Issuu on Google+

OPENING PATHWAYS Interview with Hon. Myron T. Steele

review@lawcouncil.asn.au | www.lawcouncil.asn.au

The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.

APR–JUL 2012


Cover Shot:

IN THIS issue

APR–JUL 2012

PRESIDENT'S MESSAGE

3

MESSAGE FROM THE SECRETARY-GENERAL

5

OPENING PATHWAYS: INTERVIEW WITH CHIEF JUSTICE MYRON T. STEELE

6

Highlights from Précis

13

Belonging to a profession: Profile of Professor Sally Walker

14

Q&A with Wm. T. (Bill) Robinson III

18

The Bottom Line of Litigation Funding

22

Law Council Partners with Australian Government to launch International Pro Bono Initiative

28

Law Council Committee calls for clarity in the Future of Financial Advice

32

Legacy of inspirational Indigenous rights activist shines through

34

EDITORIAL ACKNOWLEDGEMENTS & CREDITS

Pursuing Harmony in property transactions

39

Managing Editor | Vanessa Kleinschmidt

Restoring a ‘fair go’ for refugees facing indefinite detention

42

Let’s stop the bleeding of our Family Courts

44

National News

46

International News

56

Opening Pathways Interview with Hon. Myron T. Steele

Contributing Editor | Michael Anderson Editorial Assistant | Giesel Manalo

Law Council Review, 19 Torrens Street, Braddon, ACT, 2612 GPO Box 1989, Canberra, ACT, 2601 DX 5719 Canberra P + 61 2 6246 3788 | F + 61 2 62480639

lawcouncil.asn.au

DIVISION OVERVIEWS

58

© The Law Council of Australia

SECTION OVERVIEWS

64

EVENTS CALENDAR

68

No part of this publication may be reproduced without the specific written permission of the Law Council of Australia. Opinions are not the official opinions of the Law Council of Australia unless expressly stated. The Law Council accepts no responsibility for the accuracy of any information contained in the Law Council Review and readers should rely upon their own enquiries in making decisions regarding their own interests.


PRESIDENT’S message

WELCOME TO THE SECOND EDITION OF THE LAW COUNCIL REVIEW. SINCE OUR FIRST EDITION IN MARCH, THE LAW COUNCIL HAS PRESSED AHEAD WITH AN ACTIVE AND BUSY AGENDA. In June, Australia acknowledged the 20 year anniversary of the watershed Mabo ruling in the High Court of Australia. This offered a valuable opportunity to observe how far Aboriginal and Torres Strait Islander relations have developed in our country over the past two decades. While we have marked some important milestones in this often controversial policy area— the apology to the Stolen Generations and the Wik ruling of the mid 90s being prominent examples—there have also been systemic failures in other areas including the Northern Territory Intervention and the over representation of Indigenous people in incarceration. The legal profession has taken great strides over this 20 year period to improve relations with Indigenous Australia, but we too recognise there is no finish line in sight. In this month’s Review we have interviewed the most recent recipients of the Law

Council’s John Koowarta Scholarship which is aimed at nurturing and encouraging some of the most promising young Indigenous legal minds in our country. It’s an important example of the role the legal profession is playing in the ongoing push to close the gap in Australia. In April I had the honour of speaking at the Commonwealth Lawyers’ Association (CLA) Regional Law Conference which was held in Sydney. Over 300 participants from Commonwealth nations across the world participated in the event which included a program laden with contemporary law issues in areas including human rights, corporate and commercial law and the commercialization of legal practice. I chaired the ‘Lawyers on the Frontline’ session which included a keynote address from Jennifer Robinson—the well-known former counsel to Wikileaks founder Julian Assange. It was fascinating to hear of the sacrifice that lawyers across the world make just to practise law. It was a great event to be a part of and I would like to give particular thanks to the CLA and the Chair of the Local Organising Committee (and Law Council President-elect), Joe Catanzariti, for hosting this event. In July the Law Council was delighted to host two prominent dignitaries from the United States legal profession: Chief Justice Myron Steele of the Supreme Court of Delaware; and President of the American Bar Association, Wm. T. (Bill) Robinson III. Chief Justice Steele heads one of the world’s most prominent corporate courts and it was a unique experience to hear his thoughts on some of the pressing issues in corporate law.


Mr Robinson is a particularly fervent supporter of access to justice and increased court funding. While in Australia he spoke on these issues and the ongoing advocacy of his organisation to stem the loss of finance to the courts system across the US. It was a positive experience to listen to and share learnings with our colleagues from the United States. Interviews with Chief Justice Steele and Mr Robinson are included in this edition of Law Council Review. I would also like to welcome the Law Council’s new SecretaryGeneral Professor (Emeritus) Sally Walker. Professor Walker has many years of experience as a legal practitioner, academic, policy adviser, and she has authored several legal texts. She was Vice-Chancellor and President of Deakin University from January 2003 to July 2010 and prior to this role, she was Senior Deputy Vice-Chancellor at the University of Melbourne. Professor Walker has also held a number of key strategic leadership roles and has undertaken a broad range of professional activities including advising policy-making bodies such as the Victorian Press Ownership Inquiry and sitting on the Boards of organisations including the Communication and Media Law Association. Professor Walker’s strong leadership skills, commitment to the legal profession and background in a wide range of areas including leadership development, education, and community engagement, coupled with her financial acumen makes her an

exceptional choice for this critical role within the Australian legal profession. I would like to congratulate Professor Walker on her appointment, and also pay tribute to Ms Margery Nicoll, Deputy Secretary-General, who very capably fulfilled the role during the recruitment process. I hope you enjoy the second edition of the Law Council Review.

Catherine Gale President 2012


MAR–MAY 2012

5

∫rom the

SECRETARY-GENERAL AS THE NEW SECRETARYGENERAL OF THE LAW COUNCIL OF AUSTRALIA, I AM DELIGHTED TO BE PART OF THIS IMPORTANT NATIONAL ORGANISATION.

As the peak national body representing the Australian legal profession, the Law Council has developed a strong culture of excellence in its advocacy on a wide range of issues affecting the legal profession. Before accepting the position of Secretary-General, I was working as a consultant, having held the position of Vice-Chancellor and President of Deakin University from 2003 to mid-2010. I started my career in the law in 1977. I am keen to work with the legal profession and on matters of legal policy that have wide-ranging implications for the Australian community. I have spent my initial weeks in the role getting to understand the needs of the organisation and its members. I have been struck by the sheer volume of work undertaken by the Law Council’s Secretariat, committees, working groups and Sections. There is a tremendous wealth of experience and knowledge in just about every discipline of the law within the Law Council and I have been impressed by the body of work that is advanced on a daily basis. Recently, I attended the launch of the Centre for Asia-Pacific Pro Bono (CAPPB) in my first official public appearance as Secretary-General of the Law Council. The CAPPB is a clearinghouse dedicated to the coordination of pro bono legal assistance in the Asia-Pacific region. It aims to benefit organisations in the Asia-Pacific

with needs-based pro bono projects. It seeks to offer opportunities to legal practitioners and law firms in Australia to engage with regional partners. Since its launch, the response to the initiative has been significant— further testament to the work of the legal profession in Australia. In signing off on my first column for the Law Council Review, I would like to thank Margery Nicoll for her exemplary efforts as Acting Secretary-General of the Law Council since December 2011 and to pay tribute to Bill Grant, my predecessor, for his significant contribution to the Law Council— particularly in relation to the National Legal Profession Reform Project. I hope you enjoy the second edition of the Law Council Review—there are a variety of stories and issues affecting the legal profession and we hope to generate some positive debate in these areas through the articles we present. I look forward to working with my colleagues from both within and outside the legal profession and to continuing the culture of excellence the Law Council has achieved over the years.

Professor Sally Walker Secretary-General


OPENING PATHWAYS Interview with Chief Justice Myron T. Steele


As the head of the Delaware Supreme Court, Chief Justice Myron Steele of the is one of the most influential judges in corporate law. Chief Justice Steele has built his career in the legal profession over 40 years and has served as a Delaware Deputy Attorney-General, Senate (Delaware) Attorney and Chairman of the Consumer Affairs Board. Chief Justice Steele has presided over major corporate litigation, limited liability company (LLC) and limited partner governance disputes. These include the Viacom/Universal Studios dispute over ownership of the USA Television Networks, and the DuPont v. Admiral environmental insurance coverage litigation. He has published over 400 opinions on resolving disputes among members of limited liability companies and limited partnerships, and between shareholders and management of both publicly traded and closely held corporations. He is also the newly appointed Chair of the Conference of US Chief Justices. Chief Justice Steele has been ranked as one of the 100 most influential people in corporate governance in the United States by Directorship Magazine and second on Ethisphere Magazine’s 100 Most Influential People in Business Ethics for 2007. Lawdragon Magazine has consistently placed him among its annual Lawdragon 500 “Leading Lawyers in America” and “Top Judges in America.”

As part of your itinerary you’re speaking at an event, hosted by the Law Institute of Victoria, on the topic ‘Why Delaware?’ Can you please explain ‘Why Delaware?’ and why you chose to speak on this topic?

While in Australia, Chief Justice Steele shared some of his vast experience in the law with his Australian counterparts, at an event hosted by the Law Institute of Victoria on limited liability companies and fiduciary duties.

That portion of the topic was chosen for me. It was suggested to me that I explain ‘Why Delaware?’ because not everybody, I am told, understands how Delaware became such, in my view, an obvious choice for business lawyers to advise their clients when they have options about where to charter in the US.

The Law Council Review spoke with Chief Justice Steele during his visit to Australia on pressing issues in corporate law, building stronger ties with the Australian legal profession and the increasing internationalisation of legal practice. Good morning Chief Justice Steele and thank you for speaking with the Law Council Review. What is the purpose of your visit to Australia? I’m here with Bill Robinson, the current President of the American Bar Association, at the invitation of the Law Council of Australia. Our purpose here is to answer questions about how the law operates in our respective arenas and to address common issues our professions may have including access to justice, which is a particular interest of Bill Robinson’s, and, in my case, Delaware’s interest in the international practice of corporate law and how we can be helpful to Australian lawyers and learn from each other as we try to improve the common law fiduciary duty. On that topic, how can Delaware be helpful to Australian lawyers in the area of corporate law? From general interaction in understanding how in Delaware, as the provider of national corporate law in the US, they can make better choices for their clients when their clients want to do business in the US or charter a subsidiary. We can explain what to anticipate depending on where they choose the charter or where, if it becomes necessary, they choose to litigate.

The first part of my talk will explain Delaware’s understanding of why we’re attractive. There are four points I will review in the course of that. I then want to get into something I think is more timely, and hopefully more provocative, and that is two issues the Delaware courts face right now that I think our respective countries will face in the future, or maybe even face now, about the direction of the law and the challenges that the resolution of those issues will pose for all of us that practise law. One issue focuses on the relationship between a board of directors and its selection of investment bankers for advice in an acquisition process; the second is the ever increasing emphasis in the US, and Delaware in particular, on so called alternative business organisations as a choice of method for operation as opposed to the traditional corporate form. Because those alternative business organisations are contractually based, it poses a real challenge when you contract a relationship that looks like a fiduciary relationship but really isn’t within the statutory framework that challenges traditional perceptions of how you scrutinize fiduciary duties. That’s the general approach because I think those are the two hot topics at least as far as the development of Delaware common law right now.

7 MAR–MAY 2012

IN THE AREA OF CORPORATE LAW, DELAWARE IS RECOGNISED AS THE HOME OF THE AMERICAN CORPORATION— WHETHER LARGE, MEDIUM OR SMALL.

Chief Justice Myron Steele visited Australia in July this year, at the invitation of the Law Council. Delaware is a key jurisdiction for corporate practice in the US and the Law Council has an MOU with the Supreme Court of Delaware.


How has the landscape of corporate law in the US changed since the Global Financial Crisis– particularly in reference to stricter regulations such as the Dodd– Frank Wall Street Reform and Consumer Protection Act that was passed in 2010? I’m not a believer at all in the Congress legislating in an area outside restructuring the regulatory process for the banking industry. The extent to which Congress attempts to move into the area of traditional corporate governance and the extent to which Congress, particularly with Dodd-Frank and before with Sarbanes-Oxley, tends to conflate risk assessment with corporate governance is troublesome. History teaches us that a Napoleonic code in regulatory approach isn’t the wisest form of managing problems. Flexibility and development of the common law is the way to handle problems on an individualised basis. Of Dodd-Frank’s 2700 pages, 36 pages of that purports to deal with corporate governance. I’m not at all sure in the rush to judgment post GFC that Congress has any business getting into the area of internal corporate governance of state chartered corporations. Empowering the US Securities and Exchange Commission to regulate publically traded corporations in some respects–either directly through promulgated regulation or through their strong-arm tactics with the exchanges by demanding that the exchanges force corporations to make internal changes before they can list with them (generically referred to as listing arrangements)–I understand that’s going to happen, but it can’t be a crisis, in my view, and come out with the best result. It can’t be politically charged–and almost all correct Congressional action in our country is politically charged. The best way is to work through it, develop the common law and solve the problem. The focus from our perspective in Delaware post GFC is to make sure there isn’t this conflation of perhaps arguably inadequate regulatory structure for the banking and finance industry and have that

move over into the arena of general corporate governance. There’s a difference in the accountability system under the common law for directors to shareholders. The extent to which a board in trying to achieve a wealth generating methodology for its shareholders and the extent to which they’re willing to take the risk to the extent we’re involved in a post-hoc analysis of what they should have done but didn’t do, is always contextually based. The best two examples of that are the Delaware Court’s treatment of Citigroup and AIG after the GFC. The focus wasn’t on a system wide failure to understand the complexity of derivatives and what that might mean ultimately to the collapse of the financial system; the focus was on the extent to which individual officers and directors of the corporations personally benefited by manipulating the systems and in that way didn’t act in the best interests of the shareholders. If you have a system where there are limited opportunities to take rational risk or you make prejudgements about what’s a rational risk that doesn’t enhance the corporation as a vehicle for growth, it prevents growth. Some corporations will be successful; some will fail based on the risk analysis. But as long as the board makes that assessment in an independent and objective way and shareholders have disclosed to them what a board is doing and why–there’s got to be an element of transparency there–you can’t hold directors independently liable when they simply make a bad business judgement. This sounds like a significant issue for your jurisdiction–can you please expand on the complexities of corporate director liability in the US? It follows on from what we’ve been talking about: to what extent do people believe that there should be liability imposed upon directors who make a misjudgment, rather than act in their own best interest, when they fail to accurately assess risk? Whether it’s the risk of a financial instrument failing disastrously across the industry or whether it’s the risk that an oil structure will blow up and release


MAR–MAY 2012

9

(left-right): Chief Justice Myron Steele, Mrs Joan Robinson, Ms Catherine Gale, Ms Tania Sourdin, and Wm. T. (Bill) Robinson III. oil in the Gulf of Mexico that causes billions of dollars of damage that resulted in substantial liability to a corporation. Whatever that is, traditionally the way Delaware looks at it is whether there has been a breach of duty of loyalty and the assessment of what constitutes a breach of loyalty is a tricky one. If you look at it from the point of view of oversight, drawing that line appropriately is very difficult and there’s substantial pressure in corporate governance moving forward to move the line closer to liability for poor risk assessment. Fundamentally, we still have the business judgment rule as the ultimate scrutiny when it either has been established that there’s no financial interest and the directors are independent and capable of assessing the situation objectively and they just get it wrong—or when the other side fails to plead adequately that there has been a breach of loyalty based upon either a personal financial interest in the outcome or influenced by a controlling shareholder or a failure to discharge any kind of reasonable duty of care in assessing the situation. If it’s not pleaded adequately, the case will be dismissed and business judgment rule deference will be given. That’s a tricky balance because we don’t want to be seen as promanagement or director on the one side and we don’t want to be seen as being tools of the institutional shareholder on the other side. We want to strike a balance down the middle because you cannot have a structure, we think, that’s so chilling

on risk taking that directors are never going to make a decision, or rarely make a decision, that’s likely to jeopardise their own liability– even when that decision carries a reasonable amount of risk that can enhance the investment of the shareholders. Obviously getting that down the line directly correct you can’t predict in advance, so it has to be a post-hoc assessment of what went on factually in a particular situation. That’s why legislation, in my view, is not the answer, and regulatory institution is not the answer, because you can’t predict everything that’s going to happen in the future. The constraints it will pose in the meantime will chill risk taking and chill the opportunity to enhance wealth. If I can borrow a phrase from a previous interview you have given, it appears to be an issue of director primacy versus shareholder democracy. Is there a resolution somewhere between the two ends of the stick? At the risk of sounding trite, I think it’s the difference between Athenian democracy and a Roman republic. You can’t have the inmates run the asylum because the inmates don’t have a common interest other than, purportedly, looking for an enhancement on their investment. But the institutional shareholder does not have the same interest as the mum and dad shareholder–not even all institutional shareholders have the same interests. There is only one entity that can be charged with accountability for failing to look out after their interest in

common and that’s the board of directors. But they have to approach it as interest in common. The corporate governance is a Roman Republican democracy not an Athenian democracy where everyone shows up in the forum and votes with their hands raised for one practice or another. Delaware has a strong history of corporate governance and is considered one of the most experienced and knowledgeable courts in this area of law. What makes Delaware such an attractive jurisdiction for developing corporate law? We’ve been lucky with historical precedent. For one thing, since independence and before, we had a Court of Chancery, which was the separate Court of Equity and I was interested in reading earlier today that Victoria had a Court of Chancery modelled on the High Court of Chancery of Great Britain. We had the same and in our case law we say that the Court of Chancery’s first jurisdiction is that of the High Court of Great Britain at the time of the separation (that’s the rather benign phrase we use). That Court’s independence with equity jurisdiction resulted, in the turn of the 20th Century, in the passage of a flexible general corporation law and though it’s statutory, most of the remedies that flow from a violation of the statutory provisions are equitable remedies. Courts of equity have two kinds of jurisdiction: either equitable remedies or equitable claims. By merging the corporate statutory jurisdiction in a court of


equity, we’ve got the best of both worlds—we’ve got equitable remedies along with statutory provisions that are flexible; and we have judges that sit alone (we don’t have jury fact finding). Judges have to make findings of fact and juries aren’t involved in the findings of fact. That eliminates obscurity— this is important for country and less important in a country like Australia where you don’t have juries in civil cases. In the US it’s a huge competitive advantage because jury fact finding obscures the law—nobody knows why they found what they did. Since 1910 when the jurisdiction was firmly rooted in Delaware law over the corporate code, our judges would consistently have to write opinions explaining what facts were important and why, and apply the law to those facts as consistently as we would hope they would do over a period of time. That develops a sense of predictability and consistency that you don’t get with jury results. You don’t have the possibility of punitive damages in our court but you have all the equitable remedies that can stop an Mergers and Acquisitions (M&A) transaction in its tracks because of injunctive relief if that’s what is sought. We can rescind a merger if it’s flawed. Instead of rescinding the merger once it’s consummated there can be rescissory damages, which are basically the equivalent even though the deal goes through anyway. It’s a combination of flexibility in applying the common law to a tailored fact situation along with

the attraction of multiple equitable remedies that suit a particular situation, with a balancing of those equities and a result that tends to take everyone’s interests into consideration. But, most importantly, it’s over 100 years of doing it in a way that’s attractive to business because what the most important thing in the world to business? Predictability. That is what I think influences people to charter in Delaware rather than the old race to the bottom theory that management can get away with anything it wants and that’s why management wants to be in Delaware. With the importance in the clout that institutional investors have today, they don’t clamour to be taken elsewhere. Whenever there has been a move to take a Delaware corporation to a more shareholder favourable jurisdiction, the highest percentage of votes ever obtained for such a move is 7 percent in the last four years (when it became fashionable to even entertain the thought). It almost never happens. Another key aspect of your visit to Australia is focusing on building stronger ties with the Australian legal profession. You have been instrumental in the past in establishing a more liberalised legal services market between Australia and Delaware in particular. Why do you feel it’s important to develop such a relationship and liberalise legal services between our two jurisdictions?

It has always been obvious to me as the globalisation of the legal profession marches on that we should focus on closer ties and better ways to cooperate and understand each other and share opportunities. I’ve learnt quite a bit in the past about how Australia has reformed its legal structure to allow what we in the US would call cross-border representation and it has always struck me how Australia has been a leader in maximising the opportunities to practice law— what some of my colleagues back home would call the portability of the practice. The US is still heavily structured in a federal system with the High Courts of each state being the last word on who can sit for the Bar exam and who can practise under what circumstances. There has been incremental development of the opportunity for Australian lawyers, or for lawyers of other countries generally to make appearances in our courts or to work on issues that are important to their clients in our individual states: fly-in fly-out rules; the pro hac vice expansion; and opportunities in some of our states to sit the Bar exam with an LLM as opposed to what you might call an undergraduate law degree. Not everyone is amenable to opening up because many of the High Courts are concerned about the information flow about the lawyers who might come into their particular jurisdiction and they’re also concerned about accountability. We’ve been working on ways to exchange information between jurisdictions and I think

Visit to The University of Melbourne (Left-Right): Professor Ian Ramsay, Professor Michael Crommelin AO, Wm. T. (Bill) Robinson III, Professor Carolyn Evans and Chief Justice Myron Steele.


The Conference of Chief Justices will be looking at, I’m not going to characterize this correctly as it’s not before me, a Pan-Pacific Rim understanding of where we’re moving in that direction and I think Australia is the primary advocate or catalyst for this agreement; and the extent to which our State Department is involved in internationalising the practice—it’s going to be a hurdle that needs to be overcome and the question is how we do it and do we continue to do it on an incremental basis. The other issue is typically the states in the US say you can’t sit for the Bar exam unless you have a degree from an American Bar Association (ABA) accredited school. For some that’s an anomaly because you can sit for the California Bar Exam without a degree from an ABA accredited school. Once you pass the California Bar Exam you’re allowed to be admitted pro hac vice to Delaware or any other state because you’re a member in good standing of the Bar. It’s pretty hard to make a credible argument that it’s ok for someone to graduate from a California non-accredited school, sit for the California Bar, and then be admitted for even limited purposes in other states. If you went to the University of Melbourne or Monash or another Australian law school, you couldn’t have the same privileges to practice in the US and that doesn’t make sense to people like me. So what we’re trying to do is recognise the liberalisation of opportunity, the globalisation of the practise of law, and think in

terms of the synergies that can create for not only lawyers from other countries but for interaction and greater business on all sides. What about the prospect of an ‘international’ practising certificate in the future? Is that ever going to be a realistic prospect in terms of ever increasing globalisation?

