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VOLUME 43 | NUMBER 3 | APRIL 2016

A Duty to Google? Ethical Issues arising from Emerging Technology


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Contents Volume 43 | Number 3 | April 2016

38

22 06

Lawyers in (good) character

08

Law Summer School 2016

13

The PPSA – Some developments

COVER

16

A Duty to Google? Ethical Issues arising from Emerging Technology

22

How technology will transform the work of human experts

24

Homophobia within the law

A Duty to Google? Ethical Issues arising from Emerging Technology

26

Pledge for Parity Lunch for International Women's Day review

27

A Luncheon to Celebrate International Women's Day: Keynote address

29 30

REGULARS 02

President's Report

03

Your voice at work

Elizabeth Needham's speech at the Pledge for Parity Lunch

04

Editor's Opinion

Changes to the Office of State Revenue's assessment practices in 2016

41

Young Lawyers Case Notes

32

Cloud Computing Services: Professional obligations and ethics

42

Family Law Case Notes

35

Crowd-sourced Funding Bill 2015: Towards establishing an Australian regulatory framework for crowd-sourced equity funding

43

High Court and Federal Court Judgments

38

Resilience and Vulnerability

44

Law Council Update

45

Pam Sawyer

40

YLC Beach Volleyball

46

Professional Announcements

David Malcolm Justice Centre towers over Cathedral Square

47

New Members

47

Classifieds

48

Events Calendar

46

Disclaimer The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. Copyright Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications Moira McKechnie Tel: (08) 9324 8650 Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer Andrew MacNiven Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Jason MacLaurin, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Verginia Serdev-Patterson, Julian Sher, Moira Taylor, Lorilee Yu

Vice President Hayley Cormann

Proofreaders Sonia Chee, David Garnsworthy Brief is the official journal of The Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Marie Botsis, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Immediate Past President Matthew Keogh Chief Executive Officer David Price

01


President's Report Elizabeth Needham President, The Law Society of Western Australia

LAW SUMMER SCHOOL

giving and kindness.

Thank you to all Law Society members who were in attendance at the University Club on Friday, 26 February for Law Summer School 2016. The Law Society was thrilled to welcome an exciting array of prestigious local, national and international thought leaders, including Professor Gillian Triggs, President of the Australian Human Rights Commission, and Professor Richard Susskind OBE, one of the world's leading legal futurists.

The Hon Chief Justice Wayne Martin AC provided a stimulating address on the current state of gender parity in our State's judicial structure and elaborated on the experiences of women who come into contact with our legal system.

Delegates learned a great deal throughout a day of insightful discussion on the theme of Technology and the law: looking into the future. Law Summer School has become the pre-eminent legal education conference in Western Australia and it was a pleasure to both provide the welcome and to end the day by chairing a fascinating and lively panel discussion on The legal profession in Western Australia – the next 20 years.

It was wonderful to be able to provide the chance for attendees to ask questions of our speakers. Attendees certainly took full advantage of the opportunity, with some very probing and interesting queries. I was also pleased to receive, on behalf of the Law Society, the Women Lawyers of Western Australia Historical Women in the Legal Profession Photograph, which will be displayed in the offices of the Law Society. Thank you also to sponsor KBE Human Capital for their ongoing support.

The Pledge for Parity Lunch for International Women's Day was a wonderful occasion and This last session was to replace a presentation a great reminder that we can all be champions on science and the law due to be given by of change in pursuit of equality. You will find a Professor Richard Dawkins. Unfortunately comprehensive review of the event, as well as he suffered a minor stroke shortly before the copies of the Chief Justice's discussion and event. However, you have not missed out. of my speech, in this edition of Brief. Professor Dawkins is recovering well and will renew his arrangements with the Law Society LAW WEEK 2016 soon. Considered one of the world's leading The month of May is now on the horizon, thinkers, we look forward to bringing him to which also means that Law Week is once Perth to speak. again fast approaching. This year, Law Week runs from Monday, 16 May to Friday, 20 May. I would like to express my thanks to the Law Summer School Organising sub-Committee, Every year, Law Week showcases the vital as well as our sponsors: role that the law plays in our community, through a wide range of events, some of • Keynote plenary sponsor – Thomson which are organised by the Law Society Reuters; and others that are presented by partner • Closing plenary sponsor – Marsh; organisations. It provides a platform to engage • Tea Break sponsor – Leap; and the community and the legal profession in an • Lanyard sponsor – Unisearch Expert open dialogue, with the objective of building a Opinion Services. shared understanding of the law. Special thanks for course to the Law Summer School Committee and the Law Society's Programmes team for all of their efforts. You can read a full review of Law Summer School in this edition of Brief. PLEDGE FOR PARITY LUNCH FOR INTERNATIONAL WOMEN'S DAY I was delighted to chair the Law Society's Pledge for Parity Lunch for International Women's Day, which took place on Thursday, 3 March at the Parmelia Hilton hotel in Perth. It was my pleasure to introduce the following two speakers. Dr Ros Worthington OAM, who has been the driving force behind several Western Australian charities, gave a very passionate and inspirational call to action on the power of

02 | BRIEF APRIL 2016

I encourage you to save the following dates in your diary: •

Law Week Breakfast – Monday, 16 May 2016 at Parmelia Hilton; and

Law Week Cocktail Evening and Lawyer of the Year Awards – Thursday, 19 May 2016 at Bankwest.

Law Week 2016 is presented by the Law Society in partnership with the Public Purposes Trust. More information about Law Week activities will be available in the coming weeks. Visit the Law Society's website to find out more. LAWYER OF THE YEAR AWARDS Time is running out to nominate a colleague for the Law Society's Lawyer of the Year

Awards. The Lawyer of the Year Awards provide an opportunity to recognise the work of practitioners who continually go 'above and beyond'. Do you know someone who could be Lawyer of the Year? Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years' experience) and Lawyer of the Year (less than 5 years' experience). The winners will be announced at the Law Week Cocktail evening on Thursday, 19 May 2016. Nominees must meet the following criteria: •

The nominee has made a contribution over and above what might be reasonably expected through paid legal employment;

The nominee has made a particularly noteworthy contribution to the Western Australian legal profession;

The person is an outstanding example to the legal profession; and

The nominee does not need to be a Law Society member but they must give their consent and have been practising in Western Australia.

Nominations for the Law Society's Lawyer of the Year Awards close on Friday, 22 April 2016. Please visit the Law Society's website to complete a nomination form. COURT SECURITY As requested by many members, I have continued discussions with the Hon Chief Justice Wayne Martin AC in relation to the new security procedures. I will provide a full report in the next edition of Brief. CONGRATULATIONS TO WLWA AWARD RECIPIENTS I attended the Women Lawyers of WA Honours Dinner on Friday, 11 March 2016. It was, as always, a very warm and collegial event. I congratulate the following award recipients, announced at the Honours Dinner: •

Teresa Farmer – Woman Lawyer of the Year

Rebecca Lee – Senior Woman Lawyer of the Year

Courtney Furner – Junior Woman Lawyer of the Year

Rebecca Lee is a member of the Law Society's Council and the new Convenor of the Joint Law Society/WLWA Committee and Courtney Furner is Deputy Convenor of the Young Lawyers Committee.


Your voice at work A snapshot of recent Law Society initiatives

THE LAW SOCIETY OF WESTERN AUSTRALIA SUPPORTS GENDER EQUALITY ACROSS THE LEGAL PROFESSION

The WA Women's Hall of Fame was established in 2011, in recognition of the centenary of International Women's Day, which is held annually on 8 March.

The Law Society sees the promotion of gender equality across the legal profession, including in our State's Judiciary, as an important part of its commitment to the Law Council of Australia's Diversity and Equality Charter, which commits the legal profession to the promotion of equality, diversity, respect and inclusion regardless of gender, ethnicity, sexuality or any other arbitrary feature.

Law Society President Elizabeth Needham said, "The Honourable Justice McLure is a very worthy recipient of this accolade. Throughout her judicial career, Her Honour has gained a well-earned reputation within the profession for her considered and timely judgments, as well as her outstanding depth of legal knowledge."

Law Society President Elizabeth Needham said, "The Law Society supports gender equality in Western Australia's Judiciary. It goes without saying that any judicial appointment will be made on merit, taking into account the appointee's experience and standing. "I was disappointed to see that the name of one person was singled out in the weekend media. It has the effect of stifling the debate, which is not about individuals but the principles to be applied to the appointment of judicial officers. "It is also no answer to say that by counting all of the Registrars, Magistrates and Judges in one jurisdiction such as the Family Court, there are two more women than men. This is a question of equality in each level of public office. "There are many talented and experienced members of the WA legal profession, who should be considered to fill the vacancy in the Family Court following the retirement of the Honourable Justice Jane Crisford." THE LAW SOCIETY OF WESTERN AUSTRALIA CONGRATULATES THE HON JUSTICE CARMEL MCLURE ON INDUCTION INTO WA WOMEN'S HALL OF FAME The Law Society of Western Australia extends its congratulations to The Hon Justice Carmel McLure on her induction into the WA Women's Hall of Fame. The Hon Justice McLure is a Life Member of the Law Society, having joined back in 1980.

The Hon Justice McLure joins fellow Law Society Life Members Elizabeth Heenan and The Hon Antoinette Kennedy AO in the WA Women's Hall of Fame. THE LAW SOCIETY OF WESTERN AUSTRALIA CONGRATULATES RICK O'BRIEN ON FAMILY COURT APPOINTMENT The Law Society of Western Australia congratulates Rick O'Brien on his appointment as a Judge of the Family Court of Western Australia. Mr O'Brien has been a member of the Law Society since he was admitted to practice in 1983. He is a member of the Law Society's Professional Conduct Committee and of the Senior Advisors Panel, which provides guidance to legal practitioners who require assistance. Mr O'Brien was also the Chair of the Family Law Section of the Law Council of Australia, the first Western Australian to be elected to the role. Law Society President Elizabeth Needham said, "Mr O'Brien has a wealth of knowledge and experience in family law, having worked in the area for decades. I have no doubt he will prove to be an excellent Judge of the Family Court." THE LAW SOCIETY OF WESTERN AUSTRALIA CONGRATULATES ALAN TROY ON APPOINTMENT AS DISTRICT COURT JUDGE The Law Society of Western Australia congratulates Alan Troy on his appointment as a Judge of the District Court of Western Australia. Mr Troy has

had a long and distinguished career as a legal practitioner, most recently as a barrister at Francis Burt Chambers. Law Society President, Elizabeth Needham said, "I have no doubt Mr Troy will prove to be a fine Judge of the District Court. He brings a wealth of experience to the position and is wellregarded within the legal profession." Mr Troy is a former member of the Law Society. He was previously a member of the Law Society's Criminal Law Committee. SELF-DEFENCE IN THE CRIMINAL LAW OF WESTERN AUSTRALIA In light of recent media reports, it is important to provide clarification on the concept of self-defence, which is well-established in the criminal law of Western Australia. Law Society President Elizabeth Needham said, "The rationale behind self-defence is obvious: a person should not be punished for defending themselves against an unjustified attack. However, in each individual case there may be a range of factors that must be taken into account. "Self-defence encompasses the idea of 'reasonable force'. This means the response must be proportionate to the nature of the attack and takes into account all of the circumstances in which the force is used. "There is also a further defence of using 'reasonable force' to remove someone from your property in special circumstances, and again this relies on the idea of 'reasonable force'. "There may be circumstances where it is necessary for someone to act in selfdefence. However, wherever possible, the best course of action is, of course, to contact the police." Visit the Law Society's website to view Elizabeth Needham's interview with Channel 7, on the subject of selfdefence.

03


Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This month's feature article "A Duty to Google? Ethical Issues arising from Emerging Technology" by Jacinta Dharmananda addresses one of the most significant issues confronting the legal profession – being the implications of new, and not so new, technology upon the practice of the law. As the article shows, the implications of technology traverse several different aspects of practice- including competence, confidentiality, and the professionalism of lawyers' communications, including public communications. Justin Edwards' article "Cloud computing services: professional obligations and ethics" and the Law Council of Australia's publication "How technology will transform the work of human experts" also deal with the impact of technology upon lawyers. Indeed, a number of presentations at the Law Summer School1 addressed the implications of technology, and the use of computers, to assist with (or supplant) legal tasks. Lawyers' battles with technology are legion, perhaps the most memorable heavyweight bout being Dennis Denuto vs Photocopier "Tray 3" in The Castle. As amusing as that scene is, there is less merriment experienced by any lawyer who has badly mishandled a toner cartridge replacement, only to end up looking like someone who had fled post-eruption Pompeii. And also wishing, like the OJ Simpson trial prosecutors, that they actually had a glove that fit. The mere prospect of being replaced by computers or robots is, however, a concerning one for practitioners. Some solace is to be found in the classic movie "Blade Runner" which, although being almost 35 years old, speaks eloquently to this question. "Blade Runner" demonstrates that a robot practitioner would be easily stumped by a question from another practitioner or the Bench along the lines of "you're walking in the desert on a hot day and you see a tortoise…you flip it on its back and its struggling to turn over, its belly baking in the hot sun… but you're not helping… 04 | BRIEF APRIL 2016

why aren't you helping?" (apologies for the possibly obscure reference)2. We mere humans are (arguably) better equipped to deal with such questions, though admittedly may be equally stumped by far more benign and frequently encountered questions such as: "isn't what you just said entirely inconsistent with ["what the High Court said in…"] ["the clear text of the Statute"] ["paragraph 6 of your own written submissions"] ["what you said 5 minutes ago"] ["common sense, as understood by anyone over 12 years old"] or ["you having studied law"]"?3 Cyber-plagarism is also a frequently recurring issue in the law. An Iowa attorney was recently reprimanded by a United States Bankruptcy Court for filing a brief in a complex bankruptcy matter, 17 out of the 19 pages of legal submissions being almost completely copied from an article written by bankruptcy attorneys from another law firm, and published on that firm's web-site. The Court became suspicious of the attorney's submissions because they were, as the Court stated, of an "unusually high quality" (ouch- that judicial zinger is sure to leave a bruise). That is not to say that the attorney did not make some substantive changes to the article for the purposes of his brief. Unfortunately, those changes consisted of deleting all references to any adverse authorities.4 Hopefully, deleting references to adverse authorities is a task that even a computer would refuse to perform, leaving a practitioner asking a computer to do so with the same sort of frustration Keir Dullea experienced in asking HAL to let him back into the space station ("I'm sorry Dave….").5 One also hopes modern technology and social media will not drive the legal profession to summarise legal opinions by emojis. If emojis are created to depict particular persons, it is a cringe-worthy  thought that complex advice is distilled to emoji's intended to convey concepts such as "no prospects of success" (Kim Kardashian and a bridal dress),

"reasonable prospects of success" (Rupert Murdoch and Jerry Hall) or "these observations are subject to significant change after the discovery process" (Kaitlyn Jenner). Another example from the United States of the use of technology gone wrong was a Facebook posting of a picture taken by a mobile phone, in Court, of an orange prison jump-suit wearing defendant standing next to his attorney, where another attorney posted comments including: "Notice the stain on this guys jail suit when he realized who he had as an attorney." The attorney in the photo sued the other attorney and his firm for US $600,000. The publisher characterised the post as "good-natured jesting with a colleague". With good-natured jesting of a colleague like that, the attorney should probably consider a career at the Bar. As these incidents have been sourced from the internet, it could be that this editorial itself is based upon internet misinformation. If this be the case, a quick pivot is required, to explain that this in itself is an example of the real problems with technology, and an exercise in postmodern writing. This edition contains Chief Justice Wayne Martin's address on the important occasion of International Women's Day. On the commercial front we also have Adam Levine, Andrea Beatty and Becki Tam's article on crowd-sourced equity funding as well as Linda Widdup's article on Property Law Developments in Real Property and PPSA, along with, as always, a number of other articles and items that should be of interest to the profession. NOTES 1.

The feature article being adapted from Jacinta Dharmananda's presentation.

2.

For younger readers in particular who may not have seen Blade Runner- it comes highly recommended as addressing, inter alia, questions of the human condition in the face of robot technology. Hopefully a first-time viewing will elicit a greater insight than just: "Hey- that's Han Solo!".

3.

Insert your own personal horror story option here.

4.

I should, to avoid the very issues that arise, note that I have sourced this incident from James D Peterson and Jennifer L Gregor's article in the Wisconsin Lawyer.

5.

From 2001: A Space Odyssey – again, one of the author's favourites.


Latest Opportunities - April 2016 Whilst the market has stabilised following the substantial growth of years gone by, there is an increasingly positive outlook for the local Perth legal job market, with business confidence up and many employers looking to fill strategic gaps or expand existing teams. Skills shortages are also continuing to emerge, particularly for mid level Corporate lawyers, Insurance specialists, Real Estate practitioners and Employment & Safety lawyers. If you are considering a career change, now is the time to make your move! Contact us today for a confidential discussion on the market and our full range of available opportunities. Please find below a selection of our latest job opportunities for April.

Senior Associate

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This established and highly regarded Commercial practice has a strategic career opportunity for a talented Senior Associate. Your role will be to maximise business with existing firm clients, as well as to actively develop your own client base and grow the practice.

This successful Insurance practice boasts a positive reputation in the local market. A growth opportunity exists for a talented mid-level lawyer to join this talented and supportive team.

Working closely with the partners and with full support from juniors in the team, you will directly advise SME’s and high net worth individuals on business and property sale transactions, contract law issues, corporate structuring and estate planning matters. Managing your own end to end matters, including all commercial negotiations, you will truly make this role your own. You’ll require 5 years + PAE with a well regarded firm, exceptional general commercial, property and corporate law knowledge and strong communication and business development skills. An existing client base or following in the local market would also be highly regarded. With a friendly, supportive culture and reasonable work/life balance, this is a fantastic career progression role, with future partnership prospects on offer for the right individual.

You will gain exposure to a broad range of defendant liability and professional indemnity claims, acting for major insurers and an interesting cross section of corporate clients. The firms many established panel appointments will ensure a consistent flow of high quality work. Working across every aspect of the claims management process through to settlement, you will be immediately responsible for strategic legal advice, research, court document preparation, briefing experts and counsel and attendance at mediations and in court. You will be mentored and trained by a highly regarded partner and senior lawyers, who will actively contribute to your professional development. Candidates with at least 3 years PAE and existing defendant insurance experience, who seek a long term opportunity with a firm that offers a flexibility, lifestyle balance and a cohesive working environment, are encouraged to apply.

Workplace Relations Lawyer

Property Lawyer

2-4 years PAE

3-4 years PAE

This top-tier Workplace Relations team works across both the advisory and litigious aspects of employment, industrial relations and health & safety matters.

With a reputation for excellence in the local market, this progressive and highly successful firm requires a mid level practitioner to support its growing Commercial Property practice.

An exciting new growth position exists for a high-calibre junior to support a mixed base of corporate and government employers with legal research, the provision of strategic commercial advice, review and drafting of employment agreements and contracts and advice and court document preparation for all court and tribunal proceedings.

Acting for a diverse base of national and Perth based developers, financiers, public and private companies, you will undertake due diligence work, will assist with the preparation and negotiation of commercial documents and will advise and act on property sales, acquisitions and disposals, leasing matters, property financing and contracting matters.

There will be regular training and supervision from senior lawyers in the team and close interaction with colleagues at your level. You will also participate in client development and team marketing activities, including regular client presentations, seminars and training.

As part of a close knit team, there will be consistent mentoring from talented and approachable senior lawyers, regular collaboration with colleagues at your level and a consistent flow of work to keep you busy and challenged. You’ll require 3 years + PAE property law experience, gained with a well regarded practice in the local Perth market.

A minimum of 2 years PAE, top technical knowledge across all areas of workplace relations and quality training with a specialist team, will be key to your success. With high quality work, top resources and working conditions and a competitive package on offer, this is a rare opportunity to join one of Perth’s leading teams and advance your career.

With regular client contact, a social culture and commitment to the development of all employees, this is an ideal career move for a highly motivated lawyer looking to seriously progress their career with this growing team.

Stacey Back Director p

m

e

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Ethics Column

Lawyers in (good) character Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Good fame and character is a given for admission to the legal profession, as well as continuing membership.

Questions arise over whether a person's character is immutable.

Yet it appears that a person's 'good character' can easily be lost.

