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President’s Medal Winner Mark Woods

A right to representation

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.

OCT–DEC 2012


Cover shot: Outsourced Interview with Liam Brown

IN THIS issue

OCT–DEC 2012 PRESIDENT'S MESSAGE

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MESSAGE FROM THE SECRETARY-GENERAL

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2013 Incoming President and Executive Members

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A Right to Representation Interview with 2012 President’s Medal Winner, Mr Mark Woods

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World Congress on Family Law and Children’s Rights

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From Principle to Reality: Defending the Rights of the World’s Most Vulnerable

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Shared Parenting Time in Australia: Exploring Children’s Experiences and Views

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Psychological Outcomes for Alienated Children

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From Federal Magistrates Court to Federal Circuit Court of Australia: Q&A with Chief Federal Magistrate, John Pascoe AO, CVO

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Young Property Lawyer of the Year: Breaking Through Boundaries

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EDITORIAL ACKNOWLEDGEMENTS & CREDITS

BLS Executive Member Appointed to Federal Court Judiciary

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Managing Editor | Vanessa Kleinschmidt

Legal Practice Section Honours one of its finest

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Business Law Section Honours two of its Greatest Members

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Highlights from Précis

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Speaking for the Voiceless

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International News Unlocking Future Economic Growth: The Standing Council on Law and Justice’s Review of Australian Private International Law

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National News

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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

www.lawcouncil.asn.au © The Law Council of Australia 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.

DIVISION OVERVIEWS

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SECTION OVERVIEWS

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EVENTS CALENDAR

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PRESIDENT’S message

IT HAS BEEN MY GREAT HONOUR AND PRIVILEGE TO SERVE AS LAW COUNCIL PRESIDENT IN 2012 AND REPRESENT THE LEGAL PROFESSION ON ISSUES OF NATIONAL IMPORTANCE. 2012 has been an important year for the Australian legal profession—both domestically and abroad— and I have been pleased to see advancements in a range of policy areas. Advancing the National Legal Profession Reform Project remained a high priority and one that continued to develop over the course of 2012. Significant steps were made towards the development of a national study to provide qualitative and quantitative research into the attrition and re-engagement of women lawyers. The development of this survey forms part of the Law Council’s Strategic Framework for the Recruitment and Retention of

Women Lawyers which was adopted in June 2011 and includes a number of initiatives designed to explore the reasons for high attrition among women lawyers and promote the re-engagement of women lawyers in Australia. Indigenous legal issues remained an important feature on the national agenda and, in particular, constitutional recognition for Aboriginal and Torres Strait Islander peoples was an issue the Law Council was at the forefront in advocating for. In January of 2012, the Law Council welcomed the release of the Expert Panel’s report on constitutional recognition. The Law Council, through its Indigenous Legal Issues Committee, was represented on the Expert Panel by former president Mr Glenn Ferguson. The Law Council was also very proud to be the first legal professional peak body to launch a Reconciliation Action Plan (RAP). The Law Council’s RAP will be implemented over two years, finishing in July 2013. The Law Council has a long and proud history of being a strong advocate in the areas of human rights and criminal law and this year saw numerous developments in these policy areas. Of particular note was the Law Council’s ongoing advocacy in relation to national security legislation, sustained comment on human rights implications of immigration laws, and international advocacy in relation to human rights and criminal law matters. Advocacy on the international stage is a crucial part of the Law Council’s core activities and the organisation has made key advances in this area. In 2012, the Law Council, in conjunction with the Australian Government, launched the Centre for Asia-Pacific Pro Bono (CAPPB), a new initiative established to support pro bono legal work in the Asia-Pacific region.


Another key aspect of the Law Council’s work internationally is to facilitate expansion into foreign markets for Australian lawyers. It was my pleasure to be invited to present at a workshop hosted by the Japanese Federation of Bar Associations in Tokyo entitled ‘Cross Border Legal Practice in the Asia Pacific Region’. Also attended by the Korean Bar Association, this event represented a positive step forward in ongoing market liberalisation discussions for two of Australia’s key trading partners. The middle of the year saw the arrival of our new Secretary General Professor Sally Walker, a former Vice Chancellor of Deakin University. It has been my pleasure and privilege to work with such an outstanding individual. 2012 also saw the commencement of a review of the Law Council of Australia. Former President Mr Tim Bugg is chairing the review working group which will look at a restructure of the Law Council of Australia. The current structure has evolved over many decades since the inception of the Law Council early last century. Professor Walker will join Mr Bugg to look at what structure will best serve the Law Council for the future, and enable it to continue to deliver effective outcomes for the Australian profession. These highlights of the Law Council’s activities represent only a brief insight into the many facets of the organisation’s work during 2012.In the current edition of the Law Council Review we have also profiled award winners from across the legal profession as we reflect on the work of these individuals and the enormous contribution they make each year to the profession and the wider community.

In concluding my final President’s Message for Law Council Review, I would like to thank Professor Sally Walker and all the staff at the Law Council Secretariat for their assistance and hard work in helping facilitate my tenure. To all the members of the various committees and specialist working groups, I pay tribute to your expertise and skill in helping foster the strong reputation the Law Council has cultivated over a number of decades. Central to the Law Council’s legal policy advocacy is the work of the Law Council’s five Sections. It is important to acknowledge the vital work the Sections perform and the many volunteers who contribute countless hours of their time to enable the Sections to function. I congratulate them all on a tremendous effort over the term of my Presidency. It has been a truly remarkable experience to serve the Law Council of Australia in 2012 as its 3rd woman President and I will continue to watch with interest the activities and the future evolution of this important organisation.

Catherine Gale President 2012


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∫rom the

SECRETARY-GENERAL ONE OF THE GREAT STRENGTHS OF THE LAW COUNCIL OF AUSTRALIA IS ITS COMMITMENT TO CONTINUING LEGAL EDUCATION AND CONTINUING PROFESSIONAL DEVELOPMENT.

It would be hard to think of a better example of the Law Council’s commitment to continuing legal education and professional development than the Family Law Section’s recent National Family Law Conference, which was held in Hobart. The program included engaging and thought-provoking sessions which were described by delegates as highly practical. More than 700 delegates attended what is widely recognised as Australia’s largest regular legal event. Topics covered included social sciences and their impact on family law, dealing with clients afflicted with personality disorders and how changes in the relationships between men and women will affect family law in the future. This Conference is one of a raft of CPD and CLE events organised by the Family Law Section. For example, Family Law Intensives aim to equip practitioners with up-todate information which will enhance their skills and knowledge and provide practical solutions for problems encountered in everyday practice. Family Law Intensives are held in four cities – Sydney, Perth, Melbourne and Adelaide – but they serve a national market with a significant number of registrants coming from outside the host state to participate. There is also the Independent Children’s Lawyer training program. This is a two and a half day event developed by the Family Law Section and presented with the generous support of National Legal Aid and the Family Law Courts. The

program is designed for practitioners who wish to become Independent Children’s Lawyers. Overall, some 1800 practitioners participated in 16 professional development events presented by the Family Law Section and the Australian Institute of Family Law Arbitrators and Mediators in 2012. CPD and CLE are important to lawyers as they help us to advance, adapt and learn within our roles as lawyers to help us discharge our duties more effectively to clients. They are important tools for self-management of our development. The work of the Family Law Section in this respect is of great credit to the Law Council and reflects one of the Law Council’s strengths. The Family Law Section and the Law Council’s other Sections have a number of CPD and CLE events planned for 2013 and I encourage you to register.


THE LAW COUNCIL OF AUSTRALIA WILL WELCOME THE NEW YEAR WITH THE COMMENCEMENT OF THE 2013 PRESIDENT,T,T MR JOSEPH CA CAT TANZARITI. TANZAR CATANZARITI. Mr Catanzariti is a past president of the Law Society of New South Wales and a partner of one of Australia’s leading Law Firms, Clayton Utz. Mr Catanzariti is an experienced commercial litigator who has expertise in workplace relations and employment law and has extensive experience in advising major corporate and public sector clients on strategic workplace relations matters. He also has extensive experience in the review and development of legal practice and policy. Mr Catanzariti is the Law Council’s representative on the Law Admissions Consultative Committee and is involved in the Law Council’s Legal Education Committee, Recruitment and Retention of Lawyers Committee, Corporate Governance Committee and Strategic Initiatives Committee. Mr Catanzariti is also an Adjunct Professor, Work and Organisational Studies, Business School of University of Sydney. Mr Catanzariti is the Chair of the College of Law, the Chair of the Law Society of New South Wales’ Employment Law Committee and a past Secretary of the Australian Labour and Employment Relations Association (1997 to 2011). In 2011, Mr Catanzariti was awarded Life Time Recognition of the Industrial Relations Society of

Australia/Australian Labour and Employment Relations Association. A profile article detailing Mr Catanzariti’s vision for his 2013 Presidential term will be included in the March 2013 edition of Law Council Review Review. At the December Annual General Meeting of the Law Council, the following Directors were elected as Members of the Executive for 2013.

Michael Colbran QC

Duncan McConnell

Fiona McLeod SC

Justin Dowd

• Michael Colbran QC, Presidentelect • Duncan McConnel, Treasurer • Fiona McLeod SC, Member • Justin Dowd, Member • Leanne Topfer, Member Profiles on each of the 2013 Executive Members will be included in the March 2013 Edition of Law Council Review Review.

Leanne Topfer


MAR–MAY 2012

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A RIGHT TO REPRESENTATION


“The poor woman was faced with three men in uniform from the Navy, a couple of Navy lawyers, who were employed by the taxpayer, and a retinue of expert witnesses who were all going to say ‘it wasn’t the Navy’s fault that your husband died—he had a genetic predisposition’,” Mr Woods said. “The woman knew that her husband had no history of cancer in the family.”

AS A YOUNG LAWYER, ONE OF THE FIRST CASES UNDERTAKEN BY VICTORIAN LAWYER MR MARK WOODS WOULD HAVE A PROFOUND AND LONG LASTING INFLUENCE IN SHAPING HIS CAREER IN THE LEGAL PROFESSION. He acted, pro bono, for a woman whose husband had died a premature death as a result of poisoning by non-ionising radiation when serving on Navy vessels throughout World War II and the Korean War. “My client was seeking to have the decision of the predecessor to Centrelink overturned so she could get a war widow’s pension,” Mr Woods said in an interview with the Law Council Review. Mr Woods’ client took her case to the then Veterans’ Affairs Merits Tribunal to state her case for receiving the pension.

The tribunal ultimately dismissed her claim for lack of evidence that her husband had died as a result of being exposed to radiation on the Navy vessels during the wars. “We took her case to the predecessor of the Federal Court and gave the Navy a good thrashing,” Mr Woods said. “We had a couple of experts, including the pathologist who examined this man when he died, who said there was no question where the cancer had come from. If I’d have costed that out, back in the early 1980s, at commercial rates, there probably would have been a $5000 bill—about $50,000 in today’s terms. Of course, she didn’t have that money but she had a right to that representation.” For Mr Woods, the case stoked the fires of the career in the legal profession that would be fiercely dedicated to the principles of access to justice and the rule of law. “That case demonstrated that if the Government is going to provide rights for people, it must provide the means by which they can access them,” Mr Woods said. At a dinner reception in Canberra on 30 November 2012, Mr Woods was recognised for his outstanding career in the law by being announced as the recipient of the 2012 Law Council of Australia President’s Medal. “In a career spanning 30 years, Mr Woods has nurtured and earned a reputation of excellence within the Australian legal profession and continues to inspire those that may wish to join the legal fraternity,” said Law Council President, Ms Catherine Gale, of Mr Woods taking out the Medal. “Mr Woods has an enduring commitment to the law and the advancement of justice for everyone in the Australian community.”

Mr Woods is the sixth recipient of the President’s Medal— an award that recognises an Australian lawyer’s outstanding contribution to the legal profession—and joins an esteemed list of winners including Lex Lasry QC, the Hon Ted Mullighan QC, Mr Bret Walker SC, Mr Colin McDonald QC and Ms Debbie Mortimer SC. Mr Woods is a partner at the law firm Tyler Tipping & Woods—a firm regarded as a leading law practice in regional Victoria. His legal career began in 1982 when he was admitted to practice as a Barrister and Solicitor and he has since become an accredited specialist in family law and an accredited specialist in criminal law. Mr Woods’ career is decorated with examples of individual achievement. In 2009, he played an integral role in the aftermath of the Black Saturday bushfires in Victoria by helping coordinate a group of Gippsland legal practitioners to offer pro bono advice and assistance to both community groups and individuals. He was integral in establishing and implementing the Law Aid Trust and served as its founding Chairman. The Law Aid Trust was developed to administer the payment of disbursements in civil litigation matters where clients are represented pro bono or on a ‘no win no fee’ basis. Since its establishment, the scheme has flourished and provides an essential service that encourages legal practitioners to accept cases for clients who are simply unable to pay for their legal fees thereby enhancing the ability of Victorian practitioners to provide service to those that cannot afford appropriate access to justice. His selfless character has also extended beyond the courtroom. In 1999 he received a commendation for brave conduct in the Australian Bravery Decorations for his selfless act in rescuing a mother and daughter from drowning after being caught in a rip at Eastern Beach in Victoria. Mr Woods’ contributions to the legal profession also extend well beyond his individual achievements. He has made an extraordinary contribution to the


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President of the Law Council of Australia, Ms Catherine Gale, presenting the President’s Medal to Mr Mark Woods. Law Council through its Access to Justice Committee, which he currently chairs, and also as a Director of the Law Council in the late 1990s. He was the first country President of the Law Institute of Victoria and is the longest serving member of its Council having been elected in 1991 and re-elected in 1997, 2000, 2002, 2005, 2008 and 2011. “Mark is clearly a man of compassion and commitment, as well as being an excellent role model for all lawyers. He is a very worthy recipient of this award,” Ms Gale said in a speech before presenting the Medal to Mr Woods. “Mark deserves his place alongside previous winners and I congratulate him for everything he has achieved throughout his distinguished career in the law.” Mr Woods kindly donated time from his busy schedule to speak with the Law Council Review about winning the President’s Medal and his career in the law.

Congratulations on winning the President’s Medal for 2012. What does winning an award like this mean to you? One of the great privileges of being involved with the Law Council is being able to serve one’s profession and the community that it in turn serves. Recognition by one’s peers that you’ve made a contribution is the most exciting thing about winning the award. An unyielding commitment to the principles of access to justice and the rule of law were central themes in your nomination and subsequent success in taking out the Medal. Why are these two aspects of the law so important to you? There are two main reasons. Firstly, I grew up in a relatively modest area of Melbourne in the suburbs and I saw how people, who did not have access to the knowledge of their rights and the ability to enforce their rights, were treated by officials, their peers and the various elements of corporate Australia. I could see that if you had no access to a lawyer, if you had no advocacy, then you were at a distinct disadvantage no matter what your position at law was.

The second reason relates to the rule of law. I’ve been fortunate to visit many countries around the world and I have seen the chaos and despair that a country that isn’t based on the rule of law suffers. Accordingly, we just have to hang on to it—it’s so essential. Access to justice is a consistent issue of discontent between the legal profession and governments. In your opinion, what is the current state of access to justice in Australia? It’s very poor indeed and something of which the nation should be ashamed. We are very fortunate this year to have had the release of the Legal Australia Wide Survey (the LAW Survey). What the survey shows is that an estimated 8.5 million people aged 15 years and over in Australia experience a legal problem. There are less than 60,000 practising lawyers in Australia and it follows that access to information and representation is going to be pretty tight on those statistics. What is of greater concern is a very small percentage of those 8.5 million people access the assistance that our profession can provide. What governments don’t seem to


understand is that we are problem solvers as lawyers and if a problem doesn’t have a legal solution that is apparent to the person right at the outset, then they need assistance. If they don’t get assistance, the problem just compounds, the costs go up and access to justice becomes even more likely to be denied. Legal aid is a vital part of meeting the unmet legal need—a key issue arising from the LAW Survey. What needs to happen with legal aid in Australia to ensure it is meeting the needs of the people it serves? What we’ve got to do is prioritise where we’re going to spend the limited funds. Our first priority must be the assistance of those with a legal problem today. We don’t want to get our role confused with the health sector or the education sector. If we want to increase the public’s knowledge of the law and the legal system, something I’ve been advocating for the past 30 years, it’s the education system that’s responsible for doing that. For example, we don’t have the Institute of Mathematics deciding that it has got to teach Australians more about logarithms—that’s left to the education system. Likewise in relation to basic health matters, we don’t rely upon the health system. So it’s not the legal system’s responsibility to educate our young people. Having said that,

where there are important changes to the law that occur in the course of each year, we of course have a responsibility to educate the public and assist them. The second aspect involves the holistic approach to providing legal services. I’m a specialist in family law and criminal law so I know the absolute joinder between personality disorders and mental health problems and the propensity to commit crime. I understand clearly the nexus between substance abuse and domestic violence. If the legal system’s responsibility, in part, is to reduce recidivism, then of course we have got to have a holistic approach— there’s no point appointing someone with a severe mental health problem a lawyer if they don’t have a competent psychiatrist. Is funding still the major issue when it comes to improving levels of access to justice in Australia? It’s a favourite line of politicians to say ‘well, people shouldn’t think that just by throwing money at this problem it will be solved’. The moment that phrase is said, you know there is either a cut in funding or no increase in funding, as the legal profession has requested. It is of course nonsense. If legal assistance is a commodity, to put it

in economist terms, it obviously has a price—it’s as simple as that. We have a shortfall in federal funding, which was inherited by the current government, that has unfortunately been perpetuated and worsened to the extent that the Law Council and researchers empirically say that we need around $70 million injected at the next Federal Budget for the provision of legal services just to bring it back to the levels it was at in 1996/97. The Honourable Lionel Murphy QC [former Commonwealth Attorney General (1972–1975) and former Justice of the High Court of Australia (1975–1986)] would be appalled at what this Labor government has done to legal aid in this country. To say it’s just a money problem sounds glib, but it is. We’ve got no shortage of legal professionals prepared to do the work; we’ve got no shortage of need; and we’ve got no shortage of evidence that shows if we don’t properly fund the legal assistance sector, then it is going to cost the government more dearly downstream. If those legal problems are solved at the outset, our research shows that for every dollar spent, $1.68 will be saved down the track. The reality is legal aid commissions around the country consistently have to restrict the availability of legal assistance because the funding continues to dry up. In Victoria, over a period of a couple of years, we had a system whereby if you were a child in need of independent legal representation in the family law jurisdiction, whether or not you have a lawyer appointed to you depends on which time of the month the order by the court was made. It had nothing to do with whether or not your case was meritorious. State governments also have a lot to answer for in this regard. I can’t remember when I last heard a group of state politicians seeking votes at an election that didn’t kick the law and order can around: getting tougher on crime; making judges and magistrates lock criminals up; and putting more police on the streets. What they don’t seem to understand is that at the end of the day, each of those measures cause legal problems that need to be solved. Unless we’re going to have a


What about the future of access to justice in Australia? How optimistic are you that the issues you mention can be resolved? A lot depends on the legal profession. If the price of freedom is eternal vigilance, then the price of justice is eternal advocacy. Our profession has a long and proud record of holding governments to account for interfering with access to justice over the years. We cannot be kowtowed by politicians who simply say ‘there just isn’t any money’. We have to be robust and say ‘you better find the money’. As evidenced by your work across a number of streams in the legal profession, including access to justice, why did you take up the practice of law and what about your career keeps you motivated each day? I had a lot of terrific mentors— nobody else in my family had been a lawyer and, in fact, nobody else in my family had been to university. I was very lucky to win a scholarship to a well-to-do private school in Melbourne, Essendon Grammar, and I was told I would enjoy studying law and in due course practising it. I’ve loved the law since I started studying it at Melbourne University in the 1970s. What motivates me now, 30 years later, is that every problem comes across my desk is different. I probably do 600 appearances in court each year and they all have different aspects and people. The proposition that you can help them

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is a powerful one. The law has been very good to me financially and I don’t shy away from that—it’s a remunerative career as it should be.

MAR–MAY 2012

direct underground tunnel from the point of arrest to the prison sentence, with nothing in between to ensure people’s rights are respected, then that costs money. In Victoria, we’ve employed another 1700 police officers because the government has a specific policy on the prevention of crime. There is no problem with that—that’s a laudable community objective. But unless those officers are going to be issuing parking fines, the reality is that the people who are arrested are entitled, under our system, to appropriate legal representation. If you don’t increase the money to legal aid then people are going to go unrepresented in the courts and some people who don’t deserve to, will go to jail.

In 2009, you coordinated a group of Gippsland legal practitioners to offer pro bono advice and assistance to both community groups and individuals in response to the Black Friday bushfires. Can you please detail what this involved? In 2006 our area [Gippsland] was the subject of bushfire attack and actually came within 500 metres of my and my wife’s house. We saw firsthand that it was so frightening, ferocious and vicious. When we had the 2009 bushfires— fortunately they didn’t come anywhere near us in Gippsland— we knew immediately that the people who were going to be severely injured, or dispossessed of their property, were going to need legal assistance. Not only in Gippsland but in two or three other regions around the state, we were inundated, that is the local professions, with offers of help from the legal profession in Melbourne and beyond. The legal needs ranged from the basic: we had people turn up at what we called recovery centres and as well as needing blankets, water and food, people also needed lawyers. That was extraordinary but what you found was people came in and they had forgotten to get their wallet out of their houses, which were incinerated, so they couldn’t prove who they were. They couldn’t prove that they owned a particular car; they couldn’t prove that they owned a particular house. We had a couple booked to go on an overseas holiday who had lost their passports in the fire. That very basic legal information about ‘how do I prove who I am?’ was just so vital in those first hours and days after the tragedies. Unsurprisingly, the legal need increased. They included legal issues such as people wanting to fight insurance companies, people wanting to fight their neighbours whom they blamed for the fact that the fires spread to their properties, relationship breakdowns and business failures. Many of these people simply had nothing.

“One of the great privileges of being involved with the Law Council is being able to serve one’s profession and the community that it in turn serves. Recognition by one’s peers that you’ve made a contribution is the most exciting thing about winning the award.”


that on TV and the stage in amateur theatricals—that’s great fun! Do you have a most memorable moment in your career as a lawyer? Unexpected victories in court where you think that justice has been served are always incredibly satisfying—particularly when they involve people being oppressed. Seeing some parents reunited with their children after a long time of estrangement in family law and finally ensuring that a perpetrator of domestic violence is behind bars and your female client is now safe are tremendously important. They’re the things that make practising law worthwhile.