“I ALWAYS LOOK FORWARD TO INTERACTION WITH PRACTISING LAWYERS AND JUDGES IN AUSTRALIA BECAUSE OUR ROOTS ARE IN COMMON.” The best we can hope for immediately is the ability to give advice about Australian law to clients in the US. I don’t see in the immediate future anything beyond sitting for the local Bars; maybe if you pass the Bar you can practise, for example, Delaware law and advise your clients in Australia about Delaware law. But many of the states have a residency requirement: you have to have an office in which there are people regularly stationed in order to have that element of accountability—it’s important to the regulation of the Bar. With the continued pressure in the US for a Uniform Bar Exam, which some also call a National Bar Exam, that’s going to help the liberalisation effort. Australia is currently experiencing its own form of harmonisation towards a national practising certificate for lawyers. What has been the US experience in this regard?

There’s considerable push-back in the US to take from, or to lessen in any way, the ability of the High Courts of the respective states to monitor and regulate their Bars. It’s a very difficult argument to make. In my jurisdiction, I think of Delaware as maybe equally situated to New York or California for promoting the international practise of law and to be more receptive. I’m hoping that’s the direction in which the US will go—there’s a substantial amount of independence each state has; we’re not dependent upon other jurisdictions doing the same thing or endorsing what we choose to do. I see a big upside for the practise of law in Delaware and to enhance the Delaware Court’s reputation by opening up to, as you’ve characterised it, an international practising certificate. Everyone doesn’t agree with me on that as you might imagine—just as you’re experiencing in Australia, I suspect. There are some local beliefs that are threatened by that and there are some in the court system who say ‘why should we entertain more work than we already have— particularly from people who represent clients who aren’t paying any fees to be chartered in Delaware?’ There’s some tension and there will be some natural push-back, but I think it’s inevitable. I don’t see it as something where there’s a major package where you get everything you want and it’s going to pass in a year or two. I think as it has been, as we’ve seen it over the past four or five years, I think it’s incremental—but I also think it’s inevitable. In your capacity working with the Australian legal profession on issues like internationalisation and liberalisation of legal services markets, what have you observed to be the most significant benefits? I think it will harmonise the business relationships; I think it will enhance predictability of results, consistency of results and the clarity of the law. We learn from each other and sometimes the differences are important to moving the law along but commonality, particularly in procedures and in enhancing predictability, enhances business. That’s what it’s all about at the end of the day: making a better climate for our clients.

11 MAR–MAY 2012

we’ve achieved that goal of harmonising disciplinary action and communication about disciplinary action in various jurisdictions. The current tension appears to be the extent to which, in either free-trade agreements or understandings between our respective countries, the federal government’s involved treaty wise or protocol wise. The chiefs of the various state jurisdictions are very concerned about federal involvement in regulating the practise of law: it’s not only non-traditional, it’s counter cultural and it’s seen as a distorting influence on the ability to manage and hold lawyers who practise in the jurisdiction accountable.


You made mention of globalisation earlier and how it’s intrinsically linked to the growth of the legal profession. How much of an effect is globalisation having on the legal profession in the US? What I see in our courts is an increasing number of litigants from other countries who have chosen either Delaware as a forum or Delaware law to apply to a contract. And currently, as long as there is a tie of one party, we have jurisdiction to resolve that dispute. We also have jurisdiction to mediate and arbitrate within our court system—we don’t drive people into the private sector market for arbitration. We’ve tried to branch out to encourage international resolution of disputes through our alternative mediation and arbitration process within the Court of Chancery. What I see is an increasing number of trans-national corporations, chartered in the US doing business with foreign corporations, choosing to use our court system and law as the basis for their contractual agreement and the resolution of any dispute that rises out of that. You didn’t see that 30 years ago; you didn’t see it, arguably, 20 years ago.

“I think Australia, in many respects, is advancing ahead of other jurisdictions—we need to look at that and why and also try to assess it to see what we can learn and develop in the US. Australia has a reputation for being ahead of the curve on most things.”

You certainly didn’t see the Delaware courts offering arbitration and mediation as an alternative even when the parties did not have any basis to resolve their dispute because of lack of jurisdiction within the court itself. This is an outgrowth of the demands of the globalisation of the practice of law and, in my view, court systems like mine who stand back and watch when that happens lose their significance. We want to be on the cutting edge in the resolution of international business disputes. How has Delaware kept itself on that cutting edge? We think by fundamentally keeping our own corporation law up-todate, still flexible, modernised (it’s tweaked every year); certainly the massive growth in alternative business organisations’ structural options as opposed to the general corporation law has kept us in the forefront. Keeping our Court of Chancery and Supreme Court tuned in to the emerging trends in corporate law and offering ourselves as a forum for the resolution of business disputes has kept us in the game— by continuing to play and being ready, willing and able to resolve these disputes. People were drawn to the marketplace by the benefit the market provides and we want to make sure we can provide the best benefit to prospective litigants. What is the US experience in regards to the delivery of legal services? Specifically in regards emerging business practices such as incorporated legal practices, multi-disciplinary partnerships and publically listed law firms? In that respect I think Australia and, to some extent, the UK have been leaders if that’s the right direction to go. I don’t see the immediate attraction of the multi-disciplinary firm and I’d see considerable push-back to the concept of law firms going public. It’s immensely controversial in the US and as things stand right now it would take a seismic change because it’s clear that in every jurisdiction in the US it would be a violation of the rules of professional responsibility. Any lawyer that entertained the prospect, as things stand today, would face discipline.

But, that said, what we’ve seen historically is we had rules that prevented you advertising as a lawyer in the past and gradually the marketplace destroyed that rule and our Supreme Court had to recognise that it was virtually unenforceable. There’s no disciplinary action taken against a lawyer that advertises—if we did, we’d probably lose 70 percent of the Bar! It’s the marketplace moving the law and whether or not the law is a reluctant suitor, it ended up going in the same direction as the market demanded. I think that’s what you may see: the market moving in the direction of both the multi-disciplinary practice and the ‘going public’ law firm. But right now there’s considerable pushback focused on the fact that in our country the courts still regulate the Bar. Unlike the rest of the Commonwealth, the Bars are not regulated by statute. There’s less political pressure to make the change—particularly in jurisdictions like mine where the judges are not elected. What part of your visit to Australia are you looking forward to most— particularly with reference to the busy schedule of activities you have planned? I always look forward to interaction with practising lawyers and judges in Australia because our roots are in common. I think Australia, in many respects, is advancing ahead of other jurisdictions—we need to look at that and why and also try to assess it to see what we can learn and develop in the US. Australia has a reputation for being ahead of the curve on most things. I hope to have a look, carefully, at what I understand to be the federalist issues Australia has that are somewhat in common with ours. I look forward to the individual interaction with lawyers and judges to explain to me their perspective on these issues. We certainly will have issues in common; we certainly have the cloud of the institutional shareholder and how that’s to be balanced with directors’ ability to run a corporation.


HIGHLIGHTS Précis is a fortnightly publication providing a brief overview of the Law Council’s activities. Précis is available to view online. For all enquiries about Précis, including information on subscription, please contact Michael Anderson on 02 6246 3725 or precis@lawcouncil.asn.au Lodging notices for publication on ASIC’s insolvency notices website From 1 July 2012, most insolvency notices will no longer be required to be advertised in the print media but will be lodged with ASIC for publication on ASIC’s new insolvency notices website. The types of notices that must be lodged for publication on the website are: • notices of winding up applications; • notices relating to appointments; • notices of meetings of creditors; • notices of intention to disclaim property; • notices calling for proofs of debt and intention to declare dividends; • notices of meetings for schemes of arrangement (although the option to publish in print will remain); and • company deregistration (ASIC publishes these notices). When a notice is lodged for publication on the website, the prescribed fee will need to be paid by credit card. Further information is available on the ASIC website. Inclusion of barristers and solicitors to 2012 Skilled Occupation List The Law Council welcomed the recent announcement by the Department of Immigration and Citizenship (DIAC) that the occupations of barrister and solicitor are included in the 2012 Skilled Occupation List (SOL).

The SOL identifies specialised occupations of high value and the inclusion of barristers and solicitors means that foreign lawyers can apply for a work visa under Australia’s skilled migration program, without the need to receive sponsorship from a firm or state government. The Law Council lobbied hard to have barristers and solicitors reinstated in the 2011 SOL after being removed in 2010. Further to its submission made in December 2011 and testament to effective consultation with Skills Australia, the Law Council is very pleased to see these occupations remain in the new SOL. The revised SOL is due to take effect from 1 July 2012, and can be found at the DIAC website. Law Council represented at AustraliaChina Services Sector Promotion Forum Law Council of Australia Presidentelect, Mr Joe Catanzariti, spoke at the inaugural Australia-China Services Sector Promotion Forum (SSPF) in Beijing, China, on the capabilities of the Australian legal profession. Mr Catanzariti was part of an Australian delegation led by the Commonwealth Minister for Trade and Competitiveness, Dr Craig Emerson. The delegation also comprised James Bond, President, Australian Services Roundtable, Mr David Olsson, Chairman, AustCham Beijing and services industry leaders in construction, accounting and financial services. The Forum was established under a Government-to-Government MOU in 2011 and was held as part of the China International Fair for Trade in Services (CIFTIS). Mr Catanzariti spoke on the adoption by the Australian legal profession of concepts of open markets and competition in the early 1990s, which has increased the competitiveness of Australia’s legal profession domestically and facilitated its participation in the international legal services market.

In particular he highlighted the Australian legal profession as a world leader in developing alternative business structures for law practices such as incorporated legal practices, multi-disciplinary practices and publically listed law firms. He also referenced Australia’s system for the regulation of foreign lawyers and law firms which has opened the Australian legal profession and created one of the most flexible, inclusive and liberal marketplaces for legal services in the world. Mr Catanzariti also spoke at a lunch following the SSPF. A copy of his speech is available on the Law Council website. Call for nominations: Australian Young Lawyer Award The Australian Young Lawyer Award is conducted annually by the Law Council’s Australian Young Lawyers’ Committee and recognises excellence in young lawyers and young lawyer organisations. Nominations for the Australian Young Lawyer Award are now open. To be eligible for the award, a nominee must either be a young lawyer who has made a continuous and outstanding contribution to the profession and the community, or alternatively, a young lawyer organisation that has implemented a program relating to professional or community issues over the preceding financial year. Further information about the award, including the nomination orm and criteria, is available on the Law Council website. Nominations close on 10 September 2012 and must be emailed to emma. hlubucek@lawcouncil.asn.au by 5:00pm (AEDT) on 10 September 2012.


SALLY WALKER

BELONGING TO A PROFESSION Law Council’s New Secretary-General


“When I saw the advertisement in the paper for the role, I thought ‘that’s fantastic’ because it’s a way of getting back to my disciplinary area of the law,” Professor Walker said of taking on the SecretaryGeneral position at the Law Council. Prior to her appointment to the role of Law Council Secretary-General, Professor Walker undertook consultancy work after completing a term of office as Vice-Chancellor of Deakin University—a role she filled from January 2003 to July 2010—and, before that, Senior Deputy Vice-Chancellor at the University of Melbourne. Professor Walker’s stints in leadership roles at two of Australia’s leading tertiary education institutions were roles she relished and treasured, but she always knew where her roots lay. “To be honest, I have missed the law,” she said. “I’ve always identified myself as a lawyer and I’ve always felt that in my leadership roles in universities that I have used the skills and even the knowledge that I have as a lawyer and brought that to bear. In fact I’ve often wondered how anyone could be a vice-chancellor who wasn’t a lawyer!” “When you’re working in the law, you don’t understand (or perhaps appreciate as much as you should) the value of the profession as a profession,” Professor Walker said. “A profession that is working well has some aspects of an

apprenticeship: senior people train, develop, support and nurture more junior people—people who are new to the profession. That’s a wonderful thing that occurs in professions. There’s also the ethical aspect: a lawyer’s primary loyalty is to the law. I think that is commendable and something to be nurtured and celebrated.” The move to the Law Council is something not too unfamiliar for Professor Walker. She has previously worked on a variety of high-level policy-making bodies including the Victorian Press Ownership Inquiry, Victorian Attorney-General’s Law Reform Committee and Law Council committees. As a prominent legal academic, she was also called on to provide advice on a gamut of issues. “I’m very interested in the work of the Law Council on women in the profession; in the rural, regional and remote lawyers project; and in the impact of the internationalisation of law and legal institutions on Australian lawyers,” Professor Walker said in relation to the policy attractions of working at the Law Council. Professor Walker commenced in the role of Secretary-General on 13 June and has spent her initiation period getting to understand the needs of the Law Council’s Constituent Bodies and working on current and future priorities for the Council. “It’s very important that the Law Council of Australia meet

the needs of its Constituent Bodies and also presents itself as a professional, dynamic and important body,” Professor Walker said. Upon the appointment of Professor Walker, Law Council President, Ms Catherine Gale, said the Law Council was very pleased to secure Professor Walker for this important role and we are looking forward to her leadership as SecretaryGeneral. “Professor Walker is a dynamic, driven individual and is well placed to lead the Australian legal profession’s national representative body.” Ms Gale said. Professor Walker knew she wanted to practise law from a young age and her formative years at Warrnambool High School and Melbourne Girls Grammar School in Victoria nurtured her ambitions towards the legal profession. These ambitions naturally translated into a Bachelor of Laws (Honours) and Master of Laws from the University of Melbourne where she graduated with First Class Honours in her Law degree. In fact, to say she excelled in her legal studies is an understatement: she was placed first in her graduating class and was awarded the Supreme Court Prize, the Anna Brennan Memorial Prize and the inaugural Joan Rosanove Memorial Prize. After completing articles at Gillotts, Solicitors, Professor Walker was an

MAR–MAY 2012

FIND SOMETHING YOU LOVE AND GET SOMEONE TO PAY YOU FOR IT. FOR NEW LAW COUNCIL OF AUSTRALIA SECRETARY-GENERAL PROFESSOR SALLY WALKER, IT’S A CONCEPT SHE HAS TAKEN TO HEART THROUGHOUT A CAREER SPANNING MORE THAN 30 YEARS IN A VARIETY OF CAPACITIES INCLUDING LAWYER, VICE-CHANCELLOR AND AUTHOR.

15


Associate to Justice Keith Aickin KBE QC of the High Court of Australia from 1978–79. “Everything he did was very well researched,” Professor Walker said of her time with Justice Aickin. “Not a word was wasted. He has influenced me in terms of ensuring that I don’t respond to things without fully researching the topic.” In 1979 she returned to legal practice as a solicitor with law firm Gillotts where she quickly became an Associate Partner. She remained a practising lawyer until a new opportunity arose to become a legal academic. Never averse to change or a new challenge, Professor Walker became a law lecturer and rose to be Hearn Professor of Law at Melbourne University. “I got interested in topics,” explained Professor Walker on her transition from practising lawyer to legal academic. “I was practising in trade practices law and there were some interesting issues. I was really interested in pursuing some of those issues, so I went to Melbourne University Law School to teach and research in law—I enjoyed it immensely.” Professor Walker was appointed to the position of Professor at a young age and it was during this time Professor Alan Gilbert AO became Vice Chancellor of Melbourne University. Professor Walker was appointed as an officer to the Academic Board—the peak body for academics at the University of Melbourne—where she eventually rose to the position of President. Professor Walker and Professor Gilbert came to know each other well during this period and worked together on numerous projects for the University. Professor Gilbert asked Professor Walker to be his Senior Deputy Vice-Chancellor, a role which she accepted, and just one day into the job she was appointed acting Vice-Chancellor when Professor Gilbert went to pursue a project overseas for six months. “The amazing thing is, I wasn’t even remotely nervous about it,” said Professor Walker about being thrust into such a senior role after just one day as Senior Deputy ViceChancellor. “I very much enjoyed

working with Alan Gilbert—he was a marvellous person who gave me great confidence.” After a long-tenured and highly successful stint at Melbourne University, an opportunity arose in 2003 for Professor Walker to become Vice-Chancellor of Deakin University—a position she accepted in earnest. It represented a substantial challenge for Professor Walker—Deakin was spread across three campuses and in her time at the helm became a $660 million enterprise with close to 40,000 students. Professor Walker was Vice-Chancellor for more than seven years and was recognised for her contribution with a scholarship and university building named in her honour. Among her many significant achievements at Deakin, Professor Walker nurtured the largest growth in student numbers of any Australian university in the period 2002–09; she improved demand for Deakin’s teaching programs; she increased staff numbers, particularly academic staff; and she oversaw the establishment of a medical school. In 2010 Deakin conferred upon her the degree of Doctor of Laws (honoris causa) in recognition of her distinguished contribution to Deakin University, to legal education and scholarship and to higher education in general. She was also made a Professor Emeritus of Deakin University—an honour she has also received from the Law School at the University of Melbourne. Perhaps one of Professor Walker’s fondest achievements however was one she never intentionally implemented. In 2005, she received the Judges’ Award in the Equal Opportunity for Women in the Workplace, “We had 50 percent females in all senior positions at Deakin University,” she explained. “I was interviewed after winning the award and the interviewer asked ‘What’s the key to appointing women in senior positions?’ I said: ‘Appoint them.’” She was made a Member of the Order of Australia in the 2011 Queen’s Birthday Honours in part for her work in the advancement of women, as well as her contribution to education and to the law as an academic. “I was proud of being

Professor Sally Walker speaking at the launch of the Centre for Asia Pacific Pro Bono awarded an AM because I was awarded it for things that really matter to me,” Professor Walker said. The topic of improved opportunities in the workplace for women is one that draws a high degree of passion from Professor Walker. The legal profession in particular has actively pursued policy initiatives in this area including the establishment of the Equalising Opportunities in the Law Committee that exists primarily to advise the Board of the Law Council on matters relevant to achieving equality of workplace opportunity within the Australian legal profession. The Law Council has also developed a strategy, the Strategic Framework for the Recruitment and Retention of Women Lawyers, which is aimed at investigating and addressing the high attrition rates of female lawyers in the profession. “I don’t pretend to have all the answers to this complex issue,” Professor Walker said. “But we know that women are graduating in larger number than men and we know that women do as well, if not better, than male students so the legal profession has an imperative to address this issue. I think the profession could be more accommodating of the needs of women who have families. Sometimes people can think of reasons not to do things and, instead, they should just do them.”


Professor Walker’s interest in seeing increased opportunities for women in the law is just one of the many policy areas she is an advocate for. She has experience in Public Law, Commercial Law and Media Law and developed a Graduate Diploma in Media, Communications and Information Technology Law during her time at Melbourne University. “I liked working in media law,” she said. “It was at a time when not many people were working in that area and I felt that I was bringing light to bear on a new area which was exciting.” Professor Walker has published widely in the field of Media Law including as editor and principal author of the Communications title for The Laws of Australia. Perhaps her most significant and best known contribution was her book The Law of Journalism in Australia. Away from her work in the law, Professor Walker is married with two sons, one a third year lawyer and the other a law student at Melbourne University. “My husband’s a doctor and neither of my sons wanted to study medicine,” she said with a wry grin. “The law is a great platform for a range of things so even if you’re not sure in what you want to work when you leave university, it’s a great cornerstone for a future career.” And as for some sagely advice for her two legal-minded sons: “Study overseas,” she said. “I think it broadens your horizons for when come back to Australia—we fear sometimes going overseas because we think we’re doing well in a law firm and we won’t come back in as advantageous a position as we were in when we left. In fact, you come back in a better position than you would if you stayed—you get so much confidence and added knowledge by studying overseas.” Professor Walker is an avid devotee to the world of fitness which she used as a way to “recharge her batteries” following an operose

17

tenure at Deakin University. She is an avid consumer of the written word and is currently reading a book written by Sir Andrew Grimwade that documents the many speeches the renowned former honorary President of the National Gallery of Victoria has delivered throughout his career. “They’re funny; but they’re profound,” she said. Professor Walker has a connection to Sir Andrew Grimwade through the Felton Bequests Committee—a charitable foundation aimed at helping women and children in Victoria, as well as promoting the arts at the National Gallery of Victoria through the purchase of various pieces of artwork (over 15,000 works of art valued at over $2 billion have been purchased through the Committee including works by Rembrandt, Willima Blake, Tiepolo, Monet, Cezanne, van Gogh, and Turner). The Committee is named after businessman Alfred Felton who, after his death in 1904, left £378,000 in a trust—the largest bequest of its kind anywhere in the world for that time. His enormous art bequest made the National Gallery of Victoria one of the wealthiest galleries in the British Empire. “I’m a member of the Committee which decides how the money is to be spent,” Professor Walker said. “50 percent is for the National Gallery of Victoria and 50 percent is for the advancement of women—particularly in rural and regional areas. Sir Andrew Grimwade chairs the Committee and he is a person I admire enormously.” Professor Walker’s career in the legal profession has spanned across five decades and its dynamic and interesting nature keeps her coming back for more. Having taken on the role of Law Council SecretaryGeneral, she is as excited as ever about the challenges and successes that lie ahead. “What I would hope is that its Constituent Bodies will continue to be proud of the work the Law Council does,” Professor Walker said on the future of her role with the organisation. “And that the Law Council continues to have a reputation as a very effective and professional organisation.”

MAR–MAY 2012

“I’ve always appointed the best people,” Professor Walker added. “I’ve always been very encouraging of women in their work and I think if you model that behaviour yourself, people find it an attractive place to work.”

