic Regulation Authority to the pool of arbitrators for disputes involving non-scheme pipelines in Western Australia, under Part 23 of the National Gas Rules. The Rules have the force of law, and are made under the National Gas Law. This appointment followed my earlier appointment by the Australian Energy Regulator in August 2017.
After returning to Sydney for several weeks of toiling over the usual life of chamber work and court appearances, with the end of May came the excitement of travelling to Scandinavia for the first time, with the International Bar Association’s Bar Leaders Conference in Oslo, Norway, followed by OECD Week in Paris and meetings of the G20 Business Dialogue.
You can read my reports of the IBA Meeting and the OECD meetings on my website.
During OECD Week I was invited to join University of Sydney Professor Colm Harmon and Australian Ambassador to the OECD Brian Pontifex to meet the young students of the University enrolled in the 4 year dual degree offered with Sciences Po. What an opportunity this course presents — and with these young people, their enthusiasm for learning about the world, including by living and studying in France for part of their education, was infectious.
Between Norway and France I visited Switzerland to stay the weekend with expatriate Aussie powerhouse Debra Walton, Chief Revenue Officer of Thomson Reuters (she made me confront my fear of heights by hiking us up the mountains near Zug).
Alas, on my final night in Paris, I was packing my bags in my hotel room, and musing how trouble free my 2 week trip had been.
Then, I received an urgent text alert — my chambers on fire!
Like many properties post the dreadful Grenfell Tower disaster, my chambers in Macquarie Street Sydney (the rear of Wentworth & Selborne Chambers) was undergoing urgent removal of its cladded facade.
Ironically, the combustible cladding was in its last stages of removal, and played no role in the fire. Rather, the plastic hessian surrounding the scaffolding had caught fire (it seems from an electric spark by a worker on a low level) and fire rapidly travelled up the side of the building, causing some window and property damage.
Thankfully, there were no injuries to workers onsite or barristers in chambers.
June/July 2018
Upon return to my chambers in June, my first task was to sort out where to put my briefs so that repairs to the window frames could get underway. Returning them to my instructing solicitors seemed the most attractive option — in more ways than one...
But June also meant heading back to Canberra again, this time to appear in the series of hearings before the ACT Supreme Court and the ACT Administrative and Civil Tribunal on behalf of the Canberra Raiders Sports Club against the local gaming regulator. Our success was assisted by terrific work by my juniors Brenda Tronson and Sonia Stewart.
Canberra was bitterly cold, so alas, by the time I flew back into Sydney late on Friday night two weeks later, I had succumbed to pneumonia for the first time ever. Unfortunately, I spent all of July unwell and mostly in bed, and I was still recovering — slowly — come August. (I made sure to renew my BarCare insurance policy.)
In late July, I accepted an appointment to the Professional Conduct Committee of the Chartered Accountants Australia & New Zealand. The term of appointment is 3 years, from 1 August 2018 to 31 July 2021. CAANZ is a professional body comprised of over 117,000 members.
August 2018
August was another busy month for legal events in Sydney.
First up was the International Law Association, with its international conference with vast numbers of delegates converging from around the world.
Next was the Australian Women Lawyers conference, also held in Sydney, whose theme was ‘Investing in the Future’. This captured current issues of innovation and technology and the law, including the utilisation of innovation and technology as an essential tool for new and senior lawyers in the furthering of diversity and inclusion, quality leadership, best practice, flexible work options, the achievement of policy and law reform, and attainment of access to justice.
The slide deck & transcript from my presentation as part of the “New Law” panel are available on my website.
I was delighted to be joined by three Newcastle University Law students whose registration I sponsored — as part of a tradition of past Presidents of AWL supporting new entrants to the profession.
Also in August, my daughter’s school, SCEGGS Darlinghurst, held a Q&A panel discussion titled “Women Who Lead”. The panel included:
- Professor Julie Cogin: Dean and Head of UQ Business School, University of Queensland
- Mia Freedman: Co-founder of the Mamamia Media Company
- Philippa King: Foreign Policy Adviser to the Prime Minister.
Moderated by Old Girl and ABC journalist and news presenter, Celina Edmonds, the panel discussed the shifting roles of women in business, media, technology and science and what it takes to be an effective leader. You can read a transcript of my remarks here.
