Johnson Diversity Series – Lyma Nguyen

Lyma Nguyen was the overall winner and professions sector winner of the 2020 40 Under 40: Most Influential Asian-Australian Awards.

Born without a domicile, Australia has become the only home Lyma Nguyen has ever known, though here actions deem her a citizen of the world given her international legal service to marginalised victims of oppressed regimes. As the daughter of Vietnamese boat people, she was born during her parent’s detainment in an Indonesian refugee camp, arriving in Australia in 1983 after her family were granted asylum. Raised in Darra, Brisbane – a working class fringe suburb whose hardships and grit were made viscerally apparent in Trent Dalton’s Boy Swallow’s Universe – she has swiftly climbed the ranks of the legal profession. Practicing as a barrister both internationally and domestically in the areas of criminal law, administrative and public law, inquiries and human rights, she has scorched the bamboo ceiling that once loomed above her with an unwavering idealistic torch.

In late October 2020, she was awarded the overall winner of the 2020 40 Under 40: Most Influential Asian-Australian Awards, which addresses the under-representation of young Asian-Australians (under 40 years-old) in senior leadership positions by recognising their achievements in a variety of fields. The accolade highlights her contribution to the Australian legal profession whilst driving the country’s engagement with Asia. Johnson Partners (JP) interviewed Lyma to discover what complexities she has faced and what highlights have shaped her career and influence her future goals.

JP: You completed an Arts degree before commencing legal studies at the University of Queensland, followed by a Masters of Law (specialising in International Law) at the Australian National University. Did you always intend to pursue a legal career?

My journey was not at all mapped out. When I started my Bachelor of Arts degree (2000), I completely overlooked the requirement to select a major specialisation and, instead, simply selected subjects that interested me (psychology, philosophy, history and religion). At university, I was heavily involved with humanitarian clubs and became President of the Amnesty International UQ Chapter, which played a critical role in my choice to study law.

My first permanent job in law was at the federal Attorney-General’s Department. Every legal officer wants a transfer to “OIL” (Office of International Law)! So, if one was serious about a career in international justice it was imperative to study a masters degree. I ended up doing this whilst working full-time at the Commonwealth Director of Public Prosecutions.

JP: During you schooling and university days did role models or mentors guide/influence your academic journey, or was it more a case of significant events (both public and private) that shaped your course?

Lyma Nguyen: Growing up, I developed a very strong sense of what freedom meant because I didn’t have much of it. With this came a deep corresponding sense of justice. My parents were typical hard-working refugees who enforced the value of education onto their children whilst carrying with them the traumas of the war-time experiences they had endured, and from which they fled. Those traumas manifested in harmful ways in our domestic home life, and in my teenage years I dreamt of freedom in the sense of leaving home as soon as I could. I became completely independent after finishing high school at age 17.

In making the decision to study law, I sought advice from Professor Sarah Derrington (now Justice Derrington), who put me in touch with General Cosgrove, who had been deployed in post-conflict Timor L’este. He told me, “If you want to be fluffy, do philosophy – if you want to make a real difference, study law.” I commenced my Bachelor of Laws studies.

I chose work and life opportunities which enabled me to explore myself and my own boundaries, including the ever-present question about what it means to be human.  Ultimately, this led me to work in areas which touch upon the extraordinary human conditions and experiences of others through my representation of victims of atrocity crimes, ensuring fair trial rights for persons accused of serious offences, giving voice to asylum seekers – all within and without legal frameworks, domestic and international.

JP: In your early career you worked as a Federal Prosecutor at the Commonwealth Director of Public Prosecutions (CDPP) with victims of crime and offences of human exploitation while also focusing on transnational and white-collar crimes including corporation’s fraud and fraud against the Commonwealth. You also worked in the Federal Department’s Civil Justice Division (Human Rights Branch) providing legal and policy advice on domestic human rights and anti-discrimination matters and served the Department of Immigration and Citizenship and the Office of the Queensland Director of Public Prosecutions. Presently, you work independently as a barrister in Darwin. What types of cases do you focus on within the NT and what prompted this transition from public service?

LN: The move from the public service to the private bar can only be described as a ‘leap of faith.’ In the public service you have the safeguards of a regular income, superannuation, annual leave, and a hierarchical structure within which others are ultimately responsible for decisions. In private practice, the buck stops with you.

My practice at the bar is mixed, comprising mainly criminal cases at all court levels, but it also includes youth justice, mental health, human rights, administrative law, disciplinary committees and tribunal matters. I maintain a pro bono practice in worthy cases, including, more recently, in Supreme Court proceedings concerning the release of the body of an Indigenous youth following a coronial inquest into his murder.

JP: Have you personally encountered racial discrimination within your profession in Australia, and if so, how have you dealt with it?

 LN: It is difficult to discern whether discrimination is based on age (perceived youth and perceived inexperience); being a woman in a traditionally male dominated profession; or having Asian heritage and appearance. I have found that these features – probably in combination – do sometimes result in being treated less favourably than another.