“I’M VERY INTERESTED IN THE WORK OF THE LAW COUNCIL ON WOMEN IN THE PROFESSION; IN THE RURAL, REGIONAL AND REMOTE LAWYERS PROJECT; AND IN THE IMPACT OF THE INTERNATIONALISATION OF LAW AND LEGAL INSTITUTIONS ON AUSTRALIAN LAWYERS”


WITH WM. T. (BILL) ROBINSON III, PRESIDENT OF THE AMERICAN BAR ASSOCIATION

Q&A

THROUGHOUT HIS FORTY YEAR CAREER, WM. T. (BILL) ROBINSON III HAS BEEN A LEADER AND INFLUENTIAL VOICE IN THE AMERICAN LEGAL PROFESSION AND LOCAL COMMUNITY. Mr Robinson is the current President of the American Bar Association (ABA) and is Memberin-Charge of a regional law firm in the United States (US) state of Kentucky. He has been an ABA member since 1972 and has been active in various leadership roles for the Association for over 25 years. Mr Robinson is an ardent and vocal advocate for the legal profession in the US on a wide range of issues affecting lawyers. In particular, he has devoted much of his work as ABA President to what he views as the chronic under-funding of the court system in the US and the associated access to justice issues. The President of the American Bar Association visited Australia to advance its relationship with the Law Council of Australia and to promote goodwill between the American and the Australian legal professions. The Law Council Review spoke with Mr Robinson during his visit to Australia in July about access to justice as well many other prominent legal issues of mutual interest between the US and Australia. Welcome to Australia Mr Robinson. What is the purpose of your visit? I’m here at the invitation of the Law Council of Australia, with Chief

Justice Myron Steele of the Delaware Supreme Court to engage in discussions regarding subjects such as access to justice, adequate funding of the courts, the independence of the legal profession, the judiciary as the key to constitutional democracy and on a wide variety of subjects that are of common interest to the lawyers of America and Australia. While in Australia, you will speak at Monash University on the topic of access to justice—specifically “Justice Delayed is Justice Denied”. Can you please expand on what your speech will focus on and why you chose this topic? We are seeing, around the world, a growing pressure on the legal profession and on the judiciary in the name of budgetary limitations and cost saving with clients and those using the courts being more frequently referred to as ‘consumers’ rather than as citizens and clients needing access to justice to pursue their rights in the context of civil and criminal disputes. I am concerned about this growing trend and I am here to talk about that and learn about the Australian perspective because, geographically, there is so much distance between our countries but on the other hand there is so much commonality including language and tracing our systems of law back to the common law roots of the Magna Carta. We have a long standing foundation for a dialogue from which we can learn from each other. What is driving this trend of people using the courts being more frequently referred to as consumers rather than as citizens and clients needing access to justice to pursue their rights? It’s a combination of factors, beginning with the Global Financial Crisis that goes back to 2007–08 from which almost every country in the world has suffered. It also includes or derives from the lack of funds available to legislative bodies in terms of funding the many demands upon their resources from throughout society. I suspect it also derives from a general lack of understanding and respect for the constitutional role of the judiciary as a co-equal branch of government


What has been the US experience, so to speak, in relation to access to justice issues? There is increasing pressure on the courts because of underfunding. Last year 42 out of 50 states cut court funding which comes on the heels of several years of cuts in court funding. It has become more of a trend for courts to be closed and access to justice to be less and less in the face of an economy that is increasing the demands on courts. Over 95 percent of the cases filed in America are filed in state courts and we’re talking over 100 million cases a year. That number in an economic downturn has been increasing from year-to-year at the same time court funding is decreasing. The ability of the courts to handle the increasing demands on the courts’ time and resources is creating a crisis situation and the American Bar Association is working very hard to make the public aware that it is their interests that are at stake here—that access to justice for them is the real issue—and that legislators need to be persuaded to increase court funding so that courts can continue to fulfil their constitutional responsibility as a co-equal branch of government. What has been the response in America to alleviate the problems of an underfunding of the courts?

Our efforts in the American Bar Association, primarily through our taskforce on the preservation of the justice system, are first of all to awaken public awareness of the underfunding of our courts that is prevalent throughout the US: to have the public understand and appreciate how significant it is in terms of access to justice, the administration of justice and so on. We then hope to have public awareness translate into more communication with legislators from state to state in order to achieve a turnaround politically so that the legislators understand how much the public expects them to prioritise the funding of courts at a higher level than has been the case over the last five or six years. It is all about funding because we’ve reached a point with our courts where the cuts are deep and we’re now into the bone and there just isn’t any capacity for more cuts. The situation needs to turn around and we need an increase in funding to meet the increased demand that is being made upon the courts as a result of this continuing economic downturn. Given the increasingly tight fiscal environment, how realistic are you about seeing more funding to the courts? We have to be optimistic that the legislators will come to recognise that the courts are not just another line item in the annual operating budget. The courts are one of three co-equal branches of government and are the cornerstone for the

(left-right): Chief Justice Myron Steele of the Delaware Supreme Court, Wm. T. (Bill) Robinson III, President of the American Bar Association and Dr Gordon Hughes, Chair of the International Law Section at the Law Council of Australia

administration of justice in a constitutional democracy. With enough public outcry; with enough media attention; with enough discourse among the citizenry we have to be optimistic that we can get back to our constitutional roots in recognizing, as a society, that nothing is more important or valuable than the freedom that we are afforded by a constitutional democracy protected by adequately funded, independent, fair and impartial courts. How successful has the ABA been thus far in advocating on the access to justice issues you have referred to? Since last August we’ve been successful in having over 50 articles, op-eds and letters to the editor published all over the US on the subject. We had a national symposium and we’ve had a meeting at the US Chamber of Commerce with enthusiastic support from them regarding this issue. The situation did not develop in a short period of time and the solution is not going to be achieved in a short period of time. We knew when we undertook this effort last year that this would not be for sprinters: this is an effort that requires marathoners in terms of commitment to stay after this issue for a period of years until the situation can be turned around.

19 MAR–MAY 2012

in most constitutionally based countries. It seems to me those are three of the major considerations that have led to the situation that is now crystallising all over the globe.


that compliance with the law can be achieved with financial success in business matters in the context of this complex global economy. We have mutual clients today in Australia and America; we have international issues of law and government that are heard and directly related to each other, so it’s only natural and very important that we work hard to have a better understanding of each other’s priorities, challenges and opportunities.

(left–right): Mrs Joan Robinson, Wm. T. (Bill) Robinson III, and Ms Catherine Gale

What has been the response from legislators to the access to justice issues? There has been some progress, but the progress so far has been relatively small and painfully slow. For example, in New York trial judges have not received an increase in pay—not even a cost of living increase— for 12 years. This past year, the New York State Bar Association was successful in getting the legislator to approve an increase in compensation over several years for the trial judges in New York, and produced enough transitional funding so that the courts which had begun to close every day at 4:30 in the afternoon have now been able to lift that restriction. In Florida where the courts were being funded for a number of years simply with fees off mortgage lending, which evaporated with the economic downturn in real estate, the legislator since the first of this year has adopted legislation providing for sustainable funding from the general revenue of the state so that Florida will no longer be going out floating revenue bonds in order to try to fund the courts. That is some progress although the amount of money from state revenue allocated to the courts in Florida is still painfully low. There is not a state in America that funds its entire state judicial system with more than 4.5 percent of its overall annual operating budget. Over 20 states allocate less than 2 percent of their overall state operating budget to the courts.

What are some of the key policy issues for the ABA currently? There are a plethora of issues—you name it with regards to the legal profession and the ABA is interested. We have programs devoted to the profession with almost 400,000 members and 3,500 individual operating units. The ABA has an extensive program of research, writing and service in and through the profession that we pursue on a full-time basis. Another key aspect of your visit is aimed at strengthening ties between the US and Australian legal professions. As President of the ABA, why do you feel it is important to build these relationships with overseas counterparts? As a result of modern transportation and communication, the world and the global economy are every day smaller and smaller. Those who thought of each other years ago as on the other side of the world, for instance lawyers in Australia and America, now look at each other as neighbours because, through travel and communication over the Internet, we are neighbours. The complexities and interests of persons in Australia and persons in America when it comes to, for instance, international commerce are very similar and very much aligned when it comes to being successful in an ever more complex but ever more accessible global economy. That’s where lawyers come in to assure compliance with the law, to provide guidance for success within the law and to assure

In that regard what do you think about the internationalisation and liberalisation of legal services markets? If we have so many mutual interests now, is the next logical development to allow the free trade of legal service? It appears that the international business and international government relations will increasingly demand more access and interchange of legal consultants and legal representation across country borders and among various international jurisdictions. We are seeing increasing pressure for this and clients are going to demand it, as are our governments, because lawyers are essential to success in the international marketplace to assure compliance with the rule of law, access to justice and so on. I do see, as we move forward, an increasing call for lawyers to have both the ability and the opportunity to move with their clients from marketplace to marketplace. Not so much to practise law of the foreign marketplace but to assure compliance of the law at home for those clients who invest elsewhere in the international market. Lawyers will be working interchangeably from country to country but each practising their own respective law. That level of cooperation and communication will result in increasingly more sophisticated levels of legal advice in a very complex global marketplace. What are you hoping to achieve and take back with you to America that you can confer to your peers in the ABA when your visit to Australia concludes? Each time that we communicate with each other and learn more from each other it results in an

W RO


“We have mutual clients today in Australia and America; we have international issues of law and government that are heard and directly related to each other, so it’s only natural and very important that we work hard to have a better understanding of each other’s priorities, challenges and opportunities.”

increasing potential for us to be of assistance to each other and ultimately, and this is what is most important, to be better advisers to our respective clients in our respective jurisdictions. The secret to professional success over time has been the effective continued learning that is essential to professional excellence. Learning through communication is the key to professional advancement just as it is the key to success in business. If we as lawyers continue to be a resource for our clients to be successful in the international marketplace, we need to continue to learn more and more about the profession in other jurisdictions so that we can communicate more effectively and advise at a more sophisticated level than we were satisfied to provide when we were only giving advice in the jurisdictional boundaries of our home country.

WITH WM. T. OBINSON III

MAR–MAY 2012

21


THE BOTTOM LINE OF LITIGATION FUNDING

IS THERE A POINT AT WHICH THE COMMERCIALISATION OF A PROFESSION BEGINS TO ERODE THE PRINCIPLES AND ETHICS IT STANDS FOR? Commercialisation is a stark reality for many modern day professions, and the legal profession is grappling with its own issues in this area. At the recent Commonwealth Regional Law Conference held in Sydney, Chief Justice of the NSW Supreme Court, Tom Bathurst QC, raised many of these issues in his address on the commercialisation of legal practice in Australia. “The rise of mega-firms, the public listing of incorporated legal practices, the increased prevalence of private arbitration, international outsourcing, and the growing role of in-house counsel, all raise questions about how duties to clients and the courts may conflict with business practice, profit incentives and corporate expectations,” his Honour noted. There’s no doubting the commercial boon these contemporary business practices have delivered the legal profession, but there is an underlying debate over how commercial gain is influencing ethics in the Australian legal fraternity. “It is undeniable that as the practice of law and the world of commerce have increased in complexity and sophistication, so too have challenges to professional ethics,” Bathurst CJ said. “The grey areas of ethical professional conduct have expanded, and professional regulations struggle to keep up.” The rise of litigation funding in Australia is one area in particular that is adding fuel to the profit versus ethics debate. “Litigation funding brings concerns about commercialisation of the legal profession into sharpest relief, because at first glance the aims of


23 MAR–MAY 2012

litigation funding stand at complete odds with the aims of ethical legal practice,” said Bathurst CJ at the CLA Conference. “Litigation funders exist solely to profit from the generation of litigation.” Litigation funding is a relatively new industry in Australia, but also one experiencing strong growth. The industry was previously illegal in Australia due to its violation of the laws against maintenance and champerty but in 1995 the industry’s shackles were loosened when a statutory exception was granted. The industry subsequently expanded in Australia to fund class actions and large single plaintiff actions as successive superior court judgments found no evidence that third party funding constituted an abuse of process. A significant 2006 ruling in the High Court of Australia, Campbells Cash and Carry Pty Limited v Fostif Pty Ltd, confirmed the lawfulness of third parties funding litigation and the industry has not looked back since. “The civil justice system is a time consuming and costly endeavour that is principally about allocation of risk,” said the Executive Director of litigation funder IMF Australia, John Walker. “Very few people can afford it and until it becomes affordable there will be the need for funding.” “Financially sound and honest litigation funders can provide access to justice for substantial numbers of people who may otherwise not be able to see their disputes resolved in the legal system at all,” said Chair of the Law Council of Australia’s Litigation Funding Working Group, Ben Slade. “To that degree, if the funder is financially sound and an honest broker, then I can see nothing wrong with litigation funding.” Mr Slade is a Principal at national law firm Maurice Blackburn and has worked with litigation funders on large class actions. While a supporter of litigation funding as a vehicle of access to justice he is aware of the concerns and trepidation the industry has caused in parts of the legal profession. The Litigation Funding Working Group, which he chairs, released a Position Paper in 2011 on litigation funding and class actions. The purpose of the paper was to set out areas in which regulation may be required for consumer protection, to minimise conflicts of interest and put

Mr Ben Slade an end to expensive satellite litigation over the propriety of litigation funding agreements. The Position Paper broadly reflected the most significant policy issues surrounding the litigation funding industry: mainly consumer protection, court protection and conflicts of interest. “The Law Council’s position is that litigation funders should be subject to ASIC’s supervision by the requirement to hold an Australian financial services licence,” said Mr Slade. “My position is consistent with that, but also I would like to see enhanced judicial supervision of the role of litigation funders in claims that are before the court.” “If a third party is funding an action that fact should be revealed to the judge and aspects of that relationship should be revealed to the other side,” Mr Slade added. “In my view, this requirement should equally apply to third party litigation funders and insurance companies who are funding the

defence. There should be constraints on how much information needs to be shared as only some of the funding or insurance details need to be shared with the judge, but the fact of funding should be known to all parties.” A perceived lack of regulation regarding litigation funders is where the industry has come under most fire. In 2009, the Full Federal Court found in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd that litigation funding arrangements and class actions are managed investments schemes under Chapter 5C of the Corporations Act. Regulation under the Corporation Act was deemed to be too onerous for the industry and if allowed to stand may have effectively killed off class action litigation in Australia. The Australian Government has been investigating methods to effectively regulate the industry since the Multiplex


Mr John Emmerig decision but no reforms have been legislated. As an interim measure, litigation funders were given an exemption under the Corporations Act to continue business as usual. “Litigation funding is a necessary element in ensuring access to justice for those who need that support,” said Co-Chair of the Law Council of Australia’s Class Actions Committee, John Emmerig. “The question is where do you draw the boundary between what’s necessary and when it becomes something that is negative for the system—when does the positive turn into a negative? I would like to see a substantially higher degree of regulation for litigation funders.” Opponents of litigation funders argue that these negatives are outweighing the positives. Chiefly amongst their concerns, it’s argued that litigation funding encourages unmeritorious claims; that it gives rise to conflicts of interest between a lawyers’ duty to their client and the bankrolling third party litigator; and that it short changes class action plaintiffs. Litigation funders can receive anything between 20 to 45 per cent of a settlement and Mr Emmerig believes this profit motive is driving many of the grey areas in the industry, “The litigation funding market is quite narrow which creates opportunities for the current funders to charge very high commissions,” he said. “It seems to

me that for many situations, the market is not in balance with what I would consider to be a just outcome. I personally would like to see the level of funding commissions regulated so that they were taking still enough to be attractive to participate but less than what they are at the moment.” “Funding a piece of litigation in the expectation of earning a return from it is an expensive, risky and protracted undertaking,” Mr Walker argued in a policy position paper he wrote on litigation funding. “Typically the litigation will take years to resolve. The funder has outlaid very substantial sums in legal costs and disbursements during that time and has likely incurred a significant exposure to adverse costs. It is imperative, from the funder’s point of view, that the litigation funding agreement is not liable to be set aside on any ground, including maintenance and champerty, misrepresentation, misleading and deceptive conduct, unconscionability, oppression or any other basis which the funder can reasonably avoid. If the agreement was to be struck down, particularly after the proceedings have been brought to a successful conclusion, then the funder will have wasted a very considerable investment and will have forgone any hope of earning a return on that investment. It behoves funders to act with scrupulous professionalism towards the litigants they fund and

to enter into funding agreements which are likely to be seen as fair and reasonable having regard to all the circumstances of the funding and the risks attendant in the litigation. “The valuation is reflective of the risks and rewards and the price is set,” Mr Walker added. “It varies across the different investments IMF has. We’ve got to match the risk and reward and at present it’s a market driven process that determines pricing. My sense is, over time, price will come down as competition gets greater, but not by much. As long as there are the risks of adverse costs orders and lawyers’ fees are as big as it takes, we’ve got to manage those risks by charging what is seen to be a higher percentage of the recovery on the cases we win.” In order to address consumer protection issues, IMF obtained an Australian financial services licence pursuant to Chapter 7 of the Corporations Act. At the time IMF offers to fund legal proceedings, prospective clients are provided with a Financial Services Guide and Product Disclosure Statement which sets out how IMF is paid for its services and how consumers who are dissatisfied with IMF’s service can pursue a complaint. A primary theme that pervades much of the debate on litigation funding surrounds the ethics of the industry. Beyond consumer


The Supreme Court of WA has, however, recently amended its Court Rules to require parties to proceedings to notify the Court and the other party of the identity of anyone who provides financial support and exercises control or influence over the way the case is conducted. The amendment also imposes a duty on the third party to use reasonable endeavours to ensure the just, efficient, timely and cost effective resolution of the real issues in dispute. Mr Emmerig raised concerns Australia was risking a US style litigation culture by allowing the litigation funding industry to continue unchecked and unregulated. “The commercial returns—the percentage of the commission—of a judgment or settlement can be so large that it makes it a commercially attractive thing to look for cases and put them before the courts: cases that would not be litigated or should not be litigated and are only being litigated to produce a commercial return for the funder,” Mr Emmerig explained. “The court system was never set up to do that; the court system is there to resolve disputes between parties—it’s not there to provide a money-making vehicle for funders.” Mr Walker however said the sheer magnitude of the investment required by litigation funders to pursue a case meant it was not in their interest to fund unmeritorious cases. “We’ve funded in excess of 150 claims and we’ve collected in excess of a billion dollars for clients,” Mr Walker said. “We’ve

invested approximately $180 million and we’ve paid out on adverse costs orders on about five of those claims. I think it’s clear that we don’t fund speculative claims— it’s not in our interest.” “I can’t speak for all funders, but there is nothing innate in funders wanting to lose money—it doesn’t make commercial sense,” Mr Walker said. “The primary issue that is put against us is ‘you’re just like the Americans’. We’re not, for a number of reasons: we’re not the lawyers, so we’ve got to pay the lawyers; and if we lose, we’ve got to pay the other side’s costs—which we have no control over. We are very selective and I think that unmeritorious claims argument doesn’t stand up against the facts.” “One can understand the logic behind that,” Mr Emmerig said in relation to the argument that unmeritorious claims do not make commercial sense for funders to pursue. “But the market is maturing and while we have a limited pool of people involved, their risk appetite is not uniform. I think the next wave of people coming into this market will be much higher risk takers, which is why we’re at a critical point and why we do need more regulation of this market.” “In my 28 years of practice, I can’t identify any claim that has been funded by a third party litigation funder that could be regarded as frivolous,” said Mr Slade. “Frivolous suggests a try on: that is ‘I’m going to sue you until you pay me to go away even though I’ve got no merit’. That just doesn’t happen.” The issue of ethics is one that has wide ranging effects on lawyers’ duties to clients—namely in the form of conflicts of interest. Funders commonly insist upon the power to settle the cases they bankroll and also reserve the right to withdraw future funding if the client does not accept their view. While a lawyer’s primary duty is to act in the best interest of their clients, when litigation funding is thrown into the mix, it has been argued that this can muddy the waters of who really controls a case and whether, for a funder, a client’s interests take precedence over the profit motive.

“A litigation funder’s consideration in exercising this discretion is a commercial assessment of profitability, not the vindication of rights or the wishes of claimants,” Bathurst CJ said. “While corporate litigants may make settlement decisions according to similar principles, the many individual claimants in a class action suit, who are common users of litigation funders, may not.” “The way we set up the structure is that the lawyer’s fiduciary duty to the client is not fettered,” Mr Walker said. “A good way of testing what we do against standards is to assess us against how insurers set themselves up—every complaint that’s made about funders can be made against insurers. The legal profession has set up a method of dealing with potential conflict where the lawyer acts for the insured and the insurer. Where there is a potential conflict, the lawyer can stop taking instructions from us and go directly to the client, and where the client considers that their interests aren’t the same as our interests, they can go directly to the lawyer to give instructions. “We’re like a general manager who gives day-to-day instructions,” he continued. “Both the solicitor and the client can act like the board. We always retain the right to terminate the contract but we lose the money we have invested in the case and we pay the other side’s costs. We keep all the pain.” Mr Slade said that conflicts of interest had existed for over 300 years in all forms of legal service delivery since lawyers began charging for advice. He suggested that current structures within the court system were apt to deal with any potential conflict of interest involving litigation funders. “The conflict that a defence team has in a substantial trial is a conflict that needs to be dealt with,” he said. “But it’s a very real conflict: that is, when a settlement offer is made, their whole team stops working if it settles, whereas if the defendant doesn’t accept the settlement, the team continues to be employed while the trial goes on. That’s a very serious conflict: there’s real money in your hands being poured in every day. Why is that conflict something that can be dealt with, whereas the

25 MAR–MAY 2012

protection concerns, critics are concerned litigation funding compromises the integrity of the judicial process by attempting to monetise its core process: the administration of justice. “Litigation funders, which advocate litigation where they see the potential for profit, do not owe duties to the court in the same way that lawyers do,” said Bathurst CJ during his speech at the CLA Conference. “Litigation funders have, as their primary concern, the pursuit of profit by means of litigation (or settlement), while remaining one step removed from the oversight and inherent regulatory jurisdiction of the court.”


court and say ‘we’re involved; we’re systemic players; we pull the strings; and we submit to the court’s powers’, just like in Western Australia. “Funders only exist because of access to justice issues,” Mr Walker added. “Regulation has got to support that access—it shouldn’t defend it. It’s got to work in a way that assists funding coming into the market—not in a way which makes it commercially unviable.”

Mr John Walker conflict that is allegedly presented by litigation funding any more difficult? It’s not more difficult—it’s exactly the same.” “In the dynamic that is the funding market, a number of firms are very heavily reliant on funders to fund actions,” Mr Emmerig said. “It’s important that we have checks and balances in there for the benefit of the represented parties because firms need to be able to stand up to funders and say ‘sorry I can’t accept those instructions’ or ‘that’s not in the client’s interest’. The commercial tension if they do that, is will they be at risk of being briefed again by that funder? That’s a really big dynamic that could come into play—I’m not saying that any firm at the moment is doing that; I’m not casting any aspersions or implications along those lines. But it’s an obvious point of concern that needs to be given attention in thinking about how you regulate funders and those who are involved in that process.” “Big firms defending the big end of town have similar tensions, with business conflicts used to protect banks and insurers from being sued by large firms,” Mr Walker retorted. “That practise diminishes the independence and therefore the standing of the profession.” The regulation path for litigation funders is a complex one. The Law Council has stated in the past that litigation funding is a fledgling industry in Australia, which must be

allowed to develop and expand in the interests of access to justice. The Council maintained that over-regulation of litigation funders will stifle the industry’s growth and inhibit the development of competitive forces required to lower the cost of their services. Currently, Government has steered away from any sort of regulation in a formal capacity. Litigation funding is controlled largely by supervision of the Court, the Trade Practices Act 1974 (Cth), the Federal Court of Australia Act 1976 (Cth) and other state/territory consumer protection legislation. At common law, there are no formal restrictions on litigation funding arrangements other than the Rules of the Court and the Court’s consideration of whether the proceedings constitute an abuse of process. The Law Council stated there is room for ASIC-issued guidelines or appropriate regulation of the activities of litigation funders, however it does not support regulation of legal practitioners in respect of their engagement with litigation funders and clients supported by them outside the national legal profession regulatory framework. “I think there ought to be requirements of transparency,” Mr Walker said on effective methods to regulate funders. “At commencement of proceedings, funders—as well as insurers— ought to present in front of the

“There are committees currently working with the Law Council and working with the Australian Government on litigation funding arrangements,” Mr Emmerig said. “They comprise people from all sides of this debate and I think that’s the best way forward: the Government needs to hear the arguments and then make the policy call on how it wants this market conducted. I think that’s the democratic way and it has great strengths, it has some shortcomings, but it’s hard to see it being resolved more fairly than this course. The funding debate has been a live issue for the Government for many years and resolution still seems some way off. I will be watching the developments with bated breath.”

