Archive for month: April, 2015

In his occasional column for CPD Interactive, Melbourne writer PAUL BATEMAN profiles just some of the many writers and artists who also have a law degree – including Australian author, Kerry Greenwood.  

Kerry Greenwood was born and raised in the Melbourne suburb of Footscray. When she was 14, some of her classmates stole a car and were subsequently charged by police. The parents of the children couldn’t afford to hire lawyers. The children appeared in court without adequate legal representation, and adverse findings were made against them.

Greenwood still bristles at the memory of it. “It’s rare to have such a strong crusading impulse at such an early age, but I remember being outraged at my classmates’ predicament. There was no support for them. Nothing.”

Greenwood decided there and then that she would become a lawyer. More than that: a lawyer for the west, and its largely working-class population.

“I felt that no one in power represented Melbourne’s west: the Labor party didn’t need to; and the Liberal party didn’t want to.”

She made her way through school and commenced a Law/Arts degree at the University of Melbourne in 1972. The law school had an in-take that year of approximately 200 students: only nine of them were female; and Greenwood’s unsure if anyone was from the west.

In her first week at university, a male student from a prestigious private school asked her with a sneer, “What are you doing here?”

Even Greenwood had her doubts. “I felt completely isolated to begin with – alien, weird.”

Her first lecturer was kind and engaging, and Greenwood found the course work as interesting as it was demanding.

“For the first six months, they put my head through the ringer; took reality and gave it a half-turn sideways. Some days, I felt like my brain was completely full,” she says. “But I never forgot though that laws apply to people – that the law poses philosophical and not just intellectual problems.”

Greenwood graduated, completed her articles and thereafter – and for the next two decades – went to work for Legal Aid, wanting only “to be useful”.

Greenwood appeared on behalf of countless people in the Sunshine Magistrates Court. She thinks she might still hold the record for the most clients at that court in a single day: 21.

Many of her clients were young and troubled men. “My job was to get them safely through that period,” she says. “That took everything I had: to represent my clients properly; to engage the Magistrate’s attention; to make the Magistrate really listen.”

She often went home exhausted. Some nights, she would run a bath and lie in the tub reflecting on her day. She would ask herself whether, on balance, she had made a difference. “Justice for all was never possible. A good day was justice for most.”

Or she would write. In her fiction, Greenwood was building herself a second and increasingly successful literary life. In 1989 she published Cocaine Blues, the first of 20 novels to date in the immensely successful Phryne Fisher series. In 2012, the novels were adapted for ABC television.

Greenwood says that she wrote to escape reality: to make whole and complete in fiction that which could not be made neat or final in her day-to-day work. As her writing took off, she reduced her days at Legal Aid from five to four, then three, then two, then one. In June 2010, she retired from Legal Aid and now writes full-time.

She misses the law. She misses the daily rough and tumble of a suburban Magistrates Court. She tells would-be writers that a link to the working world is a valuable thing; that it will keep them grounded. “It is not necessary for writers to write about their reality, but they must in some way remain connected to reality.”

Greenwood’s list of literary achievements and publications is long and lustrous. But on reflection, it is her work in the law of which she is most proud. “So many of my clients were young and vulnerable. They needed help, and I was there.”

It is a statement made without fuss or pretence – but a statement, nonetheless, that Greenwood delivers with deep and obvious feeling.

In his occasional column for CPD Interactive, Melbourne writer PAUL BATEMAN profiles just some of the many writers and artists who also have a law degree – including Spanish playwright and poet, Federico Garcia Lorca (1898-1936).

There is in every year of every law class the one student who could do anything: the passionate polymath with a flair for any intellectual pursuit; the intense individual with a restless mind and abundant energy; the person blessed with inspiration yet burdened, too, by some strange, abiding loneliness.

Such was Federico Garcia Lorca, the Spanish poet and playwright, born in June 1898 to middle-class parents in a small rural town in the south of Spain.

Lorca was 17 when he enrolled to study law, literature and philosophy at Spain’s Sacred Heart University. He read widely and often, and absorbed himself in theatre, music and art – almost any book or subject unrelated to his actual degree.

Half-way through law school, Lorca dropped out. Ten years later – without explanation and to the bemusement of his friends – he returned to complete the degree (though he never subsequently practiced law).

In the intervening years, Lorca wrote poetry, prose and plays. His first book of poems, published in 1921, explored themes of faith, isolation and nature, and stressed the importance of the natural world.

He published another book of poetry in 1928 that exalted the cultural heritage of the Spanish countryside. Romancero Gitano (translated as Gypsy Ballads) made Lorca famous across Spain and the Hispanic world – but fame brought him only anguish.

Success meant recognition and literary expectations which Lorca strongly resisted. He wrote of feeling trapped. The gulf between his public persona and private self was a source of intense anguish and despair, a situation exacerbated by his homosexuality.

