Brief March 2018 by The Law Society of Western Australia

VOLUME 45 | NUMBER 2 | MARCH 2018

A Voice for Aboriginal and Torres Strait Islander Peoples in Australia

Your firm is famous for connecting evidence across cases.

Our Discovery services let you connect it across the world. Where discovery work flows. www.lawinorder.com â&#x20AC;˘ 1300 096 216

Volume 45 | Number 2 | March 2018

CONTENTS

ARTICLES 06

An Advisory Body for Aboriginal and Torres Strait Islander Peoples in Australia – the detail may be fatal to the deal Security for Costs – can evidence of a policy from an ATE insurer suffice?

The Duty of Confidentiality

An Australian Approach to International Commercial Arbitration

2018: A year of significant changes to privacy law, affecting legal practices and clients

Perpetuity periods and vesting dates – some common myths

Lawyers who offer free, highquality legal advice wanted

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. Copyright is retained by the author. 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: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Scott Print

Editor: Jason MacLaurin Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, The Hon John McKechnie QC, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (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 details, contact brief@lawsocietywa.asn.au

REGULARS

President: Hayley Cormann Senior Vice President: Greg McIntyre SC

02 President's Report 04 Editor's Opinion

43 Ex Juris: Travel tales from the legal profession

38 Drover's Dog

44 Law Council Update

39 Young Lawyers Case Notes

45 Pam Sawyer

41 Aunt Prudence Juris: your one stop solution to problems after law school

46 Professional Announcements

42 Family Law Case Notes

48 Events Calendar

46 New Members

Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Catherine Fletcher, Emma Griffiths, Karina Hafford, Eric Heenan, Fiona Low, Marshall McKenna, Denis McLeod, Jodie Moffat, Nicholas van Hattem, Paula Wilkinson Junior Members: Zoe Bush, Sarah O’Brien-Smith, Brooke Sojan Country Member: Kerstin Stringer Chief Executive Officer: David Price

47 Classifieds 01

PRESIDENT'S REPORT Hayley Cormann President, the Law Society of Western Australia

We are another month down, and what an interesting and exciting time it has been both for the Society and the profession generally.

•

Among other things, we have seen much movement in the benches among our judiciary, and while it is a delight to welcome new faces, it is always difficult to farewell our respected and long-serving judicial officers of this State.

•

February also saw lots of work within and around the Society, with Councillors and staff meeting for governance training, as well as to engage our new Councillors in the Society’s strategic plan. Our plan, Delivering the Vision: Strategic Plan (2017-2020) was created and developed through key engagement with stakeholders and members, and represents a focused and consistent approach to achieving the strategic vision of the Society during this period. We also convened our second full Council meeting for the year, and as always, representing our members at Council level is a diverse and engaged group from various sectors of our profession. In this report, it is impossible to update you on all of our various areas of focus and development, but for now, I am pleased to report to you on the following.

•

In 2018, the Working Group will continue to implement the recommendations set out in the Final Directions Paper. Diversity and Inclusion Readers of The West Australian will have seen my opinion piece on 14 February 2018 regarding flexible work practices, diversity and inclusion. As the opinion piece outlines, the legal profession faces challenges brought on by cultural change and new technologies. Yet these challenges are also opportunities to lead, for both the Society and lawyers generally. The Society is also: •

Advancement of Women in the Legal Profession Working Group Members will recall the Society published its Final Directions Paper, a response to the Women Lawyers of Western Australia’s 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Review. (The Final Directions Paper can be accessed online, along with other useful resources for your practice at lawsocietywa.asn.au/ diversity-and-inclusion). The Final Directions Paper made a number of recommendations regarding gender bias. The Society’s Advancement of Women in the Legal Profession Working Group is currently working to meet these recommendations. In particular, the Working Group is advancing initiatives with respect to: • •

setting voluntary gender targets; encouraging the Western Australian Government to adopt an equitable briefing policy for State agencies;

02 | BRIEF FEBRUARY 2018

collecting data in relation to gender balance in the legal profession; encouraging courts to accommodate practitioners with family responsibilities so they are not required to appear in court outside normal court sitting times; encouraging legal practices to develop written policies, guidelines and process that support diversity in the workplace; promoting gender diversity resources and CPD programmes including the Law Council of Australia’s unconscious bias training; and establishing a forum for law firms to discuss their diversity initiatives.

•

working towards the integration of diversity and inclusion programmes into the work of its committees, such as the Access to Justice Committee and Employee Relations Committee, as well as the Society itself; and consulting with law firms with diversity policies to help develop a best practice model that small firms can adopt.

In recent weeks the Society offered a number of seminars as part of our CPD programme, including on 14 February, when we were delighted to present some inspiring workplace diversity initiatives from WA firms. Central to these initiatives is the desire to engage and retain talented lawyers within the profession. Libby Lyons (Director, Workplace Gender Equality Agency) joined us from Sydney with partners Margie Tannock (Squire Patton Boggs), Jake Howard (Norton Rose Fulbright), Elizabeth Macknay (Herbert Smith Freehills) and Leanne Nickels (DLA Piper). Thank you to Society Councillor Catherine Fletcher for chairing this very engaging session.