In 2018, in the same week that I was qualified by the International Criminal Court as counsel in that jurisdiction, I had a domestic jury trial where an old male judge berated and bullied me like I have never before experienced. There is no Judicial Commission in the NT to which complaints could be made about the conduct of that judge, and as a result, nothing of substance was done about it.

Judicial bullying has become an issue very close to my heart. There is a significant power imbalance in the courtroom and judges must realise the devastating impact their words and conduct may have on those appearing before them. I have presented on judicial bullying which created a forum to learn from peers how to better deal with a judge who – for whatever reason – just doesn’t like you and has no qualms to use the power dynamics to humiliate and berate. It is a wonder how almost everyone – old or young, female or male – has experienced some form of judicial bullying before once the forum is open to discuss it.

JP: Earlier this year an independent inquiry found the former high court judge, Dyson Heydon, had sexually harassed six associates from 2003 to 2013. Given this was by no means an isolated case in the legal profession, what measures do you think should be implemented to protect young female associates in particular and give them the confidence to expose workplace predators without fearing (ironically) any negative impact upon their career?

It is important that institutional measures are in place for reporting this type of harassment – otherwise the onus is on a victim who is – by virtue of their position and status – subjected to a significant power imbalance against the alleged perpetrator, who is their boss, and a judge. An anonymous complaint mechanism would encourage victims of harassment to expose unacceptable conduct without jeopardising their own careers. It is critical that the reporting structures allow an independent and impartial investigation into the matter. If there is a Judicial Commission in the jurisdiction in which the offending judge operates, then the complaint process should involve a complaint being made to that Commission on the victim’s behalf, by an entity other than the victim, so there is a buffer between the victim and the perpetrator.

JP: Since 2008, you have provided over ten years of pro bono legal services to hundreds of victims of the Khmer Rouge regime, including foreign nationals and members of the Cambodian diaspora from Australia, New Zealand and the United States, plus ethnic Vietnamese minority victims who were the subject of genocide atrocities. What drove your passion initially and how did you garner the confidence of those whose rights you advocated during the Khmer Rouge Tribunal given your young age and limited legal experience in this field?

LN: I started working with ethnic Vietnamese minority genocide victims in Cambodia when I was 26.  When I started representing clients before the Khmer Rouge Tribunal, I was 27 but I looked 17!  Initially I worked with colleagues from Singapore who formed the entity ‘Access to Justice Asia LLP.’ In 2009, for ethical and strategic reasons, we bifurcated representation of the ethnic Vietnamese and the Khmer Krom minority victim groups and I was left on my own. I found myself amongst silks from London who had authored legal texts on international criminal procedure, plus French and German lawyers with years of experience. Having only been admitted as a lawyer a few years earlier, I felt out of my depth in representing a class action in such an extraordinary international case.

As it turned out, I was the type of lawyer that my clients needed. They were an ethnic minority group living in floating villages in Cambodia. In a country where almost every judge and lawyer had been executed because they were part of the intelligentsia, my clients needed someone who could literally speak their language, someone independent from the government who they could trust to act in their best interests in what was a very politically charged case; someone who could provide pro bono representation, someone who took the time to travel to their villages, gather their stories and take those stories to the tribunal. I became their international counsel.

My confidence increased as I was able to see that the work I was doing was making a difference to people who had no voice at all.  All of that can only come about through taking opportunities, knowing your own potential, taking risks and turning up.

JP: In dealing with contemporary human rights and statelessness concerns, you are deemed in Australia and internationally as an expert in Vietnamese nationality laws. At what stage of your career did feel comfortable in your ability to robustly defend those you represented?

LN: You often carry the burden of the client’s liberty or other high stakes – and without knowing where the ‘truth’ lies amongst the evidence and between your client’s instructions. You also know the court is not looking for the ‘truth.’ Sometimes the law can be draconian, but you need to work with it, and within it. You need to think strategically all the time.

So, defending clients robustly is an attitude. To carry yourself with such attitude, you need to get on top of the facts, law and evidence, which means thorough preparation. You must carry yourself with a little zen, and at the same time, not take yourself so seriously. It’s a hard balance to strike! It helps to have a good relationship with the client too. But not all clients are necessarily likeable. Now, appearing comfortable or confident when providing robust representation – that’s a whole different thing altogether! I think that can be learnt.

JP: You have also performed as an International Criminal Law Advisor with Lawyers Beyond Borders to provide advice to Legal Aid of Cambodia on its work with the Khmer Rouge Tribunal and its labour and human trafficking casework. At what stage in your career did you decide that this commitment to balancing your paid income with such services would be integral to your practice? What advice do you have for young lawyers conscious of ‘clocking up’ the hours (and dedicated years) to secure senior roles within their firms yet possessing altruistic goals to legally support those without the financial means to solicit their services?

LN: I have been strategic about the studies and work I undertook, always identifying synergies in my goals and activities. For example, my masters of law mini-thesis was based on an analysis of the nationality status of my ethnic Vietnamese victim clients in Cambodia, which in fact, contributed to my real-life assessment of their claims before the tribunal, of having suffered a loss of legal identity in Cambodia following their forced transfer to Vietnam, by the Khmer Rouge.