August ended with the Australian Law Awards, sponsored by Lawyers Weekly. These award nights just continue to get bigger and bigger. I was again one of the judges — which is an exercise that always seems exciting and interesting when first asked, but turns out to be extraordinarily difficult. Enormous effort is put in by nominees, whose submissions are chock full of media reports and glowing client references.
September 2018
The Law Council of Australia hosted a one day ‘Futures Summit’ on 13 September 2018, bringing together a wide range of legal practitioners, technologists and futurists.
Improving access to justice and ensuring fairness in legal processes at a time of technological change were prominent themes. The keynote speech was delivered by Secretary General of the IBA, James Klotz, who travelled from his home-base in Canada (where he is a prominent anti-corruption lawyer).
Mooting is the oral presentation of a legal issue or problem against an opposing counsel and before a judge.
It is perhaps the closest experience that a student can have whilst at university to appearing in court, and many of us barristers were enthusiastic mooters ‘back in the day’.
Mooting competitions in the context of an international arbitration dispute test not only oral skills but complex legal problems, and the Chartered Institute of Arbitrators and NSW Young Lawyers run an annual competition which is marked by its high quality, attracting participants from all across Australia and overseas.
Our Arbitral Tribunal for the final on 24 September 2018 was constituted by the Hon Justice Margaret Beazley AO, then President of the NSW Court of Appeal (now Governor of NSW) as Chair, with myself and Max Bonnell, Partner of international law firm White & Case.
I found the problem posed for the students very challenging, but the competing teams rose to meet it.
The final was won by the team from Singapore Management University.
November 2018
2018 marked the centenary of the Women’s Legal Status Act 1918 (NSW), which paved the way for women to become lawyers for the first time in NSW, as well as allowing women to stand for the NSW Parliament.
The First 100 Years project started in England, to celebrate the 2019 centenary of women practising law in that jurisdiction. However, various Australian States granted women this right long before it was granted in England. Victoria was the first state to allow women to practise law in 1903, Tasmania in 1904, Queensland in 1905, South Australia in 1911, and the final centenary will occur in Western Australia in 2023. Read more: https://first100years.com.au
The First 100 Years Project was launched in 2017, and 26 November 2018 marked a gala event at NSW State Parliament. Former Sex Discrimination Commissioner Elizabeth Broderick was the keynote speaker.
During November I also accepted an invitation to join the Australian Institute of Company Directors Law Committee, one of the organisations’ national policy committees.
The objective of the Law Committee is to consider, discuss and provide feedback to the AICD on legislation, regulations and legal issues affecting directors. In doing this, the Law Committee provides invaluable assistance and advice to the AICD in its advocacy work. The membership of the Law Committee is a mix of senior in-house lawyers and private practitioners.
Recently, the Committee has focussed its attention on issues such as reforms to combat illegal phoenix activity, the operation of continuous disclosure laws, the review and revision of the ASX Corporate Governance Council’s Corporate Governance Principles and Recommendations, the implications of the Royal Commission into financial services, and other topical legal issues impacting on company directorsIt reviews and considers draft legislation, regulations, and legal issues affecting directors.
December 2018
In December, the Australian Bar Association and the NSW Bar Association jointly hosted “Rise”, at the new International Convention Centre in Sydney.
The theme was “relevant, resilient, respected”.
I chaired the Regulators Panel, which featured regulators from the Australian Competition Commission (Sarah Court), the recently formed Registered Organisations Commission (Mark Bielecki), and the Australian Financial Complaints Authority (David Locke).
You can read a transcript of our discussion on my website.
From a packed and interesting programme, for me the highlight of the conference was Kate Eastman SC interviewing Thai cave rescuer Dr Richard Harris alongside her father, Creswell Eastman, a Professor of Anaesthesiology.
Together, they told a remarkable story of risk-taking, perseverance, and compassion.
My hearings for the year ended with an appearance for the Australian Securities and Investments Commission leading the resourceful Madeleine Ellicott in the Commonwealth Administrative Appeals Tribunal, defending an application by a banned director.
As the holidays began, my middle child completed the Higher School Certificate and began planning her ‘gap’ year, my younger moved up to their final year of school, and my eldest moved on to his final year at University.
In a final spurt of absurdity, we all spent a week in Maroochydore, Queensland for the Australian Quidditch Championships (called “QUAFL”) at the University of the Sunshine Coast (my eldest, Henry, plays in the USyd team), as I settled submissions for a client in anticipation of a hearing set down for mid-2019.
Plus ça change, plus c’est la même chose!
Posted: 24 October 2019