The theme of diversity and inclusion was also explored at the Society’s Law Summer School conference. A panel of eminent speakers including Dr Ambelin Kwaymullina (The University of Western Australia), Fadzi Whande (The University of Western Australia), Asanka Gunasekera (Francis Burt Chambers) and Charlotte Wallace (State Administrative Tribunal) shared their insights at a session chaired by Dr Andrew Lu OAM, the Society’s Manager Professional Development. Law Summer School On the subject of Law Summer School, I was delighted to welcome delegates to the State’s premier legal education conference on Friday, 23 February 2018. Law Summer School is always an ideal forum to debate the important issues and this year was no different. The Hon Robert French AC facilitated a breakfast panel discussion on the biggest challenges facing the legal profession in the next five years and what we can do to overcome them. The session was very well regarded by delegates and set the tone for a positive day of learning and debate. We were also delighted to welcome the Hon Justice Julie Ward, Chief Judge in Equity from the Supreme Court of New South Wales who presented on the important topic of ‘Fragmenting Equities’. The day concluded with a keynote presentation on leadership and strategy by one of Australia’s top business leaders Diane Smith-Gander, NonExecutive Director of Wesfarmers Limited. We were joined at Law Summer School by over 30 top legal minds from around Australia and the Society is enormously grateful to all of the speakers, session chairs and facilitators. Thank you to all delegates for sharing a day of valuable insights and knowledge with us. We look forward to seeing you again in 2019. Look out for a full review of Law Summer School in the next edition of Brief. That’s it from me in this edition of Brief, but as always please do not hesitate to contact me (president@lawsocietywa.asn. au) or our Chief Executive Officer (dprice@ lawsocietywa.asn.au) to share with us your ideas and feedback.

Your voice at work A summary of recent media statements and Society initiatives

The Law Society Launches its New Reconciliation Action Plan

New Appointments to District and Supreme Courts

The Law Society launched its Reconciliation Action Plan (RAP) 'Innovate' 2017-19 at a special event on Friday, 9 February 2018. The new RAP builds on the work undertaken by the Law Society in accordance with its inaugural 'Reflect' RAP 2015-16.

The Law Society congratulates the following judicial appointees: •

District Court Judge Anthony Derrick SC has been appointed a justice of the Supreme Court; and

Barry McGuire provided a Welcome to Country before Krista Dunstan, Convenor of the Law Society’s Indigenous Legal Issues Committee, and Greg McIntyre SC, Law Society Senior Vice President, addressed attendees on the journey to reconciliation and the continuing role of the Law Society.

•

Amanda Burrows SC, Consultant State Prosecutor, Office of the Director of Public Prosecutions for WA and barrister John Prior of Francis Burt Chambers have been appointed as judges of the District Court.

The Law Society’s RAP is a commitment to our vision of a legal profession where Aboriginal and Torres Strait Islander law students, graduates and practitioners feel valued and respected. The RAP envisions a legal community in which members understand and show respect for Aboriginal and Torres Strait Islander cultures, through building relationships and laying the foundation for increased opportunities for Aboriginal and Torres Strait Islander peoples. The Law Society’s RAP was developed by our RAP Working Group, in consultation with our Indigenous Legal Issues Committee. Reconciliation Australia also provided guidance and assistance throughout the process. The Law Society’s RAP has been endorsed by, and is registered with, Reconciliation Australia. You can access the RAP document at www. lawsocietywa.asn.au/reconciliation-action-plan.

The Law Society Congratulates New Children's Court President The Law Society congratulates Her Honour Judge Julie Wager, who has been appointed as the new President of the Children’s Court of Western Australia. Judge Wager’s appointment will take effect on 15 March 2018, following the retirement of Judge Denis Reynolds, who has held the position for more than 14 years. Law Society President Hayley Cormann said, “On behalf of the legal profession of Western Australia, I am delighted to congratulate Judge Wager on her appointment as President. Her Honour has more than three decades’ legal experience and has a long history as part of the judiciary, having been appointed Western Australia’s first Drug Court magistrate in 2000 and a judge of the District Court in 2005. Judge Wager has been a valued member of the Law Society since 1990 and served on the Law Society’s Council between 1998 and 2000. We wish Her Honour all the very best in her new role. “We also pay tribute to the long and extraordinary service of His Honour Judge Denis Reynolds, President of the Children’s Court since 2004, and a respected member of the WA judiciary for over three decades. On behalf of the Law Society, I wish His Honour all the very best in retirement."

Law Society President Hayley Cormann said, “On behalf of the legal profession of Western Australia, I warmly congratulate Judge Anthony Derrick SC, Amanda Burrows SC and John Prior on their respective appointments. The three appointees are highly respected within the WA legal profession and each brings vast knowledge and skill to their new roles.” Judge Anthony Derrick SC has been a member of the District Court of Western Australia since 2010, presiding over many trials in both criminal and civil jurisdictions. Amanda Burrows SC was recently appointed Senior Counsel and is a highly experienced practitioner, having worked at the Office of the Director of Public Prosecutions since 2000. John Prior has practised as a barrister for many years, specialising in criminal law and practising widely across all courts in Perth and in country WA.

New Appointments to District and Family Courts The Law Society congratulates the following judicial appointees, as announced by the Attorney General, the Hon John Quigley MLA, on 1 February 2018: • • •

Wendy Gillan, as a judge of the District Court of Western Australia; Gail Sutherland, as a judge of the Family Court of Western Australia; and Leonie Forrest, as acting magistrate of the Family Court of Western Australia.