Lorca’s contemporaries and lovers included the Spanish surrealist painter Salvador Dali and the sculptor Emilio Soriano Aladrén. As Lorca’s reputation increased, he became estranged from Dali. When Aladrén, too, rejected Lorca, the poet’s health and happiness collapsed.

In June 1929, assisted by friends and family, Lorca left Spain for the United States of America to live for nine months in New York and to study English at Columbia University. Later, he would remember his stay as “one of the most useful experiences” of his life – as a period that radically changed his vision of himself and of his art.

He wrote a collection of poems which was published posthumously in 1942 as Poeta en Nueva York (A poet in New York). The poems are dark, dramatic, complex and arresting: their imagery confronting; their form experimental, even graphic.

A poet – not Lorca, but some unnamed first-person subject – wanders among the vast, towering sweep of Manhattan, a desperate figure in a sleepless and spiritually bereft city. The poems condemn urban civilisation but, according to one critic, amount to more than that: they are a “dark cry of metaphysical loneliness…the vigil of modern man in quest of the cosmic meaning of so much suffering.”

Today, this extraordinary collection of poems is widely regarded as one of the most powerful and influential works of 20th-century verse. It is certainly Lorca’s best-known work outside of Spain, and the work that most swiftly did away with his reputation as a mere “gypsy poet”.

In 1930, Lorca returned to Spain. He was appointed director of a small theatre company and, while touring, wrote some of his (now) best-known plays, all of which rebelled against the norms of bourgeois Spanish society. He was living and writing with a clear sense of purpose and direction – with real self-confidence and a potent efficiency.

However, the Spain to which Lorca had returned was tearing itself apart in a conflict of radically opposed forces. In July 1936, when the Spanish Civil War began, Lorca knew that he would be suspect to the rising right wing for his outspoken liberal views.

“Great art,” he wrote, “depends upon a vivid awareness of death, connection with a nation’s soil, and an acknowledgment of the limitations of reason.”

A month later, Lorca was shot and killed by Nationalist militia, on a roadside in the Spanish countryside. His body has never been found.

In his occasional column for CPD Interactive, Melbourne writer PAUL BATEMAN profiles just some of the many writers and artists who also have a law degree – including Australian filmmaker and writer, Natasha Pincus.

Melbourne filmmaker and writer Natasha Pincus graduated from Monash University in 2002 with first class honours in Science and Law.

It was almost inevitable, says Pincus, that she would study science, philosophy, sociology or law – any subject, from any angle, on “how and why things work the way they do.”

Science she studied because it suited her “inquiring mind” (her expression); law, because it was recommended by someone who knew of her passion for words.

“Law argues over words,” says Pincus. “Their precise meanings.”

Nonetheless, first year law school was confronting. Pincus, who came to her studies with a strong academic record, scored only 12 out of 20 in her first class test.

“I was shocked. The language of law took me a while to absorb. I had to completely re-boot. It was so conceptually different,” she says. “It’s not that what we were doing was hard, but rather, I had to understand what it was that the examiners wanted from me.”

Pincus says the process of readjustment required concentrated effort and a new approach to thinking.

“It opened my brain,” she says. “I began to look at things critically – not as in negatively, but critically.”

She soon found her groove. By the end of her degree, Pincus was ranked in the top 10 students for academic achievement. She went on to teach in the law faculty for a further five years.

“At the time, I thought, if anything, that the court room might have been my future,” Pincus admits. “However, I was, by this stage, well-advanced in my passion for film and art.”

Pincus had always written and enjoyed performing. Her restless and creative mind was always searching for a form with which to give expression to her thoughts and experience.

She once described herself as a “self-confessed workaholic, driven by a relentless urge to collaborate in the creation of films that communicate universal human stories, whatever the format.”

In 2005, Pincus wrote and produced the short film Emma and the Barista which screened internationally, won awards and attracted serious attention. Another short work in 2006, Love’s Labour, had a similar impact and brought her further acclaim.


In 2007, Pincus began directing music videos and has since built a significant body of work featuring some of the best known names in Australian music – among them, Paul Kelly, Powderfinger and Missy Higgins.

But for global impact, it’s hard to surpass her video for the worldwide smash hit Somebody that I used to know by Melbourne-born musician Gotye.

The video, which has attracted over 500 million hits on YouTube (see above), won Pincus an ARIA Award in 2011 for Best Music Video, as well as comparable awards overseas.

Pincus says that when she first heard Gotye’s song, she knew it was something special. It’s fair to say that her video elevates a special song to even greater heights.

Today, Pincus is in pre-production on a new film; trying to sell a film; set to direct a film; and ready to celebrate the screening of a film she wrote. She’s working on a project with Melbourne’s Red Stitch Theatre Company and chipping away on a book of her own.

In seeking to prepare this profile, it took several emails and a few phone calls to Pincus to find a time in which an interview might take place. In the end, we spoke by phone as Pincus drove between appointments. She sounded busy – but was generous with her answers, enthusiastic and encouraging.