I was able to use my Prime Minister’s Endeavour Award (2013) and Churchill Fellowship (2014/15) to advance my work with victim representation in Cambodia, in creating and optimising on synergies within the object and purposes of those respective awards.

Pro bono work is not only about giving your time freely – it is also an investment in your own skills development – and for your firm’s reputation.  You need to be deliberate and resourceful about your time and energy, what you want take from that investment, and how you can benefit from it.

JP: You have also worked in Singapore, Nigeria and East Timor, have guest-lectured at universities globally and presented extensively on genocide and victims’ representation in international courts. With the COVID pandemic and resulting travel restrictions, what steps does the legal profession need to take to overcome this logistical barrier given that we may be confronting myriad pandemics in the future, hampering foreign professionals to pursue pro bono work in other countries?

LN: The pandemic has shown us that working from home, appearing at court via video conferencing platforms, conducting meetings online and electronic filing can and does work.

The majority of my own work in Cambodia (pre-pandemic) has been done in Australia, as the Khmer Rouge Tribunal had an electronic filing system where all court documents were accessible from a platform called Zylab. However, it was important to travel in-country multiple times a year to meet with NGOs, local lawyers, and clients – because it is crucial to build relationships of trust from the outset. Once those relationships are formed, it is easier to work in a team, from a distance.

Post pandemic, people need to find creative forums to foster these connections. There may need to be institutional structures in place between organisations in Australia and in Asia that enable a framework for mutually beneficial projects to be carried out.

JP: Several of your strategic placements abroad have advanced Australia’s relations with Asia. In addition to you building alliances with local legal and non-profit organisations (including the Minority Rights Organisation) as a Criminal Lawyer Adviser to Legal Aid of Cambodia (2010-11), you were the Director on the Board of Australian Volunteers International. In 2012 you joined DFAT’s Australian Civil Corps as a Law and Justice Civilian Expert for rapid deployment to fragile or post-conflict situations. Do you see yourself evolving more towards advisory roles?

LN: I think it becomes a natural evolution to find yourself in advisory roles the more you develop expertise in your fields of excellence, and the more leadership experience you acquire.  For example, I am on the Advisory Board of TransOcean, a European Research Council funded project examining the push and pull factors for fishing communities of the practice of encroaching the maritime boundaries of other states. The project also looks at the flow-on effects of the South China sea dispute on fisheries in Africa and Oceania.

Becoming a returned-volunteer Director on the Board of AVI has also been an amazing opportunity that arose, allowing me to continue to contribute at a strategic organisational level whilst keeping engaged in international affairs and development.

JP: How do you manage the intensity and confronting nature of your work and interacting with people at the lowest points in their lives? It’s hard to imagine that you have downtime looking over your resume, but what do you do to unwind?

LN: I was always an avid reader, but in this profession, you do so much reading that it’s sometimes hard to read for leisure.  I play guitar and sing (I am part of a barristers’ band called No Class Action).  I make collage artwork and do random things like belly-dancing. I also design and create my own jewellery to relax – often whilst zoning out over mindless TV like The Bachelor!

JP: In 2013, you were recognised for your work at the Khmer Rouge Tribunal by receiving the Prime Minister’s Executive Endeavour Award and in 2014 were awarded the Churchill Fellowship. In this same year, you were honoured as being the youngest of 45 (at the time) ‘Trailblazing Women Australian Lawyers,’ whose oral history is archived in Australia’s National Library in recognition for your ongoing pro bono practice. In 2018 your achievements culminated in accreditation as Counsel at the International Criminal Court in The Hague. What, to date, are you most proud of accomplishing in your career, and what goals are on the horizon – obtaining silk perhaps?

LN: I am most content with my representation of my ethnic Vietnamese minority clients who, in the 1970s, suffered historical genocidal acts by the Senior Leadership of the Khmer Rouge in Cambodia. My work at the Extraordinary Chambers in the Courts of Cambodia was a once-in-a-lifetime matter which saw me immerse myself in Vietnamese language skills with my clients and French language skills with practitioners at the tribunal. I loved working in multiple languages.

To put a modern spin on Heraclitus’ saying: “No (wo)man ever steps in the same river twice, for it is not the same river and (s)he is not the same (wo)man.” In this work, I learnt so much about the limits of the law, and how important it is for victims to look for avenues outside the law to find peace or closure. I also went close to stretching the limits of myself and saw the edges of my own boundaries, without knowing it at the time.

As for taking silk, there is always a time and place for that. Apparently, one will know it when the time comes. I know myself enough to know that there is so much more to learn, so much more experience to acquire before my own internal standards can dictate that the time is right.

 

Johnson Partners features monthly interviews with all the 2020 category winners to further explore their career achievements and the challenges they have confronted in their pursuit for excellence – from bamboo ceilings to political and economic hurdles, amongst others. See more here.

 


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