Law Society President Hayley Cormann said, “On behalf of the legal profession of Western Australia, I warmly congratulate Wendy Gillan, Gail Sutherland and Leonie Forrest on their respective appointments. All of the appointees are vastly experienced and highly regarded within the legal profession. “These appointments also demonstrate that women are becoming more and more empowered in the legal profession and within our community. And, all of the data relevant to corporate Australia and the various professions and service industries, demonstrates that the advancement of women leads to significantly improved outcomes for organisations, and in this case, will for our judicial system. “Finally, I take this opportunity to thank His Honour Judge Eaton and the Honourable Justice Walters for their years of service to the District Court of Western Australia and Family Court of Western Australia respectively.”

EDITOR'S OPINION Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This month’s cover article ‘A Voice for Aboriginal and Torres Strait Islander Peoples’ is timely. The proposal for such a body has been the subject of much public discussion, being brought to the fore again by recent statements from the main political parties. Dr Bertus De Villiers’ article canvases the complex legal issues involved, including the procedure for creating such a body. The article also looks at past actions in Australia and approaches taken overseas. The article is another reminder of the interplay between the law, politics and society. The central importance of the law in this regard (albeit at a high level, concerning the Constitution) has also been brought to light by the recent reinvigoration of the debate about a Republic, and the ongoing fallout from the dual citizenship scandal. One might think this would heighten the perceived desirability of having legally trained members of the public. However, a few weeks ago, the Prime Minister’s comments that too many students were studying law provided the basis for some more extensive criticisms in media opinion pieces.1 One article contained a quote from renowned economist Willem Buiter that: “except for a depressingly small minority… lawyers… are incapable of logic; they don’t know the difference between necessary and sufficient conditions, indeed any concept of probability is alien to them (and) they don’t understand the concepts of opportunity cost.” Without wanting to seem precious, and recognising Mr Buiter’s eminence as a first class academic and corporate economist whose criticisms were undoubtedly based upon extensive experience with lawyers2, it is not clear that, of all the criticisms to level against lawyers, these alleged inadequacies are the most apt.3

04 | BRIEF FEBRUARY 2018

And, if there is to be sledging of lawyers and an exposure of their foibles – surely it is best emanating from the pages of Brief? The above is a poorly disguised mideditorial plea for letters or submissions to Brief – indeed, a challenge to submit material which expands or improves upon Mr Buiter’s sledge. There will be special recognition given to any submissions to Brief which answer the challenge to “Beat the Buiter”. As to some of the criticisms, necessary and sufficient conditions are wellestablished concepts in, for instance, tort law and the analysis of causation and duty of care.4 Further, it seems lawyers usually develop a visceral and practical understanding of necessary and sufficient conditions at a relatively early stage. Woody Allen and/or Marshall Brickman apparently minted the phrase that 80% of success in life is showing up5. However, lawyers quite quickly learn that while actually showing up to Court or an important meeting is a necessary condition for a successful outcome, it is by no means a sufficient one. And, that rendering a lawful invoice is a necessary, but certainly not a sufficient, condition for being paid. Putting aside the benefits of having legally trained members of the public who can better understand and explain issues such as those involving the Constitution - what about the benefits of having such people available to answer other pressing questions of the day for large swathes of the population? Such as: are the marriages on the reality show Married at First Sight genuinely legal? The answer is no, due mainly to the failure to comply with the statutory requirement of one month’s written notice of an intention to marry. That these marriages are not genuinely legal seems fair as, aside from what Mr Buiter would call a “depressingly small

minority”, many of the contestants do not appear to be genuine human beings. Lawyers are not immune, though, to the lure of reality television. In the USA (of course) Ms Andi Dorfman, a prosecutor, left her job in the middle of a murder trial she was assisting on, to appear on The Bachelorette, leaving her colleagues in the lurch. A Mr Craig Robinson left his firm, with an impending trial date looming, to also join that show. The trial judge refused a continuance of the trial requested by Mr Robinson’s last minute replacement, and dismissed the client’s case, resulting in the client suing the firm for negligence. As Mr Robinson did not win the Bachelorette, he stands as an example of just showing up not being a guarantee of success (a 20%-er) and of failing 100% by not showing up to the trial. NOTES: 1

See for instance ‘Churning out lawyers shows a lack of judgment’ by A Creighton in The Australian, 5 February 2018.

In another example of the unfairness of Google, a search of Mr Buiter’s name and ‘lawyer’ brings up articles about the very public and scandalous dispute with a Dutch lawyer/economist and alleged ex-mistress, a Ms Mees, involving her facing charges of stalking and harassment, in a New York court thousands of email exchanges between the two which vacillated between the sensual, to the downright threatening, and threats of defamation proceedings.

One of the emails from Ms Mees to Mr Buiter read: “Hope your plane falls out of the sky”. Which begs the questions: what about others on the plane, and those on the ground? A more lawyerly-lawyer might have worded the email along the lines of: “I hope you are alone piloting a plane which falls out of the sky over an unpopulated area”. One assumes Mr Buiter does not regard Ms Mees as in the “depressing small minority of lawyers” excluded from his criticism (and his view of lawyers might, in this context, be entirely understandable).