It has long been conventional wisdom, in more recent times translated to statute, that persons who are academically qualified to practise law should, in addition, meet a 'good fame and character' requirement. Although focused primarily upon the moment of admission to practise, notions of good fame and character pervade a lawyer's entire practice career. In effect, implicit in many of the disciplinary orders striking off or suspending lawyers is a finding that the errant lawyer lacks the requisite good fame and character. In the disciplinary context, the primary aim is to protect the community from persons who, otherwise enjoying a monopoly in providing legal services, have by their actions displayed an unworthiness to maintain that privilege. The same may, incidentally, be said concerning questions of good fame and character at the admission stage. The public need protection, it is reasoned, from those whose fame or character cannot be described as 'good'. The terms 'fame' and 'character' in this context take their ordinary meaning, identified as a question of fact, not law. 'Fame' targets a person's reputation in the relevant community. A person's 'character', it has been said, 'is the sum of his or her mental or moral qualities', and is "a distinctive and inherently

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immutable state".1 It is for this reason that character is adjudged by reference to a person's past behaviour. Of course, there is a close association between 'fame' and 'character'. It is difficult to conceive, for instance, that a person of 'good character' would lack 'good fame'. And it may seem odd to conclude that a person of 'good fame' within a community would at the same time be of 'bad character'. The assumption, it seems, is that acts of a person that are probative of his or her character translate in a very significant way to be equally probative of his or her fame. This in turn explains the focus of courts and other admitting bodies upon an applicant's character. As implied above, however, this inquiry is hardly a scientific one; it is qualitative at best. The practical assumption, when it comes to admission, is that an applicant who has not (evidently) committed a serious criminal offence, or an offence (or other act or omission) punctuated by evidence of dishonesty, is necessarily of 'good character'. As a result, as was observed over 30 years ago, "most applicants are accepted without a second glance".2 Two years hence, in a seminal admission case, the then President of the New South Wales Court of Appeal remarked that '[c] haracter does not change readily'.3 This sentiment echoed those of a judge of the same court in 1966 that "[r]eformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing".4 But it seems that, in some respects, character can change, and possibly even change quickly. There are many lawyers

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who, after an ostensibly unblemished practice over time, have been struck off or suspended by reason of a dishonest act or course of behaviour that cast a shadow over their (former) good character.5 And once there is cloud over a person's character, the challenges identified above in the New South Wales Court of Appeal come to the fore. Hence the not infrequent testimonials offered in disciplinary cases that the impugned acts were 'out of character'. Hence also the high threshold, in terms of affirmatively proving 'good character' by way of clear and relevant rehabilitation, imposed on applicants for readmission to practice. In this context it has been observed that "what is at stake is not so much the reputation [fame] of the claimant but the Court's assessment of his [or her] character".6 The upshot of the foregoing is that while good character (at the admission stage) may seemingly be easily earned — in the vast majority of instances it is essentially presumed — it is just as easily lost. 'Good character', and the reputation that comes with it, cannot be taken or granted, but can prove ephemeral. It accordingly behoves lawyers to guard it with jealousy. NOTES 1.

Singh v Auckland District Law Society [2002] 3 NZLR 392 at [45] per Harrison J.

2.

J Basten and P Redmond, 'Character Review of Intending Lawyers' (1979) 3 UNSWLJ 117 at 144.

3.

Re B [1981] 2 NSWLR 372 at 381 per Moffitt P.

4.

Ex parte Tziniolis (1966) 67 SR (NSW) 448 at 461 per Walsh JA.

5.

See, for example, Law Society of New South Wales v Foreman (1994) 34 NSWLR 408.

6.

Kotowicz v Law Society of New South Wales (CA(NSW), 7 August 1987, unreported) at 21 per Kirby P (dissenting but not on this point).

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TECHNOLOGY AND THE LAW - LOOKING INTO THE FUTURE FRIDAY, 26 FEBRUARY 2016 | THE UNIVERSITY CLUB

Penelope Keeley, Partner, Clairs Keeley Lawyers; Paul Evans, State Solicitor, State Solicitors Office; Jenni Hill, Partner, Clifford Chance; and Elizabeth Needham, President, The Law Society of Western Australia.

The 2016 Law Summer School maintained its reputation for excellence as the premier legal education conference when it was held before an enthusiastic audience at the University Club on Friday, 26 February. The theme for 2016 was Technology and the law: looking into the future. We have all witnessed the profound effects that technological advances have had on business and industry in recent years. New technologies have 'disrupted' the old ways of doing business, forcing companies and organisations to adapt. The legal profession is by no means immune to these technological advances. Law Summer School 2016 brought together an exemplary group of local, national and international legal professionals and academics to strengthen our understanding of the nexus between technology and the law. Delegates gained a deeper knowledge of both where we stand currently and what the future holds for the practise of law.

08 | BRIEF APRIL 2016

Richard Susskind OBE via video link and John Fiocco, Special Counsel, Slater and Gordon Lawyers.

The day began early, with delegates registering and enjoying breakfast from 7.15am. Elizabeth Needham, President of the Law Society, then welcomed delegates in the University Club Ballroom. Matthew McGuire provided a moving Welcome to Country. The Law Society was honoured to be able to use the site with the approval of the traditional owners. The sessions began with an entertaining and provocative Breakfast Plenary: Back to the future – the future is now, what does it look like? This session featured: •

Kate Offer, Assistant Professor, Law School, The University of Western Australia (Chair);

Tony Joyner, Managing Partner, Herbert Smith Freehills;

Michael Paterson, Principal, Michael Paterson & Associates; and

Emma Cavanagh, Convenor of the Young Lawyers Committee 20142015.

This high energy presensation was a thought-provoking discussion providing a variety of perspectives on the transformative effects of technology and what might occur in the years and decades going forward. The Keynote Plenary, Privacy and proportionate limits on human rights, was delivered by Professor Gillian Triggs, President of the Australian Human Rights Commission. Professor Triggs was introduced by The Hon Justice Janine Pritchard of the Supreme Court of Western Australia. The Law Society was delighted to welcome a speaker of the calibre and prominence of Professor Triggs. In the course of an compelling address, Professor Triggs touched upon issues relating to data protection, the dangers of mass technological surveillance and the difficult question of when national security should take precedence over the right to privacy. Following a short break for morning tea,


delegates had the choice of attending one of four concurrent sessions, each exploring an aspect of technology and the law. Criminal law – the challenges posed by technology produced an engaging discussion on the ways in which advances in technology have significantly changed crime and its detection. The panel, which discussed the advantages and disadvantages of ever-improving technology, included: •

The Hon John McKechnie QC, Corruption and Crime Commissioner (Chair);

Commissioner Karl O'Callaghan, Western Australia Police;

The Hon Justice Lindy Jenkins, Supreme Court of Western Australia;

Joe McGrath SC, Director of Public Prosecutions for WA; and

Paul Yovich SC, Barrister, Francis Burt Chambers.

The panel explained that although advanced technology has, in many ways, made crime global, it can also be harnessed by police, presented to court, analysed by lawyers and ultimately used by a judge and jury to deliver a just verdict. Employment Law – adverse action; common law contracts; and Enterprise Bargaining Agreements was chaired by Maria Saraceni, Barrister, Francis Burt Chambers. Harry Dixon SC, Barrister, PG Hely Chambers and The Hon Jennifer Smith, Acting President, Western Australian Industrial Relations Commission, made up the remainder of the panel. In the first part of the session, Harry Dixon SC addressed the topic of Adverse Action: By whom, against whom and why? A fine line. Mr Dixon explored many of the complexities arising from the application of Part 3-1 of the Fair Work Act (2009) (Cth). The legislation provides a range of protections to persons who have, or who exercise, workplace rights or engage in industrial activity. Mr Dixon also examined and analysed the most recent adverse action cases and some recent developments which illustrated the far reaching scope of the legislation. In the second part of the session, The Hon Jennifer Smith explored the question,

The Hon Justice Janine Pritchard, Supreme Court of Western Australia; Professor Gillian Triggs, President of the Australian Human Rights Commission; and Elizabeth Needham, President, The Law Society of Western Australia.

Should enterprise agreements be interpreted by the application of the rules that apply to common law contracts of employment or statutory instruments? The implications of the findings made by the Full Bench of the Fair Work Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 formed part of the discussion. The session also dealt with the issue of whether enterprise agreements can have effect as an enforceable contract as well as having statutory force, and considered whether it should be open at law to imply terms in enterprise agreements. Social media and its impact on civil litigation was chaired by Gail Archer SC, Barrister, Francis Burt Chambers. Sole Practitioner Carmel Galati provided advice on how lawyers should deal with the everincreasing involvement of social media in the practice of the law. The session discussed the top five areas of which practitioners should be aware – from selecting the appropriate remedy and forum in which to bring proceedings, to the use of social media in areas such as discovery and evidence-gathering, to ways to avoid expensive litigation in the first place. Rick O'Brien, who was recently appointed as a Judge of the Family Court of Western Australia, explored the evidentiary, ethical and other issues surrounding the intersection of family law and social media. The discussion included issues relating to the publication restrictions of s121 of the Family Law Act. Property law – developments in real property and PPSA was chaired by The

Professor Gillian Triggs presenting the Keynote Plenary, Privacy and proportionate limits on human rights.

Hon Justice Andrew Beech, Supreme Court of Western Australia, and also featured Linda Widdup, Lecturer, Curtin Law School and Katrina Banks-Smith SC, Barrister, Francis Burt Chambers. Linda Widdup addressed the statutory and equitable claims frequently brought against banks arising out of lender conduct, notably allegations of unconscionable conduct or misleading or deceptive conduct. Linda also considered the conduct of borrowers and guarantors and the continued role of binding contractual terms. Katrina BanksSmith SC focused on the decisions of the Courts of Appeal in Victoria and New South Wales, and a number of Federal Court decisions, as well as the recommendations arising from a statutory review of the legislation. Following the conclusion of the four concurrent sessions, The Hon Justice Kenneth Martin, Supreme Court of 09


Western Australia, chaired the session Legal ethics in the digital age: the same, but different. Joshua Thomson SC, Barrister, Francis Burt Chambers, discussed the practical aspects of using modern technology in day-to-day legal practice, including the use of emails, electronic signatures, cloud storage, WiFi, electronic discovery, metadata and software typically used by law firms. 1.

Jacinta Dharmananda, Assistant Professor, Law School, University of Western Australia, then examined how the increasing use of these technologies has affected legal ethical duties. Attendees heard that what is required to satisfy certain ethical duties is evolving due to changes in how lawyers practise, including a developing expectation of digital competency and effects on the duties of confidentiality and courtesy. Professor Richard Susskind OBE, one of the legal profession's most renowned futurists, delighted delegates by joining them live via video link from the United Kingdom, for a session chaired by John Fiocco, Special Counsel, Slater and Gordon Lawyers.

2.

Professor Susskind shared his predictions on the future of law and how technology will inevitably transform the way the legal profession works in the next 20 years. Professor Susskind discussed how machines and systems will shape the future practice of law, and how practitioners will need to harness technology and adapt in order to survive. A day of fascinating and absorbing presentations concluded with a panel discussion and question and answer session on The legal profession in Western Australia – the next 20 years. Attendees had the opportunity to listen to and engage with a panel that included: •

3.

The Hon Neil McKerracher, Federal Court;

Paul Evans, State Solicitor;

Jenni Hill, Partner, Clifford Chance;

Penelope Keeley, Partner, Clairs Keeley Lawyers;

Jason Ricketts, Global Head of Finance, Real Estate & Projects, Herbert Smith Freehills;

Erika Techera, Dean of Law, Law School, The University of Western Australia; and

Joe Scurria, Practice Director, Joe Scurria and Associates.

The final closing by Dr Erika Techera, Dean of Law, Law School, The University of Western Australia, was followed by a lively Society Club celebration where there was plenty to talk about. Law Summer School once again underlined its status as the foremost legal education conference in Western Australia, with a day of intellectually stimulating presentations featuring an extraordinary calibre of speakers. Thank you to our sponsors: •

Keynote plenary sponsor – Thomson Reuters;

Closing plenary sponsor – Marsh;

Tea Break sponsor – Leap; and

Lanyard sponsor – Unisearch Expert Opinion Services.

Thank you also to the Law Summer School Organising Committee and Convenor John Fiocco. Finally, special thanks must go to the Law Society's Programmes team for putting so much effort into making Law Summer School 2016 a resounding success.

Elizabeth Needham, President, The Law Society of Western Australia (Chair);

WITH THANKS TO OUR SPONSORS

Keynote plenary sponsor

Closing plenary sponsor

Tea break sponsor

Lanyard sponsor

4.

10 | BRIEF APRIL 2016


The Hon Justice Neil McKerracher, Federal Court of Australia; Penelope Keeley, Partner, Clairs Keeley Lawyers; Joe Scurria, Practice Director, Joe Scurria and Associates; Elizabeth Needham, President, The Law Society of Western Australia; Jason Ricketts, Global Head of Finance, Real Estate & Projects, Herbert Smith Freehills; Jenni Hill, Partner, Clifford Chance; Paul Evans, State Solicitor, State Solicitors Office; and Erika Techera, Dean of Law, Law School, The University of Western Australia.

1. 2. 3. 4. 5.

5.

6.

7.

8.

9.

10.

Karl O'Callaghan APM, Commissioner of Police – Western Australia. The Hon Justice Janine Pritchard, Supreme Court of Western Australia and Jenni Hill, Partner, Clifford Chance. Carmel Galati, Sole Practitioner, Carmel Galati. Joe McGrath SC, Director of Public Prosecutions, Office of the Director of Public Prosecutions for WA. The Hon Jennifer Smith, Acting President, Western Australian, Industrial Relations Commission.

6. 7. 8. 9. 10.

Tony Joyner, Managing Partner, Herbert Smith Freehills. The Hon John McKechnie QC, Corruption and Crime Commissioner. Paul Yovich SC, Barrister, Francis Burt Chambers. Katrina Banks-Smith SC, Barrister, Francis Burt Chambers. Harry Dixon SC, Barrister, PG Hely Chambers.

11


The Hon Justice Kenneth Martin, Supreme Court of Western Australia; Jacinta Dharmananda, Assistant Professor, Law School, University of Western Australia; and Joshua Thomson SC, Barrister, Francis Burt Chambers.

1.

3.

1. 2. 3. 4. 5.

2.

4.

John Fiocco, Special Counsel, Slater and Gordon Lawyers and The Hon Justice James Edelman, Supreme Court of Western Australia. Philip Loots, Counsel, Bechtel WA Pty Ltd and Julian Sher, Director of Professional Programs, Curtin Law School. Mark Gregson, Charles Darwin University; Bryan Gardiner, Clyde & Co; and Brahma Dharmananda SC, Barrister, Francis Burt Chambers. Stacey Back, Profile Legal Recruitment; Christopher Terren, Roe legal Service Pty Ltd; and Elizabeth Needham, President, Law Society. Law Summer School delegates.

12 | BRIEF APRIL 2016

5.


The PPSA – Some developments Updated seminar paper

Linda Widdup*

BACKGROUND The Personal Property Securities Act 2009 (Cth) (PPSA) has been in force for four years.1 As a statute dealing comprehensively with personal property securities,2 it aims to bring greater certainty, clarity and consistency to the law. In doing so, it also brings wideranging reform to commercial law and a large degree of legal complexity including a new, highly technical Personal Property Securities Register (PPSR). STATUTORY REVIEW The complexity of the legislation and the difficulties it has presented are evident from the Attorney-General's report, Review of the Personal Property Securities Act -- Final Report (Final Report).3 Section 343 of the PPSA required a review of the operation of the PPSA to be undertaken and completed within 3 years from the date on which the PPSA came into force which was 30 January 2012. The Final Report was released on 18 March 2015. It contains extensive recommendations on how to improve the PPSA, including simplifying the PPSA and the PPSR.4 CASE LAW The PPSA has overhauled many long entrenched common law and equitable rules relating to personal property securities and, in fact, has turned transactions that were not previously considered personal property securities into security interests governed by the Act. The case law that has developed reveals some of the difficulties faced by those subject to the regime, but also provides helpful interpretation of some of the PPSA's significant provisions. Some of these cases are discussed briefly below. MODELLED ON LEGISLATION IN NEW ZEALAND AND CANADA The Replacement Explanatory

Memorandum5 verifies that the PPSA was modelled on New Zealand and Canadian legislation. While it is natural to look to the experience in these jurisdictions for guidance, this has not been without some controversy which arose prior to the coming forth of Australian court decisions.6 Nevertheless, Australian courts have so far consistently looked to Canadian and New Zealand precedent in interpreting the PPSA. In Maiden Civil v Queensland Excavation7, the first significant case dealing with the PPSA, Brereton J stated: The Commonwealth Parliament, in enacting legislation that was modelled on the New Zealand and Canadian legislation, should be taken to have intended the same approach, which was by then well-established in Canada and New Zealand to apply.8 Master Sanderson of the Supreme Court of Western Australia in Re Arcabi Pty Ltd9 also recognised that the PPSA is recent legislation with virtually no relevant Australian authority on the statute. He referred to Brereton J's comments in Maiden Civil and endorsed the approach of the plaintiffs in relying heavily on New Zealand and Canadian decisions in relation to equivalent provisions of the Australian PPSA. WHAT IS A SECURITY INTEREST? The central concept in the PPSA is the security interest. The definition is very broad - any interest in personal property provided for by a transaction that in substance secures payment or performance of an obligation.10 The broad, substance-styled definition has created difficulties in determining whether or not a transaction does in fact create an interest that secures payment or performance of an obligation. The PPSA also deems other interests to be security interests for the purposes of the PPSA even though they do not secure payment or performance of an obligation.11 These include a "PPS

lease" and a "commercial consignment". Australian courts have been called upon to determine whether a particular type of transaction does create a security interest and is, therefore, subject to the PPSA. In Sandhurst Golf Estates Pty Ltd, Re12, the Court considered whether the defendant's claim for 10% of the shares of a company constituted a security interest under the PPSA. The defendant alleged that the plaintiff had agreed to provide the shares but failed to do so. The defendant registered a financing statement against the plaintiff on the PPSR in an attempt to protect its interest in the shares. The Court found that an interest will not be a PPSA security interest unless the transaction that creates the interest is consensual. No evidence was put forth of any such transaction. The defendant's claim to the shares was based on obtaining equitable relief from a court which does not create a security interest for the purposes of the PPSA. The Supreme Court of Western Australia in White v Spiers Earthworks Pty Ltd13 dealt with whether an equipment hire arrangement created a security interest for the purposes of the PPSA. In that case, the hirer failed to register its interest on the PPSR with the result that the receivers and managers of the equipment-hiring company claimed that the hirer's interest vested in the company under s267 of the PPSA. The Court found that the hire arrangement did create a security interest with analysis centring on the facts that the hire arrangement contemplated the lessee becoming the owner of the equipment and that the total amount payable for the hire of the equipment was an amount equal to the agreed market value of the equipment. The decision in Re Arcabi Pty Ltd,14 dealt with an insolvent company (Arcabi) that had been engaged in the business of storing and selling rare coins whereby title to certain of the coins was held by 'investors' rather than Arcabi itself. The issues were whether the storage 13


Katrina Banks-Smith SC, Barrister, Francis Burt Chambers; Linda Widdup, Lecturer, Curtin Law School; and The Hon Justice Andrew Beech, Supreme Court of Western Australia – Law Summer School 2016.