Mr Mark Woods A few key people got together from the legal assistance sector to coordinate the legal response properly to make sure it was effective. There were lawyers falling over themselves to help these people, but it was never going to work unless it was properly coordinated. Two of the Law Council’s Constituent Bodies, the Law Institute of Victoria and the Victorian Bar, teamed up with Victoria Legal Aid, the Victoria Law Foundation, the Public Interest Law Clearing House and others to coordinate who was going to do what. I pay tribute to Bevan Warner [Chair of National Legal Aid and Victoria Legal Aid] who played a key role in this coordination: making sure that the right lawyers got to the right people at the right time. He initiated a number of means by which that sort of communication could be kept up. The Law Institute, having access to its solicitor members in Victoria, was able to provide its referral teams to contact lawyers who had expressed an interest in assisting and get them to the places they were needed. The Law Institute was also able to use its networks in the regions to set up physical places where people could come and visit lawyers. The Victorian Bar provided expert advice from its barristers on some particularly complex questions of law. We were able to access really

highly skilled counsel, including Senior Counsel, to provide advice. All of this was done pro bono. You have had an extensive career and a number of significant achievements as mentioned throughout this interview. What has a career in the law given you? It has given me an opportunity to understand how fortunate I am as a person in the cards fate has dealt me. It has given me an opportunity to serve the community, which a lot of people don’t get. And it has made me many friends in the legal profession whom I hold very dearly. What about outside of the law— tell me something about Mark Woods that nobody else would know? My life if pretty much an open book! I de-stress by playing the piano; I do enjoy a glass of good red; I am presently embarking on the opportunity, with my wife, to visit countries we’ve not visited in the past (I have just come back from three weeks in Russia, which was incredibly interesting); and I do aqua aerobics each morning in our pool but can’t understand why I don’t lose weight! I trained in piano forte right throughout my time at school and then subsequently trained in the classical organ. As a lawyer there’s a Thespian in every member of our profession and I’ve done a bit of

You’ve shown a strong and consistent propensity to support young lawyers in and entering the profession. Why is this important to you? There has been a propensity for us to just expect that we who love the law over many years will just be venerated by those who are emerging from university. We have to accept that the law and the legal profession needs to justify itself to these young people to gain their respect—it’s not something that’s automatically there. We need to get young people as excited about being a member of the legal profession as we are. The evidence for that is the catastrophic attrition rate of young lawyers. We’ve got to give them a positive work environment; we’ve got to give them workplace flexibility; we’ve got to accept diversity in how we promote people to the upper echelons of our profession; and we’ve got to make the work interesting and relevant. If we don’t do that, we will continue to lose lawyers, which the community has invested in educating, and lose them forever. It’s the responsibility, in my view, of every lawyer over the age of 45 to take a young lawyer by the hand and guide them through what it means to be a member of our profession—it’s so important.


NATIONAL ACCESS TO JUSTICE & PRO BONO CONFERENCE MELBOURNE 2013

Communicating Justice The fourth biennial conference will bring together prominent Australian and international speakers and delegates to discuss current and emerging issues and challenges for access to justice, the legal assistance sector and pro bono services. Welcome Drinks Wednesday 20 March, 6 – 7.30pm Conference Dates Thursday 21 – Friday 22 March Grand Hyatt, 123 Collins Street, Melbourne

AN INITIATIVE BY

PLENARY SESSIONS

STREAM TOPICS

• Communicating the Law, Halton Cheadle, Practising Attorney and Professor of Law, University of Cape Town, South Africa

Stream 1: Criminal Law

• International Lessons in Legal Aid, Tomoki Ikenaga, Attorney-at-Law, Researcher of Japan Legal Support Center and Cleber Alves, Public Defender, Office of Public Defenders of Rio de Janeiro and Professor at the Universidade Católica de Petrópolis (Brazil)

Stream 3: New Ideas/ Emerging Needs

• Towards a National Disability Insurance Scheme, Kevin Cocks, Anti-Discrimination Commission Queensland, and John Cain, Managing Partner, Herbert Geer

$660 – Two-day registration (full rate) $385 – Two-day registration (CLC/community organisation rate)

• Identifying Unmet Legal Need, Geoff Mulherin, Law and Justice Foundation of NSW

Stream 2: Civil and Family Law

Stream 4: Pro Bono

COST *

* one-day conference registrations also available

SUPPORTED BY

For more information, check out the conference website at www.a2j13.com.au


FROM PRINCIPLE TO REALITY: DEFENDING THE RIGHTS OF THE WORLD’S MOST VULNERABLE


At the behest of LAWASIA, Mr Fowler and Mr Burr (Mr Fowler is now a Justice of the Family Court of Australia and Mr Burr a former Justice) were asked for their assistance in forming a family law and family rights section for the organisation which represents lawyers and lawyers’ organisations in some 24 countries in the Asia and Pacific Region. For Burr, Fowler and the then Chief Justice of the Family Court of Australia, the Hon. Alastair Nicholson, who was also part of the Australian delegation in Hong Kong, the task was a substantial one but also a relatively practicable one given their vast experience in family law matters (Mr Fowler was Chair of the Law Council’s Family Law Section at the time and Mr Burr his Deputy). It was then the subsequent request that somewhat threw the family law pair. “LAWASIA wanted us to take a brief for the

“LAWASIA explained there were particular problems for children and families within the region,” Justice Fowler said. “They spoke of the exploitation of children through prostitution, forced labour and children having their organs taken to be part of a transplant trade— problems that were completely foreign to Australian society. They chose us to undertake this project because of Australia’s legal tradition that valued the individual. They said if we didn’t accept the proposition put to us then we would be treating our legal principles as meaningless—not meaningful.” “It was a fair challenge to do something positive about the things we thought ought to be universal rights,” Justice Fowler said. It was from this meeting that the World Congress on Family Law and Children’s Rights was born. The First World Congress on Family Law and Children’s Rights was convened and took place in Sydney in July, 1993. Over 850 delegates from 54 countries came to Sydney. The World Congress brought together practising lawyers, judges, academics, politicians, and those in the caring professions who shared a common concern for the family, the present and future generations of children and a concern for the maintenance and protection of human rights, particularly the rights of children. The Congress was to be no “talkfest” however, as Justice Fowler and The Hon. Rod Burr said. They wanted to make sure the Congress could deliver tangible outcomes and deliver results that delegates could take back and apply to their own jurisdictions. “Just because they’ve been to a Congress and learned plenty, it isn’t the end of what delegates should be doing,” The Hon. Rod Burr said. “Once they’ve paid their departure tax at the airport when they fly out to go home, that’s not the end of their connection and their contribution to be made. They should take home

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IN 1990, AMONGST THE SPRAWLING URBANISATION AND BRIGHT LIGHTS OF THEN COLONIAL HONG KONG, FAMILY LAWYERS MR STUART FOWLER AND MR ROD BURR WERE SET A CHALLENGE THAT WOULD SEND THEM DOWN AN EXTRAORDINARY PATH OVER THE NEXT 23 YEARS.

human rights of families and children in the Asia Pacific Region,” Justice Fowler said in an interview with the Law Council Review. “The request staggered us a bit: we were family lawyers, not human rights lawyers.”


WORLD CONGRESS

what they’ve heard—take home the passion—and go and do something about it: go and see the policy makers; the law makers; the judges. Go and see the people with influence and achieve practical change.” To achieve the goal of tangible change, Justice Fowler and The Hon. Rod Burr set a project to be achieved at the inaugural Congress in Sydney, and every subsequent Congress thereafter. “The first project we took on, with criminal and constitutional lawyers, was to request that the Australian Government use its extra-territorial powers to pass what became Australia’s child sex tourism laws,” The Hon. Rod Burr said. “The significance about those laws was that the Australians who went overseas and abused children could be prosecuted, and if convicted, punished in Australia for those offences. There was a significant resistance to doing anything about it in some Asian regions because the corruption extended through many levels and strata of their society.” This was the first major achievement of the Congress and established the momentum to establish outcomes-based projects at subsequent Congresses. Each Congress now produces resolutions based on special projects set by the World Congress on Family Law and Children’s Rights. At the end of each Congress, held every four years, Congress delegates are challenged to adopt the resolutions and use them to effect change in their regions.

(left–right): Ms Anne Milne, Former Chief Executive Officer, Association of Family and Conciliation Courts; the Hon. Alastair Nicholson, Former Chief Justice of the Family Court of Australia; Former United States First Lady, the Hon. Hillary Clinton; Justice Stuart Fowler and the Hon. Rod Burr. have hoped for and was to open a lot of doors for the pair and the World Congress on Family Law and Children’s Rights. It was recognised by a United Nations Award to Justice Fowler and The Hon. Rod Burr. Their own country subsequently recognised their unique contribution to children’s rights in the award of Australian Honours in 2005.

“We saw the development of, in Sydney through the Vienna Conference of the Human Rights Commission, a protocol to the UN Convention on the Rights of the Child, which was against trafficking in children,” Justice Fowler said. “The work was done at the Sydney Congress and the inspiration was given. A lot of people joined in afterwards in achieving these ends—I wouldn’t entirely suggest it was the work of the Congress—but the Congress did add the impetus and that highlight to the problem, and also potential solutions to it.”

The American delegation that attended the Sydney Congress was particularly enamoured with its success and foresight and set their sights on bringing the Congress to the United States in 1997. Through their link with then Chief Justice Alastair Nicholson, Justice Fowler and The Hon. Rod Burr gained entrée to the US/Canada based Association of Family and Conciliation Courts. Through Chief Justice Nicholson’s emerging chairmanship of that organisation, Justice Fowler and The Hon. Rod Burr joined with them in organising the next Congress, which it held in San Francisco.

The success of the first Congress was beyond that which Justice Fowler and The Hon. Rod Burr could

“Through some other contacts we established, we were able to arrange a meeting with the then

First Lady of the United States, Hillary Clinton, to discuss her being the Congress Patron,” The Hon. Rod Burr said. “Not only was she the First Lady at the time, but she was identified as being one of the top 100 child interested lawyers at the time. She offered a number of things that were incredibly valuable to us at the time—not just her name, endorsement and patronage but she communicated with all of the first ladies in Central and South America for us.” It was also during this time the Congress established linkages with global fashion icon Levi Strauss as part of the 1997 Congress’s focus on child labour. Levi Strauss is “a very honourable company” as Justice Fowler and The Hon. Rod Burr describe them, which had appropriate structures in place in their employment of children. World Congress on Family Law and Children’s Rights honoured Levi Strauss with a special human rights award for their efforts in this regard. The work with Levi Strauss is part of a broader initiative with multinational corporations to adopt a voluntary code of conduct in the employment and treatment of


children—not only in their respective enterprises, but in enterprises supplying their manufacturing. The Congress sought to encourage this form of self-regulation and its work continues on this task. Over 1600 delegates from more than 50 nations around the world attended the San Francisco Congress and Justice Fowler said the calls for action against the exploitation of children were particularly strong. “Child labour was a big issue at the time of the San Francisco Congress,” he said. “The issue with child exploitative labour is still a big problem. The funding of child labour is by the demand for it—and the demand is funded by the products of its labour: we all eat chocolate and need to think about where it comes from and who produces it sometimes.” Keeping in line with their commitment to produce tangible outcomes, the Second Congress was able to raise funds towards the building of two schools in Central America and a community farming plot for Central American women

One of the Congress’s most significant outcomes came at the Third World Congress which was held in Bath, England. An initiative, adopted at the time, was to forge a separate NGO: Children’s Rights International (appropriately named CRI). “The momentum for CRI came because these World Congresses are managed and undertaken on an entirely voluntary basis,” The Hon. Rod Burr said. “CRI was set-up to do something about the resolutions that came out of the Congresses in the intervening years. CRI has now developed to the stage where it is doing significant works in Asia— particularly in Cambodia where it’s assisting in the development of a sophisticated legal aid system and is working very hard to remove juveniles from the adult justice system.” The Hon. Alastair Nicholson continues his amazing long serving contribution in the area of children’s rights as the Patron of CRI. The Congress in Bath also explored the continuing use of the death penalty on children. In 2001, when the Bath Congress was held, the US still passed capital sentences on children in rare cases. When the next Congress in Cape Town South Africa took place in 2005, the US Supreme Court found the imposition of the death penalty was cruel and unusual punishment. “We take no credit for it but you put these things out there—you don’t know where they go—but sometimes there are positive results along the same lines,” said the Hon. Rod Burr. By the fourth iteration, the World Congress on Family Law and Children’s Rights had developed a loyal following of lawyers, judges, academics, politicians, and those in the caring professions who were regular attendees at the four-yearly events. It had become one of the

world’s most influential voices on the rights of children and families. Cape Town in South Africa set the scene for the fourth Congress and one described by its delegates as the best ever. With influential South African matriarch and wife of Nelson Mandela, Mme Graça Machel Mandela as its Honorary Chair and Patron, the Fourth Congress directed its attention to issues such as children in war, refugee children, the rights of indigenous children, HIV/AIDS, religious/cultural freedoms, legal practice and legal process affecting children’s rights and issues relating to the enforcement of Convention provisions. “We were able to secure the services of the African Children’s Choir for our opening ceremony— all of whom were AIDS orphans,” The Hon. Rod Burr said. “There was a particular resonance about the whole event.” “One of the major outcomes from that Congress can be found in a comment that was made to me by one of the women participating,” Justice Fowler said. “She said ‘We’d like to thank you and Mr Burr for what you’ve done because in this country women have difficulty getting their voice heard and you’ve enabled us to have that voice.’” The scourge of child soldiers was an important topic of discussion at the Cape Town Congress which carried through to be a key focus for the Fifth World Congress, which was held at Halifax in Canada. The Fifth Congress coincided with the 20th Anniversary of the inauguration of the United Nations Convention on

The Hon. Rod Burr

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whose husbands were working thousands of kilometres away in mines. At its outset, the Congress was able to assist children through endowments to the LAWASIA Children’s Trust, which is helping children through education, and also through providing funding for a clinic that deals with children’s suffering from AIDS in northern Thailand.


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the World Congress, in trying to find ways of making that a reality.” The Law Council of Australia will be involved with the event through its Family Law Section, which is sponsoring the event.

Justice Stuart Fowler the Rights of the Child (UNCROC). The Congress’s theme, “Children Caught in Conflict”, had a distinct Australian legal profession connection through the Hon. Chief Justice Diana Bryant , Chief Justice of the Family Court of Australia, and the Hon. Joseph Kay formerly a Judge of the Family Court of Australia who were responsible for developing the key discussion points and outcomes around this theme. “We had a young man [present at the Congress], now studying international law at The Hague, who was a former child soldier and in the process of being ordered to kill his brother was able to escape—as was his brother,” Justice Fowler recounted. In 2013 the Congress will come full circle and return to where it all started in Sydney. “In terms of subject matter, and it’s extremely topical at the moment, there’s going to be a whole stream on cyber safety,” The Hon. Rod Burr said. “And also a reflective moment: what would the UNCROC look like if it was drafted today—it might be a very different document.” UNCROC will be a key theme of the Congress, titled “Building Bridges: From Principle to Reality”, which will examine where those bridges have both failed and succeeded in bringing a real and lasting benefit to those for whom UNCROC was crafted. “UNCROC is probably the most universally adopted treaty of all,” Justice Fowler said. “It’s an instrument to which great hope was had. People looked at it and said ‘this is going to be a blueprint for the world in terms of establishing recognition of the rights of children.’ It’s a worthy enterprise,

Contemporary issues will dominate much of the discussions and outcomes from the Congress. As well as the topical discussions on cyber safety, there will also be significant streams on embryo trafficking and the rights of children born to overseas surrogates. “What about the rights of those children to know their parents?” Justice Fowler said. “Is that a sort of trade that should be permitted? At the moment there is a prohibition in many Australian states against commercial surrogacy but commercial surrogacy exists overseas and many of the children come back here to Australia. Should the world simply accept there’s going to be commercial surrogacy and try to make it something that will better serve the children produced by the process or perhaps say it’s something we don’t like, don’t want to have and then take steps to prevent it? It’s a highly controversial subject.” “Now there’s a new challenge for everybody,” The Hon. Rod Burr added. “In order to defeat many of these anti-trafficking laws, and policing of human trafficking, women are now being paid to be surrogates and cross international borders whilst pregnant. They’re not trafficking in children: they cross the border, have the child and then hand it over to traffickers and the women return home without the baby. The trafficking in children is in utero.” As with each Congress dating back to 1993, Justice Fowler and The Hon. Rod Burr credit the strength of the Congress to its delegates and

Her Royal Highness, Crown Princess Mary of Denmark will be the 6 th World Congress’ Patron.

speakers. Plenary speakers at the 2013 event include Moira Kelly AO, Director, Children First Foundation; Commissioner Tony Negus APM, Australian Federal Police; Dr Hugo Gold, Chairman RCH Clinical Advisory Board; Lynn Gillam, Assoc Professor in Health Ethics Centre for Health and Society, University of Melbourne; Dr Helen Durham, Adviser, International Law, Australian Red Cross; Dr Judith Slocombe, Chief Executive Officer, The Alannah and Madeline Foundation; Professor Janet A Walker, Institute of Health & Society, Newcastle University, United Kingdom; and The Rt. Hon. Sir Mathew Thorpe of the Family Division of the High Court of Justice, England and Wales. As well as issues such as cyber safety and child trafficking, the Congress will cover a range of contemporary and historically ingrained issues including better care of children, protecting the rights of indigenous and multicultural children and preserving their cultures, juvenile crime and justice, family law issues, the effect of family violence on children, education, and expert analysis, evaluation and therapy. “Another important thing we now do, since San Francisco, is have a youth forum,” The Hon. Rod Burr said. “You can hardly represent the interests of children without hearing from the children themselves.” “Anybody should attend this event who believes that it is a fundamental principle of our law that the individual has value, and who subscribes to the theory that human beings have value,” Justice Fowler said. “We always take into account the, now well-known, expression: ‘Evil can only triumph when good men and women stand mute.’ We want the lawyers and other professions of Australia and the world at large not to stand mute, but to join us in these deliberations and offer their skill, ability, their capacity for lateral thinking and their understanding of the world to join us in a proper debate on how we can make the rights of children a reality and consequently work towards a better society.”


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SHARED PARENTING TIME IN AUSTRALIA: EXPLORING CHILDREN’S EXPERIENCES AND VIEWS


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Professor Belinda Fehlberg is a teacher of family law at Melbourne University. She has undertaken a wide range of socio-legal research projects, including child-related issues such as child protection and children’s contact services. Professor Fehlberg joined with Ms Monica Campo, Dr Christine Millward and Dr Rachel Carson to undertake research into Shared Parenting Time in Australia and will present findings in a paper at the 6th World Congress on Family Law and Children’s Rights. Professor Fehlberg, Ms Campo and Dr Millward spoke with the Law Council Review about their paper and its implications for family law. Can you please explain what your session will cover at the Congress: Shared parenting time in Australia: exploring children’s experiences and views? The study on shared parenting is part of a larger three-year study into parenting post-separation and how financial matters relate to the parenting arrangements. In 2006 there were major changes to the Family Law Act to encourage parents to share the parenting of their children more after they separated. We felt that after these changes to the Family Law Act there was a real need to talk to children as well as their parents in relation to their parenting arrangements. It’s important to be aware of the way children describe things in their own words (the children’s ages ranged from 10-18 years). Did you undertake the study with a view to improving the process for shared parenting arrangements in the future? By helping to get the ball rolling and starting to talk to children we would like to contribute to increasing awareness of what children are saying and the different things children might be feeling about their arrangements. We talked to children about how they felt about their parenting

(left–right): Ms Monica Campo, Dr Christine Millward, Professor Belinda Fehlberg and Dr Rachel Carson

arrangements, especially shared time, and what input they’d had into making those arrangements and their input into any changes. Did you find there were contrasts between how children and their parents viewed parenting arrangements? I think the children’s views were quite consistent with the parents’ views by and large. The main difference was that children talked about conflict differently to parents – children conveyed a strong sense of being caught in the middle and wanting parental conflict to stop. The descriptions of siblings were also generally consistent, although teenagers tended to be more vocal and critical than primary school aged children. Was there anything that stood out about what the children had to say in regards to shared parenting arrangements? The first thing that stood out was that children had more to say about their changed arrangements than they had about their initial arrangement. That seemed to be because they were a bit older and remembered it more—children didn’t always remember what happened a few years ago, which is understandable. So children had more input into changes to parenting arrangements, than into initial arrangements. Another thing that stood out was that where parents could parent cooperatively and in a low-conflict manner, children generally expressed a greater level of satisfaction—regardless of whether they lived mostly with one parent or had shared time arrangements. It wasn’t so much about having a particular form of parenting arrangement: it’s about how it was done. The things that mattered to children were parents who could get along well enough , could communicate and cooperate with each other—and had flexibility in the way the parenting arrangement was done. The children by and large were quite mature about the arrangements and it really came across that some children wished one or both of their parents would grow up a bit! It was impressive how articulate and insightful some of

the children were when being interviewed. Given the levels of maturity the children showed during your interviews, do you think there’s a case to allow them to have far greater say in the parenting arrangements? Our study involved some children who were the subject of court orders but they were mainly consent orders. From the point of view of the family dynamics maybe it would be a good thing if parents talked more to their children about their parenting arrangements and about what the children might want. However, a lot of parents in our study separated when their children were very young and wanted to shield them from the emotional conflict. In our study, a number of children got to an age where they began to assert themselves and wanted more input into the arrangements and, in some cases, even to change circumstances – especially if they were having a lot of trouble with a parent or a step-parent. Sometimes they could. But sometimes parents simply would not allow it (this tended to be the cases where the conflict between the parents was higher). It was quite reassuring in our study that children were listened to, but it was more worrying that where the parental conflict was higher, that it was harder for the children to be heard. Can studies such as the one carried out by your team lend greater support to the courts in making orders for shared parenting arrangements in the future? Was this an indirect aim of the study? This wasn’t an aim of our study, but it’s an important question. Our research suggests that different arrangements suit different children and those children’s needs and views change as they get older. The principle that the best interests of the child are paramount is the big one. If we can keep going back to that and maintain a flexible, child focused approach that doesn’t prioritise one care form over another one then that’s the best we can do—there’s no ‘one-size-fitsall’ approach to children. Flexibility is the key.


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WORLD CONGRESS

PSYCHOLOGICAL OUTCOMES FOR ALIENATED CHILDREN

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Vince Papaleo is a clinical psychologist who has extensive experience working with children through public mental health and in family law cases.

And then you have kids who don’t want to see their parents for very good reasons and who shouldn’t be forced to see them—and shouldn’t be required to see them.

polarities of the dispute are so great—especially when there are notions of abuse involved. To get it wrong one way or the other is to potentially produce so much harm.

What forms the basis of your presentation at the Congress on alienated children and parental rejection?

How can judges get involved from that early stage? Is it purely about making a quick judgement?

Mr Papaleo will speak at the 6th World Congress on Family Law and Children’s Rights on the issue of child alienation and parental rejection in a session with other eminent experts in this area including Dr Phil Watts, Ms Fiona Darroch, Dr Jennifer Neoh and Justice Margaret Cleary of the Family Court of Australia. Mr Papaleo spoke with the Law Council Review about his session at the Congress and the complexities of child alienation and parental rejection.

Children who refuse to see their parents are a major area of concern along the entire continuum. You have children who don’t want to see their parents for very good reasons and, in fact, children who should not be seeing their parents because of the treatment and maltreatment they have received. At the other end of the continuum you’ve got children who are not seeing their parents for reasons that we think are particularly good reasons. The longitudinal research is profoundly grim for these children.

What is the definition of child alienation in the context of your presentation?

What we know is that in some of these very challenging cases, it’s really a legal problem and the court needs to intervene vigorously and early. In the most extreme of some of those cases a change in the living arrangements can be the only thing to change what is a highly pathological process. You can imagine what an incredibly contentious issue that is.

The agreed definition is along a continuum. At one end you have children who are more classically alienated from a parent: they won’t see them and nothing you can say or do is going to shake that view. You then have children who are overly aligned with a parent for good reason or for bad reason. You’ve got justified rejection and unjustified rejection. It’s all a question of intensity: those kids, even though they might seem highly resistant, with a bit of work and intervention, you can edge them along a bit and hopefully you can get things back on track. But in order to do that, you need a court to say ‘you are going to go see a therapist; you are going to spend time with your mother/father’. As soon as you start entering into a discussion about whether it is or isn’t okay, whether they do or don’t agree to come, you’re sunk. The court has to decide and has to make a decision. You then have children who are really enmeshed with their parents: children who can’t differentiate their own emotional state from that of their parent or the parent differentiate their own emotional state from the child.