Editor’s note: on July 13, the Australian Government released an explanatory statement which outlined its future plans for the regulation of litigation funding in Australia. Regulations approved by the Government exempt litigation funding schemes from the definition of managed investment scheme, which means funders will not need to be registered or licensed and will not be subject to conduct and disclosure rules that apply to those who provide financial products.


Lookingfor foraanew newlegal legalcareer? career? Looking Areyou youlooking lookingforfora acareer careerininrural, rural,regional regional Are remote(RRR) (RRR)Australia? Australia? ororremote RRRLaw Lawis isthe thefirst firststep steptowards towardsananexciting exciting RRR legal career in rural, regional and remote (RRR) legal career in rural, regional and remote (RRR) www.rrrlaw.com.aucan canlink linkyou youtotojob job Australia.www.rrrlaw.com.au Australia. opportunitiesand andhas haseverything everythingpractitioners practitioners opportunities need to know about legal careers RRRAustralia. Australia. need to know about legal careers ininRRR youare arelooking lookingforfora acareer careerchange changeororwant want If Ifyou kick-startyour yourcareer careerinina achallenging, challenging, totokick-start rewarding and supportive environment, rewarding and supportive environment, then visit www.rrrlaw.com.au today. then visit www.rrrlaw.com.au today.

www.rrrlaw.com.au www.rrrlaw.com.au Is your practice looking to fill job opportunities Is your practice looking to fill job opportunities in rural, regional or remote (RRR) Australia? in rural, regional or remote (RRR) Australia? At www.rrrlaw.com.au we can help your practice www.rrrlaw.com.au At with connect job seekers. we can help your practice connect with job seekers. Simply register your details at www.rrrlaw.com.au/jobs www.rrrlaw.com.au/jobs Simply register your your details to begin uploading jobatopportunities. to begin uploading your job opportunities. The service is 100% free and is quick and easy to use. The service is 100% free and is quick and easy to use.

Advertising a legal job? Advertising a legal job? RRR Law is an initiative of the Law Council of Australia, funded by the Australian Government as part of a broader project on recruitment and retention of lawyers in RRR areas undertaken by the National Association of Community Legal Centres Inc.


On Monday July 16, the Law Council in Australia in partnership with the Australian Government launched a new initiative for lawyers aimed at supporting international pro bono legal work in the AsiaPacific region: the Centre for Asia-Pacific Pro Bono (CAPPB).

“Everyone interested in this project is motivated, one way or another, to assist others in need,” said Commonwealth Attorney-General, the Hon. Nicola Roxon MP, in her speech at the CAPPB launch. “Those behind the project have thought creatively about how we can better support and promote pro bono work – in this case, in an international context.” Funded by the Commonwealth Attorney-General’s Department, the CAPPB will seek to match requests from the Asia-Pacific region for international pro bono legal assistance provided by Australian legal practitioners and law practices. “As the world continues to shrink, pro bono work has also been internationalized,” said SecretaryGeneral of the Law Council, Professor Sally Walker at the CAPPB launch. “The Law Council’s International Strategy now highlights the need for the Australian legal profession to support developing bars and law associations to promote and uphold the rule of law. The Centre for Asia-Pacific Pro Bono brings together the objectives of the Law Council’s International Strategy and

the work being done by Australian lawyers on a pro bono basis in countries of great need.” The CAPPB is housed within the Law Council Secretariat in Canberra and has six core objectives: • promoting the knowledge of the rule of law and respect for human rights; • facilitating access to justice; • providing opportunities for Australian practitioners to provide international pro bono legal assistance; • building capacity and capability in legal systems; contributing to good governance and democracy; and • creating sustainable relationships and initiatives in the Asia-Pacific. A disbursement fund has been established as part of the administration of the CAPPB to assist individuals and organisations in Australia with the associated costs of providing international pro bono legal assistance in developing Asia-Pacific countries. Once a pro bono project from the Asia-Pacific is matched with a pro bono provider in Australia, the pro bono provider

Attendees at the Centre for CAPPB Launch at the National Portrait Gallery (left-right): Ms Anne Cregan, Ms Fiona McLeod SC, Professor Sally Walker, The Hon. Nicola Roxon MP, Mr John Corker, Ms Claire Donse, Mr Daniel Creasey.

MAR–MAY 2012

LAW COUNCIL PARTNERS WITH AUSTRALIAN GOVERNMENT TO LAUNCH INTERNATIONAL PRO BONO INITIATIVE

29


The CAPPB has committed to coordinating three pro bono projects in its first financial year, with the first project based on a request from Transparency Vanuatu’s Advocacy and Legal Advice Centre, which sought assistance regarding a legal case involving human rights. The CAPPB Secretariat coordinated the pro bono provision with Ashurst Australia, which has a strong commitment to pro bono legal work both domestically and internationally.

The Hon. Nicola Roxon MP can apply for disbursement funding to help cover expenses such as travel, accommodation, visa costs and insurance. The project’s genesis began in 2011 when the Attorney-General’s Department’s International Pro Bono Advisory Group approached the Law Council to discuss taking over its role in coordinating international requests for pro bono legal assistance with a focus on the Asia-Pacific. The Law Council was overwhelmingly in favour and set about the task of establishing the CAPPB. “The Law Council of Australia expects the requests will come from a range of government and non-government organisations, courts and legal professional associations to provide legal advice, to draft legislation and to provide training and support,” Professor Walker said.

The second project was proposed by the Solicitor-General’s Office in Papua New Guinea for advocacy skills and professional ethics training for their lawyers. The Victorian Bar will lead a team of experts to Port Moresby in November to conduct the training. The Victorian Bar has a long history of assisting lawyers in developing countries of the South Pacific and, since 1987, it has provided 123 Pacific lawyers with the opportunity to attend its Readers’ Courses free of charge. For more than 20 years, it has also conducted advocacy skills training workshops in PNG, the Solomon Islands, Vanuatu and Fiji. The third project will see the provision of one-on-one capacitybuilding for Nauru’s Public Defender, coupled with an ongoing mentoring program. This assistance is being coordinated through DLA Piper’s pro bono team, which is growing from providing local assistance to increasing involvement in regional and global initiatives.

“Pro bono is more than just an exercise in building legal skills and experience; it is one way to fulfil a moral obligation on each and every lawyer, to assist those who cannot afford or who are unable to access legal advice,” Ms Roxon said. “International pro bono work adds a new dimension to Australia’s efforts to promote the rule of law in the Asia-Pacific but it is just one part of our broader effort to contribute to law and justice in our region. For many years Australian lawyers have advanced the rule of law in the Asia-Pacific region by working cooperatively with law and justice officials and professionals to build their capacity in their own jurisdictions. Australia has the capacity to assist and we take that responsibility seriously. And that’s the attitude that is at the core of pro-bono work.” “The pro bono work undertaken by Australian lawyers is a matter of great pride to us all,” Professor Walker said. “The Law Council acknowledges the support of the Australian Government in supporting this project now and into the future. We are eager to continue our work with them to ensure this project continues to build on its initial successes to ensure its vital aims are met.” Further information on the CAPPB is available at www.cappb.org


MAR–MAY 2012

31

Contribute to

good

governance and

democracy Assist in the development of sustainable pro bono partnerships Promote the rule of law and improve

access to justice Provide Australian lawyers

opportunities

to

offer

international pro bono assistance Build capacity and capability in legal systems

Interested in providing pro bono in the Asia-Pacific? Visit www.cappb.org for information on how you can get involved. Email cappb@lawcouncil.asn.au to join our mailing list.


LAW COUNCIL COMMITTEE CALLS FOR CLARITY IN THE FUTURE OF FINANCIAL ADVICE

On 1 July 2012, the Carbon Tax and Mining Resources Rent Tax (MRRT) were not the only major Australian Government reforms to come into effect.

The Law Council of Australia’s Superannuation Committee made a substantial submission on the new FoFA reforms in which it raised several concerns on issues including the increased powers given to ASIC, the scope of the anti-avoidance provision and the failure to provide certainty to industry in the transitional provisions.

The Future of Financial Advice (FoFA) reforms have been implemented as part of a major shake-up of the financial advice industry. The Australian Government has stated the reforms are designed to tackle conflicts of interest that have threatened the quality of financial advice provided to Australian investors. The reforms were largely precipitated by the infamous Storm Financial and Trio Capital collapses which left thousands of Australians hundreds of millions of dollars out-of-pocket.

Chair of the Superannuation Committee, Heather Gray, said the Future of Financial Advice reforms are very significant in the superannuation context in that a great deal of financial advice is given regarding superannuation interests: “For a lot of members of the community, their superannuation investment is either their only financial investment or their most significant one.”

The key provisions of the legislation are intended to promote the quality of financial advice and, at the same time, broaden access to affordable financial advice; and prohibit the receipt and payment of conflicted remuneration by Australian financial services licensees and their representatives in order to ensure that retail clients have access to unbiased advice. In addition the legislation introduces measures to ensure that clients pay ongoing fees to financial advisers only with their express and ongoing consent. It will also broaden the Australian Security and Investment Commission’s (ASIC) powers when dealing with Australian financial services licensees and introduce anti-avoidance provisions.

Ms Heather Gray

“The change we were most worried about, because we can see it affecting the activities of financial advisers and funds when giving advice to members every day, was around the introduction of a statutory duty, for people providing personal advice, to act in the best interests of the client,” Ms Gray added. “We identified that was problematic in that it introduces a statutory best interests duty which is quite new in terms of the way it’s formulated, and doesn’t accord with the general law duty that fiduciaries have to act in the best interests of their clients or for trustees to act in the best interests of their beneficiaries. It’s also different to existing statutory best interest duties that apply to superannuation fund trustees as the responsible entities. It sits out there as something which is called a best interests duty, but when you analyse it in terms of the existing statutory provisions and existing law, it’s not the same thing.” “That immediately raises a problem, namely the potential for confusion,” Ms Gray said. “Also, when we looked at the way in which that best interest duty was formulated in the Bill, the proposed statutory requirements were in fact relevant to the adviser’s duty of care rather than to a duty to act in the best interests of the client. So when you worked your way through those principles you found one right at the end saying that the adviser has


Another of the key concerns outlined by the Committee was what they viewed as the potentially excessive powers given to ASIC under the FoFA reforms. ASIC has been given new discretion to refuse to grant an Australian financial service licence, to cancel a licence and to make a banning order under the FoFA reforms where it has reason to believe that the applicant or licensee is “likely to contravene” their obligations as a licensee. ASIC contends the reforms in this regard are necessary to help them better combat cases like Storm and Trio in the future However, the Committee argued that ASIC’s breadth of discretion in this regard could lead to debilitating unintended consequences for the financial advice industry. In its submission, the Committee outlined that there is no standard of proof which must be satisfied by ASIC and no prescription of the matters which go to whether a person is “likely to contravene” their obligations. Given the consequences that could flow from an exercise of ASIC’s powers under the new provisions, including the closure of a licensee’s business, the Committee submitted that what was required in order for ASIC to form the view that a licensee is “likely to contravene” their obligations should be subject to greater certainty.

33

“The purpose is to allow ASIC to take pre-emptive action to protect consumers from poor selling practices,” said Superannuation Committee member and one of the submission’s authors, Michelle Levy. “The difficulty with it is, ASIC hasn’t identified real breaches of the law—why they think they might be able to identify people who are likely to breach is hard to know. The surveillance would be phenomenal. Previously they’d have to identify an area that is risky, then find an actual breach before they could take any action, whereas now, they won’t have to take that next step, Ms Levy said.“The Committee contends that this is unfair and uncertain. More concerning is the ability to cancel the licence because that could actually shut down someone’s business. It’s very punitive and to do that where all you have is a belief that somebody might breach the law, or it’s ‘likely’ they would breach the law, doesn’t seem right.” “We’re very concerned that there should always be clarity for people who participate in the industry,” added Ms Gray. “It was very unclear to the Committee what basis ASIC would rely on in order to decide not to give somebody a licence or indeed to take away a licence. There’s nothing to say how ASIC would form the view that somebody was likely to contravene their obligations. There’s a balance that needs to be struck: the regulator should have appropriate powers in order that they can carry out the obligations that are given to them; on the other hand, people who are regulated should have a very clear understanding of what the requirements are and what they must and must not do in order to get and keep a licence. When a regulator is given powers that are very broad, it’s important there is some understanding that people can have as to how those powers are going to be carried out.” Ms Levy said the reforms will also have significant impacts on superannuation trustees and their members. “The issue for trustees is that they have a duty under the Superannuation Industry (Supervision) Act to act in the best interests of their members. It’s a

MAR–MAY 2012

to take any other step that would be reasonably regarded as being in the best interests of the client given their circumstances. If you simply had a list of things you have to do, you could go through that list and check off items required under the law to meet statutory requirements. But with the inclusion of this provision at the end that effectively says ‘and everything else,’ it becomes quite circular: technically it’s saying that you’ve acted in the best interests of the client if you’ve done everything that could be reasonably regarded as being in the best interests of the client. Our suggestion was that this ‘catchall’ provision be omitted because it introduces an element of uncertainty and ambiguity such that an adviser will never know if they’ve done everything they’re supposed to do.”

Ms Michelle Levy duty which is owed to the membership as a whole. You have those duties and then, where trustees provide personal advice to members (which they often do and increasingly might do), they’ll also be subject to this duty in FoFA to act in the best interests of the client and the member will become their client. The Committee contended that it does create real difficulties for trustees who have a duty to act in the best interests of all of the members on one hand and a duty at the same time, when they’re providing advice to an individual member, to act in an individual member’s interests. The classic example of that will be where it will be better for one member to be in another fund but better for all of the members to keep the largest amount of funds under management. Members generally want a bigger fund, but if a particular member’s circumstance specifically suggest they should move to another fund, it’s very hard for a trustee to say ‘you need to go’.” “Superannuation lawyers aren’t involved in giving financial advice, but of course we are advising our clients who are directly affected. For all of us, it’s a big challenge to come to grips with all of these changes,” Ms Gray said on the impacts of the FoFA changes to the legal profession. “We believe that the Superannuation Committee is the only group consulted on these types of reforms that is in a position to make comments that are purely aimed at making sure the legal issues are properly addressed. We think that’s a very important responsibility—this is a really important area of the law.” Further information on the Law Council’s submission into FoFA is available online.


JOHN KOOWARTA RECONCILIATION LAW SCHOLARSHIP

LEGACY OF INSPIRATIONAL INDIGENOUS RIGHTS ACTIVIST SHINES THROUGH SCHOLARSHIPS CAN MEAN A LOT OF THINGS TO DIFFERENT PEOPLE. FOR RECIPIENTS OF THE JOHN KOOWARTA RECONCILIATION LAW SCHOLARSHIP, IT NOT ONLY OFFERS FINANCIAL INCENTIVES TO CONTINUE TERTIARY LEGAL STUDY, BUT ALSO AFFORDS AN OPPORTUNITY TO UPHOLD THE MEMORY AND VALUES OF ONE OF AUSTRALIA’S MOST REVERED INDIGENOUS RIGHTS CAMPAIGNERS. Since the scholarship was established in 1994, it has assisted 22 Indigenous law students pursue their legal education. In March this year, Peter Dawson, Melinda Mitchell and Danielle Davis were officially announced as the 2012 recipients of the Scholarship. Law Council of Australia President, Ms Catherine Gale said it was a great honour to present Mr Dawson, Ms Mitchell and Ms Davis with their scholarships. “They are great role models to all young Indigenous people through their hard work and

commitment to their culture and community.” The Law Council has been intrinsically involved in the Scholarship since its launch in 1994. The John Koowarta Reconciliation Law Scholarship Trust was established with a $200,000 contribution from the Australian Government and the Law Council continues to act as trustee and administrator. In presenting the Scholarship, Ms Gale said the recipients epitomised the values and principles of the Scholarship. “All three recipients embody the passion with which John Koowarta lived his life and fought for Indigenous legal rights and I congratulate them on their achievement.” “The Law Council is proud of what the John Koowarta Scholarship has helped its recipients achieve and we consider it an important part of promoting Indigenous involvement in the legal profession,” Ms Gale said.

Peter Dawson “Looking at past recipients, even just being in that company is a really good feeling and huge honour,” said Koowarta Scholarship winner, Peter Dawson. Mr Dawson is passionate about Indigenous legal issues in Australia and is intent on using his legal education to pursue social justice and equality changes

Mr Peter Dawson for his people. His ambition is to practice law in the areas of native title, intellectual property and human rights. “Receiving the Scholarship provides inspiration and encourages me to continue making a positive contribution to Aboriginal and Torres Strait Islander communities,” Mr Dawson said. “It can be quite difficult to juggle university studies, work and the committee and volunteer work I undertake—it can be overwhelming sometimes. It’s nice to be inspired to continue doing that work and to be recognised for my contribution to the fight for justice for Aboriginal and Torres Strait Islander people.” Mr Dawson is currently in his fifth year of a Bachelor of Law/Arts double degree at the University of Notre Dame in Fremantle. He has excelled both academically and in advocacy competitions, which includes maintaining a distinction


MAR–MAY 2012

35

average and winning an award for his research in property law. He holds numerous positions within Notre Dame’s Student Association, volunteers in his local community and is also a member of the Aboriginal Lawyers Committee of Western Australia. He applied for the Scholarship by chance, having seen a notice for it at his university’s law school and recognised the name from his lectures on native title. “There are two main reasons I see for scholarships that are set aside for young Aboriginal and Torres Strait Islander students studying law: they act as encouragement to contribute back into the local community and to contribute towards the fight for social justice in Australia,” said Mr Dawson. At just 21 years of age, Mr Dawson has already built an impressive resume of awards, achievements and legal experience. His personal highlight to-date came in January this year when he was appointed the Co-chair of the National Youth Advisory Council of the National Centre of Indigenous Excellence. Based in Redfern, Sydney, the National Centre of Indigenous Excellence runs programs for thousands of young Aboriginal people from across Australia. “We direct the youth engagement policy and what the Centre is going to do with events to engage young people and keep it relevant to them,” Mr Dawson said. The Centre recently held an Indigenous constitutional recognition forum and hosted over 70 young Aboriginal and Torres Strait Islander people. “The participants came from all over Australia to learn about constitutional recognition of Aboriginal and Torres Strait Islander peoples and developed their own youth-led campaigns in the lead up to a possible referendum,” Mr Dawson said. “That has been the most rewarding thing I have done recently—I am so proud to be on the Council and to be part of an amazingly talented an inspirational generation of young Indigenous leaders.”

He attributes his interest in studying law to the political and legal frameworks that underpin society and their role in empowering its citizens. As an Aboriginal Australian, he said he is motivated to harness the legal knowledge required to be an effective advocate for his people and an agent for change. “There are a lot of different career paths you can take to work in the Indigenous space and all of them are worthwhile, but I had the feeling I wanted to be actively involved in the middle of changing things rather than be on the sidelines commenting on them,” Mr Dawson said. “I think a law degree gives me that ability.” Mr Dawson is eager to continue his studies at university into a career developing Indigenous policy. He has identified numerous areas where he believes reforms are needed and where his skills can help. One policy he particularly identifies with and is passionate about is Indigenous knowledge and intellectual property. “I started studying in this area last year and did some work in Broome about protecting ecological knowledge and the knowledge of Aboriginal people about managing country” said Mr Dawson. “It was really apparent that the intellectual property system doesn’t protect Indigenous knowledge very well, or at all. It’s both annoying but also inspiring to make a change when you see there have been countless government reports about how this area of law should be reformed. The issue comes up every couple of years and it’s frustrating that no change is happening so I definitely want to work more extensively in this area when I finish my studies.” Mr Dawson has also co-authored a report on Indigenous knowledge and intellectual property with Terri Janke, the international expert on the topic and the first recipient of the John Koowarta scholarship. Before tackling some of Australia’s toughest Indigenous policy issues, Mr Dawson is intent on achieving his goals to finish his studies at university, and make his family and

community proud by setting a strong example for the next generation of young Indigenous students. “My main inspiration and reason for doing law is my mum,” Mr Dawson said. “Ever since I was a little kid she has taught me to be proud of my Aboriginality, proud of where I’ve come from and to let nothing limit me in pursuing my dreams and what I want to do with my life.”

Ms Melinda Mitchell

Melinda Mitchell When Melinda Mitchell first found out she had been chosen as a Koowarta Scholarship winner, it was an experience she described as “quite surreal”. Ms Mitchell is currently studying law at James Cook University in Townsville— having already completed an arts degree at Macquarie University— and is aiming to become a legal officer in the Australian Defence Force at the completion of her studies. “It makes me very proud to be a recipient of this Scholarship— John Koowarta was an inspirational advocate for Indigenous people so to be linked to that is quite humbling,” Ms Mitchell said in an interview with the Law Council Review. As the first person from her family to complete a university degree, Ms Mitchell has relished the opportunities she has been afforded through her studies. “Everybody’s just extremely proud,” Ms Mitchell said of her family’s continued support.


“Growing up as a kid it never even entered my mind that I could do this.” She is extremely grateful and proud of her family and community, and attributes her successes thus far to their influence.

“LIKE EDDIE MABO, KOOWARTA IS REVERED AS ONE OF THE MOST IMPORTANT FIGURES IN THE PROGRESSION OF NATIVE TITLE RIGHTS FOR INDIGENOUS AUSTRALIANS.”

Family is an important part of Ms Mitchell’s life and the driving force behind her determination to ensure she fulfils her potential. She is a married mother of three boys—two of which she and her husband are foster carers for and require special needs attention—and is determined to demonstrate to them the life opportunities that are available to Indigenous Australians. “I’d love to be an advocate for my people and show them, and show my kids, that anything is possible,” Ms Mitchell said. Studying for her law degree at James Cook University is Ms Mitchell’s ‘second go’ at uni as she describes it. She went to Macquarie University straight out of high school where she studied a double degree in arts/law and actually aspired to be a police officer before notions of the legal profession entered her planning process. She eventually enrolled in a law degree following her strong universities admission index score but quickly found the foreign lifestyle of a university campus a difficult hurdle to overcome. “There was no support back then,” said Ms Mitchell of her first stint in university. “I’m now at James Cook University and have an Indigenous Support Mentor which offers a whole lot more support for Indigenous students that I didn’t have and probably needed as an 18 year old back then. The Koowarta Scholarship gives recognition of Indigenous students and that they require support when they’re young and moving away from home for the first time.” Despite her initial difficulties, Ms Mitchell achieved strong results in both her arts and law classes. But three years of study at Macquarie, life took a sharp turn for Ms Mitchell when she hastily moved to Townsville following an Army posting for her husband. It was a difficult transition for Ms Mitchell who had never lived so far from her family in Sydney, but she quickly settled into her new surrounds thanks to the support of the local community.