and consignment of coins created security interests subject to the PPSA. Master Sanderson concluded that the consignments were not in-substance security interests, but then considered whether they were deemed security interests falling within the definition of "commercial consignments". The definition excludes any arrangement where the consignee (in this case Arcabi) is generally known to its creditors to be selling or leasing goods owned by others and the Court found that this exclusion applied so the consignments were not subject to the PPSA. The Court also looked at whether any storage arrangements were bailments that in substance secured payment or performance of an obligation. Master Sanderson endorsed the receivers' position that the arrangements for storing the coins did not create any interest in favour of Arcabi that secured payment or performance of an obligation. Master Sanderson then looked at whether the bailments were PPS leases, an element of which requires that the bailor be regularly engaged in the business of bailing goods. The Court found that the words "in the business of bailing goods" should be read as requiring that the owner (that is, the bailor) be intending to profit from the bailment itself and would, therefore, exclude bailments in respect of which the bailor did not receive consideration with a view to profit. In this case, the bailors were in the business of profiting from the exchange of rare coins rather than from the bailment itself so the arrangement was not a security interest. The meaning of "regularly engaged in the business of leasing goods" in the definition of PPS lease was central in Forge Group Power Pty Limited (in liquidation) (receivers and managers appointed) v General Electric International Inc.15 General Electric International Inc (GE) leased four mobile gas turbine generators to Forge Group Power Pty Ltd (Forge) each for a term of more than a year. GE failed to register the leases on the PPSR. Forge appointed voluntary administrators and then went into liquidation. Forge claimed the turbines on the basis that GE's security interests 14 | BRIEF APRIL 2016

vested in Forge under s267 of the PPSA because they weren't registered on the PPSR upon the date of administration. In an attempt to reclaim the turbines, GE argued its failure to register did not matter because it was not regularly engaged in the business of leasing goods. GE conceded it regularly engaged in the business of leasing goods internationally, but submitted that it did not do so in Australia because it sold its power generation rental business after entering into the leases with Forge. GE argued that the test as to whether it was regularly engaged in the business of leasing should be applied either when Forge received possession of the turbines or when the administrators were appointed, both of which times occurred after the sale of GE's rental business. The Court found that despite the sale of the rental business, GE was regularly engaged in the business of leasing goods for the purposes of the PPSA. Not only did the definition of PPS lease place no geographic limitation on applying the "regularly engaged in business" test, but the test applies at the time the lease was entered into which predated the sale of the rental business. The Court held that at all material times, GE was regularly engaged in the business of leasing goods. The Victoria Court of Appeal in Dura (Australia) Constructions Pty Ltd (in liq) (receivers and managers appointed) v Hue Boutique Living Pty Ltd16 dealt with whether funds paid into an account pursuant to a court order gave rise to security interests under the PPSA. A judgment debtor paid $1,000,000 into an interest bearing account to stay the execution of a judgment debt pending the hearing of an appeal. The Court found that the judgment creditor did acquire a charge over the funds once paid into the account. However, it could not be a PPSA security interest because the interest arose from the judgment debtor complying with a court order rather than from a consensual transaction. The decision of the Supreme Court of New South Wales in Thomson v Golden Destiny Investments Pty Limited17 dealt with whether PPSA security interests

existed in funds paid into court. The Court ordered funds to be paid into court consequent upon the settlement of the sale of certain properties. Various parties claimed the funds on the basis that they had charges over them. The Court found that the charges arose by operation of law and equitable principles and, therefore, are not subject to the PPSA because they are expressly excluded by section 8(1)(c) which provides that the PPSA does not apply to "a lien, charge, or any other interest in personal property, that is created, arises or is provided for by operation of the general law". ENFORCEABILITY AND PERFECTION OF SECURITY INTERESTS Other provisions that have been interpreted by the courts involve whether or not a security interest satisfies the PPSA's requirements for enforceability and perfection. With respect to enforceability, the courts have considered whether a security is enforceable against third parties in accordance with section 20. To be enforceable against third parties, the security interest must be attached and, unless the secured party possesses or takes control of the collateral, the security agreement that provides for the security interest must "cover the collateral". A security agreement covers the collateral if the security agreement is evidenced in writing and the writing contains a description of the collateral. The writing must also be either signed by the grantor or, alternatively, adopted or accepted by the grantor by an act, or omission, that reasonably appears to be done with the intention of adopting or accepting the writing. In Carrafa, Goutzos & Lofthouse (as liquidators of Relux Commercial Pty Ltd (in liq) & Anor v Doka Formwork Pty Ltd18, the Supreme Court of Victoria considered that a series of orders placed by the grantor and invoices raised by the secured party constituted writing for the purposes of section 20. Several of the orders were signed by the operations manager either by hand or by virtue of his email signature. While the Court considered that this was a signing for the purposes of section 20(3) which sets out the methods of signing that satisfy the signing requirement, it also held that the security agreement was adopted or accepted by the secured party by its conduct of "taking delivery of, using and retaining the relevant" equipment. In Re Gelpack Enterprises Pty Ltd (in liq), it was alleged that the terms and conditions containing the security interest were not "signed by the grantor" because they were signed by a person who potentially was not an authorised person who could bind the grantor company. Although


Brereton J found that the signature was a signature by the grantor, he also found that Gelpack's conduct in continuing to place orders after the terms and conditions were signed was an act that reasonably appears to have been done with the intention of adopting or accepting the writing. Therefore, the requirements of section 20 were satisfied. The factual situation was much more complicated in Citadel Financial Corporation Pty Limited v Elite Highrise Services Pty Limited (No 3).19 In that case, Citadel issued to Elite a tax invoice dated on or about 9 August 2013 in respect of scaffolding previously delivered to Elite, which invoice included a retention of title clause and other clauses purporting to grant a security interest in the scaffolding. The invoice was not signed by Elite, the grantor. Citadel argued that the invoice had been adopted or accepted by Elite by reason of a number of emails passing between Citadel and Elite in June 2013 and, therefore, the requirements of section 20 were satisfied. The Court disagreed noting that the emails predated the 'writing' which was the tax invoice issued on or about 9 August 2013 so the email exchange could not be said to have adopted or accepted the writing. In Pozzebon (Trustee) v Australian Gaming and Entertainment Ltd, in the matter of Australian Gaming and Entertainment Ltd (in liq)20, the Court addressed the requirements of perfection in section 21. This case is important because it clarifies that attachment and enforceability are "mandatory prerequisites to the perfection of a security interest" and that all the elements of section 21(1)(b) must be satisfied to perfect a security interest. A registration without attachment or enforceability cannot perfect a security interest. REGISTRATION ISSUES Section 164 states that a registration will be ineffective if it contains a seriously

misleading defect in any data relating to the registration or a specific defect mentioned in section 165.21 In Future Revelation v Medica Radiology,22 the registration at issue contained a defect whereby the secured party details were registered with the ACN of the trustee of a trust rather than the ABN of the trust as required by the regulations. This issue was whether this defect was seriously misleading under section 164 which would render the registration ineffective. Brereton J held that a defect in a registration is a "seriously misleading" defect only if it results in the registration not being disclosed in a search. In this case, Brereton J noted that "there is no facility to search by reference to the identity of the secured party" and, therefore, this was not a seriously misleading error. The recent decision in Interleasing (Australia) Limited v Tieman Industries (in liq)23 dealt with a situation where the registrant registered against the incorrect grantor details which, unlike the secured party details, are searchable. Interleasing leased vehicles to Tieman which gave rise to security interests under the PPSA. Interleasing registered against the ACN of Tieman Industries Pty Ltd which was the trustee of the Tieman Unit Trust. The liquidators alleged that the registrations should have been registered against the ABN of the trust. Leave was granted to Interleasing to bring proceedings to determine whether Tieman contracted with Interleasing in its own capacity, in which case the registrations would be effective, or in its capacity as trustee of the trust, in which case the registrations would be ineffective. CONCLUSION The Final Report indicates that the PPSA and the PPSR have presented various challenges. These include interpreting the new concepts introduced by the legislation and dealing with the innovative new registration system. Nevertheless,

many of the decisions from the courts provide thoughtful analysis and helpful guidance for those of us dealing with the PPSR regime. NOTES *Lecturer, Department of Law, Curtin Law School, Lawyer and Consultant, admitted as a Barrister & Solicitor of the Supreme Court of Western Australia, the High Court of New Zealand and the Law Society of Saskatchewan, Canada. 1.

The PPSA came into force on 30 January 2012.

2.

PPSA s3.

3.

Attorney-General's Department, Review of the Personal Property Securities Act -- Final Report, 18 March 2015. The Final Report is available at: www.ag.gov.au/Consultations/Pages/ StatutoryreviewofthePersonalPropertySecuritiesAct2009. aspx.

4.

Ibid.

5.

Replacement Explanatory Memorandum, Personal Property Securities Bill 2009 (Cth) at 11.

6.

See Linda Widdup, "Operating leases as second-tier security interests: A continuing case for nemo dat under the Personal Property Securities Act 2009 (Cth) (2013) 22 Australian Property Law Journal 114 referencing Bruce Whittaker, 'Dealings in Collateral under the Personal Property Securities Act 2009 (Cth) – In Search of a "Harmonious Whole"' (paper presented at the conference Personal Property Securities Law: Local and Global Perspectives in Adelaide 20-21 February 2013) who refers to respectively, Giles R, 'Aspects of Interpretation of the Personal Property Securities Act 2009'; Lindgren K, 'PPSA – what will the courts make of it all' (papers presented at the 29th Annual Conference of the Banking and Financial Services Law Association, Queenstown, New Zealand 4-6 August 2012).

7.

Maiden Civil (P&E) Pty Ltd, Re; Albarran v Queensland Excavation Services Pty Ltd [2013] NSWSC 852.

8.

Ibid para 32.

9.

Arcabi Pty Ltd (Receivers & Managers Appointed) (in liq), Re; Ex p Theobald & Herbert [2014] WASC 310.

10.

PPSA s12(1).

11.

PPSA s12(3).

12.

[2014] VSC 217.

13.

[2014] WASC 139.

14.

Arcabi Pty Ltd (Receivers & Managers Appointed) (in liq), Re; Ex p Theobald & Herbert [2014] WASC 310.

15.

[2016] NSWSC 52.

16.

[2014] VSCA 326.

17.

[2015] NSWSC 1929.

18.

[2014] VSC 570.

19.

[2014] NSWSC 1926.

20.

[2014] FCA 1034.

21.

These defects include errors in a serial number or grantor details required to be included in a registered financing statement if a search on the serial number or grantor detail is not capable of disclosing the registration.

22.

Future Revelation Ltd v Medica Radiology & Nuclear Medicine Pty Ltd [2013] NSWSC 1741.

23.

[2015] FCA 1120.

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- Plenary Session: Legal Ethics in the Digital Age: the Same, but Different Presentation: "A Duty to Google? Ethical Issues arising from Emerging Technology." Summary of presentation Jacinta Dharmananda Assistant Professor, Law School, University of Western Australia

INTRODUCTION In the United States, there is a wide discussion among legal practitioners and academics taking place about how the legal profession has "finally hit the tipping point with respect to the use of technology."1 That is, the prevailing argument appears to be that technology is becoming such an integral part of an efficient and effective practice, that lawyers can no longer be permitted to assert ignorance of technological practices if those practices are pertinent to, or have consequences for, meeting their ethical duties. In contrast, in Australia a discussion about how legal professional conduct 16 | BRIEF APRIL 2016

is affected by technology is still in the early stages. Some regulators, as will be seen below, have issued guidelines or statements about ethical duties in the context of specific technology, such as cloud computing or social media sites. Given the now almost omnipresent existence of technology, a broader discussion on how technology has an impact on the ethical duties of Australian lawyers seems due. In Western Australia, the main sources of lawyers' ethical duties are legislation - the Legal Profession Act 2008 (WA) (LPA) and the Legal Profession Conduct Rules 2010 (WA)) (LPCR) - and case law, supplemented by numerous other guides and non-binding documents.2

The LPCR and each respective State's conduct rules, "serve as a standard of conduct in disciplinary proceedings, as a guide for action in a specific case, and as a demonstration of the profession's commitment to integrity and public service."3 These professional responsibilities are typically defined by "a 'duty matrix' – a concurrent set of duties owed by the legal practitioner to each of the client, the court and the administration of justice, and to other practitioners."4 If conflicts arise between these duties, the practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty, including the duty to the client.5


The question then is how the capabilities offered by current, and future, technologies affect or 'disrupt'6 the standard of practice expected of the legal profession in the performance of its duties. This is about a "matter of degree rather than overhauls of the actual substance of the rules."7 What has changed, and continues to change, is the conduct expected of lawyers to meet the standard of those already well established duties. In this context, this presentation will address three key aspects of ethical duties that are pertinent in the digital age – competence, confidentiality and communication. COMPETENCE The concept of an ethical duty of competence is one that has emerged in recent times. There was a time when 'competence' was not regarded as an ethical issue.8 In Australia, it is now provided in legislation that an Australian legal practitioner has a duty to deliver legal services "competently" and diligently.9 Although there is no exhaustive definition of 'competence' in legal ethics,10 it is clear that there is more to 'competence' than knowledge of the law and technical skill. Commentators have suggested that as well as knowledge, competence encompasses analytical abilities, efficiency, oral and written skills, problem solving, preparation and capability.11 The idea of professional competence has been stated to be "both a minimum standard and a constantly shifting one"12 that must be assessed by reference to the appropriate conduct in any given situation.13 This approach seems supported by Australian legislation which describes appropriate conduct as the standard that a member of the public is entitled to expect of a 'reasonably' competent Australian legal practitioner.14 What therefore constitutes 'reasonably'

competent conduct is dependent upon a multitude of circumstances. In the United States, the American Bar Association (ABA) has developed the Model Rules of Professional Conduct which serve as models for the ethics rules of nearly all US states.15 The Rules have a similar concept of competence to Australia. Model Rule 1.1 provides: Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. In 2009, the ABA created the 'Commission on Ethics 20/20' to "perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments."16 The Model Rules have accompanying 'Comments' which address the Rules. In 2012, pursuant to a recommendation from the 20/20 Commission, the ABA resolved to amend, among other things, paragraph 8 of the Comments on Model Rule 1.1 to read (amendment underlined): Maintaining Competence

of basic features of technology."18 Accordingly, they said, although the Comment already implicitly encompassed an obligation to remain aware of changes in technology that affect law practice,19 the Commission concluded that they needed to make the amendment to make this explicit and to "offer greater clarity in this area and emphasise the importance of technology to modern law practice."20 Despite the Commission's assertion that there was no 'new' duty, the amendment has been regarded as a significant development in ethical discourse, leading to an avalanche of academic and practitioner discussion in the U.S.21 The prevailing opinion appears to be that: "No longer may we treat technology questions as the exclusive province of techies and early adopters.... the proper use of technological advances is part of an attorney's duty of competence."22 In this context, following are some areas which have dominated the discussion about 'competency.' a) Keeping up to date with technology – in order to stay abreast of changes in the law and legal practice, lawyers must have a basic understanding of current technology that facilitates the delivery of legal services.23 b) Competent online research:

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.17 In its Report accompanying the Resolution for the amendment, the Commission stated that 'competent lawyers' must have "some awareness

i.

Information from social media - lawyers are at risk of not being regarded as competent if "they ignore all-pervasive social networking platforms like Facebook and Twitter and the utility they offer"24 including information that can be obtained from social media25 (though note that in Australia, such information may be subject to restrictions imposed by the Australian Privacy Principles.26)

ii.

Computer assisted legal

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17


services in today's environment without knowing how to use email or create an electronic document."38 f)

Understanding what metadata is, its potential39 and how to get rid of it.40

g) Courtroom Technology - developing expectation of competence in certain technologies in court such as: i.

presentation of evidence,

ii.

assistive technology for individuals with disabilities, and

iii.

teleconferencing and videoconferencing.41

Effectiveness, cost efficiency and consumer practice are key factors for what constitutes reasonably competent legal practice in the context of technology. Joshua Thomson SC, Barrister, Francis Burt Chambers and Jacinta Dharmananda, Assistant Professor, Law School, University of Western Australia.

" ...the rules of professional conduct apply equally to...activities on social networking sites...as they ordinarily do in other aspects of...day to day professional and personal lives." research and online due diligence investigations – competency in online research, including readily available databases, 27 and a "duty to Google."28

that lawyer's practice, the lawyer should either hire tech-savvy lawyers tasked with responsibility to keep current, or hire an outside technology consultant who understands the practice of law and associated ethical constraints.'"33

c) E-Discovery: i.

A "sound grasp of e-discovery has become a necessity."29

ii.

The California State Bar's Standing Committee for Professional Responsibility and Conduct recently issued a Formal Opinion identifying nine key e-discovery skills required to achieve e-discovery technological competence30 "even where the attorney may be otherwise highly experienced."31 These include skills assessing needs, implementing preservation procedures, analysing the client's systems and storage, effective quality controlled data searches, maintaining the integrity of the information, and production in an appropriate manner.32 "Professed technological incompetence is not an excuse for discovery misconduct... '[I]f a lawyer cannot master the technology suitable for

18 | BRIEF APRIL 2016

iii.

This competency may include familiarity with the benefits and risks associated with predictive coding (versus key word searches).34

iv.

Even if relying on someone with the expertise to assist, the lawyer remains at all times responsible for supervision of the expert, as it is the lawyer "who remains the one primarily answerable to the court."35

d) Implementing technology that facilitates the delivery of legal services, such as automated document assembly, expert systems, knowledge management, legal analytics and virtual legal services.36 e) Understanding and using appropriately well-established technologies such as email, word processing, spreadsheets and PDF software.37 "For example, a lawyer would have difficulty providing competent legal

CONFIDENTIALITY The law "jealously guards the confidentiality inherent in the lawyerclient relationship."42 As part of a lawyer's ethical duties, he has an obligation not to disclose 'client information' to another person,43 client information being "information confidential to a client of which a practitioner becomes aware in the course of providing legal services to the client."44 Incidental to this is the requirement that lawyers take reasonable steps to safeguard that information. The increasing use of technology means that for lawyers to comply with this duty they must be aware of, and competently manage, the risks of inadvertent disclosure of client information.45 To discharge the ethical obligations of confidentiality, it is argued that lawyers "must implement adequate administrative, technical and physical safeguards to protect client information."46 In the United States, the ABA has published an extensive working handbook to guide American lawyers on this subject.47 Australia has yet to produce an equivalent comprehensive guide for lawyers, although there are some materials produced by individual practitioners attempting to provide general guidance.48 International and Australian commentary identifies the following as key areas of weakness for security lapses. Mobile devices "...the phone call you take on the bus, the emails you are checking on the train, the document you work on while on a plane, the negotiation you complete in a taxi, or the spreadsheet you finalise at the


airport."49 Practitioners must be aware of the inherent risks of using mobile devices.50 Further, they must take appropriate measures to secure their devices in the event of them being lost or stolen (such as through encryption, strong passwords and biometrics, parental controls, multifactor authentication, back up, remote data wipe, and location tracking controls).51 Data Security In a 2014 cybersecurity resolution, the ABA stated that the threat of cyberattacks against law firms is growing and that law firms are facing unprecedented challenges from the widespread use of electronic records and mobile devices.52 This threat on client trust funds and client information has received increasing attention in Australian legal media too.53 Understanding and managing risk to data is not only a matter of confidentiality, but also of professional competence.54 Following are some areas of risk: a) Cloud computing – most lawyers use some sort of cloud computing and this is an area that has received particular attention by Australian regulators. In August 2015, a new section 16 on cloud computing was

added to the Law Society of Western Australia's Ethical and Practice Guidelines. The section contains numerous observations about the use of cloud computing including the risks, potential for third party access (and therefore breach of confidentiality or legal professional privilege waiver) and suggestions for what lawyers need to understand.55 b) Public Wi-Fi - Legal practitioners should understand the inherent risk of disclosure to, or access by, third parties through use of a public wireless network.56 A Formal Opinion given by the State Bar of California Standing Committee on Professional Responsibility and Conduct has stated that the use of a public wireless connection without using precautions, such as encryption or a personal firewall, risks violating the attorney's duties of confidentiality and competence because most public wireless access locations lack adequate security.57 c) Email - Lawyers in Australia typically rely on confidentiality statements in outgoing emails to safeguard the confidential status of email communications. However, the increasing availability and

affordability of security measures, such as encryption, have led some commentators to suggest that the prudent lawyer would utilise these measures.58 In the United States, some ethics committees also note that emails of a highly sensitive nature require heightened security measures.59 Social Media "By definition, there can be little privacy on a social networking website.... Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets."60 To date, the ethical use of social media platforms seems to have been the area that has attracted the most attention of regulators and commentators in Australia, especially with respect to the risks to confidentiality.61 In Western Australia, a new section 15 on 'Use of Social Media' was added to the Law Society's Ethical and Practice Guidelines in 2015. It contains guidance on ethical responsibilities relating to some aspects of social media. According to Dal Pont, risks to violating the ethical duty of confidentiality (and to compromising legal professional privilege) primarily arise from:62

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a) lawyers inadvertently or otherwise posting material or incorporating information on a social website (such as by descriptions of work or current court proceedings, photographs, opinions of clients, importation of contacts, location services, tagging) or connecting with a client on social media, and b) clients being inadequately advised by lawyers about the risks of posting information relating to a matter. Lawyers should fully understand the machinations and implications of the social media site that they use. Risks exist even where the social media account is set to 'private.'63 First, the existence of other 'friends' or 'followers' means that posted information extends beyond the lawyer-client relationship.64 Secondly, a practitioner has little control over the dissemination of material once it is posted as a user cannot control another user's actions (such as screenshots, re-tweets, and sharing), nor control the ability of the site provider to change privacy settings.65 COMMUNICATION " ...the rules of professional conduct apply equally to...activities on social networking sites...as they ordinarily do in other aspects of...day to day professional and personal lives."66 As seen with the duty of confidentiality above, online activities are not quarantined from ethical duties. Examples include: a) Reputation of the profession - LPCR 6(2) provides that a legal practitioner must not engage in conduct that... (b) may be prejudicial to, or diminish public confidence in, the

20 | BRIEF APRIL 2016

administration of justice; or (c) may bring the profession into disrepute. While this duty applies with respect to any sort of conduct, the informal nature of many social media platforms and the instantaneous nature of electronic communication (such as emails) means that lawyers must be particularly vigilant when using these mediums that they do not say or post anything which may bring the profession into disrepute,67 including comments about the court or judicial officers. Similarly, if a lawyer's personal page reflects poorly on their character or respect for the profession or the justice system, that may have disciplinary consequences.68 b) Courtesy - LPCR 6(1) provides that a practitioner must ...(b) be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client. This etiquette must be maintained in email communication69 and social media sites.70 c) Inadvertent client – The amount of information that can be placed on law firm websites and the interactive nature of many social media sites, means that practitioners must be careful not to inadvertently create a solicitor-client relationship.71 d) No contact rule – LPCR 37(4) provides that a practitioner must not confer or deal directly with an opponent who is represented by another practitioner, except in limited circumstances. There are ethical concerns when a practitioner 'connects' with or 'follows' a party represented by another practitioner

through social media (such as through a 'friend' request).72 e) Advertising – LPCR 45 provides that a practitioner must ensure that all advertising complies with certain conditions including that it must not be false, misleading or deceptive. If social media platforms or internet sites are used to promote the professional expertise of a lawyer then the rules relating to advertising, including testimonials73 (utilised by platforms such as LinkedIn) may apply.74 CONCLUDING POINTS This presentation focusses on three main aspects of how existing and developing technology has an impact on the ethical duties of Australian legal practitioners. First, where a particular technology has become ubiquitous or is regarded as integral to providing an efficient, cost effective and acceptable standard of legal service, then lawyers are expected to be competent in their understanding and use of that technology. Assertions of lack of proficiency are unlikely to succeed as an excuse for incompetency. For some lawyers, this may necessitate the engagement of an expert in that technology. However, this does not abrogate the professional responsibility of the lawyer. Secondly, practitioners must keep up to date with evolving technology to the extent that it has or is likely to have an impact on legal practice. That is, you need to know what you don't know. Finally, where a practitioner is already using certain technological tools as part of their legal practice, such as mobile phones, emails, Wi-Fi, social media and


cloud storage, they must remember that their professional responsibilities, which exist in a professional and personal capacity, apply equally in the use of these tools. It is incumbent upon the practitioner to understand and manage the ethical risks and responsibilities, such as the risks to the security of information, which arise from that use.

competence.html 23.