Pincus says her leap of faith from law to art was never predicated on any one decision or moment. “I just kept going,” she says plainly. “But some days are better than others…”

Looking back on her years at university, Pincus expresses gratitude for the time it gave her to really discover who she is and what it is she wants.

“I gave myself permission to explore things slowly and to derive the subsequent philosophical benefits,” she says. “And that’s what I’d tell a student now: don’t rush your studies; take your time.”

Pincus took the time to find her way. Having found it, she’s running hard.

Learn more about Pincus and her work at:

How would you like your GP to customise your treatment and medication according to your genome, activity level and state of health? According to one US commentator, this will be a reality in the not-too-distant future – courtesy of Big Data. This is how Big Data is quietly transforming our lives.

So what is Big Data? It’s a catch-phrase used to describe a volume of data so large and complex that it’s difficult to process using traditional database and software techniques.

Big Data is now omnipresent globally: by one estimate, more than 98 percent of the world’s information is now stored digitally, and that volume of data has quadrupled since 2007. The data explosion is so great that more data now crosses the internet every second than was stored in the entire internet 20 years ago.

In Australia, supermarket behemoths Coles and Woolworths collect a wealth of information about their customers, pulling information from their FlyBuys and Everyday Rewards loyalty programs, their online stores, and partnerships with other businesses such as Medibank and Qantas. Shoppers regularly receive personalised ads and deals based on what they put in their trolleys – virtual or real – each week. That email telling you that your favourite brand of ice-cream is now on special at Coles or Woolies? That’s Big Data at work. But using data analytics for targeted advertising is just the beginning.

US software company Esri has created an online tool which lets anyone enter a United States postcode to find out “what your zip code says about you.” The ZIP Code Lookup tool doesn’t just supply demographics. It also provides detailed lifestyle information such as household type, income, employment, and even vehicle preferences and leisure activities.

Closer to home, a recent segment on ABC’s 7.30 Report explored how supermarkets’ customer data could be utilised in the finance sector: Woolworths took their insurer’s car crash database and overlaid it with their loyalty program’s database. By tracking customers’ purchases, they were able to identify low insurance risks (actuaries have apparently determined that people who drink lots of milk and eat lots of red meat are very good car insurance risks), and then tailor insurance offers to target low risk drivers and avoid high risk ones.

Even the legal industry is tapping into Big Data. Australian law firms have traditionally been slower than UK and US firms to adopt new technologies. But it’s been reported that an increasing number of law firms are hiring experts in the field of data analytics. Skilled in mining large data stores and translating them into useful business information, these experts can provide information ranging from client profitability to the likelihood of winning particular cases.

But for all its potential applications, Big Data raises numerous areas of concern. The recent Sony hacking scandal – where more than 47,000 workers’ private information, including celebrity salaries and their home addresses, was leaked – has led organisations to question whether their data is safe. As for individuals, it’s unclear how secure our digital footprints are. And Big Data algorithms clearly have the potential to impact our privacy. As Big Data continues to get bigger, these issues will require closer attention.

Deven Perekh, the managing director of a US venture capital firm, has tipped the education and health care sectors as the ones to watch this year, with data analytics being used to personalise educational material for students and individualise health care.

Perekh predicts that in 2015, we might start to see the true potential – and real risks – of how Big Data can transform the economy and our lives. If he’s right, we’re in for an interesting – and perhaps turbulent – year ahead.

To find out more about Big Data, including Australian legal issues relating to Big Data and details of the relevant legislation, see Big Data – what lawyers need to know

Many moviegoers didn’t realise it. But last year’s box office hit, The LEGO Movie, is widely recognised as a stunning piece of content marketing. The film’s popularity – it earned US$468 million worldwide – contributed to a 15% increase in global LEGO sales in the first half of 2014, and to a shortage of LEGO products in Canada by September.

But what is content marketing and how is it relevant to lawyers?

Content marketing is the latest development in business marketing, in a bid for companies – including law firms – to differentiate themselves, attract and retain customers, and build a profitable brand. A common theme in content marketing is that brands will create useful or entertaining content targeted at consumers, with an end-goal of having consumers buy the company’s products or services.

Content can be delivered via many different media: hard or soft copy publications (magazines, newspapers, websites), podcasts, live performances – and even films. In the legal industry – described as one where “the written word is sacred” – the focus of content marketing is primarily on written material, especially websites, articles, blogs and newsletters.

But churning out lengthy casenotes and summaries of new legislation is not successful content marketing. Rather, content experts are urging lawyers to engage in a process called ‘news jacking’, which involves:

taking recent developments in your practice area, like an important court decision or issuance of a new regulation, and providing your own opinions … News jacking ensures your content isn’t simply a regurgitation of existing media outlets, but a new perspective in the discussion.[2]

So the challenge for law firms today is to provide unique, client-focused commentary which distinguishes their legal services from others. It’s about quality thought leadership, not quantity of information.

Ultimately, the aim of content marketing for law firms is the same as for LEGO: to advance business. For LEGO, it’s by selling children’s toys. For law firms, it’s by persuading existing and potential clients to choose their firm when seeking legal advice.