See for instance Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 and Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317.

Noting that the other 20% is hiding under the covers (Woody Allen saying “I’ve tried both”).

Brief welcomes your thoughts and feedback. Send all letters to the editor to brief@lawsocietywa.asn.au

KBE Expands into Legal Support Recruitment Sharon Apathy joins as a Principal Consultant KBE UPDATE

KBE is thrilled to announce that Sharon Apathy has joined our team as a Principal Consultant. Sharon specialises in advising Legal Support professionals across permanent, temporary and contract roles. Sharon will partner with KBE’s client base to secure HR Managers, Practice Managers, PA’s/EA’s, Legal Secretaries, Paralegals, Career Receptionists, and the full spectrum of Legal/Corporate Support positions. LAW FIRM M&A ACTIVITY NEW PRACTICE GROUPS/MERGER OPPORTUNITIES. We are working with numerous highly regarded firms across all tiers to secure Partners and teams, including mandates to facilitate acquisitions of entire firms. KBE has current briefs from leading boutique practices through to the largest national/ international firms across: Banking and Finance, Construction, Corporate/M&A, Family, Litigation, Property/Leasing, Tax, Wills & Estate Planning and Workplace Relations. We are interested in speaking with Senior Lawyers/Partners who can bring across some form of transportable fee base. In the alternative, we would be pleased to speak with Senior Lawyers who can demonstrate a track record of building a client base.

SALARIED/EQUITY PARTNERSHIP OPPORTUNITIES PARTNER – COMMERCIAL LAW – Boutique WA firm. A recently established two Partner practice seeks a third Partner to assist in rapidly building up the firm. With five lawyers in total and an annual fee base of $2m – $2.5m, the Partners are seeking a senior lawyer with a fee base of $200k+ to better service their existing client/ referral networks and drive business development activities with a vision to grow into a medium sized law firm. PARTNER – COMMERCIAL/LITIGATION MIXED PRACTICE– Inherit $1M to $1.5M practice. KBE Human Capital has been briefed exclusively by a long established full service law firm to secure an experienced Senior Lawyer to take over a $1m to $1.5M+ mixed Commercial and Litigation practice. The firm has an experienced team of junior and mid-level lawyers with a loyal client base, which will provide an excellent platform to further grow the practice. This position would suit an experienced Senior Lawyer with 8-20+ years’ PAE and experience leading a commercial/ litigation practice. This is a rare opportunity to inherit a client base, with no need to bring any transportable fees or network. PARTNER – CORPORATE/M&A – Break away firm to launch in FY2019. KBE Human Capital is working with a number of top-tier Senior Partners who are planning to break away from their national/international firms and establish a market leading boutique firm. With existing skill sets across Energy & Resources, Mining, Projects and Infrastructure, they are now seeking a quality Corporate/M&A Partner to head up the practice

and benefit from their extensive referral networks. The Partners are confident of generating $5M-7M+ in their first year and the incoming Partner does not need an extensive transportable practice, provided you can actively build client relationships within their networks.

related Corporate/M&A work. We are interested in speaking with lawyers with 3-6+ years’ PAE from national/international or leading boutique firms. You will have previous experience working on a range across E&R or Corporate matters and confident in liaising directly with clients.

PARTNER – HEAD OF FAMILY LAW – Full service firm. A leading suburban law firm seeks a senior lawyer to join as the Head of Practice in building and leading the Family Law team. The firm attracts a significant volume of high quality work with a loyal referral base of accountants and financial planners, and no fee base is required to take on this leadership position. Innovative Partnership that continues to experience growth in both revenue and profit.

LEGAL COUNSEL with 3-6 years’ PAE for ASX200 mining/construction company. Join the legal team of a high profile, ASX-Listed company within the mining/contracting sector and advise Senior Stakeholders within the group across a diverse range of legal issues. The key aspects of the role will involve drafting/negotiating a variety of commercial agreements, liaising with the ASX/ ASIC in relation to all corporate governance, providing company secretarial support, and assisting with M&A activity. The General Counsel is seeking a lawyer with 3-6+ years’ PAE in Corporate, Commercial, Mining/E&R or Construction. Both private practice and in house lawyers are encouraged to apply.

PARTNER – WORKPLACE RELATIONS – Leading WA firm. This well-known WA law firm is seeking a Senior Lawyer and Head of Workplace Relations to build and lead their practice. The incoming lawyer will inherit a fee base of circa $500,000, working closely with the other Partners to drive business development activities and gain further market share. Our client is seeking a Lawyer from a national/international or well-regarded boutique firm as they continue to develop their brand and build into the mid-tier in the WA market place. This position would suit applicants with 5-10+ years’ PAE looking to step up and take on a leadership role within a highly collegiate, driven Partnership that dedicates significant time and resources to strategic planning. You will be willing to mentor junior lawyers with demonstrated aptitude for building and maintaining client relationships.