Andrew Perlman, "The Twenty First Century Lawyer's Evolving Ethical Duty of Competence" (2014) 22(4) The Professional Lawyer 1, 5.

24.

John G. Browning, "Keep Your "Friends" Close and Your Enemies Closer: Walking the Ethical Tightrope in the Use of Social Media" (2013) 3 St Mary's Journal on Legal Malpractice and Ethics 204, 239. See also Jan L. Jacobowitz and Danielle Singer, "The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law" (2014) 68 University of Miami Law Review 445; Patrick Shea, "Technology Competency: The Urgency to Clarify Comment 8 of Model Rule 1.1" (February 28, 2015) 28 (http://ssrn. com/abstract=2571719) where he notes that the New Hampshire Bar Association considers understanding social network and using it as an investigatory tool part of an attorney's duty of competence and diligence.

NOTES 1.

2.

3.

Catherine J. Lanctot, "Becoming a Competent 21st Century Legal Ethics Professor: Everything You Always Wanted to Know About Technology (But were afraid to ask)" (January 16, 2014), Journal of the Professional Lawyer, Villanova Law/Public Policy Research Paper No. 2015-1001. Available at http://ssrn.com/ abstract=2550983 , 2. For example, The Law Society of Western Australia, Ethical and Practice Guidelines (25 August 2015) and Western Australian Bar Association, Western Australian Barristers' Rules (30 October 2013). Dal Pont "What are Rules of Professional Conduct For?" [1996] NZLJ 254, 256-266 cited in GE Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) 27. See also Legal Profession Act 2008 (WA) s401.

4.

Ainslie Lamb, John Littrich and Karina Murray, Lawyers in Australia (Federation Press, 3rd ed, 2015), 206.

5.

Legal Profession Conduct Rules 2010 (WA), R5.

6.

The term 'disruptive technology' is generally regarded as first being used in Joseph L Bower and Clayton M. Christensen, (1999) "Disruptive Technologies: Catching the Wave" (Jan–Feb 1995) Harvard Business Review 43.

7.

8.

James Podgers, "You Don't Need Perfect Tech Knowhow for Ethics' Sake—But a Reasonable Grasp Is Essential", ABA Journal (Annual Meeting, August 9, 2014). http://www.abajournal.com/news/article/you_ dont_need_perfect_tech_knowhow_for_ethics_sake-but_a_reasonable_grasp Lamb, above n 4, 283; Ysaiah Ross, Ethics in Law: Lawyers' Responsibility and Accountability in Australia (LexisNexis, 6th ed, 2014), 287.

47.

Rhodes and Polley, ibid.

48.

For example, see Philippe Doyle Gray, "The Pillars of Digital Security" [2014] (Summer) Bar News: The Journal of the New South Wales Bar Association 46 and Andrew Smyth, "Essential Computer Security for Law Firms" (2013, Companion Paper to Presentation). Available from the Queensland Law Society website.

49.

Mark Andrews, "Planes, Trains and Buses - How Security can Quickly go off the Rails" (Dec 2015 edition) Australasian Law Management Journal (Law Council of Australia, Legal Practice Section) 1.

50.

Ibid.

51.

See Wendy F Inge, "Lawyer's Duty of Confidentiality and Securing your Smartphone and Handheld Device" (2012) 61 Virginia Lawyer 50; Perlman, above n 23, 2; Bana and Hertzberg, above n 46, 258; Gray, above n48.

52.

Timothy J. Toohey, "Beyond Technophobia: Lawyers' Ethical and Legal Obligations to Monitor Evolving Technology and Security Risks", (2015) 21 Richmond Journal of Law and Technology 9, 11 citing Judith Miller and Harvey Rishikof, ABA, Cybersecurity Legal Task Force Section of Science and Technology Law Report to the House of Delegates 4 (2014).

53.

Example: Stefanie Garber, "Lawyers vulnerable to hacker extortion", Lawyers Weekly (15 October 2015) http://www.lawyersweekly.com.au/news/17323lawyers-vulnerable-to-hacker-extortion.

54.

David Bowles, "Ethics and Protection of Confidentiality in a Digital World" (Practice Note of Queensland Law Society, 8 January 2015).

55.

See also Christine Parker and Adrian Evans, Inside Lawyers' Ethics (Cambridge UP, 2nd ed, 2014) 104-105.

56.

Perlman, above n 23, 2; Toohey, above n 52, 17-22.

57.

The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2010-179, 7.

58.

JE Arden, "Predictive Ethics: What Can we Expect by 20/20?" (2014) 31 GPSolo 78-79; Perlman, above n23, 2; Toohey, above n52, 46.

59.

Kristin J. Hazelwood, "Technology and Client Communications: Preparing Law Students and New Lawyers to Make Choices That Comply with the Ethical Duties of Confidentiality, Competence, and Communication" (2014) 83 Mississippi Law Journal 245, 262.

60.

Browning, above n24, 222 citing the court in the Californian case of Lenz v. Universal Music Corp., No. 5:07-cv-03783 JF (PVT), 2010 WL 4789099, 9-10 (N.D. Cal. Nov. 17, 2010).

61.

Dal Pont, Lawyers' Professional Responsibility, above n3, 352; Marilyn Krawitz, "May it tweet the court: Ethical considerations involving Australian lawyers' Social Media Use" (2013) 2 Journal of Civil Litigation and Practice 85; Laurie Levy SC, "Emails, Facebook and Lawyers" (2014) Brief (July issue) 25; Victorian Bar Inc., Ethics Committee, Bulletin No 2 of 2010; Law Institute of Victoria, "Guidelines on the Ethical Use of Social Media" (29 November 2012); NSW Law Society of NSW Legal Technology Committee, "Guidelines on Social Media Policies" (March 2012). Also useful is another ABA publication - Christina Vassiliou Harvey, Mac R. McCoy, and Brook Sneath, "10 Tips for Avoiding Ethical Lapses when Using Social Media" (2014) Business Law Today (January) http://www.americanbar.org/publications/ blt/2014/01/03_harvey.html

62.

Dal Pont, Lawyers' Professional Responsibility, above n3, 352.

63.

Browning, above n 24, 221 - 222.

64.

Dal Pont, Lawyers' Professional Responsibility, above n3, 352.

Perlman, above n 23, 2. There are significant ethical issues raised in relation to metada itself: see Lanctot, above n 1, 22 who cites numerous sources (footnote 67).

65.

Browning, above n24, 221; Krawitz, above n 61, 87.

66.

Victorian Bar Inc., above n61, cl.1.

67.

Law Institute of Victoria, above n 61, 1.

See Amy Salzyn, "Courtroom Technology Competence as a Lawyer's Ethical Duty: What should regulators do about it?" (December 1, 2015), eAccess to Justice, Benyehklef, Bailey, Burkell and Gelinas (eds), uOttawa Press, 2016, 2-3 who cites various examples. Available at SSRN http://ssrn.com/abstract=2697796

68.

Dal Pont, Lawyers' Professional Responsibility, above n3, 634.

69.

Levy, above n 61, 27 referring to the decision of LPCC v in de Braekt [2013] WASC 124.

70.

Krawitz, above n 61, 95; Gino Dal Pont, "The Social Networker" (2011) Brief (August issue), 8.

71.

Law Institute of Victoria, above n61, 1; Harvey, above n 61, 3-4; Krawitz, above n61, 91-93.

72.

Lanctot, above n 1, 34-35.

73.

The Law Society of Western Australia, Ethical and Practice Guidelines, above n2, section 12.9.

74.

Dal Pont, Lawyers' Professional Responsibility, above n3, 634.

25.

See Benjamin P Cooper, "Social Media and the Lawyer's Evolving Duty of Technological Competence" (2014) 17 Legal Ethics 463. See also the papers by each of Carmel Galati and Rick O'Brien from the 2016 Law Summer School 3C Concurrent session "Social Media and Its Impact on Civil Litigation."

26.

Made pursuant to the Privacy Act 1988 (Cth). See the Law Society of Western Australia, Ethical and Practice Guidelines, above n2, Section 15.2.3.

27.

Browning, above n24, 213-214 cites a 2010 Missouri Supreme Court case where the Court held there was a duty of a lawyer to search a particular online document database. See also Darla W. Jackson, "Can Lawyers be Luddites? Adjusting to the Modification of the ABA Model Rules of Professional Conduct Regarding Technology" (2013) 84 Oklahoma Bar Journal 2637, 2638.

28.

Browning, above n24, 212; Lanctot, above n1, 8.

29.

Perlman, above n 23, 3. For an example, see H Christopher Boehning and Daniel J Toal, "E-Discovery Competence of Counsel Criticized in Sanctions Decision" (6 October 2015) 254(67) New York Law Journal 5.

30.

The State Bar of California Standing Committee on Professional Responsibility and Conduct, "What are an attorney's ethical duties in the handling of discovery of electronically stored information?" (Formal Opinion No 2015-193).

31.

Ibid, 7.

32.

For a discussion of the nine skills see Hon. Joy Flowers Conti and Richard N. Lettieri, "E-Discovery Ethics: Emerging Standards of Technological Competence" (October/November 2015) The Federal Lawyer 28.

33.

James v National Financial LLC (2014) De Ch Ct. (Court of Chancery of the State of Delaware - C.A. No. 8931VCL), 25 citing Judith L. Maute, "Facing 21st Century Realities," (2013) 32 Mississippi College Law Review 345, 369.

9.

LPCR 6(1)(c).

10.

Paula Baron and Lillian Corbin, Ethics and Legal Professionalism in Australia (Oxford University Press, 2014), 158.

11.

See Dal Pont, Lawyers' Professional Responsibility, above n 3, 110; Lamb, above n 4, 284-285; Baron, ibid, 158-162.

12.

Neil Gold, "Reconceiving Professional Competence" (1992) 10 Journal of Professional Legal Education 135, 141.

34.

Benjamin P Cooper, "Predictive Coding and the Changing Legal Marketplace" (2014) 16(2) Legal Ethics 380.

13.

Leary Davis, "Competence as Situationally Appropriate Conduct: An Overarching Concept for Lawyering, Leadership and Professionalism" (2012) 52 Santa Clara Law Review 725, 790.

35.

California Formal Opinion, above n30, 5. As Australian practitioners are officers of the court, a similar approach is likely to prevail here (Legal Profession Act 2008 (WA) s41).

14.

Legal Profession Act 2008 (WA) ss402 and 403.

36.

Perlman, above n 23, 5.

15.

According to the ABA website, only California does not have professional conduct rules that follow the format of the ABA Model Rules of Professional Conduct. http://www.americanbar.org/groups/professional_ responsibility/publications/model_rules_of_professional_ conduct.html

37.

Ibid; Lanctot, above n1, 10-11. See the client who required law firms to undertake a technology test: http:// www.abajournal.com/legalrebels/article/could_you_ pass_this_in-house_counsels_tech_test

38.

ABA Report, above n 18, 3.

16.

See: http://www.americanbar.org/groups/professional_ responsibility/aba_commission_on_ethics_20_20.html

39.

17.

American Bar Association, Resolution – Technology and Confidentiality (105A, August 2012) 3. Note that the amendment to the Comments was originally made to paragraph [6], but subsequent insertions of new paragraphs resulted in paragraph [6] becoming paragraph [8].

Pursuant to other recommendations made by the ABA 20/20 Commission, in 2012 the ABA also made changes to the Model Rules to specifically recognize metadata. For commentary on this, see Ronald D Rotunda, "Applying the Revised ABA Model Rules in the Age of the Internet: The Problem of Metadata" (2013) 42 Hofstra Law Review 175.

18. 19.

40.

American Bar Association, Report – Technology and Confidentiality (105A, filed May 2012) 2. One academic argues that the amendments merely "articulate what change technology has already made." See James E. Moliterno, "Ethics 20/20 Successfully Achieved its Mission: It 'Protected, Preserved and Maintained'" (2014-2015) 47 Akron Law Review 149, 155.

41.

20.

American Bar Association, Report – Confidentiality and Technology (105A, filed May 2012) Report, 3.

42.

Dal Pont, Lawyers' Professional Responsibility, above n3, 117.

21.

The literature and commentary on this subject in the United States is considerable and an overview of all of it is beyond the scope of this presentation. This paper refers to select references only for illustrative purposes.

43.

LPCR 9; Prince Jefri Bolkiah v KPMG [1999] 2 AC 222.

44.

LPCR 9(1).

45.

John D. Comerford, "Competent Computing: A Lawyer's Ethical Duty To Safeguard the Confidentiality and Integrity of Client Information Stored on Computers and Computer Networks", (2006) 19 Georgetown Journal of Legal Ethics 629.

22.

Lanctot, above n1, 8-9 (footnotes omitted). As at December 2015, according to the following legal blog post, twenty US States had adopted the amendment to Comment 8: http://www.lawsitesblog.com/2015/12/ another-two-states-adopt-duty-of-technology-

46.

and the Legal Profession: Risks, Unique Challenges and Practical Considerations" (2015) 16 Business Law International 247, 252 citing Jill D Rhodes and Vincent I Polley (eds), The ABA Cybersecurity Handbook: A Resource for Attorneys, Law firms and Business Professionals (ABA Publishing, 2013) 64.

Anurag Bana and David Hertzberg, "Data Security

21


How technology will transform the work of human experts This article was first published in Law Council Review, Issue 13, December 2015.

Increasingly capable machines will transform the work of the legal profession within the next 20 years, according to Professor Richard Susskind OBE FRSE. Speaking via video-link at a World Masters Special Event in Sydney on 23 November 2015, Professor Susskind predicted that increasingly, legal services will be available online. 22 | BRIEF APRIL 2016

This will improve access to justice and the lives of many, provided expertise is shared and maintained in a collaborative spirit. He said that improving access to justice and the question, "How should society produce and distribute practical expertise?" motivated the writing of the book; The Future of the Professions. He warned that society faces significant and imminent moral questions about whether it will permit systems and

machines to be tightly controlled by information providers, with professional services continuing to be unaffordable for many, or whether we will transform our internet-based society to make services more widely accessible at low cost. In his view, the professions are on the brink of a radical transformation, with much professional knowledge able to be made readily accessible and understandable online.


"Professions are on the brink of a radical transformation, with much professional knowledge able to be made readily accessible and understandable online."

Professor Susskind summarised alternative models for the production and distribution of expertise as: the traditional, networked experts, paraprofessional, knowledge engineering, communities of experience, embedded knowledge and machine-generated. Two dominant trends in the division of labour in the professions include a greater use of non-expert people, and a reallocation of services away from the professions to machines. Professor Susskind identified four main developments in information technology (IT) over the last 50 years: an exponential growth in IT, increasingly capable machines, increasingly pervasive devices and increasingly connected humans. He said that by 2020 there may be 40 to 50 billion devices connected to the Internet, and that by 2050 'the average laptop will have more processing power than all of humanity combined'. This means that in future many more people should be able to access practical expertise online. "Already more people are signing up for Harvard University's on-line courses than have completed university since their establishment", he said. "New jobs will be created by new technologies, but over time they will also be replaced by machines, and the need for lawyers will decline", he said. Already intelligent search systems can outperform junior lawyers in predicting litigation outcomes from patent disputes using the Lex Machina service, to

machines predicting the outcome of US Supreme Court matters. While machines assist with completing routine tasks efficiently, they are less capable in terms of judgment, empathy, intuition and creativity. But affective technology is improving, with a growing use of robots and humanoids and improved cognitive capacities. New jobs will include moderators of online knowledge, legal risk managers, and new system providers. Continuing the themes explored in his earlier book, Tomorrow's Lawyers, Professor Susskind noted that the legal world will change in coming years more than it has over the last two centuries. In Australia and England already lawyers have lost their monopoly over legal work. More para-professionals are being employed and new fields of specialisation are emerging. Banks have entered the legal services market, as have new providers like legal process outsourcers, Integreon and Novus Law, and legal publishers such as Thomson Reuters. Intermediaries like tax advisers are also being replaced by online tax preparation software. Alternative business structures are emerging, like Axiom and other firms which offer legal services at lower fixed fees, and employ freelance lawyers on contract at lower cost. Flexible self-employment appeals to those seeking more autonomy and work-life balance, and who are willing to trade off permanent employment and a steady income.

Professor Susskind predicts that timebased billing will be replaced by fixed-fee services, and the traditional pyramidic structure of profitability will be replaced by a greater use of para-professionals and technology-based services. Legal tasks are being disaggregated, and offshoring and outsourcing routine and repetitive legal tasks is becoming increasingly common, as is the use of on-line legal collaboration tools amongst firms. Online communities of law firms and clients are also emerging, with problemsolving experiences being shared and the use of online dispute resolution services growing. Online reputation systems have rated lawyers for more than a decade. The Susskinds conducted 100 interviews with members of the legal and IT professions to inform the book. Professor Susskind's son, Daniel Susskind, a Lecturer in Economics at Oxford University, was the other coauthor. The Australian-based and owned IT firm Vintek, sponsored the event. Copies of the book can be purchased from the Law Council. Contact Hanna Jaireth: hanna.jaireth@lawcouncil.asn.au * The views expressed in opinion pieces are not necessarily those of the Law Council.

23


Homophobia within the law Curtis Ward YLC Committee Member

Western Australia is host to a vast and varied LGBTIQ community. It is home to both the oldest LGBTIQ friendly nightclub in the Southern Hemisphere (Connections Nightclub) and the oldest LGBTIQ community services group in the Southern Hemisphere (Living Proud), which opened their doors in 1975 and 1974, respectively.1 Therefore, it would be understandable if you thought that our state is progressive when it comes to LGBTIQ issues. However, jump forward 40 years and WA is certainly not as LGBTIQ friendly as it may have once seemed. Whilst being homosexual has never been a crime in Western Australia, or any other Australian state for that matter, engaging in homosexual relations was. The laws criminalising homosexual relations were not amended in Western Australian until 1989, an outstanding achievement in the progression of the state's views toward sexuality However, the amending Act's preamble read: ALL WHEREAS, the Parliament does not believe that sexual acts between consenting adults in private ought to be regulated by the criminal law; AND WHEREAS, the Parliament disapproves of sexual relations between persons of the same sex; AND WHEREAS, the Parliament disapproves of the promotion or encouragement of homosexual behaviour; AND WHEREAS, the Parliament does not by its action in removing any criminal penalty for sexual acts in private between persons of the same sex wish to create a change in community attitude to homosexual behaviour; AND WHEREAS, in particular the Parliament disapproves of persons with care supervision or authority over young persons urging them to adopt homosexuality as a lifestyle and disapproves of instrumentalities of the State so doing: Be it therefore enacted by the Parliament of Western Australia.2 Whilst relieving the LGBTIQ community of the criminal repercussions of being homosexual, the Law Reform (Decriminalisation of Sodomy) Act 1989 (WA) still did not bring the rights of the non-heterosexual members of our community into line with their heterosexual neighbours.