But content marketing doesn’t have to be all about a business or its expertise. Instead, it’s about connecting with an audience. So law firms are free to produce content which may not immediately impact their bottom line, but which strengthens the lawyer-client relationship (and might spark new relationships). For example, a law firm may choose to post a blog about an area of general interest to clients – say, a comment on the future of the billable hour – even though that post won’t directly lead to new work.

Law firms would also be wise to consider non-written forms of content marketing, such as podcasts. The Australian Government Solicitor is leading the way, providing subscription-only access to podcasts for Australian government agencies. Topics include ‘How to Identify and Manage Conflicts of Interest’ and ‘Working as a Graduate at AGS – What You Can Expect.’

Firms can also use webinars to promote their business. For example, in 2013, The Law Council of Australia offered a free webinar about the continuing repercussions of the Global Financial Crisis on the legal profession.

But content marketing is still in its infancy in the Australian legal industry. Yet it’s undoubtedly the way of the future. And for lawyers who aren’t keen on the long lunch as a way of winning clients, content marketing allows a more subtle way of building relationships, and showcasing knowledge and expertise. Done well, the audience mightn’t even recognise that it’s actually a marketing exercise. Just like The LEGO Movie.

Writing skills are the foundation of high quality content marketing material for law firms. To improve your writing skills, particularly for the purpose of preparing client publications (such as articles, blog posts and newsletters), see CPD’s new module: ‘How to Make Your Writing Engaging and Easy-to-Read in a World Overflowing with Content.



CPD Interactive were pleased to sponsor the keynote speaker Jordan Furlong at this year’s CLEAA (Continuing Legal Education Association of Australia) conference at Brisbane’s College of Law.

Jordan is an Ottawa based lawyer, consultant and legal industry analyst and is an industry expert on the impact of the future of the changing legal marketplace. He is a partner with global consulting firm Edge International and has been named one of the ’25 most influential lawyers’ by Canadian Lawyer Magazine.

Jordan’s keynote address identified major changes in legal practice and the impact of those changes on CLE. Whilst Jordan’s experience is in the international marketplace, the issues identified resonate for Australian law firms and CLE providers.

3 key areas were identified:-

  1. The New Legal Marketplace;
  2. Key legal trends and their impact on CLE;
  3. The future of CLE which Jordan called “Transformation”.

For organisations dealing with corporate clients, those clients have had “slashed budgets” and internal pressures and in turn need lower or predictable prices and risk management. Individual clients are looking for more information but with fewer ‘lawyer’ options.

The immediate impact on law firms is that there is less revenue but more competition for clients. Jordan spoke of a “revolution” in the market and predicted the deeply entrenched conservatism and change resistant culture of law firms will create “casualties”.

So what are the key legal trends and the impact of these on CLE and CLE providers?

  1. Firstly with the prevalence of online legal knowledge the opportunity exists for CLE to be redirected toward business skill and practice development – an area he identifies as being neglected by CLE providers.
  2. With the dramatic increase of “non-lawyers” servicing clients there are fewer lawyers in the CLE market place. The opportunity exists to extend CLE to these service providers.
  3. With reductions to in house CLE budgets there are increased pressures on newly inducted lawyers to gain their “sea legs” quickly. There is a new role for a training “bridge” between school and practice. In particular Jordan highlights the potential roles for law schools to service this need jointly with CLE providers.
  4. With the developments in online learning, Jordan highlights the opportunities for firms to deliver cheap and flexible CLE online whilst concentrating CLE budgets to premium live CLE content.

Finally, Jordan addressed his theme of “transformation” for the future of the CLE marketplace and challenged the CLE industry to turn the current model around.

He identified a new model of CLE delivery:-

  • Reverse the current model by having speakers pay rather than attendees;
  • Tap into the expertise of the attendees – why not get them talking at CLE events by having facilitated discussion sessions;
  • Capturing and recording those events so these sessions become an ongoing CLE resource;
  • Integrating with law schools to bridge the gap between learning and practice.

It seems it is time to re-evaluate and reimagine CLE in a changing legal world and to greet the new challenges as opportunities for growth and change.

The Personal Property Securities Act 2009 (Cth) (PPSA) created a new comprehensive national regime for personal property securities in Australia.  The definition of security interest under the PPSA covers “traditional” security interests such as fixed and floating charges over the assets of companies (now known as general security interests) to interests which were not considered security interests in the pre-PPSA era.  An example here would be retention of title arrangements.

Under the PPSA, transitional security interests (TSIs) are those created under a security agreement which was entered into before 30 January 2012.  TSIs enjoy a two-year honeymoon period where they are “temporarily perfected”, which means that a TSI maintains its pre-PPSA priority as against post-PPSA perfected security interests.  30 January 2014 marks the end of this honeymoon period, and secured parties who have TSIs should consider registering them on the Personal Property Securities Register (PPSR) before 30 January 2014 so as to preserve the priority of the TSI.  A number of fees apply to using the PPSR, but registration of a TSI on does not attract any fee.  The Registrar gave examples of transactions which may have created TSIs.  They include leasing and hiring arrangements, retention of title supplies, and certain commercial consignment arrangements.