2 YEARS’ PAE TO SENIOR ASSOCIATE/SPECIAL COUNSEL BANKING AND FINANCE LAWYERS for two toptier firms (permanent and 12 month contract opportunities available). KBE Human Capital is working with several leading Banking and Finance teams to secure B&F Lawyers with 3-7 years’ PAE. With opportunities at both national and international firms, the successful candidates will have experience from top-tier/international firms dealing with complex transactions, with an interest in mining and energy project financing across Australia and various emerging markets. CORPORATE/M&A LAWYERS for multiple firms across all tiers. If you are an Associate or Senior Associate with 2-5 years’ PAE or 5-10+ years’ PAE, then you are in high demand. With the resources and commodities markets beginning to rebound, now is an excellent time for Corporate/M&A/ ECM Lawyers with quality experience to assess your career options and ensure your salary levels remain in line with current market trends. We have active roles with quality boutiques through to the largest international firms. ENERGY & RESOURCES LAWYERS for national/ international firms. Two of WA’s best regarded E&R teams are seeking junior to mid-level Lawyers. The firms act for a diverse range of ASX100 and ASX200 clients, providing exposure to a range or E&R work, including: sale and distribution of natural gas, LNG facilities development and transactions, renewables, energy/commodities trading, competition/regulatory issues and

PROPERTY LAWYER ROLES for 2IC and Junior Lawyer at a market leading boutique. KBE Human Capital is currently working with a specialist Property and Commercial Law firm based in the CBD to secure a 2IC and Junior Property Lawyer. The firm acts for property developers, real estate agents, strata managers, public companies and private individuals across the full spectrum of Property and Commercial Law. The firm boasts one of the most relaxed cultures in Perth, with Partnership on offer within 3-5 years for the 2IC candidate. WORKPLACE RELATIONS LAWYER for 2IC within top-tier international firm in Sydney. Join one of Australia’s best regarded Workplace Relations Partners in growing their Employment, IR and OH&S practice within a top-tier fully integrated international firm. Working in the firm’s Sydney team across both front and back end Employment matters, the successful candidate will advise boards and HR Managers of ASX100 and ASX200 clients. This Partner is particularly well-known for their expertise and proactive approach, as well as taking an active role in mentoring their teams. This is a rare career development opportunity to step into a 2IC role and fast track to Partnership within one of the world’s leading international firms. The Partner is interested in speaking to lawyers with 4 8+ years’ PAE from top-tier firms, with strong academics. An above market salary is on offer. WORKPLACE RELATIONS LAWYER to join national firm. This is a unique opportunity for a Workplace Relations lawyer at the Associate or SA level to join a growing national firm and build an Employment practice alongside a newly appointed Partner. You will gain exposure to a range of complex matters across workplace investigations, performance and conduct issues, terminations, IR and OH&S matters. You will advise a suite of ASX listed companies across the full spectrum of Employment, IR and OH&S matters, from both an advisory and litigation perspective. This position would suit an experienced Associate/SA level lawyer from a top or mid-tier firm with a strong interest in client engagement and BD activities, with the drive to progress to Partnership over the next 3-5 years.

Chris Bates

Siemone Neutgens

Sharon Apathy

Managing Director

Principal Consultant – Legal

Principal Consultant – Legal Support P: 08 6467 7889

M: 0411 645 984 E: chris@kbehc.com.au

M: 0403 383 326 E: siemone@kbehc.com.au

M: 0413 132 049 E: sharon@kbehc.com.au

KBE Human Capital A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au

06 | BRIEF FEBRUARY 2018

An Advisory Body for Aboriginal and Torres Strait Islander Peoples in Australia – the detail may be fatal to the deal By Bertus De Villiers Adjunct Professor of the Law School, Curtin University

1. Introduction The Aboriginal and Torres Strait Islander Peoples of Australia (‘Aboriginal Peoples’)1 have recently submitted a proposal to the parliament of Australia for a ‘voice’ to be given to them in the Constitution. The proposed ‘voice’ is to be an elected Advisory Council that would give advices to the federal Parliament; comment on draft legislation in the federal Parliament; and comment on and propose policy measures that may impact on the interests of Aboriginal Peoples.2 The federal government has rejected the proposal on the basis that according to its view, it is unlikely that the Australian electorate would support an amendment to the Constitution. The federal opposition has not rejected the proposal and it remains willing to pursue the proposal. The proposal is, regardless of the rejection by the current government, a major step forward to break the hiatus that has characterised the relationship between Aboriginal Peoples and the rest of the Australian society for many decades. At the same time, however, the exact nature of the proposed Advisory Council; its composition; and the powers and functions of such a Council are yet to be settled and approved at a referendum (if the Constitution is to be amended) or (as proposed by the author) by Parliament. Many questions remain about the Advisory Council remain to be answered and this article endeavours to contribute to resolving some of those questions on the basis of international experiences. The two questions being considered in this article are: (a) should the Advisory Council be created by the Constitution or by ordinary legislation; and (b) by which

mechanism should the Advisory Council be elected. It is the opinion of the author that an advisory council could be established by legislation rather than by an amendment to the Constitution and that the basis of elections should be freedom of choice without any form of ‘testing’ of Aboriginality or a separate voters roll for Aboriginal Peoples. These two essential elements may provide a basis for parties to find common ground in the ongoing debate.