24 | BRIEF APRIL 2016

It was not until the enactment of the Acts Amendment (Lesbian and Gay Reform) Act 2002 (WA) that steps were taken to introduce equality amongst the sexualities. However that equality did not stretch to all areas of the law and provisions still exist today that grant people the right to legally discriminate against the LGBTIQ community.3 Notwithstanding these Acts, a number of Western Australians still bare the burden of having to disclose that they were once convicted of being a homosexual. It has been said that those affected by these convictions can rely on the protections afforded under the Spent Convictions Act 1988 (WA).4 However these 'protections' are flawed as there are still a number of circumstances in which these otherwise law abiding citizens are required to disclose their historical homosexual convictions.5 New South Wales6 and Victoria7 have both enacted schemes that allow those who have been wrongfully convicted of crimes based solely on their sexual orientation to have their convictions expunged. The ACT, Queensland and Tasmania have all said in the past 6 months that they would be looking to implementing similar schemes. However, Western Australia stands firm against enacting an expungement scheme, saying that "Blanket legislation to 'erase' such convictions is not practical and probably unnecessary".8 The issues relating to the criminality of being homosexual is just one example of homophobia within Western Australian laws and just one of the areas that are being addressed by other states and other countries. The most topical LGBTIQ issue is the matter of marriage equality. Under Commonwealth laws, same-sex couples are unable to marry, though in Western Australia they are recognised as de-facto. However, de-facto status does not afford them all of the benefits allowed under marriage laws. In 2001, the Netherlands became the first country to allow same sex marriages with several countries following suit shortly after. More recently England, Scotland and the United States have each amended their marriage laws, bringing about marriage equality within their jurisdictions.

In Western Australia the transgender population is still required to have surgery before being able to apply to have their officially recognised gender corrected. This is a costly exercise which many are unable to afford. Applicants must then undergo extensive and intrusive physical and psychological assessments in order to have the application approved. In 2015, Ireland enacted legislation allowing Transgender people to change their gender on official documents by means of self declaration alone. The question posed by the Young Lawyers Committee (YLC) is: "when will the Western Australian LGBTIQ community truly find equality within the law?" In addressing this question, the YLC has drafted a law reform submission on behalf of the Law Society seeking the enactment of a scheme to expunge historical homosexual convictions. To address the issues relating to access to justice, Law Access has created a LGBTIQ network, which provides a list of LGBTIQ friendly lawyers in Western Australian who are able to provide legal assistance to members of the LGBTIQ community in all areas of law. We encourage anyone interested in joining this network to contact Law Access for further information. Further, if you have found yourself intrigued by the topics raised in this article and would like to learn more, why not come along to the 2016 Law Week Panel Discussion hosted by the YLC, where this year we will be discussing the homophobia within our laws. You can register for the Panel Discussion online at lawsocietywa.asn.au. NOTES 1.

http://www.abc.net.au/news/2015-12-03/iconicperth-gay-nightclub-connections-celebrates-fourdecades-/6996312 and http://www.livingproud.org.au/ about-living-proud-inc/background-to-the-name-livingproud/.

2.

Law Reform (Decriminalization of Sodomy) Act 1989 (WA) Preamble.

3.

Equal Opportunities Act 1984 (WA), Part VI.

4.

http://www.outinperth.com/wa-will-yet-join-vicquashing-gay-convictions/.

5.

Spent Convictions Act 1988 (WA) schedule 3.

6.

Criminal Records Amendment (Historical Homosexual Offences) Act 2014 (NSW).

7.

Sentencing Act 1991 (VIC).

8.

http://www.outinperth.com/wa-will-yet-join-vicquashing-gay-convictions/.


KBE Human Capital welcomes Maryann McKenna It is with great pleasure that KBE Human Capital welcomes Maryann McKenna to our Legal recruitment team. Maryann joins as a Principal Consultant working closely alongside Chris, with a focus on providing an unrivalled level of knowledge and service to private practice firms across Western Australia. Prior to joining KBE Human Capital, Maryann led the Professional Services recruitment team of a boutique firm for almost a decade and worked within the Accounting & Finance team of one of the world’s largest recruitment firms. From a personal perspective, Maryann is well networked within the WA legal community with several siblings being prominent Partners in leading law firms, as well as senior academics within WA’s tertiary legal institutions.

Preparing for Performance/Salary Reviews Performance/salary reviews are an excellent way to plan and drive your career. Approached correctly, they provide an avenue for open and frank discussions with senior stakeholders, and an opportunity to set a clear career/development plan for the year ahead. To confidently navigate your way through the process, we would like to take this opportunity to encourage all of the lawyers within our networks to carefully consider how you are being measured, and prepare for your review discussions by clearly and objectively demonstrating the value you have added to the firm against any agreed KPIs. This will ensure you are putting your best foot forward to secure a fair salary increase for both you and the firm, and maximise any promotional opportunities. We are always happy to spend time with lawyers/firms to guide you through what can be a daunting process, so please feel free to contact us if you would like some assistance at any stage.

Chris Bates

Managing Director

Maryann McKenna Principal Consultant

KBE Human Capital P: 08 6467 7889

A: 1322 Hay Street, West Perth 6005 M: 0411 645 984 M: 0423 867 110 E: chris@kbehumancapital.com.au E: maryann@kbehumancapital.com.au W: kbehumancapital.com.au


Pledge for Parity Lunch for International Women's Day review Thursday 3rd March, 2016 Parmelia Hilton, 14 Mill Street, Perth

Our Pledge for Parity Lunch for International Women's Day took place on Thursday, 3 March at the Parmelia Hilton in Perth. It was the Law Society's sixth annual International Women's Day event for the legal profession.

Australia on the issues arising from the 20th Anniversary Review of the 1994 Chief Justice's Gender Bias Taskforce Report, and helping to develop a national action plan in response to the Law Council's National Attrition and Retention Survey.

The lunch was an opportunity to celebrate the achievements of women, particularly in the legal profession, while also recognising the work still to be done to achieve gender parity. The 2016 theme of Pledge for Parity encourages everyone to pledge to take tangible actions to achieve gender equality.

Guests enjoyed a delicious lunch and heard from two speakers with significantly different backgrounds, who are nonetheless both champions of gender parity. Dr Ros Worthington OAM, a devoted humanitarian and social philanthropist, is one of Western Australia's most inspirational female leaders in the community.

Elizabeth Needham, President of the Law Society, encouraged all attendees to take any steps they could in order to close the gender gap. Individuals and organisations alike were prompted to foster gender equality in leadership positions, create more flexible and inclusive cultures and reject any form of discrimination or bias. Mrs Needham relayed the concrete actions that the Law Society has taken in order to promote gender parity. These include adopting the Law Council of Australia's Diversity and Equality Charter, working with Women Lawyers of Western

Supported by

26 | BRIEF APRIL 2016

Dr Worthington regaled attendees with her experiences in being the driving force behind some of our State's most influential charities, including the Make-AWish Foundation and Breast Cancer Care WA. Dr Worthington's personal story of overcoming adversity and her message of hope and generosity proved to be very inspiring for those in attendance. The Hon Chief Justice Wayne Martin AC gave an absorbing and thought-provoking keynote address on the current gender imbalance in the judiciary and the legal

profession, as well as the pay gap that continues to exist between men and women. The Chief Justice then turned to the interaction between women and the law, including the issues of family and domestic violence, the importance of legal and cultural change and the experiences of migrant, refugee and Indigenous women. The event was also the perfect opportunity for the Women Lawyers of WA (WLWA) Historical Women in the Legal Profession Photograph to be presented to the Law Society. WLWA President Anne Wood and Immediate Past President Tina McAulay presented the photograph to Elizabeth Needham. The lunch also featured a raffle, with all proceeds donated to the Chief Justice's Youth Appeal. Thanks to the generosity of attendees, a large sum of money was raised for the benefit of youth charities. Thank you to sponsor KBE Human Capital and to all attendees who joined us for this landmark event to promote gender equality.

Sponsored by


Luncheon to Celebrate International Women's Day Keynote address The Honourable Wayne Martin AC, Chief Justice of Western Australia Transcript of speech delivered at the Parmelia Hilton, Thursday 3rd March, 2016.

INTRODUCTION I am greatly honoured to have been invited to address this luncheon organised by the Law Society of Western Australia in order to celebrate International Women's Day, and in particular to promote the 2016 International Women's Day campaign theme of "Pledge for Parity". I will return to that theme a little later in these remarks. Before going any further, however, I wish to acknowledge the traditional owners of the lands on which we meet, the Whadjuk people who form part of the great Noongar clan of south-western Australia and pay my respects to their Elders past and present and acknowledge their continuing stewardship of these lands. Amongst the reasons I am greatly honoured to have been given the opportunity to address this gathering is the fact that I am singularly ill-qualified to address these important issues. Not only am I a man, but I also have the dubious distinction of heading a Court which has the lowest proportion of women members of any court at any level in any jurisdiction in the country. At present, only three out of the 21 judges on the Supreme Court of Western Australia are women - a percentage of 14%, which is exactly half the national average over all jurisdictions of 28%, and one-third of the percentage of women comprising the High Court, which is 43%. Worryingly, the percentage of women on the benches of the Supreme and District Courts of Western Australia has decreased over the last 10 years, rather than increased. THE PROBLEM IS NOT NEW This imbalance cannot be attributed to the recent arrival of women into the legal profession. For more than 40 years now, women have comprised the majority of graduates from Australian and Western Australian law schools, and in the almost 10 years that I have been conducting admission ceremonies at the Supreme Court of Western Australia, generally comprise about 60% of those admitted to legal practice. The attrition rate in the legal profession is surprisingly high for both genders, but women are significantly over-represented in those who leave the

profession after admission.

IMBALANCE IN THE SENIOR PROFESSION

THE GENDER PAY GAP

The imbalance in the representation of women at the senior levels of the judiciary reflects an imbalance at the senior levels of the profession, where only 16% of senior counsel appointed in Western Australia over the past 15 years have been women,1 and the 2014 Women Lawyers of Western Australia review of former Chief Justice David Malcolm's Taskforce on Gender Bias reported that only about 19% of the partners in top commercial law firms in Western Australia are women.2 As judicial appointees are generally drawn from the senior ranks of the profession, there is obviously a strong connection between the high attrition rates for women in the profession, the structural barriers that appear to be preventing women from moving to the senior ranks of the profession, and the imbalance in the judiciary to which I have referred. I believe that the community wants and deserves a legal profession and judiciary which better reflects the gender balance of the community which the profession and the courts serve. If we are to achieve that objective, we must act, as well as talk. PLEDGE FOR PARITY The Pledge for Parity campaign is an excellent way of translating noble sentiments into action. It provides participants in the campaign with the opportunity to pledge to actually do the things that will assist to overcome the barriers which appear all too intractable in the legal profession, including specific actions grouped by reference to the following important objectives:

Creating inclusive flexible cultures

Although most Australian jurisdictions have had laws which prohibit discrimination on the ground of gender for decades now, those laws have not succeeded in overcoming the structural disadvantages which women experience in the workforce. A simple objective measure of those disadvantages is the pay gap. Despite our efforts in this area, over the last 20 years the pay gap has worsened, increasing from 16.5% to 17.3% nationally.3 In Western Australia the gap is even worse, at 24.9%.4 Within the Australian legal profession, there is perhaps a positive sign with the gap in the industry category which includes the legal profession closing during the last year, but nonetheless standing at 22.6%. In that context, the recent steps taken by the Law Society of New South Wales to encourage employers to pledge to reduce that gap, starting with a pledge to deliver equal pay to male and female law graduates within 12 months, are most welcome.5 WOMEN AND THE LAW Family and Domestic Violence Moving from women in the law to women and the law, recent years have seen a significant community focus upon the scourge of family and domestic violence, stimulated by the great work done by last year's Australian of the Year, Rosie Batty. This increased focus is most welcome and long overdue. Judges and magistrates have been immersed in the consequences of family and domestic violence for many years, and are well aware of its devastating effects, even if some at times some would question their response. Happily, however, better awareness of the context of violence and the urgency of responding appropriately and effectively is growing not only within the instruments of government but more generally.

Helping women and girls achieve their ambitions

Challenging conscious and unconscious bias

Calling for gender-balanced leadership

The Influence of Legal Culture

Valuing women and men's contributions equally

There is a legitimate debate in the literature on the extent to which family

27


The Honourable Wayne Martin AC, Chief Justice of Western Australia delivering the Keynote address.

and domestic violence is linked to gender inequality. I do not have time today to review the competing points of view. As a lawyer, however, it seems to me to be indisputable that the legal discrimination to which women were subjected over centuries of the common law contributed to a culture in which violence towards women became normalised. In the 18th century, Judge Francis Buller famously was attributed with observing that a man could chastise his wife physically as long as the stick was no thicker than his thumb.6 It was not until the 1970s and 80s that all Australian States made rape in marriage a crime.7 Even today, the rights recognised by law, which men often enjoy to the exclusion of their female partners, such as the receipt of income from their employment, their rights as tenant and homeowner etc, create a significant disincentive to women reporting the physical and sexual abuse to which they may be subject. In my view, any policy developments in this important area must focus strongly upon the barriers to reporting which inhibit so many women from seeking the assistance of the justice system, and the various social agencies which can support women and children subjected to violence. Cultural change is vital in this area. The report published by the federal government last November on the subject of the attitude of young people towards violence against women, was extremely depressing. That report concluded that by allowing young people to tolerate gender inequality and develop attitudes of disrespect for women is linked to violence towards women, we are raising our children to perpetuate the problem.8 This is where husbands and fathers, like me, have such a significant role to play. Migrant, Refugee and Indigenous Women I would like to complete these remarks with some observations about the special needs of two minority groups - migrant and refugee women, and Indigenous 28 | BRIEF APRIL 2016

women. There is a good reason to think that women in these groupings are at greater risk of disadvantage than women generally. Using funding generously provided by the federal government, the Judicial Council on Cultural Diversity, which I chair, has embarked upon a project to assess the special needs of migrant and refugee women, and Indigenous women, when they intercept with Australia's justice system. The first major portion of the project has involved nationwide consultations with women and representatives of organisations representing women in each of these groups. I will be launching our reports on the outcome of those consultations in Melbourne on 17 March. The detailed outcome of those consultations will, of course, be in the reports, which I will not pre-empt prior to their formal release. However, it is sufficient to say that our consultations have left us in no doubt that there is much that all those involved in Australia's justice system, including police, the legal profession, corrective services and courts can do to improve access to justice for women in these groups, who are at significant risk of disadvantage in the operation of the justice system. I commenced these remarks with an acknowledgement of country, and it is appropriate to finish on the special interests of Indigenous women. Many studies have shown that the fastest growing group of prisoners in the Australian justice system is Indigenous women. To take just two of many available statistics, the percentage of Indigenous women in Australia's prisons rose from 21% of all women prisoners in 1996 to 36% in 2015,9 and in 2013 the rate of Indigenous women's imprisonment was 404 per 100,000 of adult Indigenous women, whereas the corresponding rate for non-Indigenous females was 17 per 100,000 - so that Indigenous women were 23 times more likely to be in prison than non-Indigenous women.10 Many statistics also show the gross over-

representation of Aboriginal women as victims of crime. Those who work in this area, including me, are only too aware of the revolving door between victimology and offending behaviour. I have seen far too many cases in which women have been subjected to prolonged physical and sexual abuse, often starting as a child, and have come to regard violence as normalised behaviour or have become involved in other offending behaviour related to substance abuse as a result. Today's victim is likely to be tomorrow's offender. There are so many of those cases, it is impossible to escape the conclusion that the justice system is conspicuously failing to break this cycle of self-perpetuating violence and other related offending. I share the views of the many who promote the notion of a greater emphasis upon a therapeutic and rehabilitative response to such patterns of behaviour including a focus upon identifying and responding effectively to the causes of such behaviour. CONCLUSION In the short time available today I have only had the opportunity to touch upon some of the issues involving the intersection between women and the legal system. There are many more important issues, and I do not pretend that these issues are in any way exhaustive. However, it is clear from the topics I have addressed, that there is much more to be done in each of the areas I have identified, and therefore every reason for functions such as this to continue to focus attention upon the need for action. NOTES 1.

Supreme Court of Western Australia, Media Statements 2001-2015 of Senior Counsel appointments in Western Australia.

2.

Women Lawyers of Western Australia (Inc), 2014 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report (September 2014)149.

3.

Workplace Gender Equality Agency, Gender pay gap statistics (August 2013) 1; Workplace Gender Equality Agency, Gender pay gap statistics (March 2016) 2.

4.

Workplace Gender Equality Agency, Gender pay gap statistics (March 2016) 2. Workplace Gender Equality Agency, Gender pay gap statistics (March 2016) 5.

5.

Nicola Bervic, 'Same pay central to draft charter on gender equity', The Australian (26 February 2016).

6.

Although the observation was never directly reported, James Gillray satirised Judge Buller in a cartoon entitled 'Judge Thumb' in 1782, and 'His memorable opinion, of the right of the husband over the wife, to exercise the thumb-flick' was published in 1790 (Leman Thomas Rede & Edward Wynne, Strictures on the Lives and Characters of the Most Eminent Lawyers of the Present Day‌ (1790) 109.)

7.

Wendy Larcombe & Mary Heath, 'Case Note: Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen' [2012] Sydney Law Review 34:785, 786.

8.

Particularly non-physical forms of violence – see TNS Australia, Reducing violence against women and their children: research informing the development of a national campaign (2015) 1.

9.

Eileen Baldry & Chris Cunneen, 'Imprisoned Indigenous women and the shadow of colonial patriarchy', (2014) Australian & New Zealand Journal of Criminology 47(2):276,279; Australian Bureau of Statistics, 4517.0 Prisoners, Australia (2015).

10.

Peta MacGillvray & Eileen Brady, 'Australian Indigenous Women's Offending Patterns', Indigenous Justice Clearing House Brief, 19 (June 2015).


Elizabeth Needham's speech at the Pledge for Parity Lunch Elizabeth Needham, President, The Law Society of Western Australia Transcript of speech delivered at the Parmelia Hilton, Thursday, 3 March 2016.

Good afternoon, ladies and gentlemen, I am Elizabeth Needham, President of the Law Society of Western Australia. I respectfully acknowledge the Traditional Owners of the land on which we meet, the Whadjuk people of the Noongar Nation, and pay my respects to their Elders past and present. Welcome to this Pledge for Parity Lunch to mark International Women’s Day. This is the Law Society’s sixth annual International Women’s Day event. This year’s theme is Pledge for Parity. It encourages everyone – both women and men – to pledge to take tangible actions to achieve gender equality. I’ve been in practice over 20 years and I have seen change, but it is limited, slow and in some parts of our community (which includes the legal profession) the pace of change is glacial. The evidence is incontravertable. We have a long way to go. I am always cautious about the use of statistics. They can be misused to support arguments. However, where the proper basis or parameters of those statistics are known, they can be compelling. The WA 2015 Women’s Report Card makes interesting reading. For example the figures about women in management in local government are positive. There are three tiers of management where 3 is the lowest management level and 1 the highest. In 2003, Tier 3 women made up 25.7% but by 2015 that had increased to 42.8%. In Tier 1 there had been change too, but it was much smaller. In 2003 it was at 2.8% and by 2015 it had reached 12.3%. Another good indication in this report card is that women now make up 55% of the student population in tertiary education – remembering that women have made up about 60% of the law student population for more than 20 years. These are some of the best stats. On the other hand domestic violence against women has increased exponentially in our community from 3,600 cases per annum reported during the height of the GFC to 11,374 in the last financial year. Our representation in the lower house

(reputedly the people’s house) remains at approximately 22% and has done so for almost 20 years. Comparing this to Uganda, where in the last 10 years they have gone from having only a handful of women in their parliament to 30% representation, our figures do not look so good.

In 2015/2016, the Law Society adopted two strategic campaigns, one of which recognises supporting lawyers, and deals with health and wellbeing, gender bias and the retention of women in the profession. This is continuing as one of our two strategic campaigns for the 2016/2017 year.

Our numbers have increased in the ASX 200 companies from four in 2002 to (wait for it) seven in 2012.

As part of this effort, the Law Society has taken a number of concrete steps.

Again according to the 2015 WA Report card released this week, despite women now making up 61% of the workforce the gender pay gap in WA presently stands at 25.4% - compared to the national average of 18.5% and the worst in the country. A 2015 World Economic Forum made a shocking prediction that, at the current glacial rate of progress, global gender parity (in economic terms) will not be achieved until the year 2133 – that’s 117 years from now. So what do we do about it? We must not become complacent with our own personal positions but be conscious of where we are in our community – whether that be professionally or in the wider community. We should always have our hand outstretched to the women and girls behind us. We need to adopt male champions. Our profession is an old one, dominated (as public life was dominated) by male culture for several thousand years. We acknowledge individual women who are role models. Well we need to do the same with men who champion our cause – and to do this we need to differentiate; we need to ask, not what is that man saying, but rather what is that man doing to champion the cause of gender parity. I truly believe that we will succeed if we (women and men) work together on this. Individuals and organisations alike can take real steps to close the gender gap more quickly, by: • Encouraging gender equality in leadership positions • Creating more flexible and inclusive cultures; and • Rejecting any form of discrimination or bias.