She joined her husband in the Australian Defence Force as an Army Clerk and completed qualifications in child care. But her passion for the law never really died. “I had already completed three years of legal studies and thought ‘why not go back and finish it?’” Ms Mitchell said. “Especially with having my own children, I wanted to show them you can achieve anything you want to and as soon as I started studying again I can’t wait to finish and be an advocate for my people and use my qualifications in law to make a difference.” Ms Mitchell is eager to make this difference through her work with the ADF. She is particularly eager to become a Legal Officer for the Australia Army and become involved in the recruitment and retention policy for Indigenous soldiers. Only a small percentage of ADF personnel are Indigenous and Ms Mitchell is keen to investigate why that is and implement policies to ensure greater participation. “I feel very strong about this and I feel my success will lie in my advocacy work,” Ms Mitchell said. “The Army has a lot more recruiting programs and avenues for Indigenous people in the community now and I want to make sure these programs continue because there are a lot of children from my boys’ communities that don’t have the access to the same education as your average child but deserve a chance in the military and deserve the opportunities given to other children.” Ms Mitchell believes the John Koowarta Scholarship will assist her in achieving her goals in the law and fulfil her biggest hope: to be a strong role model for her own generation and the next generation of Indigenous children. “As you grow up, you become an advocate for the next generation,” Ms Mitchell said. “Because I’ve been through it, I know how hard it can be, I feel it’s our duty to help the younger ones through and to give them as much opportunity as you can provide.”


Ms Danielle Davis

Danielle Davis For as long as she can remember, Danielle Davis has been interested in law. From a young age she was motivated to help those around her and providing assistance and justice to those whom she felt needed it most. Her motivation was initially nurtured through volunteer work to help homeless and elderly people, and also through student representative programs at her high school. “Ever since I was a little girl, the law has been the only thing I’ve wanted to do—I don’t know why; maybe it was Law and Order?” Ms Davis jested in an interview with the Law Council Review. “The idea of justice, which I’m learning is a very grey topic, is a concept that attracts me.” Her interests in the law eventually developed into a tangible career option when she graduated from college and was accepted in a Bachelor of Laws and Bachelor of Psychological Science at Griffith University in Queensland. She was informed about the Koowarta Scholarship and how it could assist with her studies by her law mentor at Griffith and was encouraged to apply. “I felt honoured to win the Scholarship, particularly given the standard of applicants was so high,” Ms Davis said of receiving the Scholarship. “It’s really important to have a scholarship for Indigenous students—and particularly one such as this—because of the low numbers of Indigenous students taking on higher education. It’s important that there are incentives for Indigenous students to be able to access some of the opportunities

Davis has so far excelled during her studies at Griffith. She is a member of the prestigious Griffith Honours College— a program designed for outstanding students, providing what it describes as enriching experiences in combination with undergraduate degree studies. “It’s a really good program that Griffith has set up,” Ms Davis said. “It has helped me in that the program provides a lot of skills that you don’t get through your degree.” It was through the Honours College program that Ms Davis met her legal mentor and also decided to become a mentor herself of first year psychology students. “It has been one of the highlights of my time at uni,” Ms Davis said of the experience. “Not only do you form these great friendships with people through the program, but to be able to pass on knowledge that is genuinely helpful is very rewarding.” Now into her third year of studies at university, Ms Davis has also sought to get a head-start on a possible career in the legal profession through an Indigenous Cadetship at Gadens Lawyers in Brisbane. Gadens started its Indigenous Cadetship Program in 2006 and has since seen 15 indigenous cadets and lawyers work within its practice in Brisbane. “It has been unbelievably helpful for me to be able to enter the legal profession,” Ms Davis said of her time in the program. “To be able to have the access with other cadets who have gone through the program and have their own experiences to share is really beneficial.” As part of the program, the cadets are rotated through different practice groups to gain knowledge and experience in a gamut of legal spheres. “It has made my degree so much more relevant and easy to understand because you’re actually putting what you learn at uni into application,” she added. “It has cemented in my mind that I’m doing what I want to do—I do love law.” Post her university studies, Ms Davis as yet is figuring out what direction she may take within the legal profession. She is eager to undertake pro bono work which she

said is in line with her desire to support people in need of assistance. “My belief is that every lawyer should undertake some form of pro bono work during their degree,” she said. “Not only to give back to the community but also as a way of gaining perspective. It can be easy sometimes to lose sight of the smaller players in the legal system—they are important and need just as much representation as those who can afford it. For me, it’s a very important part of law and one’s responsibility as a lawyer.” “While I am still undecided as to which field of law I wish to pursue, there is one thing that I am sure of: I want to help people in need. The idea of justice, as a symbolic and intangible idea has attracted me from a very young age. The fight for the ‘little people’ and the underdogs is what interests and attracts me the most,” Ms Davis concluded.

John Koowarta’s fight In June 2012, Australia acknowledged the 20th anniversary Mabo ruling in the High Court of Australia. The famous ruling was a watershed moment in Australian history, which recognised the rights of the Merriam peoples to the Murray Islands in Queensland and led to the enactment of the Native Title Act 1993 (Cth). Subsequent native title determinations now cover roughly 16 per cent of Australian land and coastal areas. But before Mabo, and the subsequent Wik ruling in 1996, there was John Koowarta—a pioneer in advocating for Indigenous land rights in the Australian courts and a man who defied a government at a time when the concept of Indigenous land rights were outlawed in parts of Australia. A member of the Winychanam community at Aurukun, he was a traditional owner of the Archer River region on Cape York Peninsula in Queensland. Like Eddie Mabo, Koowarta is revered as one of the most important figures in the progression of Native Title rights for Indigenous Australians. Former Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs (1991–96), the Honourable Robert Tickner,

37 MAR–MAY 2012

available to other young Australians.”


described Koowarta as, “an Australian hero who was a courageous fighter against Governments which discriminate against people on the basis of race.” Koowarta’s fight for Indigenous land rights began in 1973 when he attempted to purchase a large property known as Archer River Bend— part of his people’s traditional lands. Funding for the purchase was to be provided by the Aboriginal Land Fund Commission (which in turn was funded by the Australian Government) and a deal was struck with Archer River Bend’s owners for the sale. Unfortunately for Koowarta, the sale was blocked by the then Bjelke-Petersen Queensland Government, whose official position stated: “The Queensland Government does not view favourably proposals to acquire large areas of additional freehold or leasehold land for development by Aborigines or Aboriginal groups in isolation. Koowarta initially complained to the then Human Rights and Equal Opportunity Commission claiming that the Queensland Government’s refusal to ratify the sale was discriminatory. The Commission upheld Koowarta’s complaint, but the Queensland Government appealed to the Supreme Court of Queensland and also brought a separate action against the

Government of Australia that challenged the validity of the Racial Discrimination Act 1975 (Cth). The case was moved to the High Court which in 1982 ruled the Australian Government did have the power to legislate for the elimination of all forms of discrimination. Having won the High Court case, Mr Koowarta went on to win further legal battles in the Supreme Court of Queensland, further legitimising his right to purchase the Archer River Bend property. In a cruel twist of fate, Koowarta would never see his lands returned to him and his people. BjelkePetersen declared the Archer River property a national park to ensure the land could not come under private ownership. Koowarta never realised his dream of reclaiming the land for his people and passed away in 1991, just one year before the Mabo ruling which led to Indigenous land rights being enshrined in law through the Native Title Act 1993 (Cth). In May 2012, Koowarta’s dreams— which he took steps towards fulfilling nearly 40 years ago— became a reality: Archer River Bend was once again the property of his people. Queensland Premier, Campbell Newman, in handing over the title to the lands said:

“Today I want to confront the issue. That is, 35 years ago a great injustice was perpetrated. And today we’re here to put that right. We’re here to make sure that it is right forever, and to give back to the people what was rightfully theirs. I’m sure, if all Queenslanders knew the story of what happened in 1977 and afterwards, they would feel as sorry as I do myself. So today, my apologies to those who have suffered.” Through the John Koowarta Reconciliation Law Scholarship, the legacy of this proud man lives on. Koowarta continues to inspire Indigenous people across the nation to fight for their rights and has shown them what they can achieve. The ideals of the Scholarship shine through its recipients and represent the role the legal profession in Australia has to play in working towards reconciliation. The Law Council is proud of the outstanding success of the John Koowarta Reconciliation Law Scholarship, which has assisted several indigenous Australians in completing their legal studies, many of whom have gone on to make valuable contributions to their communities, the legal profession and Australia. More information about the Scholarship is available online.

(left-right); Ms Mitchell, Ms Gale, Mr Dawson and Ms Davis at the 2012 John Koowarta Scholarship awarding dinner.


PURSUING HARMONY IN PROPERTY TRANSACTIONS


The Property Law Reform Alliance (PLRA) is a national coalition of legal and industry associations including entities such as the Australian Institute of Conveyancers, Property Council of Australia and Australian Property Law Group of the Law Council of Australia. The coalition is committed to bringing about uniformity and the reform of property law and procedures in Australia and believes harmonisation of the various Torrens Titles Acts across Australia’s eight jurisdictions will have extensive and meaningful benefits. The Torrens Title system is globally recognised as one of the best methods for land titling and underpins Australia’s multi-billion dollar property industry. The system was introduced to Australian law by Robert Torrens in 1858 to resolve perceived deficiencies in the common law and deeds registration system. In Australia, the system is something of a homage to the colonial days whereby Torrens Titles govern property law in each of the nation’s eight separate jurisdictions. This is a system the

PLRA Chairman, Dr Stephen Pallavicini, said the Act shows that a leading practice property law system is within reach. “In the absence of a commitment by Australian Governments to reforming land title legislation, industry took the first step to show them that it was possible,” Dr Pallavicini said. “The Act was developed in collaboration with professionals working in the jurisdictions, and it represents the leading aspects of property law systems from around the country. There are surprisingly few areas of real disagreement between the jurisdictions.” Dr Pallavicini spoke with the Law Council Review this month about the PLRA’s draft Uniform Torrens Title Act. What is the PLRA’s Draft Torrens Title Act? We commissioned Professor Peter Butt, who’s well recognised with property law both in Australia and other jurisdictions, to draft a Torrens Title Act which was in plain English and which had the best of Australia. We’re very keen to make sure that, because Professor Butt is from New South Wales, it’s not seen as a NSW-centric Act. It’s the best from each state and territory but the Act also recognises that there may be specific provisions in particular states that need to be preserved. We’re not saying every state will end up then having the same Act word for word, but because of historical differences there may be some variation and our draft Act recognises this in that we have a schedule when the state would have to complete if they pick it up and run with it whereby they could make particular changes for their jurisdiction. What would be the most significant changes of the Draft Torrens Title Act you’re proposing to have introduced?

There would be some changes, for example one of the issues that is the subject of some discussion is the question of lease plans. In some states when leases are registered plans are attached to the leases and that would change if our draft Act was to be adopted. There are other various issues that could change such as the registration of short-term leases. There are issues in the area about exceptions to indefeasibility; we have in our draft a revision which recognises possessory title and the same would apply for prescriptive easements. We asked Professor Butt when drafting the Act to not only accept the best case law but also to accept present court rulings and principles on various issues, for example the omission of easements from the registrar. We’re trying to encourage people to register promptly rather than relying on protection under the relevant section that deals with the protection of purchases and mortgages and we’re trying to deal with the situation where there are often delays registering the mortgage once the settlement has gone through. There might be questions that arise about issuing certificates of title. There’s a push towards issuing electronic certificates. We see this as part of helping the e-conveyancing process in the long run. As a necessary precondition to the e-conveyancing process we believe there needs to be a uniform Torrens Title Act. There are also sections dealing with registered leases. There are sections that outline provisions for how long leases should have as a term before there is an exception to indefeasibility. But there are various differences between the states on this issue. For example, in Western Australia the period is five years, in South Australia it’s one year, in Victoria leases can remain unregistered—we’ve opted for a period of three years. We also deal on the mortgages duty on exercise of power of sale. We’ve tried to make that uniform because at the moment in some jurisdictions there is a statutory basis but the statutes are worded somewhat

40 MAR–MAY 2012

CALLS TO HARMONISE AUSTRALIA’S TORRENS TITLE LAWS HAVE GAINED MOMENTUM IN RECENT TIMES AND A CONGLOMERATE OF PROPERTY INDUSTRY STAKEHOLDERS IS LEADING THE CHARGE.

PLRA says frustrates investment and makes Australia less competitive internationally. To combat the inefficiencies of the present system the PLRA has released a draft Uniform Torrens Title Act, which it said is the result of nearly a decade of commitment from PLRA members.


differently and in other jurisdictions it’s based on equitable principles of good faith or conscionability. We have attempted to provide a very simple, clear statement largely based using best practice on the Corporation Act, in s420A, that expanded by state into whom the duty is owed, who can recover damages for breach in protection of the purchaser’s title. We don’t go so far as to regulate the precise method of sale: for example, we don’t go as far as s85 of the Queensland Property Law Act. We think that these matters are best dealt with under the general law principles that regulate mortgages sale. Generally speaking, this draft is in best practice, it is in plain English and it is a document which can be read and understood by people. It has taken the best of judicial decisions, the best in Australian property law and put it in an easy to understand format. What are the major benefits of harmonisation in relation to the Torrens Title Act? There will be the ability for practitioners to work across boundaries. There is, what we would argue, a reduction in cost, greater certainty and freer movement of trade (properties don’t move across boundaries, but a lot of transactions are based on property so it’s part of that overall process). We have anecdotal evidence that suggests, where firm and entities work across borders, there is a much greater cost and delay added to transactions if you have to operate across multiple jurisdictions. Ultimately our view would be to have a harmonised approach across the land titles offices as well. Over a period of time there would be other changes that would flow from these benefits such as in the

education system. For example, if you had a uniform Torrens Title Act, over a period of time you would have uniform judicial law, uniform judicial interpretation of the Act and the laws that would be taught in the various universities and institutions across Australia would be the same. What has been the response to the draft Act since the PLRA released it in March? The response has been good. There have been industries quite interested in it. The Australian Government, although it doesn’t have jurisdiction over property or land, has shown a lot of interest. The registrar-generals have also shown a lot of interest—we presented at last year’s annual registrar-generals conference and gave them a taste of what is to come. We hope to be invited back again this year to discuss their review of what we presented last year and to bring them up to date of the final draft Act which has been released. There has also been a lot of interest from professional organisations. Major property companies in particular have shown much of this interest. For example, Stockland is extremely interested in the draft Torrens Act. The Managing Director and the Chief Executive Officer see a lot of benefit in the sort of work being done by the PLRA. Comments are currently open on the draft Act. We’ve already had comments from surveyors and are waiting on additional detailed comments from other vested groups. What major obstacles does the PLRA face in ensuring harmonisation in this area? We need to convince governments that this is not an intellectual exercise and that there is a real

benefit to commerce and industry throughout Australia. The major obstacle for us as a voluntary organisation is getting that information to show the benefits that would be obtained from a uniform Torrens Title. There is support for the initiative. We need to get enough information so that an entity like the Productivity Commission can do a detailed analysis of the costs and the benefits. We think there are a lot of benefits—we just need to quantify them. How long do you expect this process will take? When will we be likely to see a uniform Torrens Title Acts in full effect? We haven’t set an end goal—we recognise it’s a process that will take time. Our aim is to continue to encourage debate on the issue to get the ministers and government departments on board. But at the same time, we also recognise we want them to carry the matter— ultimately it’s not for us to say how governments should legislate. We want to present something that has acceptance in community, business and industry.

A copy of the PLRA’s draft Uniform Torrens Title Act is available online.


RESTORING A ‘FAIR GO’ FOR REFUGEES FACING INDEFINITE DETENTION THE UNITED NATION’S WORLD REFUGEE DAY, CELEBRATED ON 20 JUNE, IS AN IMPORTANT OPPORTUNITY TO REFLECT UPON THE SIGNIFICANT CONTRIBUTION REFUGEES HAVE MADE TO THE AUSTRALIAN COMMUNITY OVER MANY DECADES. The histories of so many Australian families are characterised by stories of courage and determination to make the journey to Australia to start a new, safe, secure and productive life. It is also a time to reflect on the laws and policies that currently govern the way refugees are treated when they arrive in Australia and the processes that regulate whether and how they become members of our community. Of particular concern are those people, of which there are more

than 50 including families with children, who are caught in a form of legal limbo referred to as indefinite asylum. These people have been found by Australian authorities to be genuine refugees, but cannot be granted release into the community due to a failed security assessment that is conducted by ASIO. As a result they remain in immigration detention— unable to return to the country of origin, yet unable to start a new life in the Australian community. The Law Council understands that security checks must be conducted for all refugees before they enter the Australian community, and that this process may demand procedures or processes that operate to protect certain information from becoming public. Currently, no reasons are provided for an adverse assessment and there are no meaningful avenues for review. Once stuck in indefinite asylum, options for asylum seekers become very limited. Nonetheless, protection of Australia’s national security need not come at the expense of long held Australian values such as a fair go and surely does not necessitate a process which can give rise to indefinite detention without appeal. The need to redress the balance between procedural fairness for the individual and the interests of national security has been recognised by the Joint Parliamentary Committee responsible for inquiring into Australia’s immigration detention network, but we are yet to see any action from the Australian Government. High Court proceedings are also underway


MAR–MAY 2012

43

seeking to challenge the lawfulness of detention in these circumstances. The Law Council has written to both the Attorney-General and the Minister for Immigration urging them to act quickly to make the current system fairer. It has suggested that ASIO be required to conduct regular internal reviews of adverse security assessments for refugees. The Law Council has also suggested that the ASIO Act be amended to enable the Administrative Appeals Tribunal to review such assessments, as it already does for Australian citizens and permanent residents. These types of reforms can be introduced without disrupting Australia’s border protection policies and in a way that would not compromise national security. When people make the often hazardous journey to Australia fleeing persecution or violence they should not expect to be immediately released into the community. They should expect to have their refugee claims assessed and to have to undergo health and security checks by Australian authorities. They should, however, also be entitled to expect that they will be given a fair go—that if they fail a security test, they will be able to make their case to an independent decision maker. They should not expect to be detained indefinitely on the basis of information that they cannot see and cannot challenge. As the national body representing the legal profession, the Law Council of Australia has an important role to play in making sure that the laws and policies relating to refugees and asylum

seekers live up to human rights and rule of law standards. Through its Constituent Bodies, the Law Council also hears from lawyers who work with refugees and asylum seekers, often on a pro bono basis, about how these laws and policies are operating in practice and whether they are giving rise to unfair results. On both of these levels, there is reason for ongoing concern that the fundamental rights of refugees and asylum seekers are being overlooked or denied. Indefinite detention constitutes a denial of fundamental rights such as the freedom from arbitrary detention and is having a devastating impact on the wellbeing of the refugees who have received adverse security assessments. This was recognised by the Hon. Mr Daryl Melham MP, the Chair of the Joint Parliamentary Committee responsible for inquiring into Australia’s Immigration Detention Network, who observed that: Evidence overwhelmingly indicates that prolonged detention exacts a heavy toll on people, most particularly on their mental health and wellbeing. While academics and psychologists tell us that mental health begins to erode after three months in detention, there are people with adverse security assessments in Australia’s immigration system who have been detained for well over two years. The Joint Committee also noted that some of these refugees have children who were born, or are growing up, in detention facilities and went on to express the view that it “remains deeply troubled” by the fact that those with adverse assessments cannot obtain

evidence-based justifications for their status, regardless of the fact that these assessments effectively determine people’s freedom and, in many cases, that of their children. The Law Council acknowledges a number of positive steps taken by the Commonwealth Government to curb some of the most draconian aspects of Australia’s treatment of asylum seekers. These steps include moving children and families out of confined immigration detention centres and providing information to asylum seekers about their legal rights. Despite this, there remain certain features of Australia’s laws and policies that deny fairness to refugees and asylum seekers. Australia has a proud history of helping some of the world’s most vulnerable and displaced people, but more needs to be done to address issues like indefinite asylum. World Refugee Day marks an important date to reflect on the plight of asylum seekers across the world, but particularly on those seeking refuge in Australia. If we truly are a country that believes in a fair-go, then it’s time we afforded this sentiment to one and all who come to our great country. Editor’s note: this piece, by Law Council President Ms Catherine Gale, was published on news website The Punch (www.thepunch.com.au) on 21 June 2012.


LET’S STOP THE BLEEDING OF OUR FAMILY COURTS


Geoffrey Sinclair is the Chair of the Family Law Section of the Law Council of Australia. A not uncommon scenario played out in Melbourne recently where a father, who separated from his wife in December 2010, finally got to see his child again for the first time in nearly a year. This father was forced to endure a waiting list for compulsory pre-action mediation, a waiting list to have his first day in court, a delay when the case was transferred between courts (as our system has two separate courts each dealing with Family Law cases), a delay while an underfunded Legal Aid tried to provide an Independent Children’s Lawyer, and then another wait until a Family Report could be prepared. And the point of these delays? Simply to get to a short term answer that enabled the father to see his child while their family waits another year or two for the court to allocate a judge to decide the long term issues. The child in said case is six years old. A year is a long time in that child’s life. At each step, the system was unable to be responsive, as there were simply not enough resources to deal with all the cases demanding attention. The family courts house some of the most dedicated, selfless and hard-working staff in Australia. But, unfortunately, they are not receiving adequate funding support from our governments to do their job effectively.

Our family courts are in an impossible financial position with the cumulative deficit over the last five years amounting to $16.8million. A cut in court services looms as the only solution with an estimated 30 to 50 jobs on the line. This equates to a significant array of services that won’t be available for those families who most need the support of the court system. The system is already near tipping-point with its current workload and it’s difficult to fathom what effect job cuts will have. Suffice to say, it will not lead to improvements in outcomes. Australia has a hard working and conscientious judiciary who are always looking at methods to improve practises and to do more with less — but they simply cannot cope with the current workload. This inevitably leads to more interim applications and delay in the delivery of judgments. It is a vicious cycle in which lack of resources causes delay, which in turn leads to heavier demands on those same resources. Delayed justice is no justice at all. The delay in getting access to our courts is putting enormous financial and emotional stress on families, and doing real damage to the lives of children involved. That damage will inevitably have a long term social and economic cost far greater than the short term savings presently being imposed. The stark reality is broken, disillusioned and hurting families. It is a fundamental obligation of Government to provide access to justice. In the family law system, that obligation is not being met through a refusal to boost funding. We’ve reached a crossroad. It’s now time to deliver the family law services the community deserves.