2. Background to the recommendation for an Advisory Council There has been a debate in Australia for many years about the formal recognition of Aboriginal Peoples as the original owners and occupiers of the land. Since no treaty was entered into at the time of occupation of Australia in 1788, there remains a strong opinion that advocates for a treaty of some sort to be negotiated with Aboriginal Peoples.3 Prime Minster Malcolm Turnbull and Leader of the Opposition Bill Shorten, jointly appointed a Referendum Council on 7 December 2015 with the task to consult with Aboriginal Peoples about options for recognition and to make recommendations.4 The Referendum Council was tasked to consult with Aboriginal Peoples across the country in an attempt to formulate a national consensus about the views of Aboriginal Peoples. The Referendum Council, after arguably the most extensive consultation process ever within Aboriginal communities, made its recommendations in June 2017. The preferred option put forward is the creation of an elected, consultative body through which Aboriginal Peoples can 07

express their views; be consulted by government and Parliament; and make inputs in legislation and policies that affect Aboriginal Peoples.5 The core pillars of the proposed Advisory Council are as follows:6 •

The Advisory Council would be created by the Constitution;

•

The Council would be elected by Aboriginal Peoples and not appointed by government;

•

The detail of the Council, its powers and its functioning shall be contained in legislation to be enacted by the federal Parliament;

•

The Council would have advisory, not co-legislative powers;

•

The exact scope of advices and the circumstances when advices are sought by Parliament from the Advisory Council are yet to be negotiated; and

•

The doctrine of parliamentary sovereignty would remain intact, which emphasises the advisory rather than legislative role of the Council.7

3. Issues to be addressed In this following part consideration is given to two of the key issues yet to be settled by way of negotiations and how those may be addressed on the basis of comparative international experiences. The key issues considered are: (a) should the Advisory Council be created by the Constitution or by ordinary legislation; and (b) by which mechanism should the Advisory Council be elected. In the following part these two questions and selected case studies are considered: 3.1 Should the Advisory Council be created by the Constitution or federal legislation? The recommendation of the Referendum Council is for the Advisory Council to be a creature of the Constitution, with detail about its election, powers and functions to be set out in subsequent legislation. The institution would therefore be of a constitutional nature, while the composition, powers and functions of the Council would arise from a statute.8 It is a policy, political and legal question whether it is essential for the Advisory Council to be created by the Constitution, particularly in light of its (limited) advisory powers. Three preliminary comments can be made in response to this proposal:

08 | BRIEF FEBRUARY 2018

Firstly, the rationale and sentiment to have the Advisory Council enshrined in the Constitution is understandable, but the complexity to amend the Constitution may place the entire initiative at risk.9 Due to the high threshold and the demonstrated reluctance of the Australian electorate to approve constitutional amendments, only 8 of 22 efforts to amend the Constitution since 1901 have been successful.10

Parliament illustrate how an advisory body could be created by statute rather than by the constitution, while it serves the purpose of acknowledging indigenous Peoples and giving advice about matters that affect their laws and culture. This means it has been relatively simple to amend the Sami Parliament Act since the inception more than 20 years ago since the Parliament is not created by a constitutional instrument.

Secondly, even if the Constitution is amended to provide for an Advisory Council, the flexibility that may be needed to adjust aspects of the Council as time progresses may be inhibited due the rigidity of the Constitution. The Constitution may therefore lock in a particular model which, even it is it shown to be unsuccessful or ineffective in time to come, may be complex, if not impossible, to amend or to remove.

In contrast with the statutory base of the Sami Parliament, the South African Constitution recognises the institution, status and role of traditional leadership in South Africa subject to the provisions of the Constitution. The Constitution of South Africa goes beyond what is proposed for the Advisory Council in Australia. The Constitution of South Africa anticipated additional legislation to regulate the institution of traditional authorities, and it also allows the judiciary to, where appropriate, take into account and apply traditional law.12 The institution of traditional leaders is therefore seen in South Africa as part of the general system of government, rather than merely advising in regard to certain matters.13

Thirdly, although the proposal is that sovereignty of Parliament should remain unfettered, the reality is that the advices given by an elected body which is created by the Constitution may in due course be construed by the judiciary in a manner that in effect curtails the sovereignty of Parliament. There are two useful international case studies to refer to in regard to this particular issue, the Sami Parliament of Finland and the Houses of Traditional Leaders in South Africa. The Sami Parliament, with its 21 elected members is akin to an advisory body albeit it is called a ‘parliament’. Although being referred to as a ‘parliament’, the principal role of the Sami parliament is not to legislate but rather to serve as a forum where the Sami express their opinions; comment on draft legislation; and recommend priorities for the allocation of government grants. The Sami Parliament is a creature of an Act and not of the Constitution.11 The Sami Parliament can determine its own procedures, albeit that some basic requirements about its operations are set out in the Sami Parliament Act. The Sami Parliament elects a board that is responsible as a quasi-executive to coordinate its functions. There are several aspects of the Sami arrangements that may be relevant to the Australian debate, namely: The Sami are recognised in the Constitution but the Parliament is created by legislation; the Parliament is elected but it has principally advisory powers; and the Parliament has often expressed concern that its advices are either not sought or not being properly considered by the national parliament. The legal arrangements of the Sami