We have adopted the Law Council of Australia’s Diversity and Equality Charter. The Charter commits the legal profession to promoting diversity, equality, respect and inclusion, consistent with the principles of justice and integrity upon which our profession was founded. The Charter states that the legal profession will treat all people with respect and dignity regardless of their gender, or indeed any other arbitrary feature. Law practices and individual practitioners can also sign up to the Charter. I encourage each of you to do so and ask your colleagues to do the same. I would like to thank Women Lawyers of Western Australia for kindly supporting today’s lunch. Our two organisations have, and will continue to work closely to tackle issues such as bias and unconscious bias – particularly those arising from the 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report. The Law Society has also worked with the Law Council to respond to the National Attrition and Retention Survey findings. We have contributed to the development of a national action plan to ensure we keep women in the legal profession. As individuals, we can all take steps towards achieving gender parity. Perhaps you know someone in this room who consistently goes over and above their normal employment, to make a significant contribution to the profession and the community. It’s important that, as a profession, we recognise those who set an outstanding example. I encourage all of you to nominate someone for the Law Society’s WA Lawyer of the Year Awards, which will be presented during Law Week in May. Please visit the Law Society’s website for further details. The closing date for nominations is Friday, 22 April.

29


Changes to the Office of State Revenue's assessment practices in 2016 Nicki Suchenia Commissioner of State Revenue

During 2015, the Office of State Revenue had the opportunity to meet with members of the Law Society's Taxation Committee to discuss concerns raised by some of its members on assessment delays for transfer duty. State Revenue assesses approximately 90 percent of transactions lodged for assessment within 60 days of receipt. Nonetheless, State Revenue recognises that existing assessment practices can lead to assessment delays for midcomplexity type transactions requiring assessment by a suitably experienced revenue officer. State Revenue has undertaken a review of its business process to identify initiatives that will lead to more efficient processes and deliver benefits to practitioners, their clients and State Revenue.

by allowing certain types of transactions that may currently experience assessment delays to be self-assessed using a guided self-assessment process. This process will support the assessment of certain transactions chargeable with nominal duty such as a transfer of property to a superannuation fund. ROL will also support an electronic lodgement and assessment process for most types of transactions requiring assessment by the Commissioner. Through ROL a practitioner can lodge a copy of the instrument and any supporting documentation, receive an electronic advice of assessment and pay the assessed duty. On payment of the assessment a Certificate of Duty will be available to print and attach to the transaction for duty endorsement purposes.

In the first half of 2016-17 State Revenue will release an updated version of Revenue Online (ROL), its electronic self-assessment system, to allow certain mid-complexity transactions to be selfassessed and to support the electronic lodgment of transactions that require assessment by the Commissioner.

In addition to expanding ROL, in 2016 State Revenue will be publishing more user friendly web-pages, introducing B-Pay for duties assessment and publishing an assessing standard for duties assessment in its Customer Charter.

The extension of the self-assessment regime will reduce assessment delays

State Revenue would also like to highlight the availability of its expedited assessment process, published as

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30 | BRIEF APRIL 2016

made to Cat Haven. By suggesting and guiding your clients on how to bequeath a gift, you will also be providing much needed support for the homeless cats of Perth. For more information or a brochure, go to www.cathaven.com.au or call Chandra Woodley on 9442 3600.

Revenue Ruling DA 1 (Assessment Services and Procedures). This Ruling outlines how a lodging party may request the urgent assessment of a lodged transaction. Where a request for an urgent assessment is made, State Revenue will use its best endeavours to meet the party's timeframes. Discussions with the Taxation Committee members and some clients of society members indicated that this service may be underutilised due to a misconception about the required severity of the urgency request. All urgent reasons are considered and prioritised according to the potential consequences arising from the delay. State Revenue remains committed to working with the Law Society to improve the way it delivers services and create greater efficiencies for practitioners and their clients. Law Society members not yet registered for ROL are strongly encouraged to register and consider how ROL can complement their processes through the use of online services. Further information on the upcoming changes will be released in 2016. For more information on Revenue Online please visit www.osr.wa.gov.au

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Cloud Computing Services: Professional obligations and ethics Justin Edwards Barrister, Francis Burt Chambers

INTRODUCTION The Law Society of Western Australia has updated its Ethical and Practice Guidelines to include guidelines on social media and cloud computing.1 This article deals with cloud computing only. It is easier to give examples of cloud computing services than attempt a short definition. Well known consumer oriented cloud computing services include: web browser email services like Gmail and Hotmail; online storage services like Dropbox and OneDrive, photo storage services like Flickr, and Facebook. At work many practitioners will be familiar with LexisNexis and Thomson Reuters online services. They may also use a hosted email service from providers like Oz Hostings or Rackspace, and other similar services to facilitate working out of the office. The thing common to each of these services is that they are accessed via the internet, and - in relation to those services that data is uploaded to – that the data is processed and stored on the service provider's premises, wherever they may be. There are benefits to using cloud based computing services in practice. From a practitioner's perspective, the main one is the ability to work remotely, on any device, and for all devices to be synchronized. Another is not having to buy and maintain as much ICT (information and communication technology) hardware and software. There are also risks. The big ones are loss of data, security breaches and outages (not being able to access your data). There may be any number of reasons why these things happen. These risks raise professional conduct issues for practitioners. Under the Legal Professional Conduct Rules 2010 (WA)(Rules), practitioners are required to: a) deliver legal services competently and diligently; b) not disclose information confidential to a client that the practitioner becomes aware of in the course of providing legal services without client authorisation, or otherwise being permitted to do so; and 32 | BRIEF APRIL 2016

c) subject to a lien, return client documents at the end of an engagement upon request. If any of the risks of using cloud computing services materialise, then a practitioner may not meet these requirements. Also, simply storing client documents on the cloud without the client's authorisation might amount to disclosure of confidential information. Is it possible to manage the risks adequately? WHAT IS CLOUD COMPUTING? There is no universally accepted definition of cloud computing. The Australian government has adopted the definition published by the National Institute of Standards and Technology, which is part of the U.S Department of Commerce.2 It states: Cloud computing is a model for enabling ubiquitous, convenient, ondemand network access to a shared pool of configurable computing resources (e.g. networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model is composed of five essential characteristics, three service models, and four deployment models. Cloud computing then is not a single thing or a single service. It is a model for accessing computing resources over a network. In practice, for most people and organisations, this network will be the internet. The services mentioned in the introduction fall easily within this definition. Take cloud storage services like Dropbox and OneDrive for example. They are accessed via the internet. They are an example of Software as a Service (Saas) deployed over a public cloud. A OneDrive account allows the user to access a shared pool of computing resources somewhere in the world. Some practitioners use Dropbox and OneDrive for work purposes. Some law practices do not allow practitioners to use them. It is important to realise that cloud computing encompasses much

more than the consumer oriented services already mentioned. A law practice, of any size, could use cloud computing services for all of its ICT needs if it wished to do so. Examples of cloud computing services relevant to law practices include: a) email – the law practice would not own an email server, it would pay for the use of one located on a service provider's premises; b) storage of electronic documents; c) applications – for example: word processing, practice management, document management and accounting software applications; d) website hosting; or e) a combination of any of the above. If a law practice uses server computers already for email, storage and hosting applications then, in theory, it could get rid of the servers and access all of those resources from a service provider over the internet. These services are provided by cloud computing service providers all around the world. Well-known providers operating globally are Microsoft (its Azure cloud computing platform) and Amazon (Amazon Web Services). There are also local service providers. Examples are Oz Hostings and Macquarie Telecom. WHAT ARE THE RISKS OF USING CLOUD COMPUTING? In its guidelines to agencies the Australian government lists nine risks of using cloud computing. They are: •

Data Breaches – sensitive internal data is stolen, leaked or accessed by external unauthorised entities.

Data Loss – the permanent loss or deletion of data by accident or malicious activity.

Account or Service Traffic Hijacking – external entities eavesdropping on users' activities or transactions, manipulation of data, phishing, fraud and exploitation of software vulnerabilities.

Insecure Interfaces and Application Programming Interface (API) –


vulnerable interfaces can be exploited both accidentally and maliciously, in an attempt to circumvent the security process. •

Denial of service (DoS) - DoS attacks can prevent users from accessing their data or applications, while forcing the victim to consume inordinate amounts of finite system resources.

Malicious Insider – a current or former employee, contractor or other business partner who has or had authorised access to an organisation's network, system, or data, and intentionally exceeded or misused that access in a manner that negatively impacts the organisation's information systems.

Abuse of Cloud Services – this threat is more an issue for cloud service providers, but cloud services can facilitate malicious agendas through the exploitation of cloud infrastructure. Insufficient Due Diligence – entering into ICT arrangements with cloud services providers without effectively understanding the full scope of the undertaking, its weakness and vulnerabilities. Shared Technology Vulnerabilities – cloud infrastructure (CPU caches, GPU, etc) that is not designed to offer a multi-tenant architecture is vulnerable to scalable sharing practices. This vulnerability is dangerous because it can affect an entire cloud at once.3

To this list could be added: a) outages – that is, where a user cannot access his/her data or applications because of something that has happened with the service provider; b) not being able to delete data; and c) not being able to transfer data out of the cloud computing service. CAN PRACTITIONERS MANAGE THE RISKS SO THAT THEY MEET THE REQUIREMENTS OF THE RULES? A consideration of the risks of cloud computing should make it clear that there are professional conduct issues to consider. The relevant Rules are (in summary): a) Rule 6(1)(c) – a practitioner must deliver legal services competently and diligently. b) Rule 9 – a practitioner must not disclose information confidential to a client that the practitioner becomes aware of in the course of providing

legal services without the client's authorisation, or otherwise being permitted to do so. c) Rule 28 – subject to a lien, a practitioner must return client documents at the end of an engagement upon request. From a cloud computing perspective, the elements common to all of these rules are security of data, and reliability of access to data and applications. There is one other issue: whether storing client documents on the cloud may be a disclosure for the purpose of the Rules. The Office of the Legal Services Commissioner (OLSC) has published a guide on cloud computing.4 The guide addresses all of these issues, which are discussed briefly below. CONFIDENTIALITY The OLSC guide does not say whether storing client information on the cloud is a disclosure of that information. It contemplates that information can be stored on the cloud and the cloud computing service provider cannot or will not access this information. Unless a user encrypts data that goes onto the cloud, a cloud computing provider can certainly access this information – that is, it is technically possible. Whether it actually will is another matter. The terms of service for Dropbox, OneDrive and Google Drive all provide that the relevant service providers can access the information and none of them provide that they will take steps to keep the information confidential.5 On its website Dropbox says that it prohibits staff from viewing user documents, except for a small number of staff who must be able to access user documents for legal reasons.6 There is therefore a possibility of disclosure of client information to other persons when using these services. Admittedly, this is a literal approach, and in practice the chance of a disclosure occurring is likely to be very small. If a legal practice wishes to use one of these services, it would be prudent for it to advise its clients of this, and seek their authorisation to disclose client information

to: a) the service provider; and b) third parties, in the event of inadvertent disclosure to another person while using the cloud computing service. Whether storing client information on other cloud storage services is a disclosure of that information will depend on the agreement between the practitioner or practice and the service provider. SECURITY AND RELIABILITY Before adopting a cloud computing service, the OLSC guide suggests undertaking a due diligence and a consideration of the proposed terms of service. The OLSC guide suggests that appropriate due diligence includes considering: a) Whether the cloud computing service provider meets required standards of competency. b) What security the cloud computing service provider has in place to maintain confidentiality. c) If a cloud service provider is located overseas or is domiciled overseas – what impact this has on your ability to comply with the conduct rules. These are of course sensible suggestions when bearing the conduct rules in mind. However, the writer believes it will be difficult to do these things in practice in anything but a general way. a) There are no required standards of competency for cloud service providers that the writer is aware of. There are voluntary accreditations and certifications like ISO 27001, but no imposed requirements. b) The security information that cloud service providers include on their websites is general. The sorts of things you can find out are: whether data is encrypted (in transmission and at rest); whether the service provider provides two levels of login authentication; whether backups are carried out; whether the service 33


provider tests and audits its systems; and where a service providers data centres are located. You will not be able to find out about any of the nuts and bolts and, even if you did, what would you do with that information? In relation to due diligence of cloud computing services located overseas or where the provider is domiciled overseas the main point is the effect of laws of other jurisdictions on your data. A common example is the Patriot Act enacted in the U.S after 9/11. Under that Act the U.S government can compel the provision of data held by American companies. There is then a risk that if you use an American cloud service provider that the U.S government will obtain a copy of your documents. Under the Act that service provider would not be able to tell you if this happened. In any event, they do not have an obligation to do so under its terms of use. When reviewing the terms of service of a cloud service provider the OLSC suggests considering a number of issues. It would only be a slight exaggeration to say that the Dropbox, Microsoft and Google terms of service reviewed to prepare this seminar do not deal with any of the issues listed in the guide. The reality seems to be that the standard terms of service for consumer oriented cloud computing services are 'light' and

will not help a practitioner to meet his/ her requirements under the professional conduct rules. There are of course other cloud computing services available for practitioners to use.

It is a good idea to seek the client's consent to disclose client information to the cloud service provider, including by inadvertent disclosure through use of the cloud.

In my opinion though, none of this necessarily means that cloud computing services are not sufficiently secure or reliable for practitioners to use.

Finally, there may be some documents that may be considered too important to place on the cloud. In which case the practitioner would have to ensure that his/ her office is more secure than the cloud.

The writer uses Microsoft's full Office 365 cloud service. Practically, this means that emails are hosted by Microsoft and the business version of OneDrive is used. Emails and documents are placed on OneDrive and available on both devices and through the use of a web browser. The writer still uses Word and other Office programs, although the use of the browser versions of Office are available if necessary. The Office 365 servers are located in Australia, however backup to external storage is still necessary. It is prudent to advise clients that the practice uses a cloud service provider for document storage and:

NOTES 1.

The Law Society of Western Australia's Ethical and Practice Guidelines available at: https://www. lawsocietywa.asn.au/wp-content/uploads/1970/01/ ethical-practice-guidelines-25-august-2015.pdf.

2.

"Australian Government Cloud Computing Policy", cited October 2014, Australian Government, Department of Finance available at: http://www.finance.gov.au/cloud/.

3.

"Information Security Management Guidelines – Risk management of outsourced ICT arrangements (including Cloud)", cited August 2014, Australian Government available at: http://www.protectivesecurity.gov.au/ informationsecurity/Pages/RiskManagementOfOutsourc edICTArrangements-IncludingCloud.aspx.

4.

"A Guide on Practice Issues: Cloud Computing", the Office of the Legal Services Commissioner available at: http://www.olsc.nsw.gov.au/olsc/olsc_education/ olsc_education_guidelines.html.

5.

Dropbox Terms of Service, 4 November 2015, cited Thursday, 12 February 2015, available at: https://www. dropbox.com/privacy#terms.

a) the security of data placed on the cloud cannot be guaranteed;

Microsoft Services Agreement, August 1 2015, cited Thursday, 12 February 2015, available at: http:// windows.microsoft.com/en-au/windows/microsoftservices-agreement.

b) it may not be possible to permanently erase all copies of the data; and c) there may be circumstances where documents may not be able to be accessed.

Law Clinic Practice tralia-Asia-Pacific Institute

Google Terms of Service, April 30 2014, cited Thursday, 12 February 2015, available at: https://www.google. com.au/intl/en/policies/terms/regional.html. 6.

"How secure is Dropbox?", cited Thursday, 12 February 2015, available at: https://www.dropbox.com/help/27.

Manager Curtin Law School

Position Number: 3543587

Annual Report Tenure: 3 years, fixed-term full time | Salary Range: $109, 667 - $128,983 (GJ09) Location: Perth City | Applications Close: 5pm, Friday 29 April 2016 Refine your strategic leadership and apply your excellent practical experience to drive the new Curtin Law Clinic. Curtin University is undergoing an exciting period of transformational change as we strive towards our vision of being a recognised international leader in research and education by 2030. With more than 50,000 students and 3,500 academic and professional staff, our people capability is fundamental to this vision. As Law Clinic Practice Manager, your focus is to manage the day to day operations of the Curtin Law Clinic, an integrated legal practice learning environment, ensuring adherence to professional standards and protocols. This is an outstanding opportunity for you to supervise students and provide support and guidance to duty solicitors, as well as

being involved in the giving of legal advice to clients referred by the Small Business and Development Corporation of WA and supporting the Director of Professional Programs with the development and delivery of the clinical program. To be successful, you must be a qualified solicitor or barrister with considerable practical experience in community legal practice, a private law firm, legal aid or similar environment. Demonstrated experience in pro bono legal work and an understanding of the protocols applicable to the operation of a law clinic are essential. Demonstrated analytical and problem solving skills with the ability to exercise sound professional legal judgment is paramount to your success in this position. *You must hold a valid current WA practicing certificate under the Legal Profession Act 2008 (WA).

To submit an application and for further information, please visit curtin.edu.au

34 | BRIEF APRIL 2016


Crowd-sourced Funding Bill 2015: Towards establishing an Australian regulatory framework for crowd-sourced equity funding A version of this article was first published in the December 2015 issue of Governance Directions, the official journal of Governance Institute of Australia. Adam Levine, Partner, K&L Gates Becki Tam, Special Counsel, K&L Gates Andrea Beatty, Partner, K&L Gates

SNAPSHOT •

A new Australian regulatory regime facilitating crowd-sourced equity funding appears to be imminent once the Corporations Amendment (Crowd-sourced Funding) Bill 2015 is passed by the Senate and goes to the Governor General for royal assent. Under the proposed regime, unlisted public companies with assets and revenue each less than $5 million will be eligible to raise funds under the regime. Proprietary limited companies would not be eligible to raise funds using equity crowd-funding under the proposed regime. An intermediary operating a crowdfunding website will require a 'crowdfunding service' Australian financial services licence to be issued by the Australian Securities and Investments Commission.

BACKGROUND Crowd‑sourced equity funding is an evolving form of corporate capital raising that allows an unlisted company to offer equity in exchange for cash from a large number of investors where the offer is published though an online funding portal. On 3 December 2015 the Corporations Amendment (Crowd-sourced Funding) Bill 2015 (the Bill) was introduced into the House of Representatives. The provisions of the Bill passed through the House of Representatives and were referred to the Senate Economics Legislation Committee (Committee). The Committee released its report on 29 February 2016 recommending that the Senate pass the Bill. The Committee's report recommended that the Government monitor carefully the implementation of the legislation and undertake a review of the legislation two years after its enactment. The Bill and draft regulations (Corporations Amendment (Crowd-Sourced Funding) Regulation 2015) will only become law when agreed to in identical form by both

houses of Parliament and assented to by the Governor-General. The Australian Securities and Investments Commission (ASIC) has established an internal working group on crowdsourced equity funding. It is anticipated that ASIC will release regulatory guidance material once the Bill is enacted and hopefully before September 2016. SUMMARY OF THE BILL The Bill proposes to amend the Australian Corporations Act 2001 (the Act) to establish a regulatory framework to facilitate crowd‑sourced equity funding (CSF) by small, unlisted public companies. Following the Australian Corporations and Markets Advisory Committee discussion paper on CSF in September 2013, the Bill is the result of subsequent reports by Treasury, extensive stakeholder consultation and the Government's consideration of international models. Based on the content of the Bill as originally introduced into Parliament, the proposed new CSF model would: •

(public company) allow unlisted public companies (not proprietary limited companies) with less than $5 million in assets and less than $5 million in annual turnover to raise up to $5 million in equity via CSF each year (which is higher than the United States and New Zealand caps);

(investor cap) set an investor cap of $10,000 per CSF issuance per 12-month period (this is higher than the average in New Zealand and the United Kingdom). However no aggregate cap on CSF investment by a retail investor is imposed;

(temporary exemptions) provide a five year exemption from some reporting and governance requirements for unlisted public companies; and

(cooling off rights) protect investors with a cooling off period of five days

after making an investment (this is shorter than Italy and in some cases in the US). The Bill also proposes to amend the Act to provide greater flexibility in the Australian Market Licence (AML) and clearing and settlement facility licencing regimes. Under the proposed changes, the Minister would be able to provide that certain financial market and clearing and settlement facility operators are exempt from some of the requirements in Chapter 7 of the Act. Providing for this flexibility is considered necessary to enable secondary trading markets for CSF securities to be licensed once the CSF regime is established. The flexibility would also facilitate the development of other emerging or specialised markets as they would be subjected to a regulatory regime tailored to best address their activities. KEY ISSUES FOR CORPORATE ISSUERS Eligible CSF Companies The Bill provides that a company would be eligible to make a CSF offer if it satisfies all of the following characteristics: •

(public company) is a public company limited by shares; and

(Australian nexus) has a principal place of business and majority of directors in Australia; and

(gross assets test) the value of the consolidated gross assets of the issuer/company and any related parties must be less than $5 million at the time the company is determining its eligibility to crowd fund; and

(turnover test) the company and any related parties (related body corporate or common controlled entity) must have a consolidated annual revenue of less than $5 million; and

(not listed) neither the company nor any related party are listed corporations; and

35


(not an investment company) neither the company nor any related party has a substantial purpose of investing in securities or interests in other entities or managed investment schemes.