It’s all about harm minimisation: what do you do? For many families the harm done in these cases is far too great—you can never recover it. I’m a psychologist but I continually get frustrated by the bad press the Family Court receives in relation to these cases. There is no winning. You only have to look at the recent Italian Girls case: there is no doubt, from a family law perspective, that those kids should have gone back. What direction are you trying to take the conversation surrounding this topic through your presentation at the Congress? From a personal perspective, it’s an invitation to the court to act more assertively, and earlier, with good information. For some families, and I emphasise some, firm and strong court intervention is what is necessary—they need to take charge. I don’t know if that is necessarily a popular thing for the judges to do. It’s an enormous responsibility because the

I think certainly accessing as much information as possible early on and then making strong decisions is vital. Many of these families consider court orders as advice. There’s a choice about whether they follow them or not. In my experience in every case where there has been a component of alienation, one part of it has been collusion between a parent and child—knowingly or unknowingly. You mentioned earlier the longitudinal research is profoundly grim for many children in these situations. Is alienation something children can ever overcome? Whilst an enormous amount of professional time and literature has been devoted to this particular topic, the reality is outcomes tend to be fairly unsuccessful. Depending on the severity of the alienation, you can understand why a change in the living arrangements at some level intuitively makes sense: reconnecting the child to the parent and just making it happen. For some cases that can work. In my experience just a change in the living arrangements without some kind of intervention isn’t going to be sufficient to bring about the kind of change that most people want. Ideally you want the favoured and the rejected parent involved in some capacity. You need to have the children involved with the parent—you don’t want these children to be seeing their own therapist, talking about their own reality because they have such a distorted view of the world. These kids develop such a black-andwhite view of the world— they completely lack any sense of compromise or shades of grey. Does this then have a long term effect on other aspects of their life and even, eventually, relationships with their own children? We don’t have an abundance of longitudinal research but what we do have is all pretty grim.


Part of the synopsis for your presentation reads: “Psychological knowledge would suggest that this [a change of the child’s living arrangements to the rejected parent] is a quite brutal psychological adjustment for any child to make. Why is it so brutal for the children and what are the consequences of changing a child’s living arrangement? Very often for many of these children they have completely internalised and accepted a particular worldview. By the time we get to see them they really believe that the other parent is all bad, all evil and all to blame for all things. To take these children and place them into the care of the rejected parent and confront them with a highly contradictory, highly contentious experience—a whole different perspective and a whole different structure of reality—is going to be difficult. And they’re not wanting it; they’re not saying I want to change and live with my mother/ father. They’re saying: ‘I hate that person; I don’t care if they’re dead’. I have heard children tell their parents “I hope you die”; “I hope you walk out the door and a bus kills you”; “If you are dead then I will be happy”. That is in my view, a profoundly sad state of affairs. The most contentious and difficult area of this is where there are allegations of sexual abuse because there is a school of thought that many of these allegations are intended to stop a parent from having any contact with their children. Of course, then you have the other end of that continuum where people say ‘if my child says to me that I’ve been abused by the other parent and I report that, then the immediate reaction in the family law context is to say that I’m trying to alienate the child and

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making false allegations’. The stakes then become enormously high and you can imagine what it’s like to be confronted with a situation where the wrong decision might result in a child being prevented from having a relationship with a loved, caring parent; or in fact removed from a loved, caring parent and placed in the care of an abuser.

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The implications are great. The impact on mental health problems is substantial. The capacity to form intimate relationships is compromised. If you deal with problems in your personal life by just rejecting and abandoning the source of the problem, you’re going to be a lonely person: it’s going to be hard for you to have a meaningful and intimate relationship with someone if every time they cross you, you leave.

What are the implications of child alienation and rejected parenting on family law cases? It’s a really symbiotic relationship: the court needs the assistance and the assessment from the social sciences but the social sciences really need the court to give direction and take charge. This is complicated, difficult work. Unless the court has available to it good information then it’s going to be extremely difficult for the court to make good decisions. The way in which that information is, in part, portrayed is through the social sciences: through the psychological assessment; through the psychiatric opinion; and through the family report. As a report writer, I don’t make determinations of fact but what I’m good at is describing dynamics, describing what I see and trying to understand it from different perspectives, and then hopefully as the court process unfolds it slots together a bit and it starts to make sense—there’s a picture that emerges. What do you hope delegates will take away from your session on this complex and heavy issue? A different lens through which they see these families. And to use that lens in an attempt to intervene. For some cases you need to change the living arrangements and be brave. We’re going to talk about some of our experiences, good and bad, when there has been a change of living arrangements and what has happened and what the outcome has been.

“To take these children and place them into the care of the rejected parent and confront them with a highly contradictory, highly contentious experience—a whole different perspective and a whole different structure of reality—is going to be difficult.”


The changes have been received very positively by members of the Court. There has been a lot of confusion in the community about the Federal Magistrates Court name, virtually since the inception of the Court, and I think the new name clarifies the role of the Court and the role of its judicial officers. I think it provides a really firm foundation for the future of the Court. It’s very welcome indeed to all members of the Court. What will be the most significant changes in how the Federal Magistrates Court operates when all the changes are complete? Will there be a change in jurisdiction as has been mooted? There has been a very steady increase in the jurisdiction of the Court, particularly in the general federal law area. I think there is scope for further increases in the jurisdiction of the Court. I think that is now more likely to take place with the renaming of the Court. One of the difficulties that the Court had in the general federal law area was the confusion around the name: you had people wondering why they should come to a court that they thought was akin to the State Magistrate’s Court—particularly in terms of criminal jurisdiction—to deal with their civil law matters. I think the establishment of the Court at an appropriate level, which is the equivalent of the State District Courts, will help with additional jurisdiction and encourage litigants to come to the Court in general federal law matters. What role can the legal profession play in the reforms to the Federal Magistrates Court? We certainly would like to work closely with the legal profession. Our liaison with the non-family law part of the legal profession fell away during the period of uncertainty about the future of the

court. It’s very important that we put some effort in to re-establishing those relationships and I’d like to feel we can work closely with the profession and put more resources into working together. In a 13 September media release, the Commonwealth AttorneyGeneral, the Hon. Nicola Roxon MP, said the changes to the Federal Magistrates Court was part of a reform agenda to provide greater certainty around the responsibilities and role of each of the federal courts. Do you believe these changes will provide greater certainty around the responsibilities and role of Australia’s federal courts? I do. I think it actually provides a proper balance. The reality is the Federal Court now has an appropriately named court beneath it. There was a perception that there was a huge gap between the Federal Court and the Federal Magistrates Court. Now I think the relativities between the two Courts will be better understood by everybody. I think the profession may have understood the true nature of the Court but there was a lot of confusion with litigants. The names of the Courts now reflect the relationship between them. The reality is most of the migration work is done in the Federal Magistrates Court; most of the work in industrial law is now being done in the Federal Magistrates Court; and a significant part of the bankruptcy work is done in the Federal Magistrates Court. In some areas of general federal law there is a significant percentage of the work appropriately done in this Court, with the matters that require the attention of the Superior Court either being filed in the Federal Court or transferred there. In 2009 the Government announced the proposed abolition of the Federal Magistrates Court. What was the reaction to this proposal from within the court and were there any specific measures/ advocacy undertaken by its officers to reverse this decision? Federal Magistrates were shocked and devastated by the initial announcement that the Court was to be effectively abolished. People had worked so hard to establish a

25 MAR–MAY 2012

Q&A WITH CHIEF FEDERAL MAGISTRATE, JOHN PASCOE AO, CVO.

FROM FEDERAL MAGISTRATES COURT TO FEDERAL CIRCUIT COURT OF AUSTRALIA

It has been an eventful past couple of years for the Federal Magistrates Court, which culminated in the recent name change to the Federal Circuit Court of Australia and the change of title from Federal Magistrate to Judge. What has the general response at the Federal Magistrates Court been to the changes thus far?


PEOPLE ARE VERY BUOYED BY THE FACT THERE IS NOW CERTAINTY AROUND THE FUTURE OF THE COURT. FROM MY POINT OF VIEW IT IS PLEASING TO SEE LONG OVERDUE RECOGNITION OF THE COURT’S PROPER POSITION IN THE JUDICIAL HIERARCHY. culture for the Court and to handle cases in a different way in order to serve the needs of litigants. The very clear message to Government was that, virtually to a man and woman, the abolition of the Court was opposed. Federal Magistrates did not want to go to either of the Superior Courts and that message was conveyed very clearly to the then AttorneyGeneral and the profession. People are very buoyed by the fact there is now certainty around the future of the Court. From my point of view it is pleasing to see long overdue recognition of the Court’s proper position in the judicial hierarchy. For most lawyers who are familiar with the Court’s jurisdiction they were also advocating for proper recognition and are pleased to see the change. I think there will be a benefit for litigants. Confusion around the name of the Court and its role held back many Indigenous people from coming to the Court with family law matters because there was real confusion around the role of the Federal Magistrates Court in family law and the role of Magistrates’ courts in criminal law. Entrenching the circuit work of the Federal Magistrates Court is also very important because one of the distinctions of this Court is that it did make, and it continues to make, significant efforts to provide access to justice for people in rural and regional Australia—many of whom can’t afford to go to the major metropolitan areas to litigate their cases. I think our circuit work will grow and the breadth of the

offering in circuit locations will also increase. For example, in many regional areas there will be an opportunity for small business people to access the Court and, again, I think the new name of the Court will assist people in understanding the breadth of jurisdiction we have.

My view and the approach I have always taken is that Federal Magistrates can specialise in family law or general federal law and, if work permits, only sit in one jurisdiction or the other. Currently every Federal Magistrate can sit across all of the Court’s jurisdictions if he or she wants to.

When you mention the increased expansion and role of the Federal Magistrates Court, do you believe resourcing needs to also increase to reflect and support this growth?

The Court should have two formal divisions: general federal law and family law, with Federal Magistrates able to sit across the divisions by agreement with me if they have the right qualifications to do so and they wish to do so. There is a benefit in being able to move resources from one part of the Court to another part if there is a surge in work. For example, we were able to take Federal Magistrates, who had experience in migration, out of family law and put them into migration work when there was a surge in migration work coming through the Court. We can also give additional resources to family law when necessary.

Resourcing is a problem across the federal courts. My own view is there needs to be some sort of independent inquiry to determine the proper resourcing needs for each of the federal courts and the way in which those resources can best be managed. We operate under significant constraints in some areas. There’s a lot of demand for us to give more time in circuit locations. That’s a cost issue and it’s also an issue around having access to court rooms and appropriate facilities. There are real pressures on the Court in terms of physical, financial and judicial resources. We are hopeful, given the new name of the Court, that we may over time get more judicial appointments in rural and regional Australia. There have been calls for Federal Magistrates to be split between the two major jurisdictions of the court, namely family law and general federal law. Would it be beneficial for the court and litigants to have an arrangement like this in place?

It is important we make sure that Federal Magistrates doing the work are appropriately equipped to do it. Part of that is an education role. The Court has panels, which we’re reviewing, and one of their functions is to ensure that when Federal Magistrates sit in specialised areas, particularly in the general federal law side of the courts work, they’re appropriately qualified to hear those matters. This is important within the profession: having confidence in coming to the Court; and also with the Superior Courts having confidence when remitting matters to the Circuit Court.


Both superior courts benefit from the ability to focus only on those matters which properly belong in the superior and appeal courts. Where do you see the future of the Federal Magistrates Court/Federal Circuit Court of Australia? What role would you like it to have? I’d like to see the Court with its new name really connecting with the Indigenous community to assist in family law matters—I think there’s a real need there and we can make a contribution. I think we will do that.

Chief Federal Magistrate, John Pascoe AO, CVO. You’ve been involved with the Federal Magistrates Court since 2004. What is your perception of growth and evolution since this time, and also its current standing within the federal judicial system? Ever since I have been here we have seen exponential growth in the work of the Court. Overall we now have about 85-90% nationally, and close to 100% in some registries of all family law filings. The family law work of the Court has grown very significantly. In general federal law, we have seen the constant addition of jurisdictions and in some areas such as migration where all the work was done by the Federal Court, it’s now done in the Federal Magistrates Court with the Federal Court dealing with our appeals. That has been very efficient for the Federal Courts overall, because many Appeals can be dealt with by a single Judge and a Court of three only needs to be convened when an

important new issue or legal principle needs to be established. There has been constant and steady growth of jurisdiction, filings and the number of judicial officers. What are the successes of the Federal Magistrates Court in its 12 year history? The Court takes pride in the innovations that have really been enormously beneficial to the community generally. Particularly, the fact that the Court has been able to process so much work and to do it efficiently. We deliver about 80% of our decisions within six months and about 99% within 12 months. In 2011-12, the Court handed down nearly 3000 written judgments. In some areas the Court is leading the jurisprudence. The Court prides itself on providing access to justice for self-represented litigants.

The workload of the Court is likely to keep growing. I’d like to feel that we would have additional circuit locations and more time in circuit locations. The former Chief Justice of the High Court, the Hon. Murray Gleeson AC QC, always said this would be a Court of 100 within a relatively short period of time. If we continue to grow he is likely to be proved right. There are obviously many management issues in a court of that size. I see a steady growth in the Court’s work, a growth in our circuit locations and growth in the number of judicial officers. I think that in this way we will take the pressure off the Superior Courts so that they can concentrate on appropriate matters. We are committed to increasing our reach and providing access to justice for ordinary Australians. This is perhaps the Court’s most important objective.

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The Court’s commitment to try and move people through the system very quickly has been very beneficial for litigants because, particularly in family law, I think people are damaged by being left in the system for a long period of time.


YOUNG PROPERTY LAWYER OF THE YEAR BREAKING THROUGH BOUNDARIES


MAR–MAY 2012

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“This award recognises Belinda’s talent and ability in property law,” said Law Institute of Victoria President, Mr Michael Holcroft. “It is especially pleasing to see a country lawyer taking out the award against stiff competition.”

For young Victorian lawyer Ms Belinda Wilson, she couldn’t imagine a career in anything other than property law. For some of her contemporaries, property law may not have the glamour factor associated with other streams of law, but Ms Wilson won’t have a bar of that perception. “I highly dispute that it’s not as glamorous as, for example, criminal law,” Ms Wilson said with a laugh. Ms Wilson was recently announced as the 2012 Victorian Young Property Lawyer of the Year Award recipient for 2012. The award is presented by the Law Council of Australia in conjunction with Land Victoria and judges candidates on a select range of criteria relating to their skills in the stream of property law. Belinda is an Associate Solicitor at Tyler Tipping & Woods—a regional Victorian law firm in the town of Traralgon, Gippsland. The Award was as much a coup for regional Victoria as it was for Ms Wilson— she was the first lawyer outside of Melbourne to ever receive the award.

The award was presented to Ms Wilson by Mr Ken Gray, the Chair of the Victorian Committee of the Property Law Group of the Law Council of Australia, and Mr Chris McRae, Executive Director of Land Victoria. She received a plaque to commemorate both the Award and the 150th anniversary of the introduction of the Torrens title system in Victoria. The Victorian Young Property Lawyer of the Year Award marks another significant achievement for a young lawyer quickly growing in stature: Ms Wilson was also named the 2011 recipient of the Law Institute of Victoria President’s Award for Regional Lawyer of the Year. Ms Wilson has been a lawyer in Gippsland for the last ten years and was the President of the Gippsland Law Association for five years, having just handed over the role to another enthusiastic Gippsland lawyer. Ms Wilson spoke with the Law Council Review for its end of year edition about winning the Award and her passion for property law. What was your reaction upon being announced as the 2012 Victorian Young Property Lawyer of the Year? It was a huge surprise and it’s very humbling to have won this award. Personally it means a great deal to me because as a solicitor it can, at times, be a thankless job and it can be a very competitive industry, so it’s wonderful to be recognised by my peers. As a practitioner it’s an honour to receive this award because it not only recognises my contribution to property law but also all those that work alongside me—especially those that work with me in the Gippsland region.

Can you expand on why winning the award means so much to you as a lawyer in a regional area? There are two major reasons: the award recognises the hard work of regional lawyers; and also, as a young lawyer, winning this award can help me promote the virtues of regional areas to other younger lawyers. We do need more regional practitioners and it is always a challenge to attract young practitioners to regions and to encourage them to practise property law rather than just criminal and family law. Why did you decide to pursue property law as a career? From early on in my career I have enjoyed property law—it’s so interesting and is always changing. I don’t think there is an area of law that doesn’t include property law to some degree. If you don’t have a good grasp of property law that can make other aspects of the law very complicated. For example a will, family law or farming matters— you need to understand how these other areas of law interact with property law. Because there are so many facets under the umbrella of property law, there is always so much to learn. What aspects of property law have piqued your interests in recent times? I really enjoy the tricky questions and I tend to get a lot of those across my desk. These tricky questions are usually as a result of a mistake made 30, 40 or up to 100 years ago that have only just been discovered. They can range from rectifying discrepancies with the location of titles as opposed to the location of buildings; recovering property that now vests with ASIC, and trying to identify the rightful heirs to the property through succession. I have also been very interested in the introduction of the Personal Property Securities Act which has


What advice would you give to young people considering a career in the legal profession? My advice would be, as a young lawyer, to learn everything that you can—don’t limit yourself to a particular area of law. Go to a regional practice and enjoy being immersed in the deep end with clients, cases and court work. It’s important to find a good mentor, set up a good support network and don’t be afraid to ask plenty of questions.

Ms Belinda Wilson receiving the Young Property Lawyer Award made major changes to one’s personal property, the protection of that property and recoverable action for parties. Lastly, I have been lucky enough in the last few years to be involved in some major strategic property planning matters for Gippsland. It will be exciting to see these long term plans come into fruition in the near future for the benefit of the region. Do property laws in Australia serve the community adequately? Is there scope for improvement in Australia’s property law system and policies? I think the emerging trend of conveyancers into the market is problematic. Especially given that they’re getting greater scope and greater powers. For example, Victorian conveyancers are now able to deal with the sale of businesses, which I think is a big problem and it has the potential to cause a lot of problems in the future. Why do you feel this is a problem? There is no simple conveyancing transaction. When dealing with conveyancing or the sale of businesses, there are so many different areas of the law you need to understand in order to do the best job for your client. Conveyancers may not necessarily know the ins and outs of the law, and if they don’t know their

limitations that’s where problems can start arising. It’s then difficult for property lawyers like me to come in at a later stage and unwind those issues, if they can be unwound. The introduction of a national e-conveyancing system is an area of significant reform in property law. Do you think this is a positive policy move? It certainly is a positive policy move. I was involved about ten years ago when it started to gain a bit of momentum. A lot of research has gone into the development of the system. I think the major reason it has taken this long to develop to where it is now, is to ensure that the system that is put in place is put in place properly and for the long term. I’m hoping it will make conveyancing more effective and efficient for clients. Perhaps one of the limiting factors for e-conveyancing is access to reliable computer systems and networks. This is why the NBN rollout in regional areas is of vital importance in order for e-conveyancing to work effectively for regional practitioners. E-conveyancing is going to be a massive development that will guide the future direction of property law.

The selection process for winning the Victorian Young Property Lawyer of the Year Award 2012 required short-listed nominees to be interviewed in the final selection process for determining the winner. What was your pitch to the judging panel during this interview that eventually swayed them in your favour? It was very interesting to learn through the panel that the award had never gone to a regional solicitor and especially that it had never gone to a solicitor who was a “general practitioner”. My pitch was that the bulk of my work is property law and if it’s not your typical property law transaction, everything else that comes across my desk has some element of property law to it. It’s my understanding of property law and how it fits into everything that hopefully ensures that I can get the best outcomes for my clients. As a country practitioner, I have a huge exposure to a lot of different things and a lot of responsibilities. For example over the last five years I’ve been the voice of Gippsland lawyers through the Gippsland Law Association; I’ve had a lot of roles with the Law Institute of Victoria (LIV), including being an LIV Mentor. There is also the huge array of cases that come across my desk. In the morning I might be doing a purchase of a first home , but in the afternoon I might be delving into trying to work out the rightful owner of a piece of land that was last conveyanced 100 years ago. The variety and the close relationships that I get to develop with my clients make me enjoy what I do and it makes it so interesting and rewarding.


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On 25 October 2012, Ms Kathleen Farrell’s appointment as a judge of the Federal Court of Australia was announced. Justice Farrell represents a rare group of Federal Court Justices who have been appointed directly from solicitor ranks and is the fifteenth woman to be appointed a judge in the Court’s history. Justice Farrell has an extensive background in the legal profession and also the Law Council of Australia. She has chaired both the Business Law Section (BLS) and the BLS’s Corporations Committee. She is also an Executive Member of the BLS and is described by the Section as an influential and dedicated leader who is particularly noted for her strong approach to improving public policy on business law related issues. Since 2002, she has represented the Law Council of Australia on the ASX Corporate Governance Council. “Your Honour’s contribution to the work of the Business Law Section

and the wider Law Council has been long lasting and profound,” said current Chair of the BLS, Mr Frank O’Loughlin, at Justice Farrell’s swearing in to the Federal Court. Justice Farrell is considered an eminent voice on legal matters, particularly in her specialised areas of law which include corporate law, in particular, public and private mergers and acquisitions, initial public offerings and other funds raising and capital management, as well as corporate governance and regulation. Justice Farrell was admitted as a solicitor to the Supreme Court of New South Wales in 1979 and joined Freehill Hollingdale & Page where she was a corporate group partner from 1984-2000. She has been a consultant to Freehills (now Herbert Smith Freehills) since 2000, a member for the Australian Government Takeovers Panel since 2001 and President of the Panel since 2010. In 1992-93 she was national coordinator for enforcement at the Australian Securities Commission (now known as the Australian Securities and Investments Commission) and for a period acted as a member of the Commission. During her career, Justice Farrell has also served on a number of public and private sector boards. Justice Farrell holds a number of fellowships, including with the

Australian Academy of Law, the Australian Institute of Company Directors and the Australian Institute of Management. In the lead-up to her swearing in as a Federal Court Justice, Justice Farrell spoke with the Law Council Review about her preparation for and thoughts on her new role. [Editor’s note: the below interview was conducted with Justice Farrell on 26 November 2012 before her official swearing in to the Federal Court on 5 December 2012] Congratulations on your appointment to the Federal Court judiciary. What does it mean to you to be appointed to such a position? It’s an exciting challenge. Like any of the big departures in life, you wonder how you will go. Hopefully the many perspectives that I can bring to the position help me in the change process. It’s a good thing to bring some mature judgement and experience to the role. My experience of the Federal Court judges is that they are a collegiate group of people and certainly they have been very welcoming. I have received many letters welcoming me and offering any assistance that I require. What I had observed previously, when I helped the court to put together a number of conferences, appears to be borne out in this process as well.

MAR–MAY 2012

BUSINESS LAW SECTION EXECUTIVE MEMBER APPOINTED TO FEDERAL COURT JUDICIARY

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The Federal Court itself has seen some significant personnel shifts in recent times with elevation of Chief Justice Keane to the High Court and the subsequent appointment of the Hon. James Allsop to Chief Justice of the Federal Court. Have you had a chance to speak with Chief Justice Allsop since his appointment was announced?

Justice Kathleen Farrell with the Commonwealth Attorney-General, The Hon. Nicola Roxon MP.