MAR–MAY 2012

AUSTRALIA’S FAMILY COURTS ARE IN A DIRE STATE OF AFFAIRS AND THE PROBLEMS BESETTING THEM ARE ONLY GETTING WORSE.

45

Australia’s family courts cannot operate effectively under current funding arrangements. The lives of thousands of Australian families are currently in limbo while they wait for as long as two to three years for access to justice in the family courts. Scenarios like the one described above will become the norm unless something is done.

“The delay in getting access to our courts is putting enormous financial and emotional stress on families, and doing real damage to the lives of children involved.”


NATIONAL NEWS


Noor Blumer, President, ACT Law Society

AUSTRALIAN CAPITAL TERRITORY

The Supreme Court – The Blitz, Reserved Judgments and the Docket System Overall, the ACT Supreme Court blitz has lived up to its promise of substantially clearing the Court back log. In the criminal blitz for the first six week period 40 matters were listed for hearing, 21 resulted in pleas, six ‘declined to proceed’, four were vacated and nine were heard. As at 21 May, the civil blitz resulted in 46 settlements, 11 matters were heard to finality, five were vacated, one part heard and 27 not reached. All of the unreached matters will receive priority listing in the second blitz. Others that were listed for hearing at future times have been added but will not have particular priority. As at 23 May there were 65 matters in that list. There are still judgments reserved, but others have been handed down. It has been a learning experience for all involved and has required a considerable degree of flexibility and cooperation, but the results so far have certainly met, and in many ways exceeded, expectations. Reserved judgments remain a concern, although there has been some progress on the back log. The Society is continuing to work with the Supreme Court and the Bar Association to improve the protocol with respect to reserved judgments. The Society has some concerns that progress from the civil blitz may be lost when Master Harper retires next year. Matters are not being listed before him to allow time for him to finalise all outstanding judgments, but unless there are arrangements for matters to be heard in that time, we face

The Society is close to finalising details of the proposed ‘docket system’ in the Supreme Court with some enabling legislation currently before the Assembly. The Society is involved in this process and will continue to provide input to ensure a workable system that also protects the rights of our clients. Inquiry into the CTP Bill The Society has received the report of the Standing Committee on Public Accounts Inquiry into the Road Transport (Third-Party Insurance) Amendment Bill 2011. The Society is pleased that the Committee has listened sympathetically to the case put forward on behalf of crash victims in making its recommendations, many of which the Society supports. The Society particularly supports better long term care for the catastrophically injured while other injured Canberrans are not disadvantaged. The ACT Law Society is relieved that the Committee recommends that the Legislative Assembly should not support the Bill in its current form. Had it gone ahead it would have removed most of the benefits which Canberrans are already paying for, without any reduction in premiums. The report confirms the legal profession’s view that the 2008 amendments are starting to bite and given time will have their full intended effect. The Committee properly recommends that mechanisms for controlling premium costs other than limiting access to common law should be explored. The Society looks forward to helping the government in that process. The report can be viewed online. The Society has been engaged in this campaign for a number of years and is pleased that the report heeded the legal profession’s concerns with the proposed reforms. The Society is continuing in its effort to improve the provision of Third-Party Insurance in the ACT and is are committed to working with the government and other key stakeholders to this end. Judicial Appointments The Society welcomed the appointment of barrister Dr

Bernadette Boss CSC to the bench of the ACT Magistrates Court. Dr Boss is known and respected by her peers as a person of intelligence, strength, conviction, compassion and as an impressive advocate. She is a senior officer in the Defence Force Reserve, has served in the regular army, and has seen operational service in East Timor, Iraq and Afghanistan. Admitted to the Roll of UK legal practitioners in 1992 and in Australia in 1993, she practised as a solicitor until becoming a barrister in 2003. She has practiced at the Bar with distinction in Canberra and beyond. Dr Boss has been a popular and hardworking contributor to the legal profession in the ACT particularly through her involvement with both the ACT Bar Association and the Women Lawyers Association of the ACT. The Society welcomes Dr Boss to the Magistrates Court with confidence that she will be a valuable addition to the bench. Law Society Pro Bono Survey The Society is conducting a survey to collect data and other information about pro bono legal assistance provided by the ACT legal profession. This survey aims to collate information about pro bono legal assistance provided by Canberra lawyers, including • the different types of assistance provided; • how much assistance is provided, and the value of that assistance; • the outcomes of that assistance; • how the removal of any barriers could encourage the provision of assistance; and • whether a disbursement loan scheme would significantly enhance the provision of pro bono legal assistance in the ACT. This survey is an important step in assisting the Society in its determination of whether to establish a disbursement loan scheme in the ACT. The Society has been reviewing this situation for a number of years and this survey will help guide the Society on the progression of this issue.

47 MAR–MAY 2012

continuing problems with delay.


The existing process frequently involves quadruple-handling of matters and is a heavy workload for the hardworking practitioners who volunteer their time on the Complaints Committee and on the Law Society Council. The burden for practitioners is far in excess of that required by members in other jurisdictions and it is timely to review our current procedures. Law Week 2012 From Monday 14 to Saturday 19 May ACT Law Week offered a full calendar of events to the Canberra community and local legal practitioners. Law Week also supports the Canberra community by collecting donations for a local charity, which in 2012 was Pegasus. Law Week 2012 raised over $10,000 for Pegasus. Law Week 2012 was generously sponsored by LawCover Insurance.

Justin Dowd, President, The Law Society of New South Wales

The Society has formed a committee to look at ways of streamlining our handling of complaints and disciplinary matters while maintaining the current high standards.

NEW SOUTH WALES

Review of Complaints Procedures

Family Law Settlement Service A recently launched Family Law Settlement Service will provide families in New South Wales (NSW) with better outcomes by minimising conflict, preserving relationships and keeping costs down. It is hoped the program, will also reduce the number of cases awaiting final hearing in the family courts. A joint initiative of the Law Society of New South Wales, Family Court of Australia, Federal Magistrates Court and the New South Wales Bar Association, the Family Law Settlement Service will allow eligible parties to access lawyers with family law mediation experience, at reduced rates. The courts will identify those disputes suitable for mediation and invite parties to take part in the program. Once the parties agree to mediation they will then be required to sign a consent form with orders made referring them to the Law Society of New South Wales. The Law Society of New South Wales and the New South Wales Bar Association will provide mediators who have experience in family law matters from their existing panels of legal practitioners. Parties will be able to develop an agreed list of outstanding issues in dispute, helping them towards an early hearing date if they are unable to reach a settlement through the Family Law Settlement Service. The Family Law Settlement Service will begin in August and will see more than 110 Family Court of Australia and Federal Magistrates Court matters referred to mediation, with scope for expansion beyond 2012.

New Knowledge portal for sole practitioners and small firms The knowledge and experience of legal and business experts has gone into building a new internet portal to help New South Wales solicitors set up and grow a successful law practice. Sole practitioners and solicitors in small firms now comprise 39 percent of all New South Wales solicitors and 58 per cent of lawyers in private practice in the state. The portal is in response to research showing that many of these solicitors want better support with the business side of running a practice. Compared to other segments, these solicitors do not have the resources that larger practices and organisations might have. With information on IT, marketing, financial management and business planning, the portal aims to equip practice owners with the business skills they need to set up and manage a successful small firm. Work is already underway to follow up the portal launch with complementary communications that will further enhance the knowledge base and seek to engage solicitors in the exercise of ensuring viability and success. Reconciliation Action Plan A focus on promoting Indigenous representation in the legal profession and protecting the rights of Aboriginal people forms the basis of the Law Society of New South Wales recently launched Reconciliation Action Plan (RAP). The product of an extensive and in-depth consultation with Reconciliation Australia and key Indigenous and non-Indigenous stakeholders, the RAP makes a


Under the RAP, the Law Society will work with Ngalaya Aboriginal Corporation, the New South Wales Indigenous Lawyers and Law Students Association, to further mutual objectives. The Law Society will also provide financial and in-kind support to Ngalaya as well as access to Law Society office space, meeting rooms, media and communication channels and printing for the Ngalaya coordinator. In response to the need for alternative pathways into the legal industry, the Law Society’s Legal Support program has developed “Legal Essentials”, an introduction into the legal industry for support staff. A number of places have been offered to staff and volunteers at the Aboriginal Legal Service. In June this year, the Law Society of New South Wales formed an Indigenous Issues Committee, to be co-chaired by Law Society President, Justin Dowd and solicitor Jason Behrendt. The new Committee will allow the Law Society of New South Wales to engage in law reform and policy development in this important area and will provide steering advice to the Law Society in the implementation of its RAP commitments.

Peggy Cheong, President Law Society Northern Territory

commitment to building respect and relationships between Aboriginal and Torres Strait Islander people and other Australians.

NORTHERN TERRITORY

MAR–MAY 2012

49

The Law Society Northern Territory has expressed its concern over the permitted naming of children in the media who have been charged with offences but not yet been convicted. The Society has called for amendment to the Youth Justice Act (NT) to include a presumption in favour of confidentiality for young people at all levels of the judicial process. Australian Community groups and legal services such as Northern Territory Legal Aid Commission, National Children’s and Youth Law Centre and North Australian Aboriginal Justice Agency have called for this reform for many years but these requests have been reinvigorated due to recent events. These submissions made representations to government about the importance of the protection of juvenile identities in enhancing the rehabilitation prospects of youth dating back to 2004. In May 2012 seven young offenders who had been held on remand facing criminal charges escaped from custody. The details of the children’s charges and their photos were released by local authorities and published within the local media, including the nightly television news. This information was published despite six of the seven being recaptured almost immediately.

This prompted a joint media release being issued from the Northern Territory Anti-Discrimination Commissioner, the Northern Territory Information Commissioner and the Northern Territory Children’s Commissioner stating that “This form of public naming along with charge details is not permissible without court sanction in any other Australian jurisdiction because of the generally acknowledged harm it can cause to the young person and their relatives”. The joint media release emphasised that the Northern Territory is out of step with the rest of Australia and out of step with Australia’s international obligations. In June 2012 a young girl’s name and photo was published in the NT news detailing charges for car theft. Comments on the NT News website included calls for the girl to be sterilised. Ms Peggy Cheong, President of the Law Society Northern Territory said that “if the name of a young person, not yet proven guilty of an offence is in the media, the harm to the child and their community can be far reaching.” This harm is universally recognised hence the UN Convention on the Rights of the Child and the so called Beijing rules which state: “The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.” The Society was concerned that these were not convicted offenders, but they were named before even being proven guilty of any offence. Ms Cheong said “if juveniles are allowed to be labelled, then the community should not be surprised if some go on to live up to that label. Little regard is had for the


Directors’ liability

“I feel like I can’t go to a lot of places because people know about my past and I feel completely judged.” The Northern Territory is the only jurisdiction in Australia which legally permits the naming of persons under the age of 18. The Society supported the calls in the joint media release for change to the Youth Justice Act to ensure that there is a presumption of confidentiality at all levels of the judicial process that can be set aside only when public interest can be demonstrated. Ms Cheong said “the Society is also calling for a change to the Youth Justice Act to bring the Territory in to line with the rest of the country and Australia’s international obligations. The Northern Territory can no longer justify what is described as “state sanctioned extra judicial punishment of children (and their families) regardless of whether or not they are guilty of an offence” and Australia’s commitment to the UN Convention on the Rights of the Child should be reflected in all the laws and practice of Australia.

Queensland Law Society

The 2006 submission to the then Attorney-General Peter Toyne from community groups provided case studies that demonstrated that the harmful consequences of this policy were tangible including this comment from a then 14 year old female whose identity and that of her brother were published by the local paper in relation to charges of stealing:

QUEENSLAND

future prospects of the child or their siblings which may be forever tarnished.”

Queensland Law Society a driving force in advocacy Queensland Law Society (QLS) is leading the way in advocacy issues. Advocacy services are among the most important QLS offers to the legal profession and general community and high performance benchmarks continue to be set. The Society is set to supersede the 2010–11 record of advocacy activity, with 233 submissions already completed as at mid June 2012, up from 193 last year. 2011–12 Advocacy Annual A comprehensive range of issues are covered in Queensland Law Society’s 2011–12 Advocacy Annual, which is available online. It demonstrates the Society’s achievements on a number of concerns it has raised with government and associated bodies and highlights ongoing issues. Covering almost the full spectrum of legal practice areas, high profile issues covered in this year’s Advocacy Annual include personal property securities reform, the Criminal Organisation Amendment Bill 2011, econveyancing and greentape reduction. Australian Solicitors Conduct Rules The Society’s Ethics Committee and its representative on the national Professional Ethics Committee had substantial involvement in the development of the Australian Solicitors Conduct Rules that commenced in Queensland on 1 June. Endorsed by the Law Council of Australia, the rules provide a framework of professional obligations and ethical principles. The nationally consistent rules are practical, relevant and support members in the practice of law.

Queensland Law Society urged Transport Ministers around Australia to consider the knock-on effects of aspects of the Heavy Vehicle National Law at their meeting on Friday 18 May. The Standing Committee on Infrastructure and Transport (SCOTI) discussed the Heavy Vehicle National Law which includes provisions that reverse the onus of proof for company directors and officers when their company commits an offence. The Society said governments had responsibility for protecting company directors and officers who are innocent of wrongdoing – not just within the trucking industry but in businesses across Australia. Instead of the risky step of legislating that directors have to prove their innocence in circumstances of corporate fault, the Society advocated for the Corporations and Markets Advisory Committee’s proposed model to keep directors and managers fairly accountable, leaving the door open for investigating potential liability. This issue was promoted together with representatives from the Australian Trucking Association and in legal profession and trucking industry publications. Queensland Law Society success on appeal rights The Commonwealth Social Security Legislation Amendment Bill 2011 seeks to extend income management mechanisms from the Northern Territory Intervention. Queensland Law Society has successfully advocated for a requirement that only state agencies with appropriate review and appeals processes be approved to make income management referrals. The Society wrote to the Parliamentary Committee on Community Affairs when the Bill was being considered to advocate for a recommendation regarding this appeals issue. In its report the Committee recommended that only agencies that have in place appropriate internal and external review and appeal processes be approved by the Minister to make income management referrals. The


The Minister advised QLS in May 2012 that the Government has proposed an amendment to the Bill, along similar lines to the one suggested by the Society. QLS is keeping track on the progress of the Bill.

The Society publicly promoted these concerns in a media statement on 31 May 2012 calling for all arms of PNG’s government to work together to achieve a peaceful resolution of the situation, and particularly highlighting the importance of an independent judiciary. Information on Queensland Law Society submissions is available online. For inquiries on advocacy activities, contact the Law Society.

The Society wrote a letter to the Malaysian Bar Council supporting their statement regarding reports of the lack of restraint and proportionality shown in the conduct of police actions during the rally. The letter noted concerns that there were several reports of public rallies in which these same forceful responses were employed by police. The Peaceful Assembly Act 2012 seemingly gives broad powers to police without the proper safeguards needed to protect the public against misuse. QLS also commended the Bar Council for its role in establishing monitoring teams to observe the rally, noting the safety risks that monitoring teams take in order to ensure that the correct legal processes are upheld and the rights of individuals are safeguarded. The Bar Council sent thanks for the letter of support and provided information on recent developments, including that the organisation has released the final report on the rally. The letter to the Bar Council and the report are available on the Bar Council website. PNG – rule of law issues At the end of May, events unfolded in Papua New Guinea which had serious repercussions for the rule of law in the country. Queensland Law Society has been active in supporting judicial independence and separation of powers, voicing concerns with issues being reported in PNG.

SOUTH AUSTRALIA

Queensland Law Society was troubled by recent reports regarding the police response to the Bersih 3.0 rally held in Malaysia on 28 April 2012.

Ralph Bönig, President The Law Society of South Australia

Bersih 3.0 rally in Malaysia

Legal Practitioners (Miscellaneous) Amendment Bill 2012 On 13 March 2012 the South Australian Attorney-General tabled in Parliament the Legal Practitioners (Miscellaneous) Amendment Bill 2012. The Society had been working with the Attorney-General and officers in his Department for some time with a view to updating sections of the Act to bring South Australia into line with its interstate counterparts who have adopted national model legislation. The Bill proposes a number of substantial changes particularly in the areas of: • discipline – by the adoption of new definitions of “unsatisfactory professional conduct” and “professional misconduct”; • the abolition of the Legal Practitioners Conduct Board and the recreation of a “Legal Conduct Commissioner”; • a revision of costs disclosure obligations; • greater access to the Fidelity Fund (presently known as the Guarantee Fund);

51 MAR–MAY 2012

Society then wrote to the Hon. Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs, proposing an amendment to the Bill to give effect to the recommendation.


• the provision of legal services by Community Legal Centres; and • professional mentoring agreements for infirmed or struggling practitioners. What has so far not been included are the national provisions for Incorporated Legal Practices (“ILPs”). The Society has made a number of submissions to the Attorney in relation to ILPs and has called for a model that would allow the adoption of business structures to enable South Australian legal practitioners to remain competitive with their interstate counterparts. The Attorney-General has indicated to the Society that he is prepared to consider the submissions. South Australia’s CTP Insurance Scheme Green Paper The Society has submitted its response to South Australia’s Compulsory Third Party Insurance Scheme Green Paper to the Department of Treasury and Finance. In its response the Society has called upon the State Government to advise its position in relation to the Australian Governments Proposals for a National Disability Insurance Scheme (NDIS) and a National Injury Insurance Scheme (NIIS), and also how it sees the reluctance of the other States (i.e. Western Australia and Queensland) which do not have a no-fault Scheme in place would impact on implementation of a NDIS or NIIS. The Society acknowledges the support of the Law Council of Australia and other Law Societies in the preparation of its submission which contains the following comments:• The level of financial support for the catastrophically injured who have no recourse to compensation is grossly inadequate. • The Productivity Commission has recognised this and has proposed the establishment of a National Disability Insurance Scheme (NDIS) and the Australian Government has stated that it will seek to implement such a Scheme. In addition, the Commission also recommended the establishment of a National Injury Insurance Scheme (NIIS),

which although not yet as publicly supported as the NDIS has the potential to also impact in a direct sense on compensation for the catastrophically injured and needs to be also factored in. • In the Society’s view, any consideration of reform to the South Australian CTP Scheme should not occur in isolation to the proposed introduction of an NDIS and NIIS and its financial implications. • The introduction of the proposals contained in the Green Paper must be carefully considered in the context of what is happening or may or may not occur on the national stage. Unless there is national unanimity on the introduction of an NIIS with all states and territories moving at the same time towards the introduction of no-fault schemes for the catastrophically injured, there is no economic rationale on a State-based basis to proceed with the reforms proposed. This is particularly so if the Australian Government is not prepared to contribute to the cost of the care for the catastrophically injured when the current proposal would in fact move a significant financial burden currently carried by the Australian Government to the States. • In the absence of a truly national NDIS and NIIS and a thorough understanding of its structure, scope and cost analysis, it is premature to discuss, and more importantly, to advocate or seek to implement, a no-fault scheme or any part thereof in South Australia. • At this stage there does not appear to be national agreement on the introduction of an NDIS (let alone NIIS). • There are no immediate financial imperatives identified in the Green Paper in the absence of a desire to embrace the Productivity Commission’s recommendation that all motor vehicle schemes should be “no-fault” that would compel changes to what is in all other respects a healthy, mature and viable Scheme.

• The only actuarial advice provided is an extract from a PwC report dated October 2011 which appears to be based on a number of assumptions. Until those assumptions crystallise (i.e. the implementation of an NDIS and NIIS) then the actual total financial impact will not be able to be calculated with any certainty. • All of the options proposed reduce or eliminate existing entitlements to the majority of negligently injured persons producing a substantial change to compensation eligibility and entitlement. Changes which substantially reduce the eligibility of claimants and the entitlement of eligible claimants are opposed by the Society, noting the solvency of the current Scheme. The submission is available on the Society’s website. The State Budget, handed down on 31 May 2012 includes $20 million over three years from 2013 to 14 for a National Disability Insurance Scheme launch in South Australia for personalised care and support to people with a significant and permanent disability. The detailed operations of a launch in South Australia are “subject to negotiations with the Australian Government”.


The body, to be known as IBAC [Independent Broad-based Anticorruption Commission], was to be established by July 2011, making it at least a year late by mid-2012. No Commissioner has been appointed. It is speculated that the Government is having difficulty finding someone with the professional standing of a judge who will accept the post. There are concerns the legislation creating the corruption watchdog is confusing, unclear and extremely difficult to navigate. The Law Institute of Victoria has called for the legislation to be redrafted. The IBAC would also appear to be underfunded although the precise allocation of the funding is not clear. The most recent IBAC embarrassment saw two government workers allegedly try to rig a tender for its security services. Since 2010, members of committees of the Law Institute of Victoria’s Administrative Law and Human Rights Section, Criminal Law Section and Government Lawyers Section have been part of a working group to examine and provide comment on a new anti-corruption body. The LIV had a private and narrowly framed consultation with Government in June 2011 prior to legislation being introduced. The LIV was not consulted in advance on the legislation and it was not made available until it was introduced into Parliament. The LIV has since attended two meetings with the IBAC Minister to repeat our concerns.

The limited mandate of IBAC could make it inefficient and might undermine public confidence in its handling of corrupt officials. Three separate pieces of legislation have been introduced to establish IBAC. Another two pieces of legislation that involve its oversight have also been passed. The Acts are difficult to read and will be difficult to use. The LIV believes one piece of legislation with a broader mandate should replace the existing suite of laws. The LIV supports a robust anticorruption body that is able to investigate all corruption in the public sector. As it stands, the proposed IBAC jurisdiction is not broad enough. IBAC subsumes the OPI jurisdiction and widens it to unsworn officers with a narrow mandate for serious corrupt officials. ‘Serious’ corruption is not defined. It will be left to be determined by the IBAC Commissioner with no guidance to steer the Commissioner, other integrity bodies or the public in understanding what “serious” corrupt conduct is. The LIV expects IBAC’s jurisdiction could well be challenged in the courts. The LIV believes that the starting point for IBAC – its mandate to investigate corruption – should be broad. We need a better definition of “serious corrupt conduct” so that it is clear what IBAC will investigate and what it will refer to other integrity bodies, including the Ombudsman. The relationship between the IBAC Act and the Whistleblower Protection Act is also unclear. The LIV is also concerned that IBAC could question a person without telling the witness the nature of the allegations. If people are going to be questioned they need to know what they’re going to be questioned

about. Otherwise, they are not going be prepared. Nor is it clear whether witnesses are going to be entitled to adequate legal representation. The LIV notes that witnesses “may be represented by a lawyer” (s82M) and considers that the nature and extent of the legal assistance to witnesses should be clarified. Does it apply to a single lawyer, or can it extend to a barrister and instructing solicitor? The scale of costs should also be prescribed in the regulations. The protections available under IBAC need to be consistent with what’s available at the moment under the Whistleblower Protection Act, for example. These issues are not clearly defined. The capacity of the overseeing Victorian Inspectorate to fix any wrongs in IBAC investigations as they occur also requires greater clarity. The LIV would also like to see IBAC have broader flexibility in holding public hearings, by removing the need for “exceptional circumstances”. The LIV is also concerned that the new IBAC and associated bodies, with its four-year budget of $200 million, is underfunded. Past OPI expenditure suggests that at least $100 million would be needed over four years to administer OPI functions, leaving only $25 million per year to cover the establishment costs of IBAC and the costs of investigating serious corruption, as well as funding the oversight of IBAC by the Victorian Inspectorate. The LIV wants to see the Government get IBAC right. As it stands, neither the legal profession nor the public can have confidence that it will work effectively. There is a terrific opportunity to establish a public office we can all have faith in. The LIV urges speedy resolution of the issues hindering IBAC. The infrastructure needs to be in place to tackle corruption and be ready to act. The LIV joins the rest of the Victorian community in urging resolution of the issues raised and ultimately, IBAC’s launch.