If you are a secured party with a TSI or your client falls under this description, now is the time to review the security interest in question and to take any necessary action to protect and preserve its priority.

We all know that the Privacy Act is the law which regulates the handing of personal information about individuals.  But do you know that the most significant development in privacy law reform since the Privacy Act was first introduced in 1988 is about to commence?

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 is a part of the privacy law reform process that began in 2004.  It introduces many significant changes to the Privacy Act which will commence shortly on 12 March 2014.  The Australian Privacy Principles (often abbreviated to the “APPs”) takes centre-stage in the reform, and they replace the National Privacy Principles and Information Privacy Principles.  Many of the APPs are different from the existing principles, including the APPs relating to use of personal information for direct marketing and cross-border disclosure of personal information.

A new mandatory Credit Reporting Code of Conduct will also take effect on 12 March.  The Code operates alongside the Privacy Act, and it regulates the exchange of information between “credit providers” and “credit reporting bodies”.  “Credit providers” and “credit reporting bodies” both have special meaning as defined by the Privacy Act.

The first step to Privacy Act compliance is to understand the APPs.  The Office of the Australian Information Commissioner (OAIC) has issued APP guidelines, and both the APPs and the APP guidelines are available on the OAIC’s website.  Sound APP knowledge is essential to lawyers regardless of which area they practice in.  This is because not only they are often required to advice clients on privacy matters, but often they themselves will also need to comply with privacy legislation.

If you want to learn more take CPD Interactive’s latest online course Australian privacy principles essentials 2014.

Mandatory data breach notification may soon become a reality

First of all, some definitions. Personal information is, in essence, information that identifies a person or could reasonably identify a person; data breach means unauthorised access to, or disclosure of, personal information; and serious data breach means a data breach where there is a real risk of serious harm (including reputational, economic and financial harm) to the affected individual.

We will all agree that a data breach, especially if it is serious, can severely adversely impact on the individual’s whose personal information has been compromised. For example, the affected individual can be exposed to the risk of fraud and identity theft. Prompt notifications will allow individuals to take action to protect themselves.

Data breach notification has been in the spot light for some years now. Those of us who have been following Australia’s privacy reforms will recall that in its 2008 privacy report, the Australian Law Reform Commission (ALRC) noted that there was an increasing risk that the huge volume of personal information collected by government agencies and large corporations could become subject to data breaches. At the time, the ALRC already recommended mandatory data breach reporting.

Late last week, we saw the Privacy Amendment (Privacy Alerts) Bill 2014 being re-introduced into the Federal Parliament (on 20 March 2014). The Second Reading Speech pointed out that the re-introduction of this Bill is the next key step in the major reform of Australia’s privacy laws. The Bill provides that when a government agency or an organisation has suffered a serious data breach, it must notify the affected individuals and the Office of the Australian Information Commissioner (OAIC).

Currently, there is no requirement for agencies and organisations to notify affected individuals or the OAIC when they have suffered a data breach. The OAIC has voluntary guidelines encouraging notification, but is concerned that many data breaches remained unreported. It is intended that the Bill, when it becomes law, will see the long overdue measure recommended by the ALRC go live, stop the gap in Australia’s privacy laws and position Australia as a global leader in privacy protection.

If you want to learn more take CPD Interactive’s latest online course Australian privacy principles essentials 2014.

What is a motor vehicle?
The PPS Act definition has just changed – do you understand its impact?

The Personal Property Securities Amendment (Motor Vehicles) Regulation 2014 (Cth) was registered on 1 April 2014.  It will commence on 1 July 2014.  The new Regulation narrows the definition of motor vehicle for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).

The new Regulation has a grand total of only 4 pages, which includes the cover page and the contents page.  The operative provisions consist of merely a few lines on the last page, which repeals paragraph 1.7(2)(b) of the current Regulation and substitutes the existing wording with this wording “(b) is capable of a speed of at least 10 km/h; and (ba) has one or more motors that have a total power greater than 200W” (emphasis added).

So what does this mean?  The current definition of motor vehicle provides that a motor vehicle is personal property built to be propelled wholly on land, by a motor that forms part of the property, and that either is capable of a speed of at least 10km/h, or has one or more motors that have a total power greater than 200W.  The amended definition will provide that personal property must have both of these characteristics to qualify as a motor vehicle.

And what impact will this have?  The Explanatory Statement (ES) to the new Regulation explains the impact in one succinct statement – “The narrowing of the definition reduces the number of goods that will be motor vehicles, which in turn will reduce the number of security interests which may require the making of separate registrations against the serial number of the goods involved rather than only a registration against the party granting the security interest.”