Whereas in Australia the emphasis is placed on the ‘advisory’ powers of the proposed Council, in South Africa traditional leaders are part of the three spheres of government. It is therefore not surprising that the Constitution of South Africa contains such elaborate provisions in regard to traditional authorities, their powers and functions. The Constitution provides for houses for traditional communities in all of the provinces where such authorities are present (7).14 It means in effect that the traditional leaders are recognised as a form of government at local, provincial and national levels.15 Any legislative arrangement that may affect traditional communities must be referred to the relevant house of traditional leaders for advice and comment. The respective provincial legislatures are however not bound by the advices received. At the national level in South Africa provision is made for the National House for Traditional Leaders.16 The House must meet at least once per quarter while the national Parliament is in session, but more regular meetings can be convened.17 The Parliament is not bound by the advices received. The constitutional status of the House of Traditional Leaders is akin to what is being proposed for the Aboriginal Peoples, but the lack of influence of the House as well as the cost of its management, have been controversial in South Africa. The House highlights

the credibility deficit of a constitutional instrument of which the powers are weak and ineffective. Observations for Australia The way in which traditional leaders in South Africa are recognised is quite different from what happens in Finland and what is proposed for the Advisory Council in Australia. In Finland the Sami Peoples as a community of traditional people are recognised in the Constitution at a symbolical level and for the uniqueness of their culture and laws, but the specifics of the Sami Parliament are set out entirely by statute. No mention is made in the Constitution of the Sami Parliament. The Sami Parliament is principally an advisory body, albeit that it can also set priorities for spending in areas that affect the Sami culture. In South Africa the traditional authorities are recognised in the Constitution and the houses for traditional leaders in effect form part of the system of government. Additional legislation has been enacted to clarify their powers and functions, but the institution of traditional leaders is recognised by the Constitution, albeit that the advices given by the houses of traditional leaders are not binding on Parliament. Although the Referendum Council has recommended that the Advisory Council for Aboriginal Peoples be created by the Constitution, the following reasons can be forwarded for the Council to be created by statute rather than by the Constitution: (a) the complex amendment procedures of the Australian Constitution, compared to the relative simplicity to enact or amend a statute, would make the effort to establish the Council via the Constitution very arduous and uncertain; (b) the rigidity of the Constitution and the complexity to make adjustments as time progresses would leave little room to improve the functioning of the Council if over time fine-tuning or even abolition of the Advisory Council is required; and (c) the principal powers of the Advisory Council is proposed to be non-legislative and hence a statutory institution with advisory powers may ultimately be more appropriate than an institution created by constitutional amendment. 3.2 Electoral system for the Advisory Council The Referendum Council does not specify in which way the members of the Advisory Council would be elected. The answer to this question is more complex. At the core of the question is what the electoral system is intended to deliver and how does a person ‘qualify’ to be a

voter? Is the electoral system aimed at a representative system whereby elected Aboriginal persons would be able to liaise with their respective communities by way of a type of geographical first past the post, ward-system, or will political parties form the core of the system with a type of proportional representation scheme which inevitably shifts the focus to party headquarters away from communities? This is not a question that can be solely resolved only by negotiators at the national level, but would require careful consideration by Aboriginal communities. Choosing an appropriate electoral system is a particularly complex challenge not only because of the suggestion of a separate electoral process for a particular racial group, but also because questions that arise as to how an individual’s ‘Aboriginality’ is determined so as to ascertain whether a person is included in or excluded from participation in elections for the Advisory Council. The Referendum Council was silent on these questions, which illustrates the extent of work required before any proposal can be put to the Australian electorate. The following case studies may be useful examples of how the issue of community representation has been dealt with by other countries: The Maori in New Zealand In New Zealand 7 seats in the national Parliament are reserved for the Maori Peoples.18 The seats are distributed on the basis of geographical residential and density patterns of the Maori.19 The current arrangement is that persons of Maori descent, regardless of the degree of decent, can elect to have their names registered on the General or Maori roll.20 The Electoral Option coincides with the nationwide census which takes place every 5 years. An elector may change his/her preference after each census.21 There is no legislative requirement that the candidates for the Maori seats must be Maori in origin.22 The system is entirely based on self-identification.23 This means that the decision of a person to register on the Maori roll is entirely personal and cannot be challenged or ‘tested’. Self-identification in South Tyrol In the province of South-Tyrol in the north of Italy, unique arrangements are made to accommodate the interests of the German, Italian and Ladin communities in provincial institutions and bureaucracy.24 Elections for the provincial legislature take place within the context of separate, proportional community representation. Voters identify themselves on the basis of the language community with which

of the communities they most closely associate. The election of community members in South Tyrol by the respective language groups inevitably means that candidates for election must declare their language association prior to an election. The candidates must declare their membership (or affiliation) to one of the language group because at the end of the election government is formed according to the proportional principle whereby each community is represented in accordance with the size of turn-out at the election. Political parties have no legal responsibility to ensure that a person does indeed belong to the language community with which he/she claims to associate. Nobody controls whether a person’s declaration reflects his/her “true” membership in a specific language group. This principle of self-identification is not without controversy since not all South Tyrolese necessarily associate exclusively to one of the three language communities; many persons originate from mixed families where more than one language identity is maintained; and some individuals do not wish to declare their language association at all. Sami elections in Finland The elections for the Sami Parliament are conducted on the basis that only persons who are ‘Sami’ may participate in it.25 A Sami is defined as: ‘a person who considers themselves to be Sami and who speaks or has spoken Sami at home, or whose parents or grandparents speak or have spoken Sami at home, or has a parent who is or has been on the Sami parliament electoral register.’26 The whole of the country serves as a single constituency. Due to the relatively weak political organisation of the Sami there is an absence of strong party political structures to agitate for policies that could benefit the Sami.27 Finish legislation establishes the legal basis upon which the Sami are identified, namely firstly, self-identification which entails the subjective expressions and intentions of an individual to associate and be associated with the Sami Peoples; and secondly, an objective element whereby the closeness of a person to the Sami community is dependent on whether one or both of his/her parents spoke the Sami language or one or both parents learnt Sami as their first language.28 There is some complexity to define at a practical level who is a Sami and who is not.29 Community affiliation in Brussels In Brussels, the capital of Belgium and the European Union, the concept of community autonomy has been in