What do you anticipate will be some of the most significant challenges in taking on your new role as a Federal Court Justice? I think it is the discipline that goes with performing this sort of role. With a big workload, it will be a challenge to be able to consider submissions and evidence, in the light of precedent, carefully and well, while communicating decisions effectively and in a timely way. What part of the role are you most looking forward to? Australia has been so well served by its legal system—having a certain but flexible legal system is the fundamental of a good economy and I look forward to being part of that. How will your previous roles with organisations including the BLS, ASIC and the Takeovers Panel assist in your transition to the Federal Court judiciary? I’ve had a slightly unusual career in that I have had exposure to so many different roles and perspectives. What I’ve learned with each of them is that it’s terrifying for six months or so but it’s really energising to be doing something quite different. That is part of what I am really looking forward to now. Each new role has a different dynamic and brings a new perspective and I hope to bring some freshness to my role as a judge as a result. I think it’s the experience of doing different things that helps me make this next leap.

You also have an extensive background in business law including corporate law, initial public offerings and other funds raising and capital management, and corporate governance and regulation. The Federal Court is an important theatre for business law cases: how will your experience in business law assist you in hearing important cases in this area? The sort of experience I’ve had helps me to understand the commercial arrangements that come before me as a judge. It’s not simply a legal perspective, it’s a commercial understanding from a very direct experience. Hopefully that is something I bring to the role. Many other judges will have had more experience in the courtroom but perhaps a little less experience in the underlying commercial transactions. Is there any trepidation about hearing cases outside of your expertise in business law? I think it’s the same challenge everyone new to the role faces. Most of the people who are currently Federal Court Judges won’t have had much to do with immigration, for example, on the day they start, but it is part of the normal work of the Court. It is interesting to get to know another area of law. It’s actually the diversity of the agenda that I find interesting—it’s good to learn something new.

Yes, we have spoken with each other since our respective appointments were announced. I know Chief Justice Allsop quite well. We were at law school at the same time and he was also at Freehills in the early years when he and I were both young lawyers. I look forward to working with him again.

AUSTRALIA HAS BEEN SO WELL SERVED BY ITS LEGAL SYSTEM— HAVING A CERTAIN BUT FLEXIBLE LEGAL SYSTEM IS THE FUNDAMENTAL OF A GOOD ECONOMY AND I LOOK FORWARD TO BEING PART OF THAT.


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LEGAL PRACTICE SECTION HONOURS ONE OF ITS FINEST

At the Legal Practice Section's (LPS) recent Executive meeting and dinner, the group in attendance rose to honour a titan of the Section. After 26 years of involvement with the Law Council of Australia, Mr Murray McCutcheon resigned from his roles within the organisation—but the legacy he has left on the Law Council and property law is indelible.

In recognition of his outstanding and extraordinary contribution to the Law Council of Australia, particularly through his dedicated commitment to the advancement of property laws and procedures at a national level, Mr McCutcheon was awarded a Law Council Certificate of Appreciation. Mr McCutcheon was a founding member of the LPS' Australian Property Law Committee in 1986 (later to become the Australian Property Law Group). During his term as Chairman of the Australia Property Law Group from 1999 – 2005, Mr McCutcheon was integral in the establishment of the model Uniform Torrens Title Act, and he has been a driving force in efforts to harmonise this important stream of property law. Mr McCutcheon also played a crucial role in establishing the body responsible for pushing reforms of the Torrens Title system in the Property Law Reform Alliance (PLRA) in 2003—a coalition of legal and industry associations committed to bringing about

uniformity and the reform of property law and procedures in Australia. Mr McCutcheon has been a member of the Law Council’s Electronic Conveyancing Working Group since its inception in 2004 and has played a pivotal role in helping realise and develop this significant reform. In 2006 he was elected as a member of the LPS Executive and became its Chairman in 2008—a position he retained until he stepped down in 2010. Mr McCutcheon spoke with the Law Council Review to reflect on his time with the organisation and the changing nature of property law in Australia. Congratulations on being awarded recognition of your work from the Legal Practice Section. What does it mean to receive such recognition for the work you have contributed to the Section? I feel very honoured to receive the award especially as the Law Council has only ever issued one other.


You’re a founding member of the Australia Property Law Working Group. How has this Group evolved since it started in 1986? The Australia Property Law Working Group was formed to look at national property law matters. This surprised many people who thought that national property matters did not exist or were not significant. The relevance, importance and number of national property law matters is now apparent but was not at the time. One of my early roles was as a Law Council representative to negotiate with the Australian Tax Office for the Australian legal profession. Tax issues arose regarding deposits under land contracts held by solicitors as stakeholders. Fortunately, we found a sensible and practical solution without the need for lawyers to lodge a tax return for each deposit held at the end of each financial year. The group decided early on that it would push an agenda for harmonisation of property laws and practices throughout Australia. What was initially seen as a difficult, if not impossible, task is starting to gel together quite well. In 1986 it was very much dingo fences around all state boundaries: it was very difficult for clients to do business in another state and impossible to contemplate a national approach to property law issues. However, I was doing a lot of work for a major shopping centre developer and was engaging other practitioners in other jurisdictions. I saw the diversity in the approaches, practices and rules in each state and I saw the implications from the client’s perspective. I understood the client’s frustration with different rules which made no logical sense but consumed vast amounts of money with no tangible benefit to anyone. In what areas are you pushing an agenda of harmonisation? One of the Australia Property Law Group’s initiatives was to progress property law reform by forming the Property Law Reform Alliance (PLRA).

In addition to the Law Council, membership includes 18 other peak property industry groups; including the law societies of the Australian Capital Territory, New South Wales, Northern Territory & South Australia and the Law Institute of Victoria. The Property Law Reform Alliance was largely our initiative, although a lot of the credit must also go to the Property Council of Australia for providing ongoing secretariat support for the Alliance. We have yet to sufficiently debate the extent of how far the property laws in Australia need to be harmonised. We just started with the immediate objective to do more. The first task for the PRLA is the establishment of a national Torrens Title legislative system. That this would even happen was initially seen as preposterous. However, the national e-conveyancing system requires a harmonised system. It makes an enormous amount of sense to have the laws that underpin the electronic system consistent. Why is it important to have a harmonised Torrens Title in Australia? What benefits will it bring? The benefits will be greater industry efficiencies and economies of scale, and greater convenience and efficiencies for clients especially when transactions occur across state borders. For example, at the moment, it is very complicated, expensive and fraught with risk for someone to buy a holiday house in Queensland, while financing it from Tasmania while resident in Victoria. The magnitude of the cost, worry and risk increases exponentially if the client attempts to settle the sale of another property at the same time in order to help with the financing of the purchase. However, the cost to companies is even greater because they are dealing with these inefficiencies all the time. The direct cost is small compared to the internal overhead cost and risk to national companies. They must maintain eight different rules, procedures and management oversight if they are operating nationally in a way that involves sales, purchases, leasing and

maintenance of land assets. Australia is basically a small economy. We cannot afford those inefficiencies now and certainly will not be able to do so when revenue from the mining boom declines. To compete, Australia needs to be smarter than the rest of the world. We need to make the most of our political and legal infrastructure. The PLRA has been the important body in driving these reforms. Why is it an important player in ensuring the ongoing goal of harmonisation of property law—particularly with reference to the Torrens Title system? The PLRA is about taking a proactive and broader view of property law in Australia and advocating and lobbying to change laws and practices so that industry and the community benefit. The Law Council and law societies and bars look at the legal aspects of government legislation and policy from a client’s perspective by identifying the legal and practical consequences to individual members of the community. Lawyers have an almost unique ability to perceive and appreciate the legal consequences to individuals from their practical insight in acting for clients. There are not many organisations that do that. Most organisations look at issues from the perspective of the interests of their particular industry sector members, but nobody assesses legal proposals and advocates for the individuals in the community over all the range of legal issues like the Law Council and its constituent members. However, this is principally a reactive role—it is preventing bad things happening rather than taking the initiative. In March this year the PLRA released its own draft Uniform Torrens Title Act for public comment. How significant a step was this in the path to reform? The best driver for reform is industry itself. Lawyers need to provide the tools for it to happen, especially as many of the issues are technical legal ones. This is the first major step in national property law reform. It is

37 MAR–MAY 2012

It was quite unexpected and I was delighted to receive this recognition.


Law Council Executive Member, Mr Duncan McConnel Presenting Mr MuCutcheon with a Certificate of Appreciation. probably the first time any industry has taken the initiative and drafted the detailed legislation of what it wants in a very professional manner. It will be a good model for other areas of law reform. You referred to the establishment of an e-conveyancing platform earlier. This will be a significant national reform for the property law sector: why is this an important national initiative? For those jurisdictions that take it up, it will mean the ability for participants in the conveyancing process to operate from any jurisdiction with one set of rules. This provides the members of the legal profession with opportunities for a broader market for both large and small firms. It will allow legal firms opportunity for greater specialisation and scale. The likely identification rules for e-conveyancing may provide greater opportunities for the local practitioner who deals mainly with individual clients. Practitioners in e-conveyancing are likely to benefit from a more consistent and efficient approach from financial institutions. The financiers will have one set of procedures for property finance instead of the eight or more required at present. What are some of the important issues in the property law sphere that need addressing from a policy perspective? The states generally follow each other in what they do but the detail

is almost always different. All jurisdictions have now implemented disclosure statements, mandatory information to purchasers, mandatory warning statements and “cooling off” periods for purchasers of residential and other properties. However, all the states do it very differently and a lot of it is illogical rubbish not justified by the geographical location of the land. What are your fondest memories from your roles with the Law Council? My fondest memories are of fellow members of the various committees and groups. Professionally I learned so much from them. They are intelligent, knowledgeable and wise and offer quite different perspectives and experiences. Generally they were not too precious about their views. We developed consistent and improved policy positions without rancour and without compromising the final policy decision. No wonder that the subsequent social events were so good and friendships became so strong. A particularly fond memory is my role as chairman of the LPS. It brought together a group of lawyers from remarkably diverse specialities of the law, from which the LPS was able to distil common policy positions and provide support and insight to its specialist committees from the other committees. Perhaps my most interesting role was representing the legal

profession as the Law Council’s sole representative on the Bankers, Conveyancers and Lawyers working group of the National Electronic Conveyancing System. This group consisted of a representative from each of the four major banks, a representative of the Australian Conveyancing Institute and me. The bank representatives were the banks’ best operatives for implementing a national e-conveyancing system. We caucused before the meetings with the other stakeholders on the National Project Team of the National Electronic Conveyancing System. In 15 months we developed most of the detailed business policies and principles for the e-conveyancing system. Having now stepped away from you duties with the Law Council and LPS, where do you see the organisation heading in the future? Is it in good stead to meet future challenges? The LPS is well positioned to face future challenges. I would like to see it succeed in implementing e-conveyancing and the Torrens Title reforms already underway. I would also like to see better communication between the Law Council committees and the equivalent state committees of the law societies. The legal profession too often sees itself in a myopic way rather than as one profession with different constituent parts. This is also reflected in the roles of the states and territories within the nation. The states and territories have vital roles to play but not necessarily the ones required when Australia was bedevilled by the tyranny of distance. A single national approach is what we need. I am proud to have played a part in developing a national perspective. The legal profession plays a much more significant part in the wellbeing of the nation than most of its members and the public appreciate. The Law Council is well placed to continue its vital national role into the future for all Australians.


MAR–MAY 2012

BUSINESS LAW SECTION HONOURS TWO OF ITS GREATEST MEMBERS

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“SUCCESS IS THE SUM OF SMALL EFFORTS, REPEA REPEAT REPEATED ED DAY IN AND DAY OUT”. FOR THE HE LA LAT LATEST EST INDUCTEES OF LIFE MEMBERSHIP TO THE BUSINESS LAW SECTION, MR GRAEME SAMUEL AC AND MR ROGER FEAT EA HERSTON, EAT FEATHERSTON, US AUTHOR ROBERT COLLIER’S QUOTE COULD NOT BE MORE FITTING. In August of 1980, the Business Law Section (BLS) was established by the Law Council of Australia with jurisdiction in all matters pertaining to business law. It provided then and continues to provide a forum through which lawyers and others interested in law affecting business can discuss current issues, debate and contribute to the process of law reform in Australia, and enhance their professional skills. Today, the BLS has approximately 1200 members, 12 specialist committees, one specialist working group and is the largest contributor of submissions to government and regulatory bodies within the Law Council. “That is what the BLS is today,” said Chair of the Section, Mr Frank O’Loughlin.

“In no small measure, Graeme Samuel and Roger Featherston are responsible for what we are today.” Mr Samuel is highly regarded in the business community as one of its most esteemed and decorated members. Along with the BLS’s first life membership inductee, Professor Bob Baxt, and a group of eminent business lawyers in Australia, Mr Samuel was the driving force behind the BLS’s creation in 1980. He has had a long and diverse career in industries including the legal profession, merchant banking (notably as the executive director of Macquarie Bank in the 1980s) and—arguably his toughest role—as President of the National Competition Council and then Chairman of the Australian Competition and Consumer Commission. “I’m often asked what it is I want out of life and Sir Zelman Cowen, who was a very dear friend and mentor, had a meeting with me before I took up my post with the ACCC and said ‘Graeme, what do you want out of your professional life, particularly in regard to the public offices?’,” Mr Samuel said in an interview with the Law Council Review. “I told him: ‘Sir Zelman, there’s one thing I know and it’s that I cannot feel the need to be liked! Because if you feel the need to be liked, you won’t be able to act in the public interest. But what I do feel is the need to have done something each day that is relevant to have made a difference in the public interest.” A highly successful and renowned practitioner of competition law in Australia, Mr Featherston’s legacy within the BLS has left an indelible footprint. He joined the BLS in 1981 and has contributed significantly to its growth and success over the succeeding 31 years. He was a long standing member of the BLS’s Executive and was Chair of the Section between 1997 and 1999. He is an influential and intrinsic member of the BLS’s Trade Practices Committee, including chairing the Committee between 1991 and 1992, and led the first Trade Practices/Competition and Consumer workshop organised by the BLS. He has been vital in creating strategic linkages for the Section and is credited with some of the initial steps that led to the

establishment of the links between the BLS and IBA. He continues to increase the scope and reach of the Section by encouraging lawyers, particularly younger lawyers, to get involved with the Section through workshops such as the Rising Stars Workshop, which he has convened since the beginning of 2000. “Being Chairman of the Section is a highlight of my time within the BLS and something I greatly enjoyed,” Mr Featherston said. “The exposure to the other parts of the BLS and to the Law Council more generally was really interesting—being a competition lawyer you tend to focus on competition law so it was great to get across issues that were arising in the other BLS committees.” The Law Council Review was privileged to speak with both Mr Samuel and Mr Featherston to reflect on their time and achievements with the BLS, as well as discuss the contemporary challenges facing business and business law in Australia. [Editor’s note: GS: Graeme Samuel; RF: Roger Featherston] What was your reaction to being made a life member of the BLS? GS: It was a total surprise. The BLS was a creation of Bob Baxt and myself back in 1980—I give a lot of credit to Bob because he never stops creating and thinking of ways of putting something together to have a greater influence, particularly in the area of public policy. We had been working together in a range of different areas relating to corporations and securities law. Bob suggested setting up the Business Law Section of the Law Council to institutionalise the work we were doing. Tony Brown from Allens Arthur Robinson was also involved. The BLS has grown and grown since then. In the first meeting we held there would have been between 20 and 30 people there. It has since then expanded into a national institution of great significance. It has produced a lot of important input into public policy in the area of corporations law and competition law, in particular, over recent years.


Mr Roger Featherston

RF: I was very pleased and honoured. The BLS does a great job in terms of law reform and education amongst practitioners and it was rewarding to be honoured in the way I was. I’ve been involved with the BLS since the early 1980s. I joined the then Trade Practices Committee in 1981 and I have always been heavily involved with that committee, including stints as Chairman and Deputy Chairman. John Stumbles, who was on the Executive of the BLS, wanted to stand down and asked me if I would be interested in effectively taking his place. I agreed to do that and enjoyed my time on the Executive of the BLS, including a period as Chairman of the Section. Since then I have been involved in the Rising Stars’ Workshops, run by the BLS, and we held the eleventh of those workshops in November in Sydney.

What do you view as some of the BLS’s biggest achievements over the years? RF: The key achievement of the BLS is in the area of law reform. The BLS serves a very valuable purpose in terms of making submissions to government in relation to proposed law reforms. Someone has got to generate those submissions and the BLS is the vehicle which can generate submissions in particular areas of expertise in business law, whether it’s tax, competition or corporate law. A lot of the experts are members of the respective BLS committees and are happy and willing to devote their time to preparing submissions. The government and community benefit from the work of those practitioners who put in their hours on a voluntary basis to put in submissions, which sometimes get criticised for being from the ‘Big End of Town’ but, from my experience, have always been very objective submissions and have been drafted with an eye to what’s in the public interest.

The second element was the one that’s very close to my heart, which is competition law. 1974 saw the first serious attempt at competition law with the Trade Practices Act 1974 (Cth). Flowing on from that, Bob Baxt and a couple of us set up the annual trade practices workshops. Ultimately that became institutionalised under the BLS and those workshops have been very significant in drawing together competition practitioners in the law and economics. Competition and consumer law are matters of intense interest to politicians and legislators, and therefore they become subject to continuous pressure for development and reform for change. The BLS has brought to that area a level of intellectual rigour and analysis that has ensured that before change does take place, it’s subjected to very thorough legal and economic testing as to the need for the change and as to the proper way change might be undertaken. I had a direct experience with that in relation to the introduction of the legislation to criminalise cartels during my time as Chairman of the ACCC. The interaction with the Law Council was very valuable indeed. We didn’t always agree but that

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GS: You’d have to credit the Business Law Section with a lot of significant input into the development of corporations and securities law. When the BLS first started over 30 years ago, we had just moved into the National Companies and Securities Commission. It was the BLS and individuals within it who worked assiduously on the promotion of a national corporations and securities regulation scheme which ultimately transpired with the Australian Securities Commission (ASC) and then ultimately it moved in various progressions to the Australian Securities and Investment Commission (ASIC). There’s no question that the input of the BLS was very significant in providing rigourous, intellectual analysis and advice to government, particularly the federal government, in the development of the national corporations and securities regulatory scheme that we have today.


didn’t matter. What we did ensure was a lot of intellectual rigour and analysis that went into the legislation. Ultimately we got something that I think is sensible and will work. Interestingly the BLS brought into that debate the criminal law bar. That was important to gain another view of an area that was a bit strange for commercial lawyers, which is the criminalisation of conduct that had beforehand only involved civil penalties and civil action. I mentioned before the interaction with the regulators. In my own experience from the eight years I spent with the ACCC, the Trade Practices Committee of the BLS was very important in interacting with the ACCC in developing particularly practices and protocols for dealing with mergers. There was constant interaction and iterations in the development of the ACCC’s practices that flowed from that interaction with the Trade Practices Committee. On occasion I would hear from leading practitioners in some of the major law firms of some of the concerns they had in which merger activity was being dealt with by the ACCC. I took this on board and quickly responded by calling together meetings with the trade practices committee and listening to their concerns.

benefits. I believe you get satisfaction from working on submissions that will, hopefully, influence government policy and future laws. Going to monthly committee meetings is a fantastic way of keeping up to date with business law developments. In terms of my involvement with competition law, to go to a monthly meeting where you get a report from the ACCC, Treasury and the National Competition Council as to their recent activities is a great and convenient insight. The other great benefit is networking. If you are a member of a BLS committee in your area of specialty, you get to meet most of the other senior practitioners in your field of expertise. That has enormous benefits when you have dealings with them in everyday life. Overall, there is a reward for the effort you put in.

Why is the BLS so important within the broader Australian business community? What are the benefits of membership with the Section? GS: Because the BLS is at the coalface of business and its interaction with the law and the regulators that administer the law. Being at the coalface, they understand the impact of regulation and the impact of the administration of the regulation by the regulators upon corporate Australia. In my own experience in dealing with members of the BLS, in particular in the area of competition law, the objectivity of those present and the intellectual rigour they have demonstrated has been of particular note. The import of BLS members has been objective and has stood the test of thorough examination by regulators and by representatives of government departments and legislators. RF: Practitioners who participate in the committees get a number of

Mr Graeme Samuel

What are some of the biggest challenges facing the BLS and the business community in today’s business environment? RF: One of the issues that has always been of concern to the BLS Executive is how to maintain membership numbers. Going back to what I mentioned earlier about the Rising Stars Workshops, it’s a matter of ensuring that the benefits of being a member of the BLS are known to practitioners. There’s a challenge in terms of what benefits can be offered to younger practitioners who may not be at a stage of being invited to join a committee or be a committee member. In a more general sense, and looking forward to the future, there is an increasing pressure on younger practitioners to focus upon their own practices and that means they tend to be a bit more inward looking or focused upon their own business objectives and perhaps have less time for professional associations. This means that both the Law Council and the local law societies and law institutes become


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Mr Roger Featherston, Professor Bob Baxt and Mr Graeme Samuel. either less relevant to them or they just don’t have as much time or interest in them. I think that is one of the challenges for organistions like the BLS—to overcome those sorts of pressures and find a way for lawyers to see the value in associating with and supporting the Law Council and its Sections. From a policy perspective, I think the biggest challenge for the BLS is to ensure its submissions cut through and carry weight with the government or the body looking at those submissions. There’s still a way to go in terms of the BLS finding the right way in which to present its suggestions so that they are adopted. Another issue is timing. One of the problems that has got worse in recent times is the late notice with which the BLS is asked to put in a submission. In recent years, there have been numerous occasions where the government has effectively asked for submissions within the next couple of weeks. For a professional body like the BLS, it’s very hard to gather the resources

and to consult within a committee within that timeframe. If the submission has been called for in such a short timeframe, the likelihood is the government has already made up its mind before it receives the submission. We’ve got to find a way of ensuring that we’re aware of these developments early in the piece so we can have a better chance of influencing decision making. GS: Business law, at the present time, is going through as much call for reform and change as we’ve seen for some time. We’ve got, in the area of corporations and securities, ASIC consistently making calls for changes to the law over the regulation of securities trading. We’ve got the courts consistently imposing, it would seem, more burdensome requirements on non-executive directors, such that they are beginning to question, in part, the value of pursuing that career—particularly in the latter parts of their professional lives. In the area of competition law, we’ve got increasing calls for changes to the law, particularly with a focus on

small business, and whether the law ought to be reformed to provide for a greater protection of small business from competition that’s imposed by larger business. These calls are there and it’s important that those who are practising in this area of the law be able to express a view that is independent of the regulators’ and legislators’ concerns. The biggest challenges for members of the BLS is to examine these calls for reform, to examine their need and the rationale behind them, and to provide objective views to legislators and regulators as to whether there is a need and whether the changes being suggested are in the public interest or rather in the interest of strong or amplified vested interests. How has the landscape of business law changed over your career? GS: When we started the BLS, the corporations and securities law was a small volume about 1.5 centimetres thick. I would like to try to measure now the volume of


“IN NO SMALL MEASURE, GRAEME SAMUEL AND ROGER FEAT FEATHERSTON EA HERSTON EAT ARE RESPONSIBLE FORR WHA WHAT WE ARE TODAY” – FRANK O’LOUGHLIN, BLS CHAIRMAN law, but it’s probably about 10 centimetres thick. While big business has large departments that will assist it in understanding what the law is and complying with it, small business has neither the departments nor the financial resources to understand what the laws are. RF: The obvious observation to make is that the statutory framework has become a lot more complicated and lengthy—and I don’t think for the better. If I use by way of example the Trade Practices Act (which has now been renamed the Competition and Consumer Act), when I started practising in 1975 the Act was pretty thin. Today the Act is hundreds and hundreds of pages long and I don’t think that the additional sections that have been included really add much to what was there originally. The tendency has been to try to codify the law to cover off different situations and yet they’re really only inserting sections reflecting what the law actually is rather than creating new law. In doing that, they’ve had the effect of narrowing the law. Instead of allowing the simple sections that originally existed to have a flexible operation to cover future

contingencies as they might arise, the exercise of codifying the law means that it’s easier for people to argue that the sections should be read down to cover those situations that are spelt out in the Act rather than to be read more expansively to cover other situations that may not have been previously considered. Not only do we have a lot more law to consider, we have a law that’s less flexible than it was before. We just don’t seem to trust the courts to construe legislation in a sensible way. One of the perennial promises of each new government is to cut the red tape and reduce regulation. I can safely say that at the end of each term of government, we have more laws and regulation than ever before. We would be much better off having simpler laws and less regulation and much shorter Acts. What impact do issues like the regulatory burden on small business have for competition in Australia? It’s a particularly hot topic in the broader national dialogue—do our competition laws serve the purpose they were designed for? GS: Competition policy has served Australia extraordinarily well. The proper administration of competition policy reform, starting with the Trade Practices Act and then evolving almost through a revolution as a result of the Hilmer competition policy and the competition policy agreements, meant that once accepted anticompetitive practices and conduct are now regarded very seriously by business as significant breaches of the law that can result in multimillion dollar penalties and/or jail. I remember attending a lunch back in 1975, not long after the Trade Practices Act had been introduced by the Honourable Lionel Murphy QC [former Commonwealth Attorney General (1972–75) and former Justice of the High Court of Australia (1975–86)], and I was asked about this law and said that I thought it was probably the most significant legislation that had been introduced for the welfare of Australian consumers and business that we’d seen in many decades. That caused, around the lunch table, a great deal of consternation and

anger because it was viewed by business as an anti-business law. In truth, it was a pro-business law, but it was anti those in business that didn’t favour competition. If you talk today around business tables, almost without exception, they will say ‘yes, the Trade Practices Act or the Competition and Consumer Act is a very important piece of legislation because it provided for a more competitive economy’. And as the OECD has stated, a more competitive economy is one of the reasons why Australia has now gone through over two decades of continuous growth. RF: Australia is characterised by markets that very often are quite highly concentrated so that in many markets you only have two or three major players. That in itself poses a risk to competition. The other dynamic, which is common to the rest of the world, is that business people would prefer not to compete as vigourously as they have to and so we will always need to have a strong competition act and regulator to make sure businesses behave. You only have to look at some of the cartels that are uncovered in Australia and overseas to realise that, notwithstanding the existence of either competition or antitrust laws, you still find businesses falling back into collusive practices. There will always be the need for a strong ACCC to enforce, hopefully, a strong competition act to maintain competition at a healthy level.