53 MAR–MAY 2012

Michael Holcroft, President, Law Institute of Victoria

VICTORIA

Premier Ted Baillieu’s 2010 promise of an anti-corruption commission to replace the Office of Police Integrity [OPI] and monitor the entire public service, has been a tough one for the government to deliver on.

The LIV has been vocal in raising its concerns about IBAC, in particular the narrowness of its legislation which the LIV has rigorously examined. Excluding offences such as “misconduct in public office”, and limiting IBAC’s jurisdiction to ‘serious’ corruption does not a ‘broad-based’ Commission make.


The Victorian Bar

VICTORIA

The Victorian Bar has put in place many initiatives in the last quarter, including reviewing the Bar’s Parental Leave supports, hosting a most enjoyable Bar Dinner, conducting a range of educational activities including the third Readers’ Course exam and connecting with the New Zealand and other Australian Bar’s in education initiatives and with the American Bar Association as the recipient of a goodwill visit. Report of the Parental Leave Working Group and increase to the cap Following the receipt of a report from the Parental Leave working group, which had been reviewing the supports available to members engaged in early stage parenting, Bar Council resolved to lift the level of chambers underwriting available to members during their parental leave from $1100 to $1,300 per month for up to 6 months. It also resolved to review the cap in another eighteen months’ time. The working group’s report included an analysis of the rental assistance provided to members since 1997 which progressed to a survey of members, who had received parental leave assistance, about their experience of the policy application, and an analysis of rent levels across the Bar, and advice about actions that that working group had taken to:

• improve communication about the availability and process for applying for rental subsidy and subscription discount for those on parental leave on the Bar’s website and with the Bar’s subscriptions renewal notices; and • install a new section on the website for members taking approved leave to advertise the availability of their chambers for temporary sharing or sub-lease. Bar Readers’ exams Offers for the September 2012 Bar Readers’ course were made in June with a total of 36 candidates successfully achieved the pass mark of 75 percent or above in the exam entry process and were offered places. The new Readers’ will be joined in the course by two readers from the South Pacific when they begin the course on 3 September. The exam entry for the Readers’ Course in Victoria is now in its second year, and is accompanied by a significantly revised course which emphasises development of advocacy skills. National meeting of Education Managers On 15 June Education Managers from Victoria, New South Wales and Queensland met in Melbourne to share information about their education research, programs and experience. Collaboration and sharing was the primary motivation for this second meeting of its type and although some of the smaller Bars could not attend they will share in future initiatives. Pro Bono Committee reviews the numbers Accurate measurement–or even estimates–of just how much pro

bono work is done in the profession has been an ongoing issue, and the Victorian Bar’s Pro Bono Committee has taken it up with a review underway of how best to gather information about pro bono activity by barristers. Better measurement of what is done free will help create an accurate picture of the real demand for legal services – and how needs are changing. Current estimates are gathered through the Bar’s Pro Bono Scheme administered by PILCH, which formally links (and records) clients in need with barristers who provide pro bono services through the program, Duty Barrister Scheme reports, and sometimes through surveys of the Bar membership. However, it is well known that the amount of pro bono activity is widely under-reported (partly because of the spirit in which pro bono is offered). A number of possibilities are being canvassed, including working more closely with list clerks and Bar committees which work in areas of law that are traditionally conducted pro bono. Melbourne to host New Zealand Bar Conference The Victorian Bar has assisted the New Zealand Bar Association in their plans to hold the New Zealand Bar’s Annual Conference in Melbourne in August this year, featuring keynote speaker, former Federal Court judge Ray Finkelstein QC. The conference theme is Leading a Successful Team, and has an emphasis on the use of experts with speakers addressing the perspectives of the judiciary, experts themselves, clients and counsel. The program also features


Victorian Bar Dinner

Martin Cuerden, Francis Burt Chambers

WESTERN AUSTRALIA

The 2012 Bar Dinner was held last Friday night, 25 May, at the Myer Mural Hall with around 480 members of the Bar and Bench sharing in a fantastic night, judging from the enthusiastic feedback during and after the event. Our guest speakers, the Hon. Justice Susan Crennan AC and Phil Dunn QC both gave highly entertaining speeches, the food was great, the wine flowed and the Vic Bar band had everyone up and dancing.

Re-thinking directors’ liability for breach of fiduciary duty - Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17 [Editor’s note: the following is an extract from an article published by the Law Society of Western Australia in its publication In Brief. A full copy of the article is available on the Law Council’s website] Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17 is - to paraphrase - a difficult case with difficult facts. The facts are not only complex in themselves, but a number of the trial judge’s findings of fact were successfully challenged on appeal. The Court of Appeal either set aside and substituted important findings of fact, or else made necessary findings of fact which the trial judge had failed to make. The case involves what McLure P described as “frontier issues” concerning the question of a director’s liability to account for

breach of fiduciary duty to his or her company: [63]. This is a difficult area of the law, in a state of development: see also, eg, Eastland Technology Australia Pty Ltd v Whisson (2005) 223 ALR 123 at [64]. Streeter was a borderline case on the question of breach of fiduciary duty. This is demonstrated by the fact that although the Court unanimously allowed the appeal on the ground that the claim of the plaintiff company Western Areas Exploration Pty Ltd (WAE) was barred by laches, the Court was divided 2:1 on the question of breach. McLure P (with whom Buss JA agreed ) held that the directors (Streeter and Cooper) had not breached their fiduciary duties to WAE except in one limited and discrete respect which was irrelevant to the substantial and extensive relief claimed by WAE. Murphy JA, on the other hand, held that the directors were in breach of their fiduciary duties and (but for the defence of laches) liable to account to WAE for the profits claimed. On 9 December 2011, the High Court refused WAE special leave to appeal, seeing no reason to doubt the Court of Appeal’s conclusions about laches, but expressing no opinion on the issues of breach of fiduciary duty on which the Court of Appeal was divided. The facts WAE was a junior explorer. It was incorporated in 1996 with the intention of acquiring tenements, listing on the ASX and carrying out exploration of the tenements. By 1998, WAE was dormant. It had not listed, had various tenements and effectively no cash. In early 1998, the directors of WAE approached Streeter to invest seed capital of $250,000 in WAE for the purpose of enabling WAE to list on the ASX and to undertake an IPO to raise a further $2.5 million. Streeter was well-known as a successful investor in junior exploration companies, in particular nickel mining companies. The benefits to WAE were not only Streeter’s ability to provide finance to the company, but also his reputation and connections. Streeter agreed. In March 1998, Streeter and his accountant, Cooper, were appointed

to the board of WAE. The other director was Brailey. Brailey was a stockbroker. He was one of the original promoters and shareholders of WAE, and the main protagonist in the subsequent litigation. Neither Streeter nor Cooper (nor Brailey) were formally appointed as managing director. None were remunerated. Streeter in fact (through a company controlled by him) provided seed capital of $155,000, part of which was converted to equity in March 1998. The proposed IPO was abandoned, and it was common ground that Streeter was under no legal (or other) obligation to provide the balance of the $250,000. By June 1999, WAE had forfeited all but one of its tenements through failure to fulfil its expenditure obligations, and its only asset was a 70 percent interest as an applicant in a joint venture with another entity, Golden Granite Pty Ltd, over three gold tenements near Cue (“the Cue tenements”). By that time, WAE was insolvent subject only to any further injections of capital by Streeter, and needed to be restructured by a major reduction in capital to make investment in WAE attractive to any potential investors. In November 1999, a potential “opportunity” arose which became the focus of the subsequent litigation. To continue reading the full article, please visit the Law Council’s website.

55 MAR–MAY 2012

luminaries of the Victorian Bar and the judiciary in a full program from 24 – 26 August.


MALAYSIA MOVES TO OPEN UP LEGAL SERVICES MARKET

INTERNATIONAL NEWS

Malaysia is one step closer to a more liberalised legal services market following the introduction of the Legal Profession (Amendment) Bill in April 2012, which seeks to establish a framework for the regulation of foreign law firms and foreign lawyers in West (Peninsula) Malaysia. Among other amendments, the proposed Bill will allow foreign lawyers to provide legal services in ‘permitted practice areas’. Foreign law firms will also have the right to establish joint venture or stand-alone branch offices in Malaysia, while qualified Malaysian law firms will be able to employ foreign lawyers. Under the proposed reforms, the Malaysian Bar Council (MBC) will be responsible for regulating the practice of foreign lawyers and will have significant input into the development of associated rules. Permitted practice areas are just one of many important regulatory aspects that the MBC will be responsible for under the proposed Bill. A key feature will be the registration system for foreign lawyers, its specific requirements and how it will work in practice. Together with the International Legal Services Advisory Council (ILSAC), the Law Council of Australia has sought and will continue to seek permission for Australian lawyers to engage in ‘complex or sophisticated practice’ including, but not limited to, banking or corporate practice and ancillary work areas – not domestic law.

The proposed amendments to the Legal Profession Act 1976 are expected to progress to the Upper House of Parliament in mid-July 2012. The Law Council and ILSAC will continue to liaise with the MBC in particular to assist in implementing Malaysia’s foreign lawyer regulatory system. What’s to change? The key amendments proposed in the new Bill include:• Establishment of on-the-ground commercial presence for foreign law firms through either: • joint ventures with a Malaysian law firm, or • stand-alone ‘qualified foreign law firms’. • A Malaysian lawyer employed in a ‘qualified foreign law firm’ is disqualified from obtaining a local practising certificate. • Foreign lawyers must be registered to provide legal services in Malaysia. They can work only in joint venture firms, qualified foreign law firms, or Malaysian law firms licensed to employ foreign lawyers. Foreign lawyers will not be permitted to provide legal services only on a fly-in, fly-out basis. • Scope of practice for foreign lawyers, joint venture firms and qualified foreign law firms is restricted to ‘permitted practice areas’, which are to be prescribed in rules by the MBC.


MAR–MAY 2012

57

In addition to ‘permitted practice areas’, the MBC also has the responsibility to make rules on other matters regarding the regulation of foreign lawyers/law firms, subject to the Attorney General’s approval. Some of the matters include: • conditions and criteria for the granting of foreign lawyer registration and law firm licences; • manner and means of application for registration and licence; and • manner and means by which an international partnership, a qualified foreign law firm or an authorised Malaysian law firm may conduct its business or publicise itself.

same professional conduct and ethics rules and directives that are applicable to local law firms and practitioners. Registered foreign practitioners are also subject to the control of the local Disciplinary Board. A long history of friendship The Law Council has enjoyed a long history of good relations with the MBC which was strengthened during the ‘judicial crisis’ in Malaysia in the late 1980s. In 2000, the Law Council signed a Memorandum of Understanding (MOU) with the MBC. This was the first MOU with a foreign legal body signed by the MBC.

• two members of the MBC practising in the permitted practice areas relevant to the applications to be appointed by the MBC.

Discussions into liberalisation of legal services in Malaysia began in June 2002 when the then AttorneyGeneral of Australia, the Hon. Daryl Williams, met with Dr Rais Yatim, Minister of the Prime Ministers’ Department Malaysia. Over the next decade, the Law Council participated in a number of delegations to Malaysia to discuss the advantages of liberalisation of legal services. In 2009, the Law Council provided comments on a draft ‘Roadmap’ to Liberalisation prepared by the General Agreement on Trade in Services (GATS) Committee of the MBC. The Roadmap proposed a five-year staged liberalisation of legal services in Malaysia.

• Foreign law firms and practitioners are subject to the

Over the past few years the Law Council has continued to liaise with

Establishment of a Selection Committee to consider foreign lawyer/law firm applications for registration/licence and make recommendations to the MBC. The Selection Committee is to be comprised of: • the Attorney-General and the President of the MBC as co-chairs; • a person to be appointed by the Attorney-General from the public sector, and

the MBC on liberalisation of legal services and topical issues such as the Australian Government’s proposed asylum-seeker exchange and the Bersih (Council for Clean and Fair Elections) rallies. The Law Council President, Ms Catherine Gale and Director, International, Ms Margery Nicoll met with the President of the MBC Mr Lim Chee Wee during the International Bar Association Mid-year Meeting on 30 May – 2 June 2012 at The Hague. Further discussions are expected in the coming months.


CRIMINAL LAW & HUMAN RIGHTS division

division OVERVIEWS

The Criminal Law and Human Rights Division’s work involves advocacy and policy development concerning national criminal law issues and national and international human rights issues. The Law Council would like to acknowledge the assistance of the Constituent Bodies and committees that have provided valuable input into a number of recent Law Council submissions.


National Children’s Commissioner On 29 April 2012, the AttorneyGeneral and the Minister for Families Community Services and Indigenous Affairs announced the establishment of a National Children’s Commissioner within the Australian Human Rights Commission, who will focus on promoting the rights, development and well being of children in Australia. On 23 May 2012, the Australian Attorney-General, the Hon. Nicola Roxon MP, introduced the Australian Human Rights Commission Amendment (National Children’s Commissioner) Bill 2012 (the Bill) into Parliament. The purpose of the Bill is to establish a National Children’s Commissioner (the Commissioner) within the Australian Human Rights Commission. The role of the Commissioner will involve promoting awareness and discussion of issues that affect children; undertaking research and conducting education programs; and consulting directly with children and representative organisations. In addition to this, the Commissioner will examine Commonwealth legislation, policies and programs that relate to children’s rights, wellbeing and development. On 24 May 2012, the Bill was referred to the House Standing Committee on Social Policy and Legal Affairs (the House Committee) for inquiry and report. The House Committee is particularly interested in the following issues: • The adequacy of funding for the functions of the Commissioner, and whether any of the Australian Human Rights Commission’s existing functions are likely to be compromised as a result; and

• How the Commissioner’s functions will interact and operate with the state and territory welfare and guardian responsibilities. The Law Council Secretariat hopes to coordinate a submission to this inquiry. On 1 June 2012, the Law Council made a submission to the Senate Committee on Legal and Constitutional Affairs (the Senate Committee) for inquiry, which was also conducting an inquiry into the Bill. This submission is available on the Law Council’s website. The Law Council has been concerned for many years about the Government’s failure to fully implement the 1989 UN Convention on the Rights of the Child (CROC) in domestic legislation despite Australia being one of the first countries to ratify the CROC in 1990. The Law Council, along with a number of Non-Governmental Organisations (NGOs) has advocated for the Government to establish a National Children’s Commissioner as an important step in the process of domestic implementation of the CROC. The Law Council has also identified gaps in the protection of the human rights of children at the national level, particularly for children who are homeless, asylum seekers, Indigenous or have disabilities. The Law Council identified such gaps in its submission to the 2009 National Human Rights Consultation. The Law Council considers that a National Children’s Commissioner could address such gaps. ASIO Adverse Security Assessments There are over 50 refugees in immigration detention who have been assessed as refugees due to their well-founded fear of persecution in their country of origin, yet refused protection visas following adverse security assessments by the Australian Security and Intelligence Organisation (ASIO). These refugees are owed protection by Australia under its obligations under the Refugee Convention, which include non-refoulement obligations. This means that these refugees can face indefinite detention if they cannot be returned to their countries of origin or be resettled in a third

country. When these refugees receive adverse security assessments by ASIO, they are not provided any reasons for the assessment and are effectively unable to challenge the evidence upon which the adverse assessment has been made. There is also currently no regular or consistent approach to reviewing adverse assessments, for example when relevant new information comes to light. On 16 May 2012, the Law Council President, Ms Catherine Gale, wrote to the Attorney General, the Hon. Nicola Roxon MP, to raise concerns relating to the absence of any form of meaningful review of adverse security assessments made by ASIO. The previous Law Council President, Mr Alexander Ward, raised similar concerns with the past Attorney General, the Hon. Robert McClelland MP, on 15 November 2011. The Council is yet tp receive a response to its May 2012 letter. The Law Council has been closely monitoring developments in this area, which include an announcement by the the Australian Greens on 23 May 2012 that they would introduce a Bill to parliament to amend the ASIO Act to allow refugees and their children to challenge indefinite detention. It has been reported that the Bill will require that asylum seekers receive a statement of reasons for ASIO’s decisions, create periodic sixmonth reviews of ASIO assessments and allow the Administrative Appeals Tribunal to hold merit reviews. Proceedings are also underway in the High Court to challenge the indefinite detention of a refugee who has received an adverse ASIO security assessment. It has been reported that this test case will address issues such as whether ASIO is obliged to provide any reasons for the adverse assessments, and whether such decisions should be subject to independent review. The Law Council will closely monitor the introduction of the proposed Greens Bill and developments relating to the High Court Case.

59 MAR–MAY 2012

Some important developments have been made over the last couple of months in particular the government’s announcement of the establishment of a National Children’s Commissioner and the Law Council’s continued advocacy regarding the absence of meaningful review mechanisms for adverse Australian Security and Intelligence Organisation (ASIO) security assessments for persons found to be genuine refugees.


• 10 April 2012 - the Law Council made a submission to the Attorney-General’s Department in relation to its inquiry into whether or not Australia should sign and ratify the Third Optional Protocol to the Convention on the Rights of the Child (CROC). A copy of the Law Council’s submission is available from the Law Council’s website. • 14 April 2012 - the Law Council President wrote to the Hon. Harry Jenkins MP, congratulating him on his appointment as Chair of the Parliamentary Joint Committee on Human Rights. For a number of years, the Law Council has strongly advocated for enhanced parliamentary scrutiny of proposed and existing laws for compliance with human rights and has actively supported the establishment of the Parliamentary Joint Committee on Human Rights. The Law Council looks forward to the opportunity to contribute to the Committee’s important work. • 19 April 2012 - the Law Council President wrote to the AttorneyGeneral, the Hon. Nicola Roxon MP, in relation to a reported Commonwealth proposal to request a referral of powers from states and territories in relation to unexplained wealth laws. The Attorney-General had presented this proposal at the meeting of the Standing Council on Law and Justice (SCLJ) on 12 and 13 April 2011. The Law Council would have major concerns if such legislation is to be used as the basis for any referral of powers. • 26 April 2012 - the Law Council made a supplementary submission to the AttorneyGeneral’s Department in response to a Discussion Paper released at the end of 2011 regarding the Government’s proposed consolidation of existing Commonwealth antidiscrimination laws into a single Act. The Law Council made an initial submission in response to the Discussion paper in February 2012, which outlined the views of Constituent Bodies, sections and committees and included a range of recommendations. In some areas, differing views were

expressed and the Law Council indicated that it would provide further comments and recommendations in relation to these issues following further internal consultation. The supplementary submission incorporates the views expressed and feedback provided during and after a teleconference held in March 2012. The supplementary submission along with the Law Council’s February 2012 submission and Policy Statement are available on the Law Council website. • 1 May 2012 - the President of the Law Council wrote to the Attorney-General, the Hon. Nicola Roxon to congratulate her and the Australian Government on its progress with respect to a number of initiatives under Australia’s Human Rights Framework (the Framework) and to draw attention to some areas in which further action is required in relation to initiatives under the Framework. • 8 May 2012 - the Law Council President wrote to the Immigration Minister, the Hon. Chris Bowen MP, urging him to review the operation of the mandatory minimum penalties applied to certain people smuggling offences following the outcome of an inquiry into these penalties by the Senate Committee on Legal and Constitutional Affairs. • 10 May 2012 - the Law Council President wrote to the AttorneyGeneral, the Hon. Nicola Roxon MP, and the Standing Council on Law and Justice (SCLJ), in support of the development of a Commonwealth Criminal Case Review Commission as outlined in the Policy Statement supporting such a commission, which was approved by Directors at the April 2012 Board meeting. • 10 May 2012 - the Minister for Foreign Affairs, Senator Bob Carr, wrote to the Law Council President in reply to a letter that the Law Council President had forwarded to the Minister on 5 March 2012. The letter was in relation the situation of lawyers in Syria. It had been drafted by the Union Internationale des Avocats (UIA) who were calling

for the support of the international legal community for Syrian lawyers, who have been subjected to documented harassment, intimidation and physical abuse for involvement in peaceful dissent or in representing persons involved in such activities. The UIA had also requested that we bring the issue to the attention of our government. The Law Council will continue to monitor the situation in Syria.