The ES also explains that the objective here is to “reduce the costs of complying with the PPS Act for small and medium equipment hire businesses whilst still maintaining the utility of the Register as a record of interests in personal property for third parties”.

Both the Regulation and the ES can be accessed here.

It is fair to say this is probably the first of a series of changes about to take place.  The PPS Act is now over 2 years old.  Last week, on 4 April 2014, the Commonwealth Attorney-General, Senator the Hon George Brandis QC, said it is timely to review the PPS Act’s effect to ensure it is meeting its objective of providing greater certainty to lenders and helping business, especially small business, to access finance.  The Government is undertaking a review into the PPS Act, and an interim report is due on 31 July 2014.  The interim report will focus on issues raised in relation to small businesses.  The final report is due on 30 January 2015.  Time will tell whether and how the review and the recommendations that follow will change Australia’s personal property securities regime.

On 31 July 2014, ASIC released Report 402 that outlines enforcement outcomes it has achieved during the period 1 January 2014 to 30 June 2014.  As Australia’s corporate, markets and financial services regulator, ASIC has the role of identifying and dealing with those who break the law.  ASIC does this through their detect-understand-respond approach:

  • Detect misconduct or the risk of misconduct by gathering intelligence
  • Understand by analysing the intelligence
  • Respond to misconduct or the risk of misconduct using regulatory tools such as enforcement action

In the first half of the 2014 calendar year, ASIC reported that it has achieved 256 enforcement outcomes, with 83 enforcement outcomes in the “market integrity”, “corporate governance” and “financial services” areas, and 173 in the “small business compliance and deterrence” area.  In particular, ASIC has focused on the activities of credit providers.  This is because ASIC considers that the consumer credit industry has now had sufficient time to familiarise itself with its obligations under the National Consumer Credit Protection Act 2009 (Cth).  As such, if ASIC becomes aware of breaches of the law, it is now more likely to take enforcement action to address its concerns.  During the 6-month period covered by the report, ASIC has achieved a significant number of outcomes relating to consumer credit, including two criminal convictions, five infringement notices paid (totalling $71,400), six individuals permanently banned from engaging in credit activities, four individuals banned from, or giving an undertaking to refrain from, providing credit for between three and seven years, and seven Australian Credit Licences cancelled.

While ASIC will continue to take enforcement action in any area that it administers, ASIC has identified a number of enforcement areas it will be focusing on.  These are:

  • Treatment of confidential information
  • Auditor and liquidator standards
  • Advertising of financial products
  • Benchmarks (relating to, for example, LIBOR and BBSW)

You can access ASIC’s full report (Report 402) via ASIC’s website.

What is passing off?  Revlon’s Mitchum Clinical deodorant v Unilever’s Rexona and Dove deodorants

To put simply, passing off is where there is a misrepresentation that a business’ goods or services are those of another business.  Under an action for passing off, protection is given to those who have developed goodwill or reputation.  For a claim of passing off to be successful, the claimant has to prove that a misrepresentation has been made by another in the course of trade to actual or prospective customer that injures and causes damage the claimant’s business, goodwill or reputation.  The misrepresentation can be one that relates to the likeness of a product or the trade name of a service provider.

On 19 August 2014, Gleeson J of the Federal Court of Australia (FCA) handed down the latest judgement in this area of law – Unilever Australia Ltd v Revlon Australia Pty Ltd (No 2) [2014] FCA 875.  You can read the full judgment on the FCA’s website.

The parties involved, being Unilever and Revlon, are competitors in the supply of deodorant products.  Unilever’s deodorants are branded Rexona and Dove, where as Revlon’s deodorant is branded Mitchum Clinical.  The initial action was by Unilever, who claimed that Revlon breached the Australian Consumer Law in terms of the representations Revlon made in advertising and on the packaging of Revlon’s deodorant.  In response to Unilever’s claim, Revlon counter-claimed that Unilever breached the Australian Consumer Law in the same way, and in addition, engaged in passing off.  Revlon wanted to obtain an injunction so as to restrain Unilever from selling or marketing Rexona clinical protection products in Revlon’s new packaging.

In his judgement, Gleeson J explained why Revlon was unsuccessful in restraining Unilever in the use of the particular packaging.  In essence, it was determined that it would be unlikely that a reasonable consumer would confuse the packaging of the two competing brands.  It other words, Revlon failed to demonstrate that Revlon’s packaging had become so distinctive that in the minds of the potential customer that Revlon had acquired trade reputation associated with it.

This is an interesting case to read, with important lessons to be learnt.  In matters relating to consumer protection, for lawyers acting for SMEs and large corporations alike, it is worth remembering that, in addition to proving deception or that confusion has been caused, actual proof of damage is required to succeed in an action for passing off.

What is Ripple? Have you heard of Ethereum? What about Auroracoin?

The answer – these are cryptocurrencies.

The Oxford Dictionary defines “cryptocurrency” as “a digital currency in which encryption techniques are used to regulate the generation of units of currency and verify the transfer of funds, operating independently of a central bank”. Perhaps the most famous cryptocurrency is the first cryptocurrency – created only 5 years ago – Bitcoin.