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 Law Council welcomes introduction of NDIS legislation – Issue No.161 The Law Council has welcomed the introduction of legislation to implement the National Disability Insurance Scheme. Under the proposed Bill, participants with severe disabilities arising from an accident will retain their existing compensation rights under common law, while also gaining immediate access to funded care and support. The proposed scheme will also require liability and indemnity insurers and other compensation providers to contribute to the scheme, which will ensure longerterm sustainability. “Allowing access to common law compensation rights is essential to ensure severely disabled people enjoy the same rights as other people who do not qualify for funded support under the scheme,” said Law Council President, Ms Catherine Gale. Ms Gale said the proposed provision of full review rights for scheme participants was another positive aspect of the NDIS Bill. “Ensuring that decisions of the proposed NDIS Authority are reviewable in the Administrative Appeals Tribunal represents bestpractice. “This is important for promoting better primary decision-making by the Authority and for ensuring

scheme participants get a fair go,” Ms Gale said.

protection for the legal rights of asylum seekers.

Ms Gale added that there would, however, need to be provision of funding under the scheme for legal assistance, particularly in the early stages, to ensure people wishing to exercise review rights can access appropriate advice and representation.

On 2 November 2012 the Law Council President wrote to the Commonwealth Attorney-General urging the Attorney to use her powers under the Human Rights (Parliamentary Scrutiny) Act 2010 to refer the Government’s response to the Parliamentary Joint Committee on Human Rights for review. Attached to the letter was an Issues Paper which outlines the Law Council’s concerns with the Government’s implementation of the Panel’s recommendations, including concerns regarding:

“Legal assistance providers are already struggling to maintain basic services and it is important the government ensure there is additional funding for legal assistance to ensure review rights can be properly exercised. “The Law Council will be carefully considering the legislation with a view to providing constructive feedback to Parliament. “In the course of developing its response, the Law Council will consult with other stakeholders to gain an understanding of a range of different views”, Ms Gale concluded. Law Council raises human rights concerns with Government’s implementation of Asylum Seeker Recommendations – Issue No. 159 The Law Council holds a range of concerns relating to the Commonwealth Government’s implementation of the recommendations made by the Expert Panel on Asylum Seekers (the Panel) in August 2012. The Government has committed to implementing each of the Panel’s 22 recommendations and has taken steps to expand Australia’s humanitarian intake and to invest in capacity building in the region. However, the Law Council is concerned that the Government appears to be focusing attention on those aspects of the Panel’s recommendations that relate to offshore processing without also implementing those recommendations that provide

• inadequate human rights protections in the legal instruments and agreements giving effect to the offshore processing policy; • the absence of clear time limits on offshore processing times; • delays in processing of protection claims for people arriving after 13 August 2012; • potential breaches of rights to family reunion; and • the adequacy of facilities and services in offshore processing locations. The Law Council intends to continue to monitor developments in this area. For further information please contact Sarah Moulds on sarah.moulds@lawcouncil.asn.au


SPEAKING FOR THE VOICELESS


“Any animal ill treatment in South Australia that the RSPCA prosecutes is my responsibility,” Ms Hamade said in an interview with the Law Council Review. First presented in 1999, the Australian Young Lawyer of the Year Award aims to encourage and foster Young Lawyer organisations to establish programs for the benefit and assistance of the profession and the community, and to recognise and reward the achievements and contributions of individual lawyers. Ms Hamade was awarded the individual Australian Young Lawyer of the Year Award for her significant contribution to animal law and welfare in Australia. When not prosecuting cases for the RSPCA, she volunteers as the National Co-ordinator of the Barristers Animal Welfare Panel, provides pro-bono legal assistance to many animal charities and animal rescue shelters across Australia, is a member of the South Australian Government Animal Welfare Advisory Committee and the Animal Law Committee of the Law Society of South Australia. Ms Hamade spoke with the Law Council Review about winning the Australian Young Lawyer of the Year Award and animal law in Australia. Congratulations on being awarded the 2012 Young Australian Lawyer of the Year Award. What does it mean for you to receive the prize? It’s amazing! It’s great that the legal profession has recognised animal protection law is an important area of law and that it’s an evolving area,

and an important justice issue. From this perspective, it’s truly amazing. How did you become involved with animal law and animal protection law? Prior to obtaining my law degree, I was a project manager at the Commonwealth Bank and had a finance and economics background. I had a great career working at the bank building and launching investment products. I wasn’t aware about the plight of animals. I didn’t really know anything about factory farming, fur farms, animal testing and live exports. One day approximately eight years ago, I came across a group doing some awareness campaigns in a shopping mall and I became informed about the degree of animal suffering that goes on in our own backyard, particularly with respect to factory farming. I got involved in campaign work and then met a lawyer from the US who worked in animal law for a prominent animal protection agency. I was starting to feel frustrated with the campaign work because I felt like it stopped at the law due to inadequate animal welfare protection laws, or stopped due to a political agenda. I decided the most powerful thing I could do was to become a legal advocate for animals and decided that I needed to get a law degree – so that’s what I did. After law school I worked for two prominent commercial law firms and had the privilege of working as a Judge’s Associate to a Federal Court Judge. At that time, animal law did not really have a presence or outlet for me to channel my interest, but I met a few barristers and lawyers with similar interests and worked with them to build my knowledge of animal law and start doing work in that space. I also started volunteering at Public Interest Law Clearing House (PILCH) which gave me exposure to some animal law cases. Today, the treatment of animals is increasingly becoming a social and legal issue. Animal welfare has become one of the most important social justice issues of the day.

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2012 Young Australian Lawyer of the Year, Shatha Hamade, is a proud and vehement defender of animal welfare. As the Legal Counsel for the RSPCA in South Australia, Ms Hamade is responsible for prosecutions and trials in relation to the Animal Welfare Act of South Australia.


“TODAY, THE TREATMENT OF ANIMALS IS INCREASINGLY BECOMING A SOCIAL AND LEGAL ISSUE. ANIMAL WELFARE HAS BECOME ONE OF THE MOST IMPORTANT SOCIAL JUSTICE ISSUES OF THE DAY.” Why is animal law such an important social justice issue? Why do you feel it’s an important area of the law in Australia? There is increasing concern for animal welfare in the community, and with great reason. To give you an example, there are approximately half a billion animals, just in Australia, that are raised in factory farming conditions each year. These are sentient beings that are confined in such a way that they are denied the ability to exercise their natural behaviours and most are denied the ability to experience sunlight, grass and exposure to outside air for the entire duration of their miserable lives. They are also mutilated without anaesthetic because they live in such unnatural conditions that their bodies have to be altered into unnatural states for them to be raised in these industrial conditions – that is, by tail docking, removing their teeth and their beaks. That is an incredible amount of suffering. We have a duty and an obligation to protect them. Domestic animals are afforded protection; however animals used for production purposes are not. As a lawyer, I have an opportunity to give them a voice and take steps to advocate for their protection and humane treatment. What are some of the massive gaps in the law you refer to? Animals in the eyes of our law are viewed as property. They are afforded some protection, but as I will explain, that protection is in favour of domestic animals and not farm or ‘production’ animals. Domestic animals are protected under animal welfare laws – which are state based laws. Production animals, however, are not. Production animals are exempted from state welfare protection laws. Instead, their treatment and “care” comes under a code of practice, which I believe is really just

legislated cruelty. It is these codes of practice that allow, for example, a sow to be confined to a stall where she can barely take a step forward and a step back – she can’t even turn around. It is these codes that make it acceptable to house caged hens in a space no more than three quarters the size of an A4 sheet of paper. So for the duration of her life, she is crammed in such a tiny space that she can’t even spread her wings – under our laws that is considered acceptable. Another example is the live animal export trade. The trade has seen the death of many hundreds of thousands of sheep and cattle due to disease and other conditions they suffer as part of the live export process – and this is before they even get to the horrendous fate that awaits them in the slaughterhouses at the end of the voyage. However, our laws provide that if less than two percent of the voyage dies, then it is not a reportable incident, and so no questions are asked. So in a voyage of 200,000 sheep, for example, if just less than 4,000 sheep die in the process, that is considered acceptable under Australian law. Where is Australia at in terms of addressing the issues you refer to and, more broadly, animal welfare and protection issues in general? Australia has a long way to go, particularly when you compare our treatment of production animals with what is going on in the European Union (EU). Taking the example of sow stalls, they are already banned in the United Kingdom (UK) and Sweden and the entire EU will apply a partial ban by next year. Also, in the United States (US), seven states have passed legislation to phase out sow stalls. There can be no doubt that animal welfare and protection issues are a major concern for the community, not just from an animal welfare

perspective, but also from a consumer protection perspective. More and more consumers are demanding organic free range and cruelty-free products, however our product labelling laws do not even afford the consumer the ability to be informed about what they are buying. Egg labelling is a screaming example of this. What does “free range” actually mean? There are so many variations of it because there is no legal definition around it. Another example is animal testing. Many consumers are not aware about the millions of animals that are used in testing labs to test cosmetic and household products. Using animals in cosmetic testing is illegal in Australia, however selling products in Australia that have been tested on animals, or producing products in Australia with imported ingredients that have been tested on animals, is not illegal. In the EU by comparison, it is not only illegal to use animals in cosmetic testing, but by 2013 it will be illegal to sell cosmetics in the EU that have been tested on animals elsewhere in the world. There are essentially two issues at play here: first, consumers are not informed because of poor labelling and the fact that the treatment of production animals and animals in research and testing is a nontransparent and “hidden” industry; and, second, there is a conflict of interest within government whereby the animal welfare portfolio belongs to the Department of Agriculture. This is the same department that is charged with looking after the interests of primary producers. This means that the same department that essentially works to maximise profitability of producers is also in charge of animal welfare – it is this department that sets the codes of practice that I explained earlier. There is a clear conflict of interest here.


This is a significant part of the problem: labelling of products that use animals or the by-products of animals is unregulated. There are no legal definitions to describe the condition that the animals were raised in. There is no legal definition of what ‘free range’ is. So unless factory farmers are held to task through misleading and deceptive conduct claims in court—as is happening in the Federal Court through an Australian Competition and Consumer Commission (ACCC) case in Melbourne at the moment— consumers will continue to be misled. People stand in supermarkets in front of egg cartons and struggle because they don’t know what they’re buying. Until these terms and packaging are regulated by law, it will continue to happen. Also, most people that have had a conversation with me about animal testing, after becoming aware that their lipstick or washing powder was tested on animals, are horrified. Particularly when they could have chosen a cruelty-free alternative, but they just weren’t informed.

Some cosmetics state on the labels that their products are not tested on animals, as do some household brand items. But this is an initiative of the individual companies, and not mandated by law. Consumers have a right to be fully informed about what they are buying. So in terms of real world execution to correct these issues, the community is becoming more aware about the plight of animals and consumer purchasing behaviours are changing as a result. This, I believe, will be one of the key drivers to change. This, and holding those producers and companies to task that mislead or hide the truth in their labelling practices, will drive the necessary change. Is it difficult to effect change in this area of the law given, as you say, many animals are essentially just a piece of property? I believe that the crux of legislative change will be driven by the community sentiment which is becoming clear through consumer behaviour. The community is becoming more aware and they are making ethical choices as they become more aware. Animal cruelty and animal welfare issues are really coming to the fore. One only has to look at the community outrage about live animal exports and puppy farming.

In terms of government portfolios, until and unless there is an independent department within government that is charged with animal welfare, and does not have the conflict of interest I described earlier, then these laws will continue to be geared towards maximising producer interests at the expense of animal welfare. We have seen from the EU and beyond that we don’t need to treat animals like this – our economy will not crumble. We just have to want to do it. You’re currently the Legal Counsel for the RSPCA in South Australia. An important part of your role is prosecuting some of the worst cases of animal cruelty in the state. Is it difficult to reconcile many of the cases you see in any given period of time? It is certainly difficult, and some cases can really shake you. But what keeps me in check is that I’m giving a voice to these defenceless animals and advocating for their justice and protection. That is a privilege and it keeps me going. Unfortunately there are a lot of animals that don’t make it because their injuries or the harm they have suffered is so horrendous, but again, I focus on the justice and deterrence objective.

Australian Young Lawyer of the Year, Ms Shatha Hamade (centre) receiving her award from Chair of the Australian Young Lawyers’ Committee, Mr Matthew Keogh (left) and Law Council Executive Member, Mr Duncan McConnel.

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Is action in those two areas difficult in terms of real world execution? For example, much of the ‘free range’ eggs available for purchase may not necessarily coincide with what many people’s perception of ‘free range’ really is.


You’re also the National Coordinator of the Barristers Animal Welfare Panel (BAWP). How did you get involved with this organisation and what does your work there involve? Years ago when I was still at law school I read about a gentleman named Graeme McEwen who is a senior barrister at the Victorian Bar. Graeme is nationally and internationally renowned for his work in animal law and is one of the leading authorities on the matter. At that stage, Graeme had started a panel consisting of some barristers and lawyers, who provided pro bono assistance in matters concerning animal welfare. I met Graeme during my final year of law studies and we started working together to grow the Panel. It now comprises more than 120 barristers around Australia from all the bars, including about 25 silks. We also have a Secretariat of 70 people which acts like the engine room to assist the barristers, and which mainly comprises young lawyers. We’ve recently been doing a lot of work relating to the breed specific legislation and dangerous dog laws that have been passed in Victoria, which were passed in response to the tragic death of Ayen Chol in 2011. Because the law was introduced so quickly, councils were basically just confiscating and seizing animals that, according to the councils, fit the profile of the proscribed breeds. We were getting a lot of calls from families in tears taking second mortgages out on their homes to try and fight appeals in Supreme Courts to get their animals off death row. The Panel arranged counsel to act in quite a few of these matters pro bono.

A lot of our work also goes into submissions to government on issues concerning animal welfare, and we assist many animal welfare groups from all around Australia. What advice would you give to lawyers or aspiring lawyers who were eager to get involved with animal law? Animal law comprises a tool kit of legislation—it’s not just about the animal welfare Acts. There are many streams of law that can be used to better the lives of animals, for example, administrative law and consumer protection law. The Barristers Animal Welfare Panel website has a link to an eBook written by Graeme McEwen which can be downloaded. A quick look at the contents page of that book will show you just how diverse and strategic an approach can be taken by lawyers to help animals. I would urge lawyers and aspiring lawyers to have a look at that book. Also, many law firms have excellent pro bono practices, some with designated pro bono partners. I know from my time at commercial law firms, the partners were very good to me in the sense they knew animal law was an area I was very passionate about, and so I was able to bring in pro bono work for certain animal groups that needed legal representation or advice. Get involved—talk to the pro bono partners at your law firm and see if you can bring in some work that way. At the same time, join animal law groups like the Barristers Animal Welfare Panel and become a member of Voiceless Law Talk (just get on the Voiceless website and have a look) and that will start the ball rolling in terms of getting involved.

“The community is becoming more aware and they are making ethical choices as they become more aware. Animal cruelty and animal welfare issues are really coming to the fore. One only has to look at the community outrage about live animal exports and puppy farming.”


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INTERNATIONAL NEWS

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UNLOCKING FUTURE ECONOMIC GROWTH:

THE STANDING COUNCIL ON LAW AND JUSTICE JUSTICE’S STICE’SS REVIEW OF AU AUSTRALIAN STRALIAN PRIVATE INTERNATIONAL LAW AN ARTICLE BYY ROGER ROGER WILKINS AO AND THOMAS JOHN


INTERNATIONAL NEWS It is a matter of fact. We increasingly trade, sell, purchase, invest or just move across borders and our legal relationships and disputes are less and less confined to one jurisdiction: we order online electronic goods from Japan, sell iron ore to China or invest by purchasing financial instruments in the UK. We travel to foreign countries where we may have accidents. We download music and other electronic files from the ‘cloud’— wherever that may be. And our chances of being involved in a cross border dispute have also increased.

Multi-jurisdictional relationships and disputes play by their own rules—rules that are often complex and opaque. But they provide important answers to questions such as ‘which court could hear my dispute?’ or ‘which law would apply to my cross-border contract?’ The body of these rules is called private international law. There has been growing concern that private international law in Australia developed inconsistently and often not in line with international developments, thus resulting in barriers to trade, commerce, investment, the flow of goods and services and the mobility of people. The Standing Council on Law and Justice (SCLJ) has commenced a review to assess whether a reform of Australia’s private international law rules and principles would deliver worthwhile micro-economic benefits for the community. Central to this review is a comprehensive public consultation which commenced recently with the launch of an innovative public engagement platform, The Hub, and the release of two discussion papers. Private International law Cross-border transactions and disputes are more complex than domestic ones. We need to ask questions which would be of no concern if we would stay within one jurisdiction. These include: • Which law applies to my contract? Is it the law of the country I live in? Or is it the law of the country from where I bought the goods? Can I choose nonstate rules?

• Is the court in my country competent to deal with my dispute? Or do I face the prospect of having to litigate my case in another country? Is the law and procedure in that country less favorable to my case? • If I do litigate before a court in my country, does the court need to apply foreign law? How would the court know what the foreign law is? Does this make my litigation more expensive? • Can I enforce my rights as they have been vindicated by the courts? Or is their enforcement so difficult and expensive that it is not even worth litigating in the first place? The answers to these questions are important because they help us to predict the outcomes of our cross-border transactions and disputes. They also assist us to assess and manage a variety of cross-border risks, including transaction, litigation and enforcement risks. Overall, they shape transactional objectives and expectations and help to assess possible transaction and litigation costs. But where do we find the answers to these questions? The answers are supplied by a body of principles and rules commonly referred to as private international law. These principles and rules govern every civil and commercial—or private— relationship and transaction that crosses state, territory and international borders. They determine the competence of courts (jurisdiction), the applicable


law(s) and whether the judgments of one jurisdiction are enforceable in another. Legal subject matters which increasingly attract the application of these principles and rules include contract, tort, property, company, insolvency, family and succession law. Reviewing Private International Law With a view to reducing legal complexity of cross-border transactions and relationships, the Standing Council on Law and Justice noted on 12 April 2012: … [T]he Project Plan and Overview: Harmonisation of jurisdictional, choice of court and choice of law rules and agreed to the establishment of a working group that will commence consultations with key stakeholders to determine whether further reform in this area would deliver worthwhile micro-economic benefits for the community. Focussing on commercial crossborder relationships and transactions and using examples from the areas of contract law, tort and property, the review centres on a broad consultation which is

designed to identify opportunities for microeconomic reform and to improve access to justice. The consultation is specifically designed to gather evidence on the current legal issues arising in cross-border relationships and transactions that can guide future law reform in this area aimed at: • improving Australia’s attractiveness as a commercial litigation and arbitration centre within the Asia-Pacific region, and • making the clarity and certainty for cross-border transactions and relationships provided by the Australian legal system a feature which reinforces Australia’s status within the region as a leading country in which to conduct business and trade. Conducting the consultations The consultation is being conducted with the broadest possible reach in mind, inviting legal practitioners, the judiciary, academics, consumers, small and large businesses and organisations and public authorities to contribute to the review. A market place for ideas: the innovative online consultation hub Central to the consultation is the innovative Consultation Hub (the Hub). The Hub, which is available at: <http://consult.govspace.gov.au/ pil>, is hosted on the Australian Attorney-General’s Department’s consultation platform “Consultations Reforms Reviews” which went live in September this year.

Mr Roger Wilkins AO

The Hub features background information to the project and a short explanation of how private

international law is increasingly relevant for many of us. It also hosts the discussion papers that have been prepared in support of the consultation and any other future consultation tools, including an online based business survey. Importantly, however, the Hub will be a market place for thoughts and suggestions, ideas and experiences. It features three blogs (on jurisdiction, applicable law and the recognition and enforcement of judgments) which can be used by participants to hold conversations and post their thoughts, suggestions, comments or experiences. In addition, the Hub is fully integrated into a number of social media platforms, including Twitter (@agd_pil), LinkedIn (AGD – Private International Law) and Facebook (Private International Law). Connecting to the review through these social media platforms will not only offer participants additional avenues to participate in the consultation, but they will also be able to stay in touch with the review much easier. The release of the discussion papers In support of the consultation, two discussion papers were released on 2 November 2012. Discussion Paper 1: Reducing legal complexity of cross-border transactions and relationships: Driving micro-economic reform through the establishment of more cohesive and clearer jurisdictional, applicable law and choice of court rules, introduces many of the private international law issues that have already been identified as causing problems for businesses and individuals. More specifically,

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THE HUB FEATURES BACKGROUND INFORMATION TO THE PROJECT AND A SHORT EXPLANATION OF HOW PRIVATE INTERNATIONAL LAW IS INCREASINGLY RELEVANT FOR MANY OF US. IT ALSO HOSTS THE DISCUSSION PAPERS THAT HAVE BEEN PREPARED IN SUPPORT OF THE CONSULTATION AND ANY OTHER FUTURE CONSULTATION TOOLS, INCLUDING AN ONLINE BUSINESS SURVEY.