An eligible CSF entity would include an incorporated foreign company which has, in effect, transferred its incorporation so that it can effectively be regarded as a public company registered under Part 5B.1 of the Act provided the Australian nexus condition is satisfied.

company and recommended that to facilitate crowdfunding in Australia, an expansion of the existing proprietary limited company regime should be introduced. The eligibility status of a CSF issuer may be re-visited once the new regime is in place and the legislation is reviewed after an initial 2 year period. Making a CSF Offer The proposed CSF regime provides that: •

The proposed amendments are not prescriptive as to what 12‑month period must be taken into account for the purposes of determining 'consolidated annual revenue'. This provides flexibility for an issuer as they can take into account the annual revenue for the 12‑month period immediately prior to the time when determining eligibility to crowd fund or the 12‑month period covered in the last financial statements. Temporary Corporate Governance Concessions for CSF public companies Under the Bill a proprietary limited company would not be eligible to make a CSF offer. The Bill provides that a company that is registered as, or that converts to, a public company limited by shares after the commencement of the CSF regime would be eligible for the corporate governance and reporting concessions. The concessions are only available to companies that are eligible and intend to crowd fund at the time they are registered and that successfully complete a CSF offer within 12 months of registration.

The corporate governance and reporting concessions apply for a maximum of five years from the date of registration as, or conversion to, a public company. The company must determine its eligibility to claim the concessions at each financial year end. These concessions are: •

(AGM exemption) exempt from holding an annual general meeting each year under section 250N of the Act;

(online reports) obligation to only provide financial reports to shareholders online; and

(no auditor) no requirement for appointing an auditor or having audited financial reports until more than $1 million has been raised from CSF offers or other fundraising offers requiring disclosure.

A number of industry submissions made in respect of the Bill disagreed with the requirement for an issuer to be a public

36 | BRIEF APRIL 2016

(Issuer cap on CSF raising): There is a $5 million cap on the maximum amount of funds that an issuer company (and any related parties) can raise under the CSF regime in any 12‑month period. There is a regulation-making power to adjust the cap in the future in light of experience with CSF. In calculating the issuer cap, all amounts raised within the past 12 months from small scale personal offers (subsection 708(1), 20 offers in 12 months raising up to $2 million) and certain offers made via an Australian Financial Services Licence (AFSL) holder (subsection 708(10)) by the company or its related parties are counted. However, funds raised from other offers that do not require disclosure under section 708, other than subsection 708(1) and subsection 708(10) offers, are not counted towards the issuer cap (e.g. funds raised from sophisticated and professional investors are not counted). (Type of securities): The securities that are the subject of the CSF offer must be securities of a class prescribed in the regulations. This is intended to provide flexibility to permit the expansion of crowd-funding to a broader range of securities in the future. The draft regulations provide that the current prescribed class of securities is fully-paid ordinary shares, not preference shares or classes of shares with different rights or any debt-like securities (that might facilitate more novel fintech products). (Reduced disclosure): A company making a CSF offer must prepare an offer document in relation to each offer. The offer document must contain the prescribed risk warnings, information about the offering company, information about the offer and information about investor rights. The CSF offer must be made by publishing a CSF offer document on the platform of a single CSF intermediary.

KEY ISSUES FOR INTERMEDIARIES The CSF intermediary occupies a central role in the CSF regime. Under the proposed regime, all CSF offers must

be made via the 'platform' of a CSF intermediary. Licensing requirement The Bill creates a new type of financial service: a crowd‑funding service. A person that intends to provide a crowd-funding service must hold an Australian Financial Services Licence that expressly authorises the provision of a crowd-funding service. A person that is provided a crowd-funding service as a retail client will be entitled to certain additional protections. The intermediary must ensure that they: •

provide a Financial Services Guide to an applicant that is a retail client, generally as soon as practicable after it becomes apparent to the intermediary that the financial service is likely to be provided;

have a compliant internal dispute resolution scheme and are a member of an external dispute resolution scheme; and

have arrangements for compensating retail clients for loss or damage suffered because the licensee breached its licensing obligations.

An investor considered to be a retail client under Chapter 7 of the Act in relation to the crowd-funding service will also be a retail client for the purpose of the CSF offer, which will entitle them to certain additional investor protections such as cooling-off rights, risk acknowledgments and the investor caps. Depending on the nature of the activities carried out by the intermediary, they could also be considered to be operating a financial market and therefore be required to hold an Australian Market Licence (AML). The Bill proposes to amend the AML framework to provide the Minister with the power to: •

exempt a financial market or class of financial market from some of the AML requirements;

exempt a financial market or class of financial markets from some or all of the obligations relating to ASIC supervision;

exempt a clearance and settlement facility or class of clearing and settlement facility from some of the clearing and settlement facility licensing requirements; and

exempt a financial market or class of financial markets from some or all of the compensation arrangement requirements.

The Explanatory Memorandum to the Bill recognises that these new exemption powers could be used to facilitate the


development of emerging and specialised markets, including CSF intermediaries and the development of secondary trading of CSF interests. Gatekeeper obligations – prescribed checks and publishing a CSF offer The Bill provides that an intermediary must comply with certain 'gatekeeper' obligations. Prior to publishing an offer document on its platform, an intermediary must conduct prescribed checks on the identity of the offeror company, the eligibility of the offeror company to make a CSF offer and that the CSF offer document contains all the information required by the regulations. The intermediary must conduct the checks to a 'reasonable standard' based on reliable and independent relevant documentation, or if not available, information provided to the intermediary by the offeror company.

obligations is not to require the intermediary to conduct exhaustive due diligence on the company, its directors or other officers, or the company's business. Such an obligation would impose a relatively high burden on an intermediary, with potential flow-on costs for issuers seeking to access the intermediary's platform. However, an intermediary must have in place policies, systems and procedures to ensure that it complies with its gatekeeper obligations, and must ensure that those policies, systems and procedures are adhered to.

is not satisfied as to the identity of the company making the offer or of its directors or other officers;

has reason to believe that any of the directors or other officers of the company are not of good fame or character;

has reason to believe that the company or directors or other officers of the company have, in relation to the offer, knowingly engaged in conduct that is misleading or deceptive or likely to mislead or deceive; or

An intermediary that publishes an offer document that it knows to be defective commits an offence if the statement, omission or new circumstance that caused the document to be defective is materially adverse from the point of view of an investor. Criminal as well as civil liability can arise due to a contravention. For the purpose of determining what an intermediary knew about the offer document, the intermediary is taken or deemed to have known of anything that they would have known had they conducted the prescribed checks to a reasonable standard. The Explanatory Memorandum provides that the purpose of the gatekeeper

(cooling off rights) an unconditional right to withdraw from a CSF offer within 5 business days of making the application;

(no financial assistance) the company making the CSF offer and its related parties, and the CSF intermediary that hosts or intends to host a CSF offer and its associates, cannot financially assist or arrange financial assistance for a retail investor to acquire securities under a CSF offer;

(risk acknowledgment) a CSF intermediary must reject an application from a retail investor where the investor has not completed the risk acknowledgment.

The proposed CSF regime sets out a number of other obligations that a CSF intermediary must comply with, namely: •

(risk warning) must ensure the CSF risk warning appears prominently on the platform at all times while the offer is open or suspended. The required wording of the general CSF risk warning is specified in the regulations;

(application facility) must provide an application facility, reject any applications made other than via the application facility and not allow an application to be made while an offer is suspended or closed;

(communication facility) must provide a communication facility for each CSF offer;

(cooling off rights for retail) must ensure that information relating to a retail investor's cooling-off rights appears prominently on the offer platform while an offer is open or suspended; and

(fee disclosure) must disclose fees paid to it by the issuer and any interest that the intermediary has or intends to take in the issuer company prominently on the platform.

has reason to believe that the particular offer is not eligible to be made as a CSF offer.

Once an intermediary becomes aware that the CSF offer document is defective, the intermediary must remove the CSF offer document from its platform and either close the CSF offer or suspend the offer, by giving notice on the offer platform that the offer is suspended.

Other responsibilities of an intermediary

A CSF intermediary must not publish, or continue to publish, an offer document if it: •

can invest in relation to CSF offers by a particular issuer via the same intermediary within a 12-month period to limit a retail investor's exposure to a single company. The amount of the cap can be adjusted by regulations which provides flexibility for future amendments to the regime;

There are no restrictions, in the proposed CSF regime, on the fee arrangements that may be agreed between an issuer and intermediary. Similarly, there are no restrictions on an intermediary having or taking a direct or indirect pecuniary interest in the company whose securities it is offering on its platform, however it is appropriate that this information is disclosed to investors. ISSUES FOR INVESTORS The proposed amendments establish certain protections for all investors, with some additional protections applying to retail clients. Retail investors will also have additional protections: •

(investor cap) a $10,000 cap as the maximum amount a retail client

The investment cap is applied as an obligation on a CSF intermediary to reject an application from a retail client where it would otherwise breach the cap. When assessing whether the cap would be breached, the intermediary should only take account of investments made on its offer platform and not investments made in the issuer company via other platforms. It is expected that CSF intermediaries will have the necessary systems to ensure that amounts invested by retail investors are appropriately tracked so that an application from a retail client that would exceed the cap is rejected. Where an application is rejected because it would otherwise breach the cap, the intermediary must refund application money to the investor as soon as practicable. CONCLUDING COMMENTS The fintech, start-up and legal industries are currently monitoring the progress of the Bill and awaiting enactment of the legislation. Only once the new regulatory regime is in place and ASIC provide regulatory guidance, including on Australian Market Licence issues, will it become clearer whether the Bill will strike the correct balance between facilitating funding for emerging businesses and protecting investors, without over burdensome compliance costs. Nonetheless, once the Bill is passed by both houses of Parliament and enacted, Australia will finally join New Zealand, the United Kingdom, the United States of America and some other foreign jurisdictions in regulating equity crowdfunding.

37


Resilience and Vulnerability This article was first published in Law Letter, journal of The Law Society of Tasmania, Spring/Summer 2015, Issue 127. Tony Newport Director, Newport & Wildman

It is impossible to conduct a meaningful conversation about Resilience without discussing Vulnerability. We are programmed to respond to our senses. It is how we survive. Anything that causes pain or signals risk sends an immediate message to our brain. If for some reason we have become desensitised - then we have in fact increased our risk and not necessarily made ourselves more resilient. I like sporting analogies. In spite of the insidious influence of gambling and match fixing - for the most part the excitement of sport is the uncertain outcome of the contest. When a match is on the line we often see acts of courage that seemingly defy the pain of obvious injury. These acts are generally lauded however in recent times we have become more risk averse. Ten years ago a concussed player may have been sent straight back onto the field. Not now. The overwhelming evidence particularly in American gridiron and increasingly in Australian Rules is that in the long term repeated concussion may cause damage to the brain that is permanent and seriously debilitating affecting memory functioning and mood among other things. Understanding and acknowledging our vulnerability make us smarter. Now I am not advocating that we should call in a sick day for a paper cut. Understanding our vulnerability means that we know, within the environs of a modern office, that the likelihood of infection is minimal and we will undoubtedly survive the day. It is a different matter if you sustain a cut in a lab or in unhygienic conditions. Nonetheless with the right precautions you will be okay. Life will never be risk free. Understanding our 38 | BRIEF APRIL 2016

vulnerability enables us to take calculated risks - and engage in behaviour that encourages us to take on challenges and get through hard times. Otherwise we would all just cocoon ourselves and remain in a state of hibernation until conditions become more favourable. For this reason alone we need to embrace change. Cocooning might sound safe - but it hardly sounds like fun or a life well lived. We cannot take a calculated risk unless we understand our threshold. Even the toughest and most durable amongst us have a threshold - a point at which our strategies for keeping stress at bay start to fray and undermine us. Let me give some examples. You are driving in your car and have become so preoccupied that you cannot remember the last twenty kilometres. That's 20 kilometres on auto pilot. How scary is that? You always seem to be in a rush. You are carrying a computer case, documents, a bag of groceries and your keys are in your pocket. Instead of putting things down you winkle the keys out of your pocket and contort yourself to insert the key and open the door. You practically fall inside feeling twice as stressed as when you left work. These are little things - but they are vital. They are signs that we have become so switched on that we are no longer functioning as well as we should. Other signs of desensitisation that can have an impact on our threshold are when we close off from those closest to us - when work becomes a greater priority for greater and greater periods of time - than those who through their supportive relationships with us - sustain us in the end. A threshold is a vital marker of our vulnerability - we ignore thresholds at our peril. We need to have some sound taking stock strategies. A game of golf, a gossip with friends, a dinner date and a night at the movies, taking the kids to the park, walking the dog, reading a book, a

relaxing bath, playing your favourite music - just saying no. This much we know: If work is stressful and home life is mostly supportive - we can survive indefinitely. If home life is stressful and work is mostly positive - we can survive indefinitely. If both work and home life are getting on top of us - we will struggle. Resilient people know how to look after themselves. For most of us resilience is like putting credits in the bank. We get told to do things in moderation. We get told this so often that it becomes part of the air we breathe. We forget it is there and don't give it attention. Here is another way of looking at this. If you generally eat well - not too much and generally healthy fresh food; if you get regular exercise - walk when you can, chop a bit of wood, work around the house, play with the kids; if you enjoy a drink or two, seldom get hung over, if you listen to your threshold - take time out when you need it, acknowledge the messages from those closest to you - you are well placed to survive anything non-lethal that may get thrown at you. This does not mean you won't get stressed. This does not mean you won't have bad days, bad weeks or even bad months. This does not mean that your threshold won't get breached from time to time - what it does mean is that you have credits to burn. Stress toughens us up. It makes us a bit more sinewy where there once was a little fat; teaches us not to sweat the small stuff because the big stuff is scary enough; teaches us to cut a bit of slack for others because they are going through the same thing. Not that everybody is in the same boat. Some of us are already leading lives that are more stressful than others. There are things happening in our personal lives that are giving us serious grief and workplace grief is the last thing we need.


WHERE DOES EMPLOYEE ASSISTANCE FIT INTO THIS? 1. If you know yourself. Understand your vulnerability. Listen to your threshold. Have good coping strategies - then you probably don't need to visit an Employee Assistance Program (EAP) counsellor. 2. If all of the above apply except your strategies are now not working - it might be a good idea to speak with an EAP counsellor. 3. If work stress is compounding difficult circumstances in your personal life then - seeing an EAP counsellor is a valuable opportunity to be listened to and to gain some perspective. It is worth remembering doing the manly thing and suffering in silence - is possibly one of the major reasons why females live four years longer, on average, in this country. WHAT CAN A COUNSELLOR DO? They will listen - it is rare for us to feel truly heard. Nothing validates our sense of worth than someone taking the time to truly listen. They understand grief. They understand that there are things that we have no control over that make us vulnerable. They can explore a range of coping strategies with you from: Act and Commitment Therapy, Cognitive Behavioural Therapy, Mindfulness, Solution Focused Therapy to strategies that best suit your resolve and set of

circumstances. They can help you move on - if that is what you really need to do. HOW CAN YOU AS A MANAGER/ PARTNER HELP It is simply platitudinous to say to managers you must listen. Unless listening is part of your managing strategy you simply will not do this well. So if you want to listen well - you must get strategic. It has to become part of your management plan and included in your regimen. And it can only become part of your regime if you develop the right attitude. Attitude is everything when it comes to listening. It starts with understanding that acknowledging is not agreeing. What do we mean by this? If you say to me "I just can't meet the deadline you have given me - with the outcomes you want we will need to change the deadline or the outcomes or both." You can challenge this: "What do you mean you can't meet the deadlines? You are not the one who has to explain it to the executive." In which case you are likely to get a defensive response: "Well what about me? Does the executive even give a stuff about me?" And so on. Or you could acknowledge: "So what you are telling me is that you are struggling to meet the deadlines with the outcomes I have given you?" The answer will almost certainly be a lot

less defensive: "That's exactly what I am saying. I just can't see how I can pull it off." You are now well placed to have a much more constructive discussion: "Okay tell me where you are up to and we'll see what we can do". You haven't agreed - and yet all options are still on the table and your team member is engaging with you and not resisting. A pretty good place to be for such a difficult situation. So listening is an attitude that allows you to become more approachable. When it comes to recommending EAP support for your team members approachability and the ability to listen are pretty serious assets. One of the biggest pay offs of listening well is that you yourself then get listened to. Recommending EAP support does not require you to be an expert on mental health. Knowing your staff and noticing observable change is the fundamental requirement. Sometimes we get stuck, and in so doing, avoid making a decision because it is too difficult or we can't predict the outcome. So in conclusion - knowing you can access assistance - understand that not making a decision is actually making a decision.

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39


YLC Beach Volleyball Sarah O'Brien-Smith Member, Young Lawyers Committee

On 19 February 2016, over 100 young lawyers switched the courtroom for the white sands of the beach volleyball court for the annual YLC Beach Volleyball Competition. The anticipation was palpable and added with the balmy Friday evening atmosphere, many were clearly eager to kick off their shoes and leave the work week behind them. After a brief warm up, the teams showed their talents in digging, setting, spiking and blocking on (and sometimes off) the courts. Many players enjoyed dramatic dives into the sand, some attempts more realistic than others, but all in the name of fun. Very few had not tasted sand by the end of the evening. After five rounds of friendly competition, the top four teams

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battled it out in a competitive round of semi-finals. With HopgoodGanim losing narrowly to Corrs Chambers Westgarth and Kott Gunning edging Carr & Co in a very close encounter. Kott Gunning and Corrs Chambers Westgarth then fought valiantly for ultimate honours and, in scenes that would make Kenny Loggins proud, the teams produced a contest of epic proportions. As the final whistle blew, Kott Gunning brought their team to victory, winning the YLC Beach Volleyball Competition. The evening continued after the grand final at Sand Sports Australia with players and spectators celebrating a fantastic evening of competition. Many thanks to the volunteers and the competitors for making the event such a success.


Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [2015] WADC 130 In Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [2015] WADC 130, Principal Registrar Melville ('the Principal Registrar') dismissed an application to set aside an action dismissed for want of prosecution. Pursuant to r 44G of the District Court Rules 2005 (WA), ('the Rules') the Principal Registrar considered (a) whether exceptional circumstances exist; and (b) if so, whether the court should exercise its discretion to set aside the dismissal. Referring to Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 and R v Steggall [2005] VSCA 278, the Principal Registrar stated that any decision as to the existence of exceptional circumstances needs to consider the explicit statement of objectives of a court in the management of litigation;

the rationale of that particular statutory provision; and the facts said to give rise to special circumstances, all of which are to be examined in light of the relevant act and the legislative intention [14]. The Principal Registrar concluded that the legislative scheme of the Rules indicates that failing to meet the procedural milestones that lead to the dismissal of an action for want of prosecution is indicative of both a lack of desire to pursue the litigation with purpose or determination, and a desire to litigate at a time and pace that is inconsistent and incompatible with Parliament's intention and community expectations. The court must have regard to the public interest in the proper and efficient use of its scarce resources and in the finality of litigation to progress litigation [18]. Following The Owners of SP1344, 129133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands

(Survey Strata Plan 44698) (Unreported, WADC, CIV 1718 of 2013, 14 April 2015) and Elwood v Goodman [2014] WADC 143, the Principal Registrar concluded that 'exceptional circumstances' connotes a situation that is highly unusual, rather than merely 'just over the line and atypical' [22], [47]. The Principal Registrar considered that the lengthy history of the action; which was punctuated by extensions of time and non‑compliance with orders, demonstrated a complacent attitude that the court processes would be utilised at a time that was practical to the parties generally, and the plaintiff in particular. The failure of the plaintiff and its solicitors to meet deadlines did not meet the exceptional circumstances requirement to set aside a dismissal for want of prosecution [36], [38]. Author: Young Lawyers Committee member

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Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist

Financial agreements – Interim injunction to preserve assets until determination of agreement's validity upheld In Teh & Muir [2015] FamCAFC 224 (2 December 2015) the Full Court (Finn, Strickland & Ryan JJ) heard an appeal by 36 year old Ms Tey. The appellant and her son arrived in Australia in January 2010 on a temporary visa and began living in the respondent's home. The respondent was 85 year old Mr Muir. On 19 February 2014 the parties made a financial agreement under s90UC FLA which provided that upon the breakdown of the parties' relationship "[a]ll properties shall be divided equally … [r]egardless of whose party's name [sic] on the title of the assets" ([8]). By 15 April 2014 the respondent had moved into a nursing home and on 29 May 2014 Ms Tey issued proceedings to enforce the agreement. The respondent filed his response by case guardian (his daughter). His case was that the parties "had never been in a de facto relationship and that at the time the financial agreement was signed he did not have the mental capacity to allow him to enter into … a binding agreement" ([12]). He sought an order that the agreement be set aside and that the proceeds of sale of his home be paid to him. Ms Tey appealed Dawe J's interim orders that half the proceeds be paid to the respondent (the balance to be held in trust) and that she be restrained from drawing from any bank account except for her daily needs, arguing that "because there was … a binding financial agreement the … judge had no jurisdiction to make the orders" ([26]). The Full Court dismissed the appeal with costs, Ryan J (who agreed with Finn & Strickland JJ) saying in separate reasons that by s31(1)(aa) "the primary judge was invested with jurisdiction to determine the various challenges made by the respondent to the validity of the Part VIIIAB financial agreement" ([63]). Ryan J continued (at [69]): However, s34 of the Act confers general power on the Court to make orders (including interlocutory injunctions) … as appropriate provided the Court has jurisdiction (which it has). By way of example, it has been held that s34 is a statutory source of jurisdiction to make an ex parte 'Anton Piller' order in appropriate cases in aid of the Court's

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jurisdiction in substantive proceedings properly invoked (In the Marriage of Talbot [1994] FamCA 129) … It follows that the primary judge had power to make the various injunctions under challenge. Property – Dismissal of wife's application for leave to proceed 16 years out of time set aside In Slocomb & Hedgewood [2015] FamCAFC 219 (12 November 2015) the Full Court (May, Ainslie-Wallace & Johnston JJ) heard the wife's appeal against Judge Donald's dismissal of her application for leave to bring proceedings out of time under s44(3) of the Family Law Act. The parties were married in 1989, had three (now adult) children and were divorced in 1995. In 2013 the wife filed property proceedings with an application for leave to proceed. Before the divorce the wife's solicitor wrote to the husband saying that the assets consisted of the home with a net equity of $15,000, furniture valued at $10,000 and a car ($12,000) and proposed that the wife receive certain furniture and the car in return for the transfer of her interest in the home to the husband. The wife kept and sold the car but said (which the husband denied) that she did not receive all the agreed furniture. The husband continued to live in the jointly owned home (the equity in which was now $300,000). The Full Court (at [18]-[24]) considered the wife's evidence that since separation "the husband overall made very little contribution to the children's financial needs"; "he continues to have the benefit of living in the house but has also paid the outgoings … "; about $20,000 was owed for school fees; and the wife was first advised of the time limit by her current solicitor in January 2013. The Full Court said that the primary judge "accepted that the wife had a prima facie case and that hardship would be caused if leave were not granted" ([33]) but refused leave due to delay on her part and prejudice to the husband. The Court cited authority, saying (at [45]) that "the husband ha[d] been equally inactive in protecting his rights … [and] took no steps to complete the agreement or institute proceedings", concluding at [48]: … the only prejudice to the husband was the possibility of a hearing in relation to property settlement where

the parties' main asset is jointly held … The conclusion of the judge in relation to delay demonstrated an error of law affecting the proper exercise of discretion. The prospect of the parties' legal position remaining as it is seems unjust. Property – Husband's 'secretive' transfer of home to children of his first marriage set aside In Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (Deceased) & Ors [2015] FCWA 108 (8 December 2015) a terminally ill husband secretly transferred the matrimonial home ("the Suburb N property") to the children of his first marriage. After learning of the transfer his wife of 35 years issued proceedings but the husband died before he was served. The wife sought an order that the transfer be set aside under s106B FLA (transaction to defeat claim) and property orders. The husband's children opposed the application, arguing that the court would not have made a property order had the husband not died as the parties had not separated. The parties each had adult children but no children together. At the start of the relationship the husband owned the Suburb N property and the wife a farm ([24]-[25]). They formed a trucking business, kept some assets separate but also bought property together. The wife nursed and cared for the husband after he was diagnosed with cancer ([57]). Duncanson J (at [85]) cited authority relevant to s106B, concluding ([91]) on the evidence (that the husband was 'secretive', "did not tell the wife about the transfer" and "instructed the second respondent not to do so") that the section was satisfied. The Court added ([93]) that it was "not necessary for the parties to have been separated for [a s79] application to be made". The transfer was set aside and a property order made. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.


High Court and Federal Court Judgments

FEDERAL COURT Adminstrative law The conundrum of whether a decision was of an administrative or of a legislative character – a decision not to vary or revoke certain rules In Applied Medical Australia Pty Ltd v Minister for Health [2016] FCA 35 (5 February 2016), the Court dismissed an application for judicial review by a manufacturer and supplier of medical devices for surgical procedures (Applied Medical). The main decision that was the subject of judicial review was a decision by the Minister’s delegate to reject an application to lower minimum group benefits applying for a sub-group in the Private Health Insurance (Prosthesis) Rules 2015 (No 1) (Cth). Applied Medical sought review under both s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s39B of the Judiciary Act 1903 (Cth). An initial issue considered by the Court (Robertson J) was whether the impugned decision, and a failure to decide, were administrative decisions made under legislation. After considering many authorities, Robertson J concluded at [35] that “while the making of the Private Health Insurance (Prostheses) Rules is to be characterised as legislative, as also would be varying or revoking those Rules in whole or in part, deciding to grant or deciding not to grant an application under s72-10(2) [of the Private Health Insurance Act 2007 (Cth) is of an administrative character . . .” Further, deciding not to act under s333-20 of the Private Health Insurance Act 2007 to vary the list in the Private Health Insurance (Prostheses) Rules was held to be of an administrative character (at [42]-[48]). Accordingly, there was jurisdiction for Applied Medical’s application for judicial review of administrative action. However, the Court rejected the various grounds of review including the allegation that there had been an improper exercise of discretionary power in accordance with a rule or policy without regard to the merits of the particular case. In this context, Robertson J said at [112]: “Once the repository of a discretionary power has considered an application for the non-application of the policy or a change in policy and has given a reason, other than the bare restatement of the policy, for rejecting that application, it is difficult to conclude that the discretionary power has been exercised inflexibly in the relevant sense”.

What was relevant to the Court’s general rejection of the grounds of judicial review was that the minute of the Minister’s delegate was not to be regarded as a formal statement of reasons (see at [19]-[20] citing observations of the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [25] and [72]).

the Bankruptcy Act 1966 (Cth)). The Court also held that the whole of the proceedings were in federal jurisdiction, as the claim depended on liabilities arising under federal laws. French CJ, Kiefel, Bell and Keane JJ jointly; Nettle J concurring. Appeal from Court of Appeal (Vic) dismissed. Migration Offshore detention – executive and legislative power – Act of State

Dan Star is a Victorian barrister and invites comments or enquiries on ph (03) 9225 8757 or email danstar@vicbar.com. au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment. HIGH COURT Insurance Joinder of third party insurer – “matter” and federal jurisdiction In CGU Insurance Limited v Blakely [2016] HCA 2 (11 February 2016) the High Court upheld a decision to join a third party insurer to determine the insurer’s liability to indemnify a defendant. Liquidators of Akron Roads Pty Ltd commenced proceedings under the Corporations Act 2001 (Cth) against directors of Akron seeking recovery of money paid in breach of director’s duties. The directors claimed on a professional indemnity insurance policy with CGU. CGU denied that the policy applied. The liquidators of Akron sought to join CGU to the proceedings against the directors, seeking a declaration that CGU was liable to indemnify the directors in respect of any judgment obtained. CGU argued that the Court had no jurisdiction to join it as there was no “matter” or controversy between the liquidators and CGU – the declaration sought was contingent and hypothetical. Further, the claim offended privity of contract principles as the liquidators were not parties to the insurance contract. (CGU also disputed they were liable under the policy.) The Court held that there was a sufficient dispute between the liquidators and CGU for there to be a “matter”, for a declaration to be sought and for CGU to be joined: (i) CGU had denied liability under the policy, which denial was not accepted by the directors or liquidators; (ii) if the Court was to find for the liquidators in their claim against the directors and to find that the insurance policy applied, CGU would be liable to pay money to the directors; and (iii) the liquidators would have a priority claim on any payout under the Corporations Act (or

In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 (3 February 2016) the High Court held that the Commonwealth’s involvement in the detention of the plaintiff in Nauru was valid. The plaintiff claimed that laws authorising the Commonwealth give effect to arrangements for offshore detention on Nauru, including to detain her, were invalid because they transgressed the limits on executive detention set down in Lim v Minister for Immigration (1992) 176 CLR 1 and were not supported by a head of power. Further, any Nauruan law relied on by the Commonwealth was invalid under the Consitution of Nauru. The Commonwealth argued that the Lim limit did not apply as the detention was in fact being imposed by Nauru under its laws (and the Court could not enquire into the validity of those laws); the executive’s action was authorised by s198AHA of the Migration Act 1958 (Cth); and the Lim limits, if they did apply, were not transgressed in this case. French CJ, Kiefel and Nettle JJ held (Keane J concurring) that the detention was imposed by Nauru, under its laws, and not by the Commonwealth. Lim does not apply to the Commonwealth’s participation in such action offshore. Further, s198AHA was valid and authorised the Commonwealth’s action. Bell and Gageler JJ, writing separately, held that the Commonwealth was detaining the plaintiff, that the Commonwealth’s action was authorised by s198AHA (which was valid), and that the Lim principles applied to the situation, but were not breached in this case. Gordon J dissented, finding that the Commonwealth was detaining the plaintiff, that the Lim principles applied, and that the Commonwealth’s actions went beyond the Lim limits. The Court unanimously held that it could not examine the constitutional validity of the Nauruan laws. Answers to Special Case given.

Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email ayuile@vicbar.com. au. The full version of these judgments can be found at www.austlii.edu.au.

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Law Council Update NT LAWYER DAVID MORRIS WINS MAHLA PEARLMAN AWARD FOR THE AUSTRALIAN YOUNG ENVIRONMENTAL LAWYER OF THE YEAR The Law Council of Australia has announced David Morris as the winner of the 2015–16 Mahla Pearlman Award for the Australian Young Environmental Lawyer of the Year. The Award is presented to a young practising barrister or solicitor who has made a significant contribution to environmental law. Greg McIntyre SC, Chair of the Australian Environment and Planning Law Group of the Legal Practice Section of the Law Council, said the quality of nominees had been outstanding. "David has topped a truly outstanding group of nominees this year," Mr McIntyre said. "As the sole employee of the Northern Territory's Environmental Defenders Office, David's work has been nothing short of heroic. In the context of the withdrawal of Commonwealth funding from EDOs, David has had to not only conduct all the work of the office, but also ensure it had the funds to continue. "During the course of his career, David has had the conduct of Supreme Court proceedings challenging licences to extract water from ground water aquifers underlying tropical rivers in the Territory. He argued cases in the Lands, Planning and Mining Tribunal and Civil and Administrative Tribunal under the NT Heritage Act. He prepared an application for protection under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act of the Watarrka National Park on behalf of traditional owners. "He successfully lobbied the NT Government to reverse its decision on hydraulic fracking in the Watarrka National Park. He exposed the NT Government's failure to require an environmental assessment of Port Melville in the Tiwi Islands. And he acted for traditional owners in the Borroloola region in relation to environmental pollution by the McArthur River Mine and Redbank Copper Mine. "On top of this David has engaged in a significant outreach programme, speaking at community meetings in 22 remote and rural communities and on Indigenous radio and television."

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Mr McIntyre noted the glowing testimony of Mr Morris's clients over the course of his relatively brief career to date. "Mr Morris's clients cite his legal knowledge and his capacity to always be on top of his brief. Yet in addition to this, they make special mention of his ability to communicate effectively and respectfully. They reference his easy rapport with all stakeholders, including Indigenous community members in remote areas," he said. The Award was presented on 10 March in Sydney after the Mahla Pearlman Oration in the Commonwealth Law Courts Building. The Award honours the memory of Mahla Pearlman AO, the former Chief Judge of the Land and Environment Court of New South Wales and former President of the Law Council of Australia, who died in December 2011. IWD 2016 SEES LEGAL PROFESSION IN UNPRECEDENTED PUSH TO IMPROVE INCLUSIVENESS AND DIVERSITY The Law Council of Australia has taken International Women's Day to shine a light on the unprecedented push by the legal profession to take practical action to improve inclusiveness and diversity. In 2014, the Law Council's landmark National Attrition and Re-engagement study (NARS) showed that while 63 percent of lawyers admitted to the profession today are women, they made up only 10 percent of senior appointments. The study also revealed more insidious issues, with half of women lawyers who work part-time reporting discrimination due to family responsibilities. There was also evidence of conscious or unconscious bias against women, especially those who adopt flexible working arrangements. Since the publication of the NARS study, the Law Council has been leading a broad and cooperative range of initiatives under its Inclusiveness & Diversity (I&D) Program, announced last year. Notable developments in 2016 include: •

The Diversity and Equality Charter, drafted in May 2015, has been swiftly adopted by the full complement of Law Societies and Bar Associations from across the country as well as by a swathe of law firms, barristers' chambers, and individuals.

A National Equitable Briefing Policy has been developed to achieve

a nationally consistent approach towards bringing about cultural and attitudinal change with respect to gender briefing practices. •

The preferred supplier has been selected for the development of an unconscious bias training programme for Australian lawyers.

A central information hub is being rolled out as a platform for resources, policies, guidelines, and practical examples regarding parental leave, return to work and flexible work practices.

Law Societies and Bar Associations from across the country have been developing their own individual action plans.

The Managing Partners Diversity Initiative established by 13 major firms in order to collaborate on initiatives to address issues that are hindering the progress of female lawyers has also continued its ground breaking work. Law Council of Australia President Stuart Clark AM said the energy and focus being brought to the challenge is both "unprecedented and exciting." "In just two years we have gone from a study on the depth of the problem, through an extensive round of consultation, and now to the exciting process of implementing the changes that will address what is a very serious problem issue for the profession," Mr Clark said. "We've seen a palpable shift in the mood of the profession when it comes to addressing this issue. Ever since the Law Council of Australia started bringing together key representatives last year there has been a real commitment for practical action. No more is this seen as a niche 'women's issue' – this is now correctly perceived as a problem undermining the integrity and potential of Australia's legal profession. "Watching the legal profession enthusiastically throw its support behind the new Diversity and Equality Charter and other initiatives has been extremely encouraging, but it's obviously just the start. We have moved beyond acknowledging the problem and beyond articulating an intent to do something about it. Today's mission is about pursuing pragmatic, results-oriented initiatives that can turn the tide."­


pam sawyer

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Professional Announcements Career moves and changes in your profession

Jarvis Nixon Legal

IRDI Legal

Marcia Jarvis and Emily Nixon, formerly solicitors at the Public Trustee, have established a new practice, Jarvis Nixon Legal, located in Karrinyup.

IRDI Legal is pleased to announce the appointment of Catie Robins as Precedent/ Practice Support Lawyer. Catie Robins

Catie’s appointment strengthens IRDI Legal’s growing corporate and commercial practice which has recently extended into tax and superannuation areas.

Marcia Jarvis and Emily Nixon

Empire Barristers & Solicitors Pauline German and Prue Hawkins are very proud to announce that together

they established Empire Barristers & Solicitors. Opening their doors on 18 January 2016, Empire Barristers & Solicitors are located at suite 3, 9 Bowman Street, South Perth, contact details 6311 9644 and info@ empirelaw.com.au The firm offers legal advice and representation in all areas of Family law, Criminal law, Disability Discrimination and Wills & Probate.

Pauline German

Prue Hawkins

David Malcolm Justice Centre towers over Cathedral Square Perth’s Cathedral Square project reached another milestone on 11 March when Premier Colin Barnett officially named the office tower in the centre of the heritage precinct.

from David Malcolm's lifelong commitment to justice, but also from his inspirational and generous support of charities and community organisations," Mr Barnett said.

The David Malcolm Justice Centre honours the memory of The Honourable David Kingsley Malcolm AC QC, former State Chief Justice and Lieutenant Governor who was awarded the Companion of the Order of Australia honour in 1992.

Law Society President Elizabeth Needham joined other dignitaries including Commonwealth Minister for Social Services the Hon Christian Porter, Minister for Finance the Hon Bill Marmion, Attorney General the Hon Michael Mischin, Perth Lord Mayor Lisa Scaffidi and the Hon Chief Justice Wayne Martin at the event.

"Our State not only benefited

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New Members New members joining the Law Society (February 2016)

Associate Membership Miss Kiralee Doyle

Ordinary Membership The University of Notre Dame Australia

Mr Tom Klaassen

Mr Matt Wilson

Lavan Legal

Mr Ka Chuen Tang

Tang Legal

Mr Mark Gregson

Charles Darwin University

Ms Arlia Fleming

Southern Aboriginal Corporation

Ms Kassie Comley

Bennett & Co

Mr James Waterman

Taylor David Lawyers

Ms Parames Karpusamy

Family Court of Western Australia

Miss Eisha Jones

Hotchkin Hanly

Restricted Practitioner

Miss Maddie Brown

The University of Notre Dame Australia

Ms Ilsa Wallner

Miss Christine Standley

Murdoch University

Mr Joel Emery

Culshaw Miller Legal Group Pty Ltd

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47


Events Calendar Stay up-to-date with the latest Law Society member and CPD seminars

DATE

EVENT

LOCATION

APRIL CPD SEMINARS Wednesday, 6 April

Preparing for your next performance and salary review

The Law Society of Western Australia

Wednesday, 13 April

Strata Title Reform update

The Law Society of Western Australia

Wednesday, 20 April

Re-engagement and re-invention: your career, your direction

The Law Society of Western Australia

MAY MEMBERSHIP EVENTS Monday, 16 May

Law Week Breakfast with Fred Chaney AO and 2016 Attorney General's Community Service Law Awards

Parmelia Hilton, Perth

Monday, 16 May

Youth Civics Leadership Day – by invitation only

The Law Society of Western Australia, The Old Court House Law Museum

Wednesday, 18 May

Law Week Panel Discussion presented by the Young Lawyers Committee

Supreme Court of Western Australia

Wednesday, 18 May

Alfred Hawes Stone Talk: Early Lawyer and Photographer, with Dr Pamela Statham-Drew

The Old Court House Law Museum

Wednesday, 18 May

Lifeline WA: Domestic Violence Alert Session

The Law Society of Western Australia

Wednesday, 18 May

Sole Practitioner and Small Firm Forum

The Law Society of Western Australia

Thursday, 19 May

Law Week Cocktail Event and Lawyer of the Year Awards

Bankwest, Perth

MAY CPD SEMINARS Wednesday, 18 May

Mental Health Matters: Technology and its effect on the practise of law – Panel Discussion

The Law Society of Western Australia

Thursday, 19 May

Refugee matters: a seminar for lawyers and non-lawyers

The Law Society of Western Australia

Friday, 20 May

Mental Health Matters: Review of the Mental Health and Depression in the Profession Report

The Law Society of Western Australia

JUNE MEMBERSHIP EVENTS Friday, 17 June

Society Club

Ocean Centre Hotel, Geraldton

Thursday, 30 June

Society Club

Perth CBD

JUNE CPD SEMINARS Thursday, 9 June

QPS Accreditation workshop one

The Law Society of Western Australia

Thursday, 16 June

QPS Accreditation workshop two

The Law Society of Western Australia

Friday, 17 June

Country Roadshow: Geraldton

Ocean Centre Hotel, Geraldton

Friday, 24 June

Introduction to advocacy

The Law Society of Western Australia

AUGUST CPD SEMINARS Friday, 5 August Sunday, 7 August

Practical advocacy weekend

Seashells Resort Mandurah

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 For all upcoming events and further information please visit lawsocietywa.asn.au 48 | BRIEF APRIL 2016


MONDAY, 16 MAY – FRIDAY, 20 MAY 2016

LAW WEEK 2016 A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY Embracing the law as part of our daily lives is important. From knowing our rights under the law, creating employment contracts, how a mediation works, through to setting up a business, having a will prepared or simply knowing what to do and where to go for legal assistance, the law plays a vital role. Each year, Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and build a shared understanding of the role of law in society. It is an excellent opportunity for the profession to promote its role in enabling an open, independent and unbiased judicial system. The Law Society of Western Australia showcases a series of events and information sessions focusing on law and justice in the community. Save the Date • Law Week Breakfast with keynote address by Fred Chaney AO – Monday, 16 May 2016 at Parmelia Hilton • Law Week Cocktail Evening and Lawyer of the Year Awards – Thursday, 19 May 2016 at Bankwest Visit lawsocietywa.asn.au/law-week for more information and to register for these events. With thanks to Law Week supporters and sponsors

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Brief April 2016