There are many definitions of Bitcoin, but basically, Bitcoin is a payment system. Other cryptocurrencies that have the same characteristics as Bitcoin are payment systems as well. On 20 August 2014, the Australian Taxation Office (ATO) released guidance on the tax treatment of cryptocurrencies in Australia, specifically regarding Bitcoin. You can read the ATO’s guidance here.

According to the ATO, transacting with Bitcoin is akin to a barter arrangement, with similar tax consequences. The ATO specified that its view is that Bitcoin is neither money nor a foreign currency, and the supply of Bitcoin is not a financial supply for GST purposes, but Bitcoin is treated as an asset for capital gains tax purposes.

In the 21st century, we can use Bitcoin (or Ripple, Ethereum, Auroracoin plus many more other cryptocurrencies) to pay for personal or business transactions. Do you know Bitcoin can even be used to paying salary or wages? What you also may not know is that the ATO has a number of other resources relevant to the tax treatment of cryptocurrencies in Australia. These include Taxation Ruling No. IT 2668 on barter transactions, and Draft GST Determination GSTR 2014/D3 on the GST implications of transactions involving Bitcoin. You can access these resources here.

Cryptocurrencies are gaining traction not only globally but also locally, with an estimate of 50,000 users in Australia, as reported by the ABC on 22 August 2014. You can read the report here. This interesting piece of news item also reported that, while ATMs that accept and exchange Bitcoin already exist, a first-of-its-kind-in-Australia ATM has just opened in Canberra. This new ATM trades three major cryptocurrencies – Bitcoin, Dogecoin and Litecoin.

It is indeed time for all of us to learn more about cryptocurrencies.

We’ve recently released two new CPD courses focusing on the McCabe case. The author of both courses is Camille Cameron, Dean of Law, University of Windsor (read more about the author here).

Procedural issues raised in the McCabe case – Part 1

This course looks at the advantages and disadvantages of using email in negotiation.  It recognises the increased use of email in negotiations and questions how effective email really is in the negotiation process. It provides an interesting opportunity to reflect on how you are currently using email and what are the traps you need to avoid.

The course is designed to:

  • establish some of the limitations when using email in any negotiation and what are the risks involved
  • what are the benefits and when can email be an effective tool for a negotiation
  • provide a checklist of things to remember when using email in business.

To buy this course or read more, click here.

Ethical issues raised in the McCabe case – Part 2

This course focuses on the ethical issues raised in the McCabe case.
It explores:
  • the tobacco litigation culture
  • the relationship between the corporate lawyers and their clients
  • the paramount duty to the court
  • the professional and ethical significance of the interdependence of corporate lawyers and their clients.

To buy this course or read more, click here.

Helping you bridge the gap between studying law and practicing law

CPD Interactive is thrilled to introduce a new video blog series aimed at law students and lawyers who have recently graduated.

When you really have to be a lawyer, you will find the real world is very different to law school.  Through this video blog series, we aim to help you make the transition to work more smoothly.

Each video in series will offer tips to help you bridge the skills gap between studying law and practicing law.  The focus of the blog series will be on legal research, but that’s not all it will offer.

In this short video, Natalie introduces you to the concept of ‘how to really be a lawyer’.  Keep a look out for the next video in the series.

As part of the ‘How to really be a lawyer’ video blog series, Natalie gives a brief summary of the legal publishers and how they have changed their names over time.

Why is this important? The legal publishers have evolved and lawyers may refer to them differently.

In this video Natalie reviews the current legal publishing companies and gives you a history of what they have been called in the past. So, if you are given instructions to find an article using a particular publisher you may not be familiar with, you may find they are the same company under a different name.

In this latest video blog Natalie gives a brief overview of some of the differences between databases on the market and in particular the case citators including CaseBaseFirstPointLawCite and Jade Barnet.

A case citator provides a summary of the case, and importantly tells us what has happened since the case. Specifically, have the courts continued to follow the principal of law from a specific case?

You need to be aware that each product has its positive points and limitations. For example, the scope of the service – particularly in relation to timeframe, and to the editor’s selection of cases listed. Natalie discusses when you may use one resource over another, and gives some examples.

Find Australian cases using Jade, Jade is a case database published by the NSW Bar Association. It’s free and it does some really amazing things. You’ll find it here –

Up until about 1957, the Bar Association have scanned the Commonwealth Law Reports for the High Court cases. So if you need to cite earlier decisions, you have the official page numbers. If you click the Jade Browser, you’ll see that there’s quite a lot of jurisdictions available.

Another nice feature is the citator (ie what’s happened subsequently). One of the problems with our common law system is that we might know that 27 cases have considered our case, but it’s about knowing exactly which part of the case they’ve considered.

Watch the video and keep the tips handy by downloading – Tip Sheet 3 – Finding cases using Jade.