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INTERNATIONAL NEWS

Discussion Paper 1 raises a range of issues that arise where: • courts have to determine their jurisdiction in a cross-border matter, including the current tests according to which they determine whether to stay or transfer proceedings; • it is necessary to determine the proper law that applies to a particular cross-border transaction or relationship, focussing particularly on contract, tort and property transactions; • parties seek the recognition and enforcement of foreign judgments in local courts, canvassing the rules at common law and under statute and current multi-lateral efforts to create an international instrument that facilitates the enforcement of judgments globally; and • litigants are required to plead and prove the content of foreign law, including an overview of current legislative and nonlegislative responses, such as New South Wales’ memoranda of understanding with New York and Singapore concerning references on questions of law. Finally, Discussion Paper 1 canvasses possible options for a private international law reform, including the creation of a private international law framework or statute. Discussion Paper 2: Harmonisation of the Forum Conveniens Tests in Australian and Trans-Tasman Proceedings: A Discussion Paper has kindly been supplied by Professor Andrew Dickinson (University of Sydney). Professor Dickinson’s paper considers whether the statutory tests applied by Australian courts in deciding whether to decline to exercise their jurisdiction in favour of another court, broadly, “appropriate forum” (forum conveniens) grounds, should be harmonised. A particular focus: the internet A particular focus of the consultation is the Internet’s impact on cross-border transactions and disputes. It is clear that the Internet and the new digital economy pose significant challenges, but it is almost trite to state that they at the

same time open to new opportunities. Discussion Paper 1 discusses these challenges and opportunities in the context of jurisdictional questions—questions which are traditionally connected to actions that take place within clearly defined jurisdictional boundaries. However, as the use of mobile devices such as smart phones and tablets can obscure location, it is increasingly far less clear, say, where a contract was made or defamatory material has been accessed and which court therefore has jurisdiction. However, the Internet has also provided some remarkable opportunities and we have seen courts using well-known social media platforms to serve process on defendants. The District Court of New South Wales’ recent orders for substituted service, allowing the Australian music promoter Mothership Music to serve the US rapper Flo Rida by posting the court’s orders on the rapper’s Facebook wall, is just one such example. It seems important for us to ensure that we can further harness such opportunities, while providing robust answers to the challenges of the new digital environment. Conclusion In 2009, Professor Alex Mills stated that: As the international movement of people, property and capital proliferates and intensifies, private international law is a subject of increasing practical importance. [A Mills, The Confluence of Public and Private International Law (Cambridge University Press 2009), 3] The recent release of the Australia in the Asian Century White Paper echoes this increasing practical importance. Reducing and removing existing legal barriers to trade, commerce, investment and the mobility of people will be paramount to Australia’s continued integration within the region. Private international law is a central tool to advance these objectives. By providing better coordination between the many legal systems prevalent within the region, it can

break down existing legal barriers and unlock trade, commerce and investment opportunities which are essential for Australia’s sustained economic growth. And it can improve the law’s accessibility, clarity, certainty, simplicity and predictability—fundamental for providing better access and to strengthening the rule of law within the region. Submissions in response to the Discussion Papers are due on 21 December 2012. Engagement through on our social media platforms will be ongoing and all readers are encouraged to participate.

Mr Thomas John


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NATIONAL NEWS 55


Noor Blumer, President, ACT Law Society

AUSTRALIAN CAPITAL TERRITORY

The 2012 ACT Legislative Assembly Election This was an important election for the Law Society. If it were not for the strong and sensible views taken by the Liberals and the Greens, the Labor Government would have stripped away the rights of those injured in motor vehicle accidents in the Australian Capital Territory (ACT). The balance of power remains with the Greens Shane Rattenbury MLA, and I am confident that he will continue the sensible and logical approach shown by the Greens in the previous Assembly. The Liberals also showed foresight in their approach to the proposed legislation and as a result, the amendments that were brought in do not denude the rights of individuals in the ACT. The Society looks forward to continuing to work with AttorneyGeneral Simon Corbell. There is no doubt that other initiatives such as ‘the Blitz’ have shown foresight and an ability to deal with urgent problems. Retirement of Master Harper Acting Justice Margaret Sidis has been appointed as a temporary judge for two months in 2013 to hear civil cases in the Supreme Court before the retirement of Justice Harper. Master Harper will not be sitting next year while he completes reserved judgments before his retirement and a new Master will not be appointed until May 2013 at the earliest. The Society is concerned that this gap could cause a build-up of cases and is very pleased that the government has appointed Acting Justice Sidis to assist the Supreme Court.

Acting Justice Sidis was appointed to the ACT Supreme Court in February 2012 to assist with the blitz. She is a retired judge of the District Court of NSW. Procession and Celebration Ceremony to welcome the new legal year The Law Society will no longer be arranging an ecumenical service to welcome the new practising year. Instead, the Society will be holding a general commencement ceremony to which all are invited, including believers from all faith systems and non-believers alike. The Procession and Celebration Ceremony to welcome the new legal year will be held on Monday 4 February 2013 at University House in the ANU. The Society’s 80th Birthday 2013 will be a big year for the Society — the Society will be celebrating its 80th anniversary. 2013 also marks Canberra’s Centenary. To celebrate, the Society’s Annual Dinner will be a very special event. Launch of the International Lawyers Committee In February 2013, Chief Justice the Hon. Robert French AC will launch the Society’s new International Lawyers Committee. There is a large number of international lawyers in Canberra, based in the diplomatic corps and international companies and organisations, who would appreciate an opportunity to interact with each other and with members of the ACT legal profession. To that end, the Council resolved to confer associate membership on international lawyers working in Canberra. Details of the launch of the International Lawyers Committee will be released early next year. Government Lawyers Afternoon The Society’s Government Lawyers Committee has hosted two Government Lawyers Afternoon CPD events in 2012. The Afternoons showcase seminars dedicated to government lawyers and provide practitioners with the opportunity to gain three CPD points in each of the core areas. The

seminars cover both Commonwealth and ACT Government issues and are presented by a variety of speakers from both the public and private sectors. These afternoons have proven to be very popular and the Society is thankful for the time and effort given by the Committee to organise these excellent events. The Government Lawyers Committee will be putting on another Government Lawyers Afternoon on Thursday 14 March 2013. In Summary It has certainly been a big year for the Law Society and I would particularly like to thank our Executive Director Larry King and all the hard working staff at the secretariat. There is an enormous amount of work involved, just in organising our Council and Executive meetings, all the disciplinary and regulatory work coordinating the CPD program, the committees, functions and publications, and our ongoing policy work. My thanks also to the Council and Executive and to the many members who serve on our committees.


Meanwhile, the Law Society’s new Women’s Mentoring Program, for women who are 10-15 years post admission has now officially commenced. Interest in the program exceeded the advertised 25 positions and, after a lengthy and carefully considered process, 44 protégées have been matched to their mentors. The Law Society of New South Wales is also in the process of conducting further research on senior appointments across all segments of the profession. This has included a survey of corporate and government legal teams, the results of which will be published alongside more data on law firm partnerships early in 2013.

The rule of law is particularly topical in New South Wales at present, with concerns mounting about the New South Wales Government’s proposed legislation which seeks to limit the right to silence when questioned by police. These amendments erode a fundamental pillar of the rule of law, and have been proposed without evidentiary support. The Law Society’s Criminal Law Committee is also concerned about the ethical dilemma which may arise for solicitors who are likely, in the majority of cases, to find themselves in the position of having to tell a suspect that they cannot give them advice. The Law Society of New South Wales will continue to voice its concerns and has called on members of the New South Wales cross bench and opposition to oppose these amendments.

Queensland Law Society

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QUEENSLAND

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

NEW SOUTH WALES

In 2012, the Law Society of New South Wales has worked hard to consolidate its role as a thought leader on issues affecting the law and the legal profession, and championing projects that will help shape the profession into the future. This year, thought leadership initiatives have focused on the rule of law and reconciliation along with implementing the recommendations of the Law Society’s Advancement of Women in the Profession Report. Last month saw the much anticipated launch of the Law Society of New South Wales’ new Flexible Working publication. Creating a more flexible workplace has clear benefits for practices, particularly in attracting and retaining talent in today’s competitive environment. This free resource, developed for both solicitors and their employers, aims to provide practical information, tips and tools to help make the profession more flexible and diverse. It is available online at www.lawsociety.com.au/ advancementofwomen.

The Law Society’s Rule of Law Series, highlighting the importance of the rule of law in the modern legal environment, has also generated a great deal of interest this year. This was achieved through an impressive program of panel discussions featuring amongst others, the Chief Justice of New South Wales, the Australian Inspector-General of Intelligence and Security and the Chief Justice of Hong Kong. This program culminated in October with an engaging panel discussion on the New South Wales anti-bikie legislation.

Queensland Law Society’s Children’s Law policy paper was the first of a number of policy papers expected for release from QLS committees. The paper highlights major issues in six core areas of Children’s Law Aboriginal and Torres Strait Islander children, youth justice, child protection, education, family law and unaccompanied asylum seeker children. Issues highlighted as primary concerns include 17-year-old offenders in the adult criminal justice system, the overrepresentation of Aboriginal and Torres Strait Islander young people in the child protection system and the rehabilitation of young offenders. QLS is committed to the protection of children and support for practitioners who work in areas of law with which it overlaps, such as family, criminal and international law. President of the Children’s Court of Queensland, Judge Michael Shanahan and Queensland Law Society President Dr John de Groot spoke at the launch event on 24 October that attracted media interest from the ABC’s AM program, the Courier Mail and Triple J. Deputy President Annette Bradfield said the paper highlights the need for children to be protected and supported due to their vulnerability, dependence on their families and their continuing emotional, cognitive and physical development issues. “The recommendations raised in the paper cover a broad range of issues that affect thousands of families,” she said.


“QLS speaks for children who are clearly vulnerable, such as asylum seeker children and those in the child protection system. “We also speak for those who require rehabilitation and some care and understanding before their behaviour becomes entrenched as an adult.” The paper is available at qls.com.au. Saving 17-year-olds QLS’ ongoing agitation to see 17-year-olds removed from Queensland’s adult prisons saw us participate in a Triple J campaign on the issue. This resulted in an effective media package with a radio documentary, online news op-ed article and 7.30 Report piece. As stated in the online article, a number of stakeholders have spoken out on this issue, including the Law Council of Australia, the Law Society of South Australia and the ACT Law Society. QLS would greatly appreciate other law societies adding their voice to the cause as it gathers momentum. For more information, email policyreform@qls.com.au or phone 07 3842 5930. State child protection inquiry The Queensland Child Protection Commission of Inquiry recently published a number of stakeholder submissions, including QLS’s, on its website, childprotectioninquiry. qld.gov.au. The inquiry is reviewing progress of outcomes of the 1999 Forde Inquiry and will chart the way forward for child protection in Queensland for the next decade. QLS raised a number of issues it hopes the Commission will consider to ensure that all children, regardless of age, have the right to be heard in child protection proceedings affecting them. The submission advocated for

children to have a record of legal issues, as well as legal advice and information referrals, suggested in the form of a ‘legal needs passport’, similar to a health passport for a child in care. In addition it highlighted gaps in legal aid funding for parents and children, which complicates matters when facing court proceedings against the comparatively wellresourced Department of Communities. QLS speeds up delayed judgments process QLS recently reduced its processing time for delayed judgment inquiries for QLS members with newlydeveloped electronic forms. Delayed judgments may be in relation to final judgments, costs, interim orders, appeals or other decisions. The new forms allow member practitioners to easily submit requests for QLS to discreetly follow up judgments. They can be submitted when it has taken longer than three months to receive a decision. The previous process involved posting correspondence back and forth but the new electronic forms mean that within seven days of submitting a form, members receive a response from QLS recognising their submission and confirming the Society has commenced the inquiries process. For more information, delayedjudgments@qls.com.au. Judicious timing for CLC funding In late October, the Queensland Attorney-General announced he would give $500,000 in sustainability grants to community legal centres (CLCs) in both urban and regional centres. The funding is timely as recently released data by the Australian

Council of Social Services showed that in 2012, CLCs were the second highest service type to report difficulties in meeting demand. Close to 14 percent of those in need were being turned away as limited resources struggled to cope with ever-increasing waiting lists. Providing timely legal assistance can help bring people back from the brink of homelessness and reduce financial and family stress. Additionally, QLS is pleased the Attorney-General recently softened his stance on gag clauses, which would have restricted the freedom of speech of those CLCs who receive the majority of their funding from the state government. We hope this revised stance will eventually apply to all non-profit organisations.


The Society had formed a Working Group in April 2011 to consider the future, structure and delivery of the Society’s course. In May 2012, the Working Group reported to Council and recommended that the Society enter into negotiations with the University in relation to the future delivery of the Course. The Council gave in principle agreement to the joint venture at that time and on 10 October 2012 it unanimously authorised the execution of the Agreement. This decision followed several months of negotiation, hard work and exchange of information between staff of the two organisations. President Ralph Bönig, said “entering the Agreement will place the Society in a position to move forward with its course and it will ensure the ongoing delivery of a highly credentialed course. The arrangement with the University of Adelaide will enhance the Society’s reputation as the deliverer of quality education services”. Vice President and Working Group Chair, Mr Morry Bailes reported “the Society does not envisage any changes to the content of the program in the short term with the exception being that the program will be delivered at the University and students will enrol through University systems. The

In 1999, following the decision of the (then) South Australian Institute of Technology to cease its involvement in Practical Legal Training and there not being any other organisation willing to do so, the Society commenced delivery of its course. The Society particularly acknowledged the significant efforts of (then) President Belinda (Lindy) Powell and Executive Director, Barry Fitzgerald in the design and establishment of the course. It also recognised the significant contribution of all members of the profession and the staff of the Society who had contributed over many years to course development, administration, writing, marking and provision of placement opportunities. Enrolments are currently being accepted for the first course to be delivered under the joint Agreement, which will commence in December 2012.

The first meeting of the newly elected Law Society Council was held on 20 October 2012. At that meeting, the following office bearers were elected: • President – Mr Greg Geason • Vice-President – Mr Anthony Mihal • Treasurer – Mr David Barclay Mr Geason, a barrister, was admitted to practice in 1987 and before going to the bar in 2010, worked as a Crown Prosecutor and for twenty years in private practice as a litigation solicitor. He practises in the areas of trade practices, financial services, contract and administrative law. He is also a Presiding Member of the Resource Management & Planning Appeal Tribunal. Mr Geason looks forward to continuing the work of the Society, in its regulatory, education and policy roles as well as strengthening ties with stakeholders. Law Reform The Tasmanian Law Reform Institute released its final report on Sexual Offences Against Young People in October 2012. The Report was a result of a request for review by the Attorney-General of the defence of mistake as to age for the crime of sexual intercourse with a young person, together with any other legal issues raised by the case of a twelve year old girl prostituted by her mother and her mother’s male friend. The recommendations in the Report are generally consistent with the submissions of the Society. In particular, the Institute did not recommend a ‘no defence age’ for the defence of mistake as to age for child sexual offences. The AttorneyGeneral has indicated that law reform in this area is a priority and that he may not accept the recommendation with respect to a

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Law Society of Tasmania

Entering the joint agreement harnesses the strengths of both parties; the University’s extensive learning facilities and learning management platforms and the Society’s strong links to the legal profession. The program will continue to be maintained and delivered by practising legal practitioners and there will be no changes to the existing legal practice work placement. The Agreement will also provide sessional teaching staff with access to comprehensive teaching and learning professional development programs and networks. The involvement and participation of Senior Members of the profession will remain a key feature of the course.

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TASMANIA

Ralph Bönig, President The Law Society of South Australia

SOUTH AUSTRALIA

On 11 October 2012, the Society and the University of Adelaide executed an Agreement for a co-ordinated arrangement in relation to the ongoing delivery of the Graduate Diploma in Legal Practice course (the course). The Course will draw on the Society’s existing GDLP program whilst utilising the University’s teaching and learning environment. It will be open to eligible law students as well as to graduates.

infrastructure and support provided at the University will improve our students’ learning experience exponentially, introducing remote access to online resources and providing students with access to HECS – HELP”.


The WorkCover Tasmania Board has recommended to government that certain amendments be made to the Workers Rehabilitation and Compensation Act to expand the definition of ‘worker’. It is proposed that where there is a legal obligation to ensure that superannuation contributions or a labour hire arrangement is in place, that compensation under the Act will be payable. The Society has formed a working group to examine the important issues raised and expects to provide the government with submissions shortly. Continuing Professional Development The Commonwealth Law Court building in Hobart hosted the inaugural Tasmanian Advocacy Convention between 15 and 17 November 2012. The Convention began with a reception at Government House followed by three days of teaching, exercises and review. The CPD Committee is committed to providing an improved program for the 2013-14 CPD year. This includes a more structured series of ‘update’ seminars and more seminars taking place in the north of the state. Law Society Anniversary 2013 marks the fiftieth anniversary of the combining of the Southern and Northern Tasmanian Law Societies to form the Law Society of Tasmania. Prior to 1963 each body represented the small number of lawyers practising within its geographical area. The separation

The anniversary will be marked by a dinner, to be held at the opening of the Legal Year on 1 February 2013. It is hoped that representatives of Law Council of Australia’s Constituent Bodies will attend and help the Society celebrate this significant milestone.

Michael Holcroft, President, Law Institute of Victoria

The recent Same Sex Marriage Bill provoked a great deal of media coverage and community debate. The Society contributed by providing submissions to the Legislative Council on the Bill. Those submissions were greatly enhanced by the input of the Family Law Practitioners Association of Tasmania.

extended such that each body held a separate seat at the Law Council of Australia!

VICTORIA

‘no defence age’. The Opposition appear strongly in favour of a ‘no defence age’ being enacted. The Society will monitor developments and continue to advocate an approach that recognises that a desire to identify and punish should not be at the expense of fundamental legal rights.

The Law Institute of Victoria (LIV) has welcomed the Federal Government announcement of a Royal Commission into child sex abuse. Whist the terms of reference are yet to be announced, we expect that the Royal Commission will examine the processes (and failings) of a number of non-government organisations ranging from religious to social organisations. In the lead up to the Victorian Government’s decision to establish a parliamentary inquiry into the handling of child abuse in religious and other organisations , the LIV had led the call for a Royal Commission in Victoria. We see the anticipated Royal Commission at the Commonwealth level as a significant addition to the work already being undertaken by the Victorian Parliamentary Inquiry into Child Abuse in Religious and other Organisations [Victorian Parliamentary Inquiry]. We hope to see a Royal Commission - with the necessary powers,


No stone must be left unturned as the Royal Commission examines the investigation and cover ups of these shameful events. The aim must be to give solace and redress to victims and, through legislative reform, prevent such abuse happening in the future. The submissions to the Victorian Parliamentary Inquiry reflect very poorly on our society. The prevalence of abuse by people in positions of power is truly shocking. The treatment of victims, in some cases, by the very institutions responsible for their spiritual welfare, is shameful. Victoria Police submitted two letters purportedly from a lawyer appointed by the Catholic Church to oversee a private complaints process. In confusing and insensitive legal language, people who have complained to Churches of sexual abuse are advised that they can report the matter to police. They are also told why any attempt to proceed with criminal action is likely to fail. If a victim of abuse then signs a statement prepared by the Catholic Church which confirms they do not wish to make a criminal complaint, could we have any confidence that the decision is both free and informed? In its submission to the Inquiry, the Anglican Church paints a shocking, yet seemingly more honest account of the criminal abuse of children within its ranks. It documents the circumstances and outcomes of 191 complaints from 180 people alleging sexual abuse by 135 church personnel. The findings of abuse in the Anglican Church are highly distressing. Most of the complainants were boys aged between 10 and 15 years when they were first abused. Of 181 complaints [data for 10 complaints was not available], 91 were assessed by the Anglican Church to be true or ‘substantiated’. Many others - 62 - were deemed to be ‘inconclusive’ and 44, including only 24 of the substantiated cases, are known to have gone on to

criminal trial, with just over half of those 44 cases ending in criminal convictions. The Anglican Church’s purpose in commissioning this analysis of complaints in 2009 is clear: find out why and how children are being abused and take steps to stop it from happening again. Its decision to publish the study suggests a genuine commitment to righting wrongs. In its nearly 150 page submission to the Inquiry, the Catholic Church dedicates very little analysis to the numbers of complaints of criminal abuse of children that it has handled in-house. The Church has upheld 618 complaints of abuse in Victoria in 16 years. Research suggests that complaints could represent as little as 10% of the total instances of abuse. The vast majority of victims tell nobody of the abuse. The submission from the Catholic Church provides scant analysis of the complaints - who has abused? how? why? - saying only that a large proportion of the abusive acts occurred before 1990. But as Victoria Police points out, people invariably delay bringing complaints for many years so cases of abuse after 1990 are not likely to emerge until a future date. So what can be done? The LIV made a submission to the Victorian Parliamentary Inquiry. It is motivated by our firm belief in the rule of law. We do not want to see the integrity of our legal system undermined by anachronistic laws or partial private processes out of legal reach. We do not want to see people denied proper redress for harm they have suffered. The LIV calls for mandatory reporting of suspicions of child abuse to police. The reporting obligation must apply to ministers of religion, with only a limited exception for religious confessions. Where the confession reveals a serious risk of on-going or future abuse, reporting should be required. There must be criminal sanctions for any failure to report. We call for people required to report to be protected from reprisals or defamation suits. The LIV wants to see more flexibility in bringing religious

organisations to account for the wrongs committed by their personnel, including extended timeframes in which civil actions can be brought. We also call for an independent oversight body to assess the fairness of in-house complaints procedures and to facilitate redress on the basis of restorative justice. If there is any hope to be found in the information submitted to the Inquiry it comes, in large part, from those people - victims, families, members of the community, professionals, police and, in several cases, church members - who have continued over many years and in the face of enormous challenges to demand justice for victims of child abuse and reform to prevent future crimes. Some of those people are lawyers and, as the representative of the peak body for lawyers in Victoria, I feel great respect and admiration for their sustained efforts. The Victorian Inquiry will engage politicians on the facts. With the information before them, it is hard to imagine they will not be convinced of the need for law reform. Victoria and Australia deserve laws that protect the vulnerable in our society - our children. Allowing predators to hide behind religious and other institutions is not an option. We also call upon the Federal Government to provide further money to Legal Aid services, so that the victims of this abuse can access legal services to assist them with preparing and speaking to their own submissions. The victims of this abuse and systematic avoidance of prosecution deserve a voice if real progress is to be made. We call on all Australian lawyers to support these calls.

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resources, expertise and time to fully investigate the issues.