INTERNATIONAL division

Recent activity:

Since the inaugural issue of the Law Council Review, the International Division has been progressing some of the key objectives of the Law Council’s International Strategy 2012, particularly in terms of improving legal services market access in Japan and China. Commonwealth lawyers meet at Sydney Conference Lawyers representing more than 26 Commonwealth jurisdictions attended the second Commonwealth Lawyers Association (CLA) Regional Law Conference in Sydney from 19–22 April 2012. Under the theme The Changing Role of the Legal Profession:


Law Council President, Ms Catherine Gale, facilitated a session called Lawyers on the Frontline. The Hague Law Council President Ms Catherine Gale attended the IBA’s 7th Annual Bar Leaders Conference in The Hague this year, along with Director, International and Bar Issues Commission (BIC) Vice-Chair Ms Margery Nicoll. Ms Gale spoke at the event’s first session entitled ‘Crossing the red line – what to tell, and to whom, and why not?’, which addressed the questions often faced by bar associations and professional organisations of if, how and when they are supposed to inform their Boards, Councils and even their membership of issues regarding the works and the problems of their organisations. The Law Council President also spoke on a panel ‘The Power of the President’, while Ms Nicoll chaired a session on ‘Political Interference in Bar Associations’ with speakers including the President of the Law Society of Zimbabwe; the President of the Malaysian Bar Association; an Iranian lawyer activist who now lives in London; and the President of Lawyers For Lawyers. Australian legal services featured at China trade fair As part of the first China Beijing International Fair for Trade in Services (CIFTIS), the Australian Government in cooperation with the China Ministry of Commerce (MOFCOM) conducted an ‘Australia Feature Day’ in Beijing on 29 May 2012 to highlight Australian services sector capabilities and provide an opportunity to engage with China services sector counterparts. The Law Council of Australia’s President-elect Mr Joe Catanzariti was invited to address the Services

Presided over by the Commonwealth Minister for Trade and Competitiveness the Hon. Dr Craig Emerson MP, the SSPF was conducted as a panel discussion with six representatives each from Australia and China leading discussion in their areas. Representatives from both countries concurred with the call for greater dialogue and opening up of Australia and China’s respective professions. The SSPF was established by Austrade and DFAT at the instigation of the Australia Services Roundtable to promote trade in services between Australia and China. Tokyo visit: Market access issues, cross-border legal practice and a proposed new Chapter In early June 2012, ILS Chair Dr Gordon Hughes accompanied Law Council President Ms Catherine Gale on a visit to Tokyo to meet officials of the Japan Ministry of Justice (MoJ) and the Japan Federation Bar Associations (JFBA) to progress the Australian Government’s Free Trade Agreement negotiations with Japan to the extent those negotiations relate to the liberalisation of restrictions on foreign lawyer registration. While in Tokyo, Ms Gale and Dr Hughes conducted a joint seminar with the JFBA and the Korean Bar Association (KBA) on the subject of “cross-border legal practice in the Asia Pacific region” on 5 June 2012. A meeting with Australian lawyers was also held at the Australian Embassy to discuss the establishment of a Tokyo chapter of the ILS. It was proposed that a local chapter could coordinate the provision of Australian CLE and a mentoring service for prospective Australian foreign lawyers grappling with the complexities of the lawyer registration process in Japan. For more details on the above stories and more, read the latest edition of the ILS Update available from the ILS section of the Law Council website.

61

The Law Council’s Civil Justice Division (CJD) engages in legal policy advice and advocacy across a broad range of government portfolios and legal practice areas. Recently, the Division has been engaged in policy and advocacy on a diverse range of issues including: constitutional recognition of the Aboriginal and Torres Strait Islander Peoples, early diagnosis and intervention for dementia, the recently announced increases to federal court filing fees and the proposed creation of the Military Court of Australia. The Division has also been assisting with the development of the Law Council’s strategy to promote opportunities for lawyers in rural, regional and remote areas and supporting the Australian Young Lawyers Committee, as the Committee prepares for the upcoming National Golden Gavel Competition in September 2012 and the 2012 Australian Young Lawyer Awards. The Civil Justice Division is currently engaged in the following major projects: National Disability Insurance Scheme The Division has been coordinating the Law Council’s response to the proposed National Disability Insurance Scheme (NDIS) and National Injury Insurance Scheme (NIIS). The primary concern for the

MAR–MAY 2012

Sector Promotion Forum (SSPF) to promote Australian legal services in China as part of the Feature Day.

CIVIL JUSTICE division

Emerging Democracies and Globalisation, keynote speeches were given by Chief Justice Robert French of the High Court of Australia, Former Chief Justice James Spigelman AC of the New South Wales Supreme Court, and Justice J.S. Verma, Former Chief Justice of India.


Law Council is to ensure severely disabled and catastrophically injured people’s existing rights are not circumscribed in any way by the creation of either scheme. This includes maintaining full rights to administrative review of decisions regarding the entitlements of scheme participants and ongoing access to common law compensation for those who suffer serious, debilitating injury as a result of negligence. The Law Council has made submissions to the Review of the South Australian Compulsory Third Party Insurance Scheme, and has written to the South Australian Government, seeking commitment to “no disadvantage” for South Australians if a NIIS is established in South Australia. The Law Council is also engaging with Australian and state/territory parliamentarians concerning the design of the two schemes. Consultation regarding the review of legal assistance services The Division has been consulting with the Australian Government and other stakeholders, as the Attorney-General’s Department engages in a review of legal assistance services. The review will examine the progress that has been made towards achievement of the outcomes, objectives and outputs, as stated in the National Partnership Agreement for Legal Assistance Services, which outlines the respective responsibilities of the Commonwealth, State and Territory governments for the provision of legal assistance services. The review is also intended to establish an evidence base for the development of effective policy and program implementation for legal assistance services within Australia. The review is being undertaken by Allen Consulting Group, an independent consultant appointed through a tender process. The final report is expected in June 2013 and the Division will work with the Access to Justice Committee to participate in and provide input to ongoing consultations, as the review progresses. National study of the attrition of women lawyers The Law Council is conducting

scoping research into a national study of the attrition of women lawyers as part of the Law Council’s 2011-2013 Strategic Framework for Recruitment and Retention of Women Lawyers. To date there has been little research into attrition rates among women lawyers in Australia. However available data suggests that although women lawyers enter the legal profession in higher numbers than male lawyers, women lawyers leave the profession at significantly higher rates than their male counterparts. The project aims to improve the legal profession’s understanding of the reasons for this imbalance, and accordingly assist legal professional bodies and firms to devise strategies to promote higher retention rates among women lawyers.

The Civil Justice Division has been engaged in policy and advocacy on a diverse range of issues including: constitutional recognition of the Aboriginal and Torres Strait Islander Peoples, early diagnosis and intervention for dementia, the recently announced increases to federal court filing fees and the proposed creation of the Military Court of Australia.


As mentioned in the 2012 inaugural edition of Law Council Review, the Council of Australian Governments (COAG) kicked off a new chapter of the reform agenda in 2009 with the launch of the National Legal Profession Reform Project and the release of a proposed National Law package. The Legal Profession National Law reforms are referred to as “national”. However, in this context this is intended to reflect that each of the states and territories will enact or adopt uniform legal profession legislation and rules and participate in a single (i.e. “national”) legal profession regulatory framework.

The states and territories that participate in the new system will establish the new regulatory authorities that operate within their jurisdictions. As for the ‘national’ authorities, the Standing Committee of Attorneys-General from participating jurisdictions will have a general supervisory role over the National Legal Services Board and National Legal Services Commissioner to ensure the objectives of the national law are achieved. The National Board will consist of seven members; two of whom will be recommended by the Law Council, one will be recommended by the Australian Bar Association; three will be recommended by the Attorneys-General and the Chair will be recommended by the Standing Committee, but only with the concurrence of the Law Council and the Australian Bar Association. Apart from assessing applications for admission and issuing compliance certificates, and some other minor functions, day-to-day regulation will be undertaken by “local representatives” of the Board and National Legal Services Commissioner. Those representatives will be appointed by each state and territory government. The role of the National Commissioner will be to ensure compliance activities and complaints work is undertaken consistently and that complaints, disputes and other issues are dealt with in a timely and effective manner. The Australian Solicitors Conduct Rules will, with some minor technical modifications, become the Professional Conduct Rules for Australian Solicitors under the Legal Profession National Law. The Australian Solicitors’ Conduct Rules were endorsed by the Law Council Directors in June 2011 and have now been adopted in South

Australia and Queensland. Progress is also being made on formally adopting the Rules in New South Wales and Victoria. The Division is finalising work on the commentary to the Australian Solicitors Conduct Rules 2011.

63 MAR–MAY 2012

NATIONAL LEGAL PROFESSION division The National Legal Profession Division works to improve the regulatory environment by promoting effective and coherent regulation of the Australian legal profession. A key focus area for the Division is the implementation of nationally consistent state and territories laws to govern the way that lawyers work.

Notwithstanding it has no role in the operation of the “national” regulatory framework, the Australian Government is a strong supporter of the reforms because of the efficiency and other economic benefits that will flow from a uniform, simplified regulatory approach.


SECTION OVERVIEWS

The Section is also working with the Federal Court of Australia to co-sponsor a seminar featuring Professor Bryan Garner of Law Prose Inc., Dallas, Texas. Professor Garner has been called the “leading authority on good legal writing” and will be speaking on a topic of his choice. Professor Garner’s firm consults with law firms on revising appellate briefs, with companies and trade associations on translating contracts and other consumer documents into plain English, and with courts and government agencies on projects such as rewriting rules of procedure and simplifying model jury instructions. Over the past three months, the Section has lodged the following submissions: • Practical issues regarding ‘warranties against defects’;

BUSINESS LAW SECTION The Section Executive held its second face-to-face meeting in Canberra on 20 June 2012 in conjunction with is annual dinner for parliamentarians and senior public servants. One of the issues considered at the meeting was whether to support a proposal from the Legal Practice Division of the International Bar Association to co-sponsor a conference on International Arbitration in Sydney in late November/early December 2013. If the proposal goes ahead, the Australian Centre for International Commercial Arbitration and the Asia Pacific Forum have expressed interest in becoming involved. The Section’s annual dinner was held at Old Parliament House. The Australian Attorney-General, the Hon. Nicola Roxon MP, the Assistant Treasurer, the Hon. David Bradbury MP, the Parliamentary Secretary for Climate Change, the Hon. Michael Deyfus QC , the Hon. Justice John Middleton of the Federal Court and the Hon. Justice Terry Higgins, Chief Justice of the Supreme Court of the ACT all attended the dinner.

• Clean Energy Act 2011 (Cth): Draft LNG Supplementary Allocation Regulations; • Proposals Paper in relation to taxation relief to support the implementation of “Stronger Super Reforms”; • Clean Energy Legislation Amendment Bill 2012/Clean Energy (Customs Tarriff Amendment) Bill 2012; and Clean Energy (Exciss Tariff Legislation Amendment) Bill 2012; • Country of Origin claims and export goods; • ASX Corporate Governance Council; • Continuing Professional Education Exposure Draft; • Diplomatic Conference on Protection of Audio-visual Performances; • Proposed Infringement Notice Guide; • Judicial Resources of the Federal Court of Australia; • Draft Taxation Ruling TR2012/ D1; • Strengthening Australia’s equity capital markets; • Tax Laws Amendment (2012 Measures No.2): Companies’ non-compliance with PAYG withholding and superannuation guarantee obligations: Exposure draft legislation;

• ALRC’s Inquiry into Copyright and the Digital Economy; • Parallel Important and Registered Trade Marks; • Investment Manager Regime Amendments; • Clean Energy Amendment Regulations 2012 and National Greenhouse and Energy Reporting (NGER) Amendment Regulations 2012: Exposure Drafts; • Manufacturers’ liability for consequential loss arising from breaches of consumer guarantees; • Personal Liability for Corporate Fault Reform Bill 2012; • Draft Competition and Consumer Amendment Regulations 2012 (No.); • Tax Treatment of Losses; • Changes to the ASX Adelaide Office; • Consultation on Schedule 7 to the Tax and Superannuation Laws Act (2012 Measures No. 1) Bill 2012 – Proposed section 8AAZLGA of the Taxation Administration Act 1953; • Changes to the ASX Brisbane Office; • Exposure Draft Corporations Amendment (Similar Names) Bill 2012; and • Proposed Corporations Amendment Regulations 2012 – regulation of carbon etc units as financial products. Copies of the submissions are available on the Law Council’s website, except where bound by confidential provisions.


All eyes will be on Hobart from 14–17 October when the Law Council’s Family Law Section hosts its 15th Biennial National Family Law Conference. The National Family Law Conference brings together many stakeholders in this very important area of law, including representatives from government, the judiciary, academia, nongovernment organisations, the practicing profession and many associated disciplines from all parts of Australia and from many parts of the world. From very small beginnings in Hobart in 1984, the conference has grown to become the largest regular event in the Australian legal calendar. The 2012 Conference in Hobart is expected to attract more than 800 delegates. The Conference professional program is supported by an impressive blend of more than 70 international and local guest chairs and speakers who will present an excellent series of continuing professional development, covering a wide range of topics which will appeal to family lawyers at all levels of experience. While many sessions will focus on the practical aspects of family law, others have been designed to provoke discussion about the future of family law. The conference will open with the Hon. Chief Justice Robert French AC delivering the 5th biennial Peter Nygh Memorial Lecture. The Hon. Dr Peter Nygh AM achieved great success as an academic, Family Court judge, reformer and internationalist. He was also the author of Conflict of Laws in Australia, which was first published in 1968 and is still in production with the 8th edition released in 2010. This lecture was first delivered in 2004, by the Hon. John Fogarty AM. It has been delivered at subsequent National Conferences by the Hon. Michael Kirby AC CMG, the Hon. Ted Mullighan QC (deceased) and Sir Paul Coleridge (High Court of England and Wales, Family Division). Each chose a topic of importance – from same sex

Jenny Brockie , host of SBS TV’s Insight program, will moderate the State of the Nation session which explores current issues in family law as well as future developments. The panel members include the Federal Attorney-General, the Hon. Nicola Roxon MP, the Chief Justice of the Family Court of Australia, the Hon. Chief Justice Diana Bryan AO, Chief Federal Magistrate John Pascoe AO CVO, Federal Magistrates Court of Australia, and the Chair of the Family Law Section, Geoffrey Sinclair. Other plenary speakers include Lady Justice Jill Black (UK), Principal Family Court Judge Peter Boshier (NZ), Chief Judge Stephen Thackray, the Hon. Richard Chisholm AM, Dr Sandra Hacker AO, Professor Elena Marchetti, Dr Ghena Krayem, Professor Alan Hayes, and Michael Kearney. Topics include the evidentiary use of social research, an international perspective on prescriptive versus enabling legislation, how different indigenous and ethnic groups deal with family breakdown; and how to identify and manage personality disorder issues in family law. The professional program wraps up in the afternoon of the third day with a presentation by KPMG Demographer, Bernard Salt. In this plenary session Bernard Salt will look at how life, work and relationships are changing in the early decades of the 21st century. For further information please visit the conference website.

FEDERAL LITIGATION SECTION The Federal Litigation Section has committees in the areas of: Administrative Law; Administrative Appeals Tribunal Liaison; Class Actions; Client Legal Privilege; Commonwealth Compensation & Employment Law; Federal Court Liaison, and Industrial Law. The Section has a strong focus on liaison with federal courts and tribunals, and in particular the Federal Court of Australia, Federal Magistrates Court, and the Administrative Appeals Tribunal. The theme of efficient case management sits at the core of much of the liaison which occurs between the Section and these courts and tribunals. As a key part of its liaison with the Federal Court, in August 2011 the Section conducted a joint workshop with the Court on “The Court’s Work – how it might or should be done”. This event focused on case management issues, and in particular on a case management handbook drafted by the Section in consultation with the Court. The Section launched its Case Management Handbook in October 2011. Development of the Handbook was a significant and important undertaking by the Section, and arose out of continuing close liaison between the Court and the Section and ongoing workshops and discussions regarding the best approaches to the management of cases before the Court. The handbook has proven to be very popular and beneficial for case management, with in excess of 4,400 downloads of the Handbook from the Law Council’s website to date. Particular mention should be made of John Sheahan SC, who first floated the idea of a Handbook and was involved in writing key chapters as well as arranging for the other contributions by eminent practitioners including Steven Finch SC, Philip Crutchfield SC, Roger Forbes, Chris Rogers, and Leon Zwier.

65 MAR–MAY 2012

FAMILY LAW SECTION

marriage, to the plight of children in care, to the question of whether the tide of family breakdown can be turned.


The Hon. Justice Michelle Gordon has also been a driving force behind the Court’s innovative approaches to more effective case management. Her Honour’s encouragement was decisive to the development of the Handbook. Work on the Case Management Handbook is ongoing, with an editorial committee having been established to review and update its content on an ongoing basis. A Class Actions chapter is in the process of being prepared, and a number of other chapter topics are being considered for development in the near future. The Section also maintains a keen interest in Client Legal Privilege, and maintains a CLP Watch website, with regular case notes updating developments in client legal privilege.

INTERNATIONAL SECTION In keeping with the Law Council of Australia’s International Strategy for 2012, the International Law Section (ILS) is expanding its network of overseas Chapters to include two exciting new cities. Beijing On 28 May 2012, Law Council President-elect Mr Joe Catanzariti, hosted a breakfast meeting for a group of 16 Australian lawyers currently practising in Beijing. Participants discussed a range of concerns facing Australian lawyers based in China such as the different tax structures applicable to foreign and domestic lawyers, which mean Australian lawyers’ salaries in China are effectively reduced. Foreign firms in China are also not permitted to employ local lawyers with a local practising certificate. Another significant issue raised was the lengthy work visa processing time and immigration policy that impacts a firm’s capacity to employ foreign lawyers when needed. It was also suggested at the meeting that the Law Council promote the strength of Australian undergraduate law degrees and law graduates in foreign markets. Those that attended the reception enthusiastically endorsed the Law Council’s proposal to establish a Beijing Chapter of the ILS. Attendees were also offered complimentary membership of the ILS in 2012–13. The ILS would like to thank Mr David Olsson, Partner, King & Wood Mallesons, who assisted in identifying invitees for the meeting.

Tokyo On Tuesday 5 June, the Law Council President Ms Catherine Gale and the Chair of the ILS Dr Gordon Hughes hosted a meeting and reception at the Australian Embassy in Japan for around 40 Australian lawyers practising in Tokyo. The primary objective of the meeting was to scope the possibility of establishing a Tokyo Chapter of the ILS. Participants discussed a range of issues relevant to the Law Council’s International Strategy and the registration of foreign practitioners in Japan. The ILS is grateful to the Embassy and in particular Dr Brendon Hammer, Deputy Head of Mission to Japan, for hosting the reception. 6th CPD Immigration Law Conference Hailed A Success More than 100 immigration lawyers attended the 2012 CPD Immigration Law Conference at the Royal Automobile Club of Australia in Sydney on 9 and 10 March 2012. The Conference was hosted by the Immigration Lawyers Association of Australasia Focus Group (ILAA) of the ILS with support from the Law Society of New South Wales. The aims of the Conference were to provide legal professionals with CPD points accreditation, to highlight and discuss important immigration law issues and to provide participants with a forum to exchange experiences. Keynote speakers included the Minister for Immigration and Citizenship, the Hon. Chris Bowen MP, Mr Denis O’Brien, Principal Member, Migration/Refugee Review Tribunal and Federal Magistrate Matthew Smith. Other speakers included an impressive list of academics, accredited immigration law

Attendees at the reception for Australian lawyers held in Tokyo at the Australian Embassy, 5 June 2012


With a theme of ‘current challenges, future trends’, the program covered complementary protection changes, trends in migration law and visa policy reform, visa program integrity, advocacy and practitioner ethics. This year’s Conference Dinner, held in Sydney’s historic State Parliament Building, featured a program of exceptional entertainment headlined by acclaimed Sydney comedian and author of The Happiest Refugee, Anh Do. The event included an inspirational address by Professor Ron McCallum AO on the World Report on Disability. Common And Civil Law Dialogue Seminar More than 30 professionals with an interest in international comparative law attended a free “Common and Civil Law Dialogue” seminar focussing on Employment Law on 31 May 2012 in Sydney. The seminar, hosted by the ILS’s European Focus Group, examined key differences between Australian employment law and employment law in civil law jurisdictions. Speakers included ILS Executive member and Bond University Adjunct Professor Dr Wolfgang Babeck and Mr Alexander Lang, Former Commercial and Finance Director, Thiess Degremont Joint Venture (Victorian Desalination Plant). The seminar attracted a wide audience, which included representatives of the German and Austrian Consulates-General and management and HR consultants, as well as a broad spectrum of legal practitioners and academics.

LEGAL PRACTICE SECTION Since 2002 the Australian Law Management Group of the Legal Practice Section has hosted its World Masters of Law Firm Management seminars. These events are aimed at bringing world class presenters from around the globe to a one-day forum in Sydney, to address topics of key importance to law firm managers. Past events have included the likes of David Maister; Ward Bower; Gerry Riskin; Brad Hildebrandt; Stephen Mayson; and Ron Baker. Topics have included ‘Leading and Motivating a Team of Talented Individuals’; ‘Value billing; the next real big thing for law firms; and ‘Attracting and Retaining Senior Level Talent’. This year, the Australian Law Management Group will bring a number of highly experienced legal practice managers to present on ‘Legal Process Outsourcing – the story’. Legal Process Outsourcing (LPO) is booming and having a profound effect on the delivery of legal services. No firm is immune whether your goal is to maintain or improve profitability, or to deliver better quality and more cost effective services to your clients as they demand “more for less”. There are significant pitfalls and challenges in implementing an effective LPO program and no firm should go into the process unprepared. Presenters at this event will include: • Liam Brown, former CEO and founder of Integreon; • Trish Hyde, CEO of the Australian Corporate Lawyers Association; • Paul Malliate, former Baker & McKenzie Regional Executive Officer (Asia Pacific); • Graham Jefferson, Client Solutions Manager of AdventBalance; and • Beth Patterson, Director – Applied Legal Technology of Allens.

This unique seminar is not a sales pitch by consultants or outsourcing firms. Rather it is a highly practical and realistic “no holds barred” perspective from those who have pioneered and implemented legal process outsourcing in law firms. Participants will benefit from their experience and learn how to assess the potential benefits for their firm, what issues to consider and obstacles to plan for, and how to go about a successful implementation. For further information, visit the event website.

67 MAR–MAY 2012

specialists and senior Immigration officials.


2012

CALENDAR OF EVENTS

The Rise of the BRICS: Changing Paradigms for the Global Political Economy? 10–11 August, Gold Coast, Queensland Register Online 27th Annual Calabro SV Consulting Family Law Residential 17–18 August, Queensland Register Online

SEPT 2012 Pippa Colman & Associates 2012 Second Annual Law & Lifestyle Conference 7–10 September, Shangri-la Resort, Fiji kristen.boyce@pippacolman.com National Golden Gavel 21 September, Adelaide More Information Property Law Conference 27–28 September, Belfast, Northern Ireland International Bar Association Annual Conference 30 September–5 October, Dublin More Information

OCT 2012 7th Annual National Indigenous Legal Conference 5–6 October, Perth Register Online

American Bar Association, International Law Section, Fall Meeting 16–20 October, Miami, Florida Register Online 15th National Family Law Conference 14–17 October, Hobart More Information Register Online

NOV 2012 Conference of Regulatory Officers 8–9 November, Brisbane www.coro.com.au 25th LAWASIA Conference 18–20 November, Bali More Information Essentials of Family Law Practice 29 November–1 December More Information Register Online

MAR 2013 NELA 2013 National Conference 7–9 March, Melbourne More Information 6th World Congress on Family Law and Children’s Rights 17–20 March, Sydney Register Online Access to Justice and Pro Bono Conference 21–22 March, Melbourne

review@lawcouncil.asn.au | www.lawcouncil.asn.au

Australian Women Lawyers 4th National Conference 10–12 August, Canberra Register Online

World Masters of Law Firm Management 11 October, Sydney Register Online

The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.

AUG 2012


Law Council Review - Issue 2