Keep these steps handy by downloading – Tip Sheet 2 – How to find obscure legal cases in Australia.

This video shows you how to find Supreme Court cases you can’t find elsewhere. These are often old, unreported decisions that haven’t been made widely available. There will often be no other place you’ll find these cases, unless you go to the Supreme Court yourself.

We’re using the Supreme Court Library catalogue available at

Natalie shares some more inspiring tips and trends for professional development for Lawyers. Natalie originally put this video together for the CLEAA (Continuing Legal Education Association of Australia) conference.

Tip Summary

Consider How We ‘Package’ Training

We need to consider how we package our message: how to deliver our training and sell it so people want to come along. For example, Josh Bell, a famous violinist busked in a subway station. In 45 minutes only a few people stopped and he made a total of $32. Only 2 days prior he sold out a theatre in Boston where the seat price averaged $100.

It’s about how we package our offering, even when the quality doesn’t change. For us that means we consider what we call our courses, how we present them, and how we match them to the job. For example, our Acceptable Use Agreements course should really be called Do you know how your staff are using the internet? because that’s essentially what it’s about.

Training Should Change Behaviour

You cannot teach if you don’t understand how we learn. Knowledge is only a small part of the equation. It’s really about application, retention and changing behaviour.

I liked the concept of the “Forgetting Curve”. An hour after we learn, we’ve forgotten 30%. Within 24 hrs, we’ve lost 70% of the information. Within 7 days we’ve only retained 10%. So it’s really about boosting learning after the session. You can’t just go to a session, you have to keep following up. One powerful way is by testing. By doing quizzes after the session, you’re making your brain think that there’s a lot of things I’ve learnt today, but the component in the quiz is really important.

After attending DevLearn (one of the largest eLearning conferences in the world) in Las Vegas, Natalie shares some inspiring tips and trends for improving learning in the context of professional development for Lawyers. Natalie originally put this video together for the CLEAA (Continuing Legal Education Association of Australia) conference. Find out more about eLearning: What’s hot for 2014 (part 1).

Tip Summary

How Do You Make Training Stick?

Training is not just about knowledge but about changing behaviour. How do you make it stick? One suggested method of following up is:

Two days after the session – Send participants via email or voice mail, two fact-based questions (ie two questions that have an answer). Even though you’re only picking out a tiny amount of the course content, it does something to your brain that makes you remember the entire experience.

Two weeks after the session – Send a more exploratory question; an open-ended question that talks about their feeling towards it, or what they gained from it.

Two months later – Contact them about how they applied it.

Immersive Learning

Immersive Learning is about creating a place to practice (eg role plays, board games, scenarios). Where do you want your lawyers to practice? In an immersive, simulated world, or with clients? This is a really good concept. You have to create places where participants can practice. It could be a virtual world, a game, or a role play in your own organisation. The important component is not to keep testing, let people practice and then do the testing in a different space.

A true learning environment is where one fails. If someone can go through a whole learning experience and pass every hurdle, it wasn’t complicated enough. It hasn’t pushed them and they haven’t learnt anything new.

Before building an immersive learning world, you have to really understand the world that the people work in.

We need to analyse:

  • Why is the organisation wanting the training in the first place?
  • Can it be measured?
  • What does it look like when things go right (ie where are you trying to take them?).
  • Where are the places it can break down?
  • Why aren’t people doing it now?

A lot of times educators say, “But we’ve shown them so many times, and they’re not doing it.”. So that goes back to reinforcing it afterwards.


All training must have feedback. People have to know how they’ve gone, whether it’s online, or in a live situation. So it’s important to work really hard on the feedback and make sure you motivate and reinforce what behaviours you want from them and really ignore the other behaviours. We don’t need to hear we were wrong, but we need to hear “Well done” when we got it right.

Watch a short video from Natalie about how to find Commonwealth Legislation.

You need to use the official version of legislation – at a Commonwealth level, this is produce by CommLaw.

Watch out for more hints and tips from Natalie about legal research and whatever else takes her fancy.

Face to face learning continues to be the primary method of professional development in the legal sector but what is the future for the delivery of online learning?

Changes in employee demographics, costs pressures and changes in technology create both challenges and opportunities for new ways of delivering learning and development to lawyers.

All industries and professions are facing an aging workforce and a diminishing pool of employees.   The proportion of the working population aged over 55 exceeds that of those under 25.   As these workers reach retirement the challenge of retaining young talented employees will be paramount for employers including law firms.

In a detailed study conducted by KPMG in the Funds Management sector, “Gen Y” comprised 20% of employees of those organisations.  They seek much greater work/life balance and workplace flexibility than their predecessors, more inclined to “job” hop and less concerned about future financial stability.

In a climate where talent retention should be a serious focus, are the learning needs of these employees being met? Gen Y is used to a multitude of media sources and devices and they want, and expect mobility.   Learning needs to be delivered in a variety of new mediums and these are very often a more cost effective option for organisations than the old model of 100% face to face learning.