The Victorian Bar

VICTORIA

Centre for Asia Pacific Pro Bono (CAPPB): In late November three Victorian barristers departed for Papua New Guinea as one of the first projects to be supported by the newly created Centre for Asia-Pacific Pro Bono (the Centre) in its first year of operation. The Centre, launched by the Attorney-General The Hon. Nicola Roxon MP in July this year, was the result of collaboration between the Federal Government and the Law Council to create a clearing house to coordinate pro bono legal assistance in the Asia-Pacific region. The Centre’s secretariat is now housed in the Law Council offices in Canberra . Caroline Kirton SC, Benjamin Lindner and Philip Corbett took the 70 plus years of advocacy experience they have between them and apply it to training two advocacy skills courses in Port Moresby over the period of a week. After several trips delivering pro bono advocacy training programs in Bangladesh, Caroline is looking forward to transferring training to the Papua New Guinea (PNG) legal context. “I’m really looking forward to the experience of working with our colleagues in the region,” she said. “Adapting the training to the local context and the local needs has some great challenges, but is incredibly rewarding.” Caroline is a commercial lawyer who taught advocacy nationally with both the Australian Advocacy Institute and the Australian Bar Association – and travelled to Bangladesh on several occasions as part of the Australian Bar Association’s advocacy teaching program in that country.

With 30 years’ experience, in criminal law and trials, Benjamin has been involved in teaching advocacy with the Australian Advocacy Institute, the Bangladesh Legal Education Training Institute and the Victorian Bar Reader’s Course. He also teaches Criminal Procedure and Advocacy to law graduates. Philip specialises in commercial and civil trials and appeals. He is an accredited advocacy coach and teaches in the Victorian Bar Readers Course and has been involved in advocacy skills programs and competitions at Monash University and Melbourne University for more than 20 years. The Victorian Bar has an ongoing commitment to advocacy training in the region. Since 1987, the Victorian Bar 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 across the region - including PNG, the Solomon Islands, Vanuatu and Fiji. “We will be keen to look for new opportunities to develop sustainable advocacy training programs while we are there on this project and continue the Bar’s longstanding commitment to the region,” Caroline explained. The PNG legal system and context shares Australia’s common law system, including similar rules of procedure. The Supreme Court, National Court of Justice, District Courts (Magisterial Service) and local and village courts form the independent justice system . Up to 45 PNG lawyers, mostly from the PNG Office of the Solicitor General, will undergo the training. The experience of these lawyers ranges from junior lawyers to those who have been in practice for up to a dozen years. The courses will centre on a civil exercise, which has been specifically developed to focus on particular issues which create problems for the lawyers working in the civil jurisdiction in PNG. The Victorian Bar team have received strong support from Australian lawyers Peter Bednall, David Reed and Mark Kelly, working in PNG at the Office of the Solicitor General


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as part of the Strongrim Gavman Program. Victorian Bar Chair Fiona McLeod SC said the Victorian Bar has developed a strong relationship with the lawyers of PNG through advocacy training programs and the participation of local lawyers in the readers course for more than 25 years. “We each benefit from these exchanges and the long standing friendships we have formed. “We are very pleased to extend these training opportunities through the Law Council CAPPB program and the PNG Solicitor General’s office and acknowledge the contribution of all those who are working to bring this visit to fruition. “The CAPPB provides a real opportunity for the Australian profession to co-ordinate an effective contribution to lawyers in our region. It will build on the experience of the independent bars, for example, in advocacy training, to target those countries where the need for assistance is most acute.” Two other CAPPB projects have included assistance in Vanuatu and Nauru. For more about the Centre, go to www.cappb.org. VIC Bar Chair Law Council of Australia Director, Fiona McLeod SC, has been appointed Chair of the Victorian Bar Council following last month’s Bar elections. Fiona is also the Chair of the Law Council’s Equalising Opportunity in the Law Committee, Co-Chair of the Recruitment and Retention Working Group and a member of the Commonwealth Attorney-General’s International Legal Services Advisory Council. Fiona was recently appointed to the Executive

of the Law Council of Australia and will commence her term on 1 January 2013. Ms McLeod studied law at the University of Melbourne, and was admitted in 1989.She signed the Bar Roll in 1991 and took silk in 2003. She practises in the areas of human rights, commercial, common law and administrative law, and completed a Masters in Public and International Law this year (2012). Recognised for her recent high profile work concerning some of Australia’s worst natural disasters, she advised and represented the Commonwealth in the Queensland Floods Commission of Inquiry in 2011-12, and the Victorian Bushfires Royal Commission in 2009-10. Ms McLeod was also recognised for her work in human rights matters including representing the Gunns 20 in 2010. She continues to play a pioneering role in the field of human trafficking – which resulted in the prestigious Inaugural Anti-Slavery Australia Freedom Award and the Victorian Bar Pro Bono Award, the Ron Merkel QC Award. Ms McLeod cites a number of priority areas for the Bar Council in 2013, including evolving the education and training programs provided by the Bar, supporting members to maintain strong advocacy skills, expanding health and well-being programs, encouraging diversity within the ranks of the Bar and collaboration with interstate Bars with the move towards a national profession. “We need to continue to develop and promote our strengths in strategic and cost effective advocacy, not just in Victoria but nationally, in collaboration with our colleagues to ensure our

competitiveness,” she said. “I am keen to continue to support the strong record of contribution by the Victorian Bar to pro bono advocacy training in the South Pacific - Asian region. “An important measure of a strong Bar is the degree to which we can support our members in difficult times and also to reflect the diversity of our community in our membership. It is vital that we continue to foster equality of participation and opportunities for advancement for everyone who wants to come to the Bar in Victoria,” Ms McLeod said. Ms McLeod also emphasised the dire situation with legal aid funding as a priority for the national profession. “Critical underfunding of legal aid has persisted for many years. This has a direct impact on the ability of the most vulnerable members of our community to obtain proper representation in court and results in injustice, the overburdening of the courts and increased cost burdens further down the line. “It is imperative that we move to a national partnership model for future legal aid funding and restore the previous commitment of federal funding levels to avoid further damage.” Ms McLeod replaces the retiring Chair, Melanie Sloss SC following elections which saw seven new council members elected to the 21 member Council for the 2012–13 term. Co vice chairman appointments include Jonathan Beach QC and William Alstergren. The Council election ballot closed on Wednesday 14 November, and executive positions were finalised by a vote on 15 November at a special Bar Council meeting.


Dr Christopher Kendall, President, Law Society of Western Australia

submissions to government.

WESTERN AUSTRALIA

VICTORIAN BAR REPRESENTATIVES TO PROVIDE PRO BONO SERVICES TO PAPUA NEW GUINEA

This is my final report as President of the Law Society of Western Australia. It has been a busy and productive year and I am proud of everything the Society has achieved in 2012. I congratulate everyone involved in ensuring a year of positive results and thank you for your support this year.

Benjamin Lindner

Caroline Kirton SC

Much has been accomplished this year. The Society ended the year with a membership of 3346 members. Comparatively, the Society’s membership at 30 June 2006 was 2432. That equates to a 37 per cent growth in membership over the last six years. Membership numbers have increased in all Society categories - with a notable 27 per cent increase in the number of government lawyers, a 9 percent increase in student numbers and a 5 per cent increase in the number of country lawyers. This year the Society offered 37 Continuing Professional Development (CPD) events, with 2390 registrants at these events. Importantly, there were no fee increases for members attending the Society’s CPD offerings in 2012. Other significant results this year are: • There were 20,241 referrals of Law Society members to the general public from the Society’s referral Database; • 5,507 students and teachers participated in the Francis Burt Education Programme; • 47 firms are now accredited with the Quality Practice Scheme;

Philip Corbett

• 43 schools and 875 students took part in the Society’s Mock Trials Competition; and • 480 of our members served on Society Committees. There were 320 Society committee meetings and, as a result of these meetings, the Society was able to make 37

Our financial position is extremely strong. At the end of 2012, the Society holds accumulated net assets of $2,392,950 and cash reserves of $1,377,616. This is an outstanding result and no small task in challenging economic times. Significantly, this result was achieved without any increase in fees for ordinary members. I am particularly pleased with these results. I highlight other key achievements below. Life Members The Society recently inducted four new Life Members. Life membership is extended to those Society members whose exceptional contributions to the Society, the legal profession and the broader community make them particularly worthy of recognition for all that they have done throughout their legal careers. On behalf of the Society and its membership I extend my sincere congratulations to the Society’s newest Life Members: • His Excellency Malcolm McCusker AC CVO QC, Governor of Western Australia; • The Honourable Wayne Martin AC, Chief Justice of Western Australia; • Daryl Robert Williams AM QC; and • The Honourable Michael John Murray QC. Mental Health Throughout the year, I have highlighted the Society’s Report on Psychological Distress and Depression in the Legal Profession. I was honoured to be the author of this Report. The Report has proved to be an extremely important and much needed initiative. The story it tells inspires all of us to tackle this most pressing of issues: mental health and wellbeing. The Council adopted all 29 of the Report’s recommendations and 2012 saw a great deal of activity as the Society set out to implement these recommendations. Initiatives in this regard included the creation of a permanent Mental Health and Wellbeing Committee and the establishment of LawCare (WA) – a


Additionally, in collaboration with the Western Australian Bar Association, a Senior Members Advisory Panel was established, providing free legal assistance from senior barristers (and representation if required) to lawyers grappling with the stresses caused by a Legal Practice Board complaint. The Society prioritised this issue in 2012 and will, I have no doubt, continue in the future to build on the work it has now undertaken to ensure that its members can access the support they need, when they need it. Law Reform Our brand is “the Voice of the Legal Profession in Western Australia” – and that we certainly are. In the past 12 months, our Committees made 37 submissions to State and Federal Government departments and the Law Council of Australia on a diverse range of issues, ranging from proposed amendments to workers’ compensation legislation, the difficulties being experienced by the Family Court and intellectual property reform – to name just a few. Continuing Professional Development and Community Legal Education The Society delivered an impressive 182 hours of Continuing Professional Development in this year - compared to 146 hours in the previous year. There were no CPD fee increases for members and the range of subjects now covered continues to grow, as do the numbers attending the Society’s teaching and learning seminars. As Chair of the Society’s Education Committee and as a former academic, I am particularly pleased with these results. Lawyers require timely and relevant continuing legal education, taught by the very best in ways that are interesting and sometimes provocative. I extend my sincere appreciation and congratulations to the entire CPD

team and the presenters who made 2012 a spectacular year of learning and innovation. Regional Courts It is the Society’s role to work constructively and productively with government to convey the needs articulated by our members. We have proven quite successful in that regard. This year the Society welcomed the government’s recent announcement of the new $43 million Royalties for Regions funded Kununurra Courthouse. This new facility will offer two courtrooms, a jury deliberation area and separate spaces for witnesses and vulnerable court users, including children. There will also be pre-trial conference facilities, improved amenities for victims of crime; secure outdoor courtyards and public parking onsite and close by. Construction will begin in late 2012, with the courthouse scheduled to be completed and ready for occupancy in late 2014. In late 2012, courthouse functions will move to a temporary courthouse on an unused part of the Kununurra Hospital grounds, with an entrance off Ivanhoe Road. Demolition of the old courthouse will begin soon thereafter. This announcement builds on already announced commitments in relation to the Kalgoorlie Court House and the Carnarvon Justice Centre. Restoration work on the Kalgoorlie Government Offices and Post Office Building has been completed and the main contract for construction is now progressing. Demolition works within the heritage building are complete and construction of the new building at the rear for the Magistrates Court has commenced. This project is due for completion around the middle of 2013. In relation to the Carnarvon Justice Centre, consultants are currently progressing with tender preparation for the replacement courthouse building. The project is due for completion in late 2014. I am confident the Society will continue to lobby for ongoing funding for all regional court programs. The above initiatives reflect the Society’s commitment to

access to justice throughout the state. Admission of Foreign Lawyers Earlier this year the concerns of some of Western Australia’s largest law firms relating to the admission criteria imposed on foreign lawyers was brought to my attention. I convened a well-attended roundtable discussion with a number of large firms and representatives from the Legal Practice Board to discuss the admission criteria for foreign lawyers recruited to work in Western Australia. This is an important issue at a time when Western Australia is undergoing a mining boom, and there is a need for senior practitioners with considerable experience in the resource sector. The discussion was very useful but it is clear that more work needs to be done in this area. The Society is committed to working with all parties to seek solutions and I am confident we will continue to work closely with the Legal Practice Board to ensure that what needs to be done is done. Thank You to Councillors and Staff This year’s results reflect the enormous contribution that so many of our members make and continue to make year after year to the Society and to the profession generally. Thank you to all of you for a successful year. I particularly want to acknowledge the hard work and dedication of Society Executive Director, Mr David Price, who provides stable leadership and guidance across the organisation. Your commitment to excellence is much appreciated. Thank you also to Ms Sue Langmair, my Personal Assistant at the Society in 2012. You have kept me organised and focussed. Your sense of humour and calm demeanour has kept me smiling (and, at times, breathing!). To David and Sue I say thank you for your friendship and your support. I could not have done it without you.

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psychological and counselling service that offers members and staff members free counselling sessions, as well as a range of online learning and help resource tools for managers and legal professionals coming to terms with colleagues in need.


CRIMINAL LAW & HUMAN RIGHTS division

division OVERVIEWS

The Criminal Law and Human Rights Divisionâ&#x20AC;&#x2122;s work involves advocacy and policy development concerning national criminal law issues and both national and international human rights issues. The Division receives valuable assistance from Constituent Bodies and Law Council Committees in undertaking this work.


Inquiries into Counter-Terrorism Legislation On 10 September 2012, the Law Council made a submission to the Independent National Security Legislation Monitor (the Monitor), Mr Bret Walker SC, in response to his inquiry into the questioning and detention powers of the Australian Security Intelligence Organisation (ASIO) contained in the Australian Security and Intelligence Organisation Act 1979 (Cth) (the ASIO Act) and the control order and preventative detention order regime contained in the Criminal Code Act 1995 (Cth) (the Criminal Code). In its submission, the Law Council expressed its concerns about the scope of ASIO’s questioning and detention powers and the significant impact of these powers on the rights of persons who have not been charged with an offence. The Law Council also expressed concerns about the control order and preventative detention order regimes – in particular, the absence of demonstrated necessity for such extraordinary powers; the restriction of liberty based on suspicion rather than charge; and the effective lack of ability to challenge such orders. On 28 September 2012, the Law Council made a submission to the Council of Australian Government’s (COAG) review of counter-terrorism legislation (the Review). The Review encompasses a range of Commonwealth counter-terrorism provisions in the Criminal Code, and special police powers contained in the Crimes Act 1914 (Cth). The Review is also considering a range of state and territory laws introduced to complement these Commonwealth measures. These provisions resulted from a 2005 COAG agreement, which also

The Law Council expressed the view that the legislative response agreed by COAG in 2005 went beyond what was necessary and proportionate to respond to the threat of terrorism faced by Australia and failed to adhere to rule of law or human rights standards. The Law Council called for certain provisions to be repealed and other provisions to be amended to bring these provisions more closely into line with traditional criminal law principles. Public consultations were held as part of this Review throughout Australia. The Law Council, represented by National Criminal Law Liaison Committee member, Phillip Boulten SC, attended the Sydney forum on 25 October 2012. Mr Hylton Quail from the same Committee attended the Perth hearing and Mr Ralph Bönig, the immediate past President of the Law Society of South Australia, attended the Adelaide hearing. Refugees with ASIO adverse security assessments On 10 October 2012, Greens Senator Hanson-Young introduced the Security Legislation Amendment (Review of Security Assessments) Bill 2012 (the Bill) into Parliament. The Bill has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report. The Law Council will be preparing a submission on this Bill. On 16 October 2012, the Law Council issued a media release expressing support for the Government’s announcement of the appointment of the Hon. Margaret Stone as an Independent Reviewer to reassess the adverse security assessments of refugees who are currently in immigration detention and who request a review. The Law Council considers this an important step towards addressing the prolonged and potentially indefinite detention of refugees in this situation. Implementation of the recommendations of the Expert Panel on Asylum Seekers On 2 November 2012, the Law Council wrote to the Attorney-

General requesting that she refer the Government’s implementation of the recommendations of the Expert Panel on Asylum Seekers to the Parliamentary Joint Committee on Human Rights because of the significant human rights issues raised by the implementation of the recommendations to date. On 8 November 2012, the Law Council issued a media release calling for an end to the legal uncertainty being faced by asylum seekers arriving by boat after 13 August 2012.

The Law Council’s Civil Justice Division (CJD) provides legal policy advice and engages in advocacy across a broad range of government portfolios and legal practice areas.

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provided for a review after five years.

CIVIL JUSTICE division

Some important recent developments include inquiries into counter-terrorism legislation, the implementation of the recommendations of the Expert Panel on asylum seekers and the introduction of policy and legislative responses to the situation of refugees in immigration detention who have received adverse security assessments.


2012 Indigenous Lawyer and Indigenous Law Student of the Year Award The Law Council of Australia convenes the judging panel for the Indigenous Lawyer and Indigenous Law Student of the Year Award. On October 2012, Ms Terri Janke was awarded the 2012 Indigenous Lawyer of the Year Award. Ms Janke was the first female recipient of the prestigious award and was recognised for her wideranging accomplishments in the legal profession including her work and contribution towards Indigenous intellectual and cultural property rights. Mr Peter Dawson was awarded the 2012 Indigenous Law Student of the Year Award. Mr Dawson received this award in recognition of his outstanding academic achievements and his contributions outside the classroom towards the advancements of Aboriginal and Torres Strait Islander peoples in Western Australia and nationally. Mr Dawson also received the 2012 John Koowarta Law Reconciliation Scholarship in March 2012.

The CJD was also involved with organising the 2012 Australian Young Lawyers Conference held in Adelaide in October 2012. At the Conference, Ms Shatha Hamade was awarded the Australian Young Lawyer Individual Award for her significant contribution to animal law and welfare in Australia. The Australian Young Lawyer Organisation Award was awarded to the New South Wales Young Lawyers Bushweb Regional Issues Committee for its Creating Networks program which establishes a regional email list of all young lawyers to enable networking between young lawyers. At the Conference, the National Golden Gavel was awarded to Marc McKechnie for his witty and comically insightful take on the topic “I withdraw your Honour – 5 words every lawyers should know and why”

division

The CJD has spent considerable time undertaking scoping research to investigate what is required to conduct a National Attrition and Re-engagement Study (NARS) of women lawyers. It is envisaged that a NARS would involve an online survey to obtain quantitative data and confirm trends in progression and attrition rates of male and female lawyers and follow-up interviews with a number of those surveyed to examine the qualitative reasons behind these trends. The ultimate objective of conducting a NARS would be to produce a report, including recommendations for legal associations and law practices, outlining practical measures which can be implemented to address the causes of high attrition rates among women lawyers, and re-engage women lawyers who have left the profession.

Australian Young Lawyers Award and National Golden Gavel

INTERNATIONAL

The CJD has focussed on a range of key policy areas including continued advocacy in relation to access to justice, federal court filing fees and the Military Court of Australia.

The Law Council’s international activities are underpinned by the Law Council’s International Strategy. The International Strategy 2012 comprises eight key strategies which provide the basis for all of the Law Council’s international activity, other than international work driven by Sections. This overview identifies key activities and meetings undertaken as part of the International Strategy 2012 between October 2012 and December 2012. IBA Annual Conference, Dublin, Ireland The Law Council President-elect, Mr Joe Catanzariti and Deputy Secretary-General and Director, International, Ms Margery Nicoll participated in the International Bar Association (IBA) Annual Conference in Dublin from 30 September – 5 October 2012. The President attended from 1-3 October 2012. The President-elect spoke at a session on Government regulation and intervention and at a Bar Issues Commission workshop on policy and regulatory responses to alternative business structures for legal practice. The Deputy Secretary-General designed and coordinated two sessions at the Conference in her capacity as Vice-Chair of the Bar Issues Commission of the IBA. The first session was entitled ‘What are Legal Services’, and the second session was entitled ‘Stepping into the Deep End: Policy and regulatory responses to alternative business structures for legal practice’. The President-elect and Ms Nicoll also attended a side meeting with the new President of the ABA, Ms Laurel Bellows and the new Chair of


At the IBA Council meeting, the new appointed officers were announced for the next two-year term. In 2013, Ms Nicoll will be the Senior Vice-Chair of the Bar Issues Commission for 2013-14. She will also Chair the IBA’s Policy Committee for the next two years. Alternative Dispute Resolution Conference, Singapore On 4-6 October 2012, the Law Council President participated in an Alternative Dispute Resolution Conference, which was organised by the Singapore Judiciary, the Law Society of Singapore, the Singapore Mediation Centre, the Singapore Academy of Law and the Community Mediation Centre of the Ministry of Law. The Law Council President spoke during the Plenary Session on Day two of the Conference on the subject of Collaborative Law. The President also ran an interactive workshop in conjunction with Professor Tania Sourdin, Director, Australian Centre for Court and Justice System Innovation at Monash University, and Ms Jackie Vincent, a partner at Watts McCray Lawyers. The Law Council President is continuing to liaise with the Law Society of Singapore in relation to next steps in the establishment of collaborative practice as a viable dispute resolution option in Singapore. IBA Asia Pacific Regional Conference, Kuala Lumpur, Malaysia The International Bar Association (IBA) Asia-Pacific Regional Conference was held in Kuala Lumpur from 26-28 November 2012. The Deputy SecretaryGeneral and Director, International was responsible for coordinating several sessions of the Conference in her capacity as the Vice-Chair of the Bar Issues Commission of the IBA. Ms Nicoll Chaired a session entitled ‘Threats to the independence of bar associations’ which among other things addressed the importance of an independent bar association and the response of bar associations to threats to its independence.

Mr John Corcoran, past President of the Law Council and member of the IBA Board of Management, Chaired a session entitled ‘How to survive in the Asia Pacific Century: a guide to ethics and across border transactions for lawyers’. South Pacific Lawyer’s Association (SPLA) The Law Council provides secretariat support to the SPLA. The SPLA is the peak body for law societies and bar associations in the South Pacific region. Sir Kina Bona, SPLA Executive Member and President of the Papua New Guinea Law Society represented the SPLA at the Pacific Islands Law Officers’ Network (PILON) Meeting, 29-31 October 2012, in Kokopo, Papua New Guinea (PNG). Sir Kina Bona attended in place of Mr Kerenga Kua who was recently elected and appointed Attorney-General of PNG. Sir Kina Bona delivered a speech that had been prepared by the Secretariat. The Communique arising from the meeting and the speech by the PNG Minister for Justice and Attorney-General are accessible on the SPLA website. The Final Report from the SPLA Women and the Law Survey will be released in December 2012. It is the first regional Survey of Women and the Law and represents an important achievement of the SPLA and SPLA Women in the Law Committee. The Report will be available from the SPLA website. To coincide with the release of the Women in Law Survey Report, the December 2012 issue of NewSPLAsh will have a ‘Women and the Law in the South Pacific’ theme. It will feature: a welcome message by Ms Eselealofa Apinelu (AttorneyGeneral of Tuvalu, SPLA Executive Member and Chair of the SPLA Women in the Law Committee); profiles of women lawyers from across the South Pacific; and an article on the Pacific Islands Forum and its work in relation to women. NewSPLAsh is available from the SPLA website. Brumby Anti-Dumping Review The International Division and the ILS International Trade Committee made a submission to the Brumby Anti-Dumping Review. The Review

examines the current arrangements for assessing and investigating anti-dumping matters and considers the feasibility of a Commonwealth Anti-Dumping Agency. A Discussion Paper for the Review was released on the 19 September 2012. Centre for Asia Pacific Pro Bono The Centre for Asia Pacific Pro Bono (CAPPB) is housed within the Law Council of Australia Secretariat and is funded by the Australian Government through the AttorneyGeneral’s Department. Since the launch of the (CAPPB) in July 2012, the CAPPB Secretariat has been busy coordinating a range of projects in the Asia Pacific region. Current projects include: • Ashurst Australia is providing non-litigious complaints assistance to Transparency Vanuatu’s Advocacy and Legal Advice Centre; • a private practitioner is providing advice on mineral ownership to the Land Owner Advocacy Support Unit (LALSU) at the Public Solicitor’s Office in the Solomon Islands; • in late November 2012, the Victorian Bar Association provided advocacy skills and professional ethics training to legal staff employed by the Papua New Guinea Office of the Solicitor-General and a small number of private practitioners. Under this training exercise, 30 government lawyers and 10 private lawyers received the benefit of the training from the Victorian Bar Association; • in December 2012, the Australian Bar Association will provide training to the Bangladesh Bar Council; and • In 2013, DLA Piper will provide training and ongoing mentoring to the Nauru Public Defender and other members of the legal profession. The training will be provided in four modules. The CAPPB now has a range of Registered Providers that are willing and ready to provide pro bono assistance in the Asia Pacific region. Visit the CAPPB website for more information.

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the Section of International Law, Mr Bart Legum.


NATIONAL LEGAL PROFESSION division The National Profession Division recently commenced a period of public consultation on the draft Commentary to the Australian Solicitors’ Conduct Rules (ASCR). The Division is also actively monitoring developments in relation to the proposed Legal Profession National Law (LPNL).

Draft Commentary The Law Council’s Professional Ethics Committee completed its work on the draft Commentary in July 2012. Following a short period of consultation within the Law Council, the draft Commentary to the ASCR was released for public consultation on 19 October 2012. The Commentary is intended to explain the underlying basis of particular Rules and highlight important matters for solicitors to bear in mind in relying on the ASCR in their everyday practice. The draft Commentary is however, nonbinding in nature and aims to assist in the interpretation of the ASCR. The ASCR are a principles based statement of the ethical obligations of legal practitioners, which is intended to be reflective of the common law. The ASCR have been adopted in South Australia and Queensland, having commenced on 25 July 2011 and 1 June 2012, respectively. Further, it is understood that authorities in a number of other jurisdictions are also actively considering the adoption of the ASCR in their state or territory. Comments regarding the draft Commentary to the ASCR have been requested by 19 November 2012. The Professional Ethics Committee will then consider the submissions, making amendments as appropriate to settle the final draft of the Commentary. The final draft Commentary will be tabled to Directors in 2013. The National Law On 3 October 2012, the Queensland Attorney-General and Minister for Justice announced that the Queensland Government would not be signing-up to the National Legal Profession Reforms, saying that the move to a national scheme was not in the best interest of the Queensland legal profession as a whole. The Attorney-General also said that if New South Wales and Victoria proceed, then Queensland will look to work with other States in the future and consider any specific model laws, which are in the best interest of Queensland’s legal profession.

This means that four States (Queensland, Western Australia, South Australia and Tasmania) have now decided not to participate in the proposals developed by the COAG National Legal Profession Reform Taskforce. We understand that the ACT Government has reserved its position, while the new Northern Territory Government is yet to make a final decision. It is understood that the governments of New South Wales and Victoria are continuing to work toward introduction of uniform legislation in their States based on the proposed National Law.


The Chairman congratulated Ms Kathleen Farrell, a former Chair of the Section and its Corporations Committee and a current member of the Section Executive, on her forthcoming appointment to the Federal Court of Australia. The Hon. Michael Mischin MLC, Western Australia’s AttorneyGeneral, gave the luncheon address during the AGM. The AttorneyGeneral took the opportunity to explain Western Australia’s opposition to national regulation of the legal profession. A copy of the full text of his speech can be accessed from the Law Council’s website. The AGM was followed by an hour long seminar on “Continuous Disclosure – Implications of the High Court’s decision in Fortescue Metals Group and the ASX’s revised draft guidance note 8”. A copy of the paper given at the seminar by the Section’s Deputy Chairman, John Keeves, may be accessed from the Law Council’s website.

The Business Law Section held its 32nd Annual General Meeting in Perth on Friday 9 November 2012. The Section Chairman, Mr Frank O’Loughlin, reported that the current office bearers, namely himself, the Deputy Chairman, Mr John Keeves, and the Treasurer, Mr Ian Nosworthy, had been re-elected for a further twelve months unopposed. The Chairman then highlighted some of the work and activities of the Section for the year ended 30 June 2012. A copy of the Chairman’s report can be accessed from the Law Council’s website. The Chairman said that: • the Section Executive had approved the transition of the Working Party on Climate Change to a full Committee of the Section effective 1 January 2013; • he was pleased to announce that the fourth Gaire Blunt Scholarship on competition law would be offered in 2013 and that the Section would also be offering the Forsyth/Pose scholarship for an essay on taxation law, and the Santow scholarship for an essay on

FAMILY LAW SECTION Note: This is an edited version of the address by Family Law Section Deputy Chair, Mr Rick O’Brien, at the special sitting of the Family Court of Western Australia on 26 October 2012. Family Law Section Deputy Chair, Mr Rick O’Brien, had the sad privilege of representing the national family law profession at the special sitting of the Family Court of Western Australia on 26 October 2012 to farewell the Hon. Justice Carolyn Martin who passed away on 1 October. Justice Carolyn Martin contributed significantly to the national family law profession. As reported in the last edition of Law Council Review, the Family Law Section recently celebrated its 15th biennial national conference.

Justice Martin was very proud of the fact that she was one of a select band who attended each and every one of the first 14 national family law conferences, and her presence in Hobart was sorely missed. Delegates to that conference, particularly those from Western Australia, were both moved and overwhelmed by the number of people from all over the country who expressed their sadness at Her Honour’s passing, and the affection which they had for her. Justice Martin was truly respected by members of the family law profession all around the country, and loved by those who had the good fortune to know her personally. Given Her Honour’s gregarious nature, the list of lawyers from all States who enjoyed that good fortune is long indeed. Apart from her participation in conferences around the country, Her Honour also willingly gave up her time and considerable energy to help organise the national family law conference on the two occasions on which it has been held in Perth. Her boundless enthusiasm, work ethic and sense of fun made working on those conferences with her a delight. Justice Martin lived life to the fullest, brought joy and laughter to her friends, and never lost her capacity to light up any room with her presence. It is important and proper, though, to focus primarily on the qualities which Her Honour brought to the offices in the Family Court of Western Australia in which she served with such distinction for so long. To be eligible for appointment as a Judge of the Supreme or District Courts in Western Australia, a lawyer must have been admitted to practice for not less than 8 years. The statutes do not impose any other specific requirements. In contrast, the Family Court Act provides that a person shall not be appointed as a Judge of the Family Court of Western Australia unless by reason of training, experience and personality he or she is a suitable person to deal with matters of family law.

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SECTION OVERVIEWS BUSINESS LAW SECTION

corporations law would also be offered in 2013.


Those requirements reflect the unique nature of the family law jurisdiction - as the Judge must not only be technically sound, but have a personality suited to dealing with the most sensitive, emotional and difficult of matters. At the ceremonial sitting of the Family Court of Western Australia in 1991 which marked the passing of the late Justice Dan Connor, the then Chief Judge the Honourable Ian McCall said – “The standing and reputation that a Court enjoys is ultimately measured by the quality of the Judges who constitute it.”

those same litigants would shed tears on learning of Her Honour’s passing.

Chief Federal Magistrate to Chief Judge and of each Federal Magistrate to Judge.

There can really be no greater tribute to Her Honour’s qualities as a Judge than that.

The Bill will not alter the jurisdiction or status of the Court. It is now one of the largest courts in Australia in terms of the number of judges and the number of matters disposed of annually.

The Roman philosopher Seneca said “if you would judge, first understand”. Her Honour Justice Martin always did just that. Members of the Family Law Section of the Law Council of Australia extend their deepest sympathy to the family and friends of the Hon. Justice Carolyn Martin.

By her personal and professional qualities, Justice Martin made a deep and abiding contribution to the standing and reputation of the Family Court of Western Australia – and stood as a shining example of the judicial qualities contemplated in the legislation. In her nearly 30 years as a Registrar, Principal Registrar, Magistrate and Judge Her Honour brought her formidable intellect and remarkable work ethic to every task she undertook. Her Honour’s outgoing and engaging nature sometimes caused the unwitting, or unobservant, to overlook that formidable intelligence, or underestimate the depth of her preparation and attention to detail, but those who appeared before Her Honour regularly were acutely aware of both - and those who did not soon found out. As a Judge Her Honour was learned, thorough, and scrupulously fair – but it was her empathy, and her compassion, and the remarkable openness of her engagement with counsel and litigants, and her presence, that made her special. After a long and difficult trial before Her Honour, and before knowing the result, a client was heard telling her solicitor that she was content – because her case was being decided by, in the client’s words, “a really nice smart lady who cared”. Those very simple but heartfelt words encapsulated how most litigants felt about Justice Martin. How remarkable that, in this most stressful of jurisdictions, litigants could come away from the Court with that feeling - and that some of

A further Bill (Courts and Tribunals Legislation Amendment (Administration) Bill 2012) that will merge the administration of the Family Court of Australia and the Federal Magistrates Court has been introduced to the Parliament. The Bill implements recommendations of the Strategic Review of Small and Medium Agencies in the AttorneyGeneral’s Portfolio conducted by Mr Stephen Skehill and released on 8 June 2012. With the future of the Federal Magistrates Court assured by this legislation, the Law Council and the Court have re-established a formal liaison committee focused on the general federal jurisdiction of the Court.

Justice Martin

FEDERAL LITIGATION SECTION Law Council re-establishes FMC Liaison: General Federal Jurisdiction The uncertainty surrounding the future of the Federal Magistrates Court has been resolved and legislation to give effect to the changes that are to follow has been introduced to Parliament in the form of the Federal Circuit Court of Australia Legislation Amendment Bill 2012. Changes to be implemented by the passage of the legislation are the change of name of the Court to the Federal Circuit Court of Australia and a change in the titles of the

The first meeting of the court and the Law Council Liaison Committee took place on 24 October 2012. Chief Federal Magistrate Pascoe welcomed the resumption of formal liaison meetings, noting its importance in the context of the general federal law jurisdiction of the Court and observing that regular liaison in respect of family law jurisdiction was continuing with the Family Law Section. The Law Council Committee brings together a number of practitioners from across Australia who practise regularly in various aspects of the court’s general federal jurisdiction. This first meeting established a general agenda for future discussion between the profession and the court on a wide range of procedural, policy and substantive matters that impact upon the court and the profession (and our clients). Included amongst matters discussed at the first meeting were: • the future administration of the court; • accommodation for the court, particularly in Sydney where Federal Magistrates are located in different buildings removed from the Registry;


• jurisdictional overview and workload trends; and • assisting the profession and litigants to better understand and access the general federal jurisdiction of the Court. At present the key federal general law jurisdictions are migration, industrial and bankruptcy, with a large part of the latter being undertaken by Registrars of the Federal Court sitting as Registrars of the Federal Magistrates Court. Like the Federal Court, the Federal Magistrates Court operates a docket system which allows for greater flexibility and judicial responsibility in the management of matters. The industrial workload is increasing, with consequent pressure on the resources of the court. It is possible that further general federal law jurisdiction will be conferred on the court and the financial impact of doing so without further resources is a matter of some discussion. The clarification of the future of the court is an opportune time to review the Federal Magistrates Court Rules 2001, with the aim of consistency across all courts. The court has already harmonised bankruptcy rules and rules in respect of concurrent proceedings, such as appeals from the AAT and human rights, but further work can be done. The court continues to deal with a significant number of selfrepresented litigants and appreciates the pro-bono contribution that the profession makes. The conduct of proceedings by self-represented litigants and the issues they raise for the court and in the administration of justice generally will be the subject of further discussion. Practitioners wishing to contribute

to the discussion of these important issues or raise others can do so by contacting Gerard O’Neill at gerard.oneill@lawcouncil.asn.au. Federal Court “Case Management Handbook”: update and expansion Published by the Federal Litigation Section and launched in conjunction with the Court in August 2011, the Federal Court Case Management Handbook has been a great success and solicitors and counsel who come to court will be aware of the frequency with which it is referred to by bar and bench. Intended to capture and share the collective experiences of the profession in case management and promote “best practice”, the Handbook is the product of the collective experience of its authors and the Court. The Federal Litigation Section intends to update the Handbook as practices in the Court develop further and for that purpose, solicitors and counsel are invited to contribute their experiences, comments and recommendations. To facilitate this and to ensure that the Handbook expands to include chapters on other important substantive and procedural elements of practice in the Federal Court, an Editorial Committee comprising The Honourable Kevin Lindgren QC, John Sheahan SC and Simon Daley has been established. The Editorial Committee has prepared guidelines for the preparation of future chapters and invited contributions from a range of authors acknowledged as experienced practitioners and specialists in the relevant field of practice. Chapters in development will address matters such as: • representative actions; • fast track applications; • alternative dispute resolution; • admiralty practice; • administrative review; • corporations practice; • intellectual property; • native title; • taxation; and • revenue law.

While principally designed as a Handbook developed by practitioners for practitioners, the Federal Litigation Section is delighted at the continued endorsement, support and involvement of the Court and in particular, the interest of judges with particular experience in making their contributions to relevant chapters. Feedback and contributions from the profession can be provided to Gerard O’Neill at gerard.oneill@lawcouncil.asn.au

INTERNATIONAL SECTION International Law Section Elections The International Law Section (ILS) was in election mode in OctoberNovember 2012. Eighteen outstanding candidates put their names forward, which is a record for the ILS. The results of the election were announced at the annual general meeting for the ILS in Sydney on 5 December 2012. The following candidates were elected to the ILS Executive, in alphabetical order: • Dr Wolfgang Babeck; • Mr Frederick Chilton; • Mr John Corcoran; • Mr Justin Dowd; • Mr Glenn Ferguson; • Dr Gordon Hughes; • Ms Maria Jockel; • Ms Anne O’Donoghue; and • Dr Brett Williams. The Executive elected the following office bearers: Chair: Dr Gordon Hughes Deputy-Chair: Dr Wolfgang Babeck Treasurer: Ms Anne O’Donoghue The Executive also resolved to co-opt Mr Andrew Percival and Professor Luke Nottage to the Committee.

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• future appointments to the court. The number of general Federal Magistrates practising in the general federal jurisdiction remains small. At the moment there are dedicated federal law magistrates in Sydney, Perth and Brisbane. In other localities certain Federal Magistrates manage a mixed docket which includes both family law and general federal matters;


Common Law – Civil Law Dialogue ‘Never give up’: Five Rules for a Successful Cross-border Recovery As part of the ‘Common Law – Civil Law Dialogue’ series convened by ILS Executive member, Dr Wolfgang Babeck, the Europe Committee of the International Law Section of the Law Council of Australia co-hosted a seminar on cross-border recovery in Sydney on 23 November 2012. The focus of the seminar was the problem of what to do when an international arbitration award has been obtained, but the debtor refuses to pay. Mr Wieger Wielinga, CEO of Omni Bridgeway, The Hague, Netherlands whose firm has 25 years of experience in recovering debts, gave a fascinating insight into the modus operandi of Omni Bridgeway: “You have to be willing to go all the way and not to expect sovereign debtors to play by the rules’, Mr Wielinga said when he depicted the sometimes difficult world of cross-border recovery in high risk jurisdictions. Whether it is in Europe, Africa, South America or Russia, obtaining the award does not ensure payment, and sometimes attachments become necessary. “This is best to be done in a friendly jurisdiction rather than in the debtor’s where the debtor is usually superior,” Mr Wielinga said. Mr Wielinga also said that good intelligence is of the utmost importance ‘because you do not start a battle if you are uncertain whether you will win it’. More than anything else, Mr Wielinga concluded, a successful recovery needs patience and stamina. “It might take decades but you will finally secure the money – just never give up!” Mr Thomas John, a Principal Legal Officer in the Private International Law (PIL) section of the Commonwealth Attorney-General’s Department also spoke at the seminar. He provided an overview on current developments in private international law from an Australian perspective: ‘The recognition and enforcement of foreign judgements and awards is an often occurring problem because more and more nations

expand their national jurisdiction and interfere with the international jurisdiction’, he said. Clear rules about the right choice of forum should be of the essence, he said. Mr John is currently leading a reform initiative for private international in Australia. About 45 people attended the seminar, including solicitors, barristers and academics. Other sponsors were the Australian section of the International Law Association, Bond University and Marque Lawyers, represented by Damian Sturzaker, who kindly provided the venue. New Migration Law Committee The ILS formed a new Committee– the Migration Law Committee – in October 2012. It comprises the members of the former Immigration Lawyers Association of Australasia (ILAA) and the Migration Lawyers Working Group (MLWG). The ILAA joined the Law Council as part of the International Law Section (ILS) in 2005, but retained its name. The ILAA was formerly regarded as a Focus Group of the ILS under the Law Council By-Laws, with its Chair appointed from time to time by the ILS Executive. The ILAA provided the members of the MLWG, a small Law Council group formed in 2005 to assist in advocating for an end to the dual regulation of immigration lawyers and to advise in relation to the regulation of migration advice generally. These two groups have been brought together in the Migration Law Committee. It will contribute to policy work much like other Law Council Committees. Its main activity will continue to be the organisation of the annual CPD Migration Law Conference held in March.

convenors of the New York, Tokyo, Beijing and Dubai Chapters about the draft Guidelines. To date, the response from convenors has been positive and it appears that the Guidelines will be very useful. The Working Group is chaired by Dr Gordon Hughes, with Mr Chilton, Dr Babeck, Professor Nottage, Mr Percival, the ILS Administrator and Director, International as members. Conference News 2013 International Trade Law Symposium The ILS has set a date for its 2013 International Trade Law Symposium – 6 and 7 May 2013. The Symposium will run for one and half days in Canberra. Please block your diaries for this important conference.

LEGAL PRACTICE SECTION The Legal Practice Section held its Annual General Meeting in Melbourne on 5 October 2012. At that time the new Executive of the Section took office, and new Officer Bearers were elected. The new Executive is as follows: • Ms Maureen Peatman (Chairperson); • Mr Dennis Bluth (Deputy Chair); • Mr Philip Jackson (Treasurer); • Mr Mark Cerchè; • Mr Paul Malliate; • Mr Bill Redpath;

Chapter development

• Mr Damian Scattini;

Chapter activities continue to form a significant component of the Section’s work. Following an ILS Executive resolution that the development of a strategy for servicing and growing the Law Council’s overseas Chapters was a high priority for the ILS for the 2012–13 financial year, the ILS Administrator prepared draft Guidelines for Chapters and template documents. Through the Executive Working Group, the ILS Administrator is consulting with

• Ms Kriss Will; Two previous members of the Section Executive chose not to stand for re-election: Ms Margaret Hole and Mr Murray McCutcheon. Margaret and Murray had both made a considerable contribution to the Section Executive over several years, with Murray in particular serving as Section Chair from 2008 – 2010. Murray McCutcheon was further recognised at the Annual General


The Legal Practice Section undertook a number of key projects throughout 2012. These initiatives are detailed below. Property Law Reform Alliance The Australian Property Law Group continues to be actively involved with the Property Law Reform Alliance (PLRA). The objective of the PLRA is to work towards the uniformity and harmonisation of property laws and procedures across Australia. Uniform System of Torrens Title The Australian Property Law Group has continued to work with the PLRA on development of the model uniform Torrens Title Act. The draft model Act, prepared by Professor Peter Butt of the University of Sydney, was issued for public consultation in March 2012 and is open for comment until 28 February 2013. In 2013 the PLRA, with the assistance of the Australian Property Law Group, will be aiming to meet with state & territory Ministers and departments to promote the implementation of this model legislation on a national basis. National Disability Insurance Scheme The Personal Injuries & Litigation Group has worked, along with a number of the Constituent Bodies to develop the Law Council’s blueprint in relation to the National Disability Insurance Scheme. The Group also formulated the elements of the “no disadvantage” test in respect of the Legal Profession’s response to the Government proposal. Harmonisation of Limitation Laws for Personal Injuries Actions The Personal Injuries &

Compensation Committee has worked to develop a position paper on harmonisation of limitation periods in personal injury actions. This position paper was adopted by the Directors of the Law Council in November 2011. Stronger Super Reforms In addition to being represented on the Treasury’s Strong Super Working Group, the Superannuation Committee has prepared several detailed submissions over the past year in relation to aspects of the Government’s Stronger Super Reforms. Young Environmental Lawyer Awards The Australian Environment & Planning Law Group conducted its Young Environmental Lawyer of the Year Award in the second half of 2011, with the winner being announced in early 2012. This award was won by Ms Felicity Millner of the Environmental Defenders Office Victoria. In March 2012, it was agreed by the Australian Environment & Planning Law Group that future Young Environmental Lawyer of the Year Awards will be titled the Mahla Pearlman Young Environmental Lawyer of the Year Award, in memory and recognition of the Hon. Mahla Pearlman AO, former Chief Justice of the Land & Environment Court of New South Wales, and former President of both the Law Council of Australia and the Law Society of New South Wales. LAWASIA Law Management Section The Australian Law Management Group has worked with LAWASIA on establishing the LAWASIA Law Management Section (LLMS), and has provided support to that Section through the sharing or resources for the LAWASIA edition of the Australian Law Management Journal and the organisation of webinars. World Masters of Law Firm Management The Australian Law Management Group conducted its World Masters of Law Firm Management seminar in Sydney on 11 October 2012, on the theme of Legal Process Outsourcing – the real story. This event was well

attended, with positive feedback from attendees. Superannuation Conference The Superannuation Group conducted its annual Superannuation Lawyers Conference in Melbourne during February 2012. This event has been run annually for the past 27 years and has always been very successful. Future of Environmental Law Symposium The Australian Environment & Planning Law Group conducted a Future of Environmental Law symposium in Sydney on 25 November 2011. The symposium honoured the contributions to the development of environmental law of three outstanding individuals: Emeritus Professor Ben Boer; Professor Robert Fowler; and the Hon. Mahla Pearlman AO – all of whom received certificates recognising their contributions. Only one week after being honoured during the symposium, Mahla Pearlman sadly passed away.

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Meeting for having served 26 years as a member of the national committee of the Australian Property Law Group, and was presented with a Certificate of Appreciation from the Law Council President for his “outstanding and extraordinary contribution to the Law Council of Australia, particularly through his dedicated commitment to the advancement of property laws and procedures at a national level”.


2012

CALENDAR OF EVENTS

MAY 2013

2013 Family Law Intensive Series 9 Februrary, Sydney More Information

2013 Family Law Intensive Series 4 May, Melbourne More Information

MARCH 2013

JUNE 2013

AMPLA/IBA Resources and Energy Law Conference South East Asia 27 Feb –1 March, Singapore More Information

Criminal Lawyers Association of the Northern Territory 14th Biennial Conference 22–29 June, Bali More Information

NELA 2013 National Conference 7–9 March, Melbourne More Information 2013 Immigration Conference 15–16 March, Sydney More Information to be advised 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 More Information

APRIL 2013 Human Rights and Policing Conference 16 April, Canberra More Information

AUGUST 2013 2013 Family Law Intensive Series 17 August, Perth More Information

NOVEMBER 2013 2013 Family Law Intensive Series 2 November, Adelaide More Information

LIST YOUR EVENT HERE Do you have an event to add? Contact the editor to add your event: review@lawcouncil.asn.au

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

2013 Superannuation Lawyers’ Conference 28 February–1 March, Sydney Register Online

18th Commonwealth Law Conference 14–18 April, Cape Town, South Africa More Information

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.

FEBRUARY 2013


Law Council Review - Issue 4