the process of development since the 1970s. The Dutch, French and German language communities live intermingled in Brussels. 30 Elaborate arrangements have been developed for the communities to share power within Brussels and also to be afforded autonomy to take care of their respective cultural, language and recreational needs. The French and Flemish (Dutch speaking) communities each has autonomy by way of an elected statutory cultural council for purposes of decision-making over language and cultural affairs. For purposes of election to the regional authority of Brussels, each candidate must indicate to which community he/she belongs. The names of the candidates appear on separate lists – one for each of the linguistic communities. In order to be nominated to become a candidate for a specific community, a person must submit a nomination form signed by at least 500 members of the community for which he/she seeks election. No candidate may appear on the list of more than one community. Voters can decide for which of the communities they vote. There are no separate voters lists and the choice of a voter to vote for a specific community list is not disclosed and cannot be challenged by anyone. A failed experiment – the Aboriginal and Torres Strait Islander Commission

10 | BRIEF FEBRUARY 2018

The Aboriginal and Torres Strait Islander Commission (ATSIC)31 of Australia was an advisory and administrative body for Aboriginal Peoples which was created in 1990 and abolished in 2005.32 ATSIC had elements of self-government for Aboriginal Peoples, but it never had the legality, credibility or legitimacy of an elected government with legislative and executive powers and it failed to be an effective advisory or policy body.33 In essence ATSIC’s brief was to develop policy proposals in limited functional areas; to make recommendations; and to oversee the implementation of some policies on behalf of Aboriginal Peoples.34 Although representatives of ATSIC were elected on a regional basis, ATSIC never functioned as a “government” for Aboriginal Peoples and its credibility as a voice for Aboriginal Peoples was limited. It was, at best, a weak development and consultative agency with limited powers.35 The system whereby representatives to ATSIC were elected, was as follows: there was no separate voters roll which meant that those persons who regarded themselves as ‘from the Aboriginal race’36 could elect to vote without having to prove their association or acceptance of association. Casting a vote in the ATSIC election was not a substitute or a prerequisite for voting in general elections at local, state and federal levels. The general voters roll was used for purposes

of identification of voters, but otherwise the decision to participate in an ATSIC election was entirely by choice of the individual. In contrast to federal and state elections where voting is compulsory, there was no obligation on any person to participate in ATSIC elections. Australia was divided into regions (35) for purposes of the ATSIC elections every 3 years. The overall participation rate for ATSIC elections never exceeded the 30% mark nationally.37 In 2002, the last election of ATSIC around 54 000 persons participated, which was around a quarter of those eligible.38 Observations for Australia These examples of community electoral systems have the following in common: firstly, no provision is made for a separate voters’ roll whereby a person is excluded from voting with the rest of the population; secondly, there is no obligation on a person to participate in a community election process; and thirdly, an individual’s association with a community is subjective and is not tested or subject to a review. These communalities, when applied to the proposed Advisory Council, can provide useful guidance. Provision could be made for an electoral process for the proposed Advisory Council whereby (i) candidates are nominated on the basis of a certain

number of signatures; (ii) the choice of an individual to participate in elections for the Advisory Council is entirely voluntary and based on free association; (iii) the decision of an individual to cast a vote cannot be challenged on the basis of some test of Aboriginality; and (iv) voting for the Advisory Council does not preclude an individual from participating in general elections at local, state and national levels. 4. Recommendations for Australia In light of the case studies analysed above, the following recommendations can be made in regard to the two issues the subject of this article, namely (a) should the Advisory Council be created by the Constitution or by ordinary legislation; and (b) by which mechanism should the Advisory Council be elected: 1. The Advisory Council should be established by Act of the Commonwealth Parliament, rather than by the Constitution. This is consistent with the powers of the Council to make recommendations; it circumvents the need for a constitutional amendment; and it allows for amendments and refinement to the Council as time passes. 2. The Act which establishes the Advisory Council should contain all the detail in regard to its objects; powers, composition; elections; and procedures. 3. No separate voters roll should be utilised for elections for the Council. This is consistent with experiences in Finland, South Tyrol, Belgium and ATSIC where community representation is secured without the need for a separate voters roll. 4. The decision of an individual to cast a vote in an election for the Advisory Council should be voluntary; at the sole discretion of the individual claiming to be from Aboriginal descent; and non-reviewable and non-justiciable. This is consistent with the principle of freedom of association and avoids litigation about the ‘Aboriginality’ of a person. 5. There should be no record kept of a person’s decision to participate in the election of the Advisory Council. This would ensure that no direct or indirect discriminatory effects can arise as result of a person’s decision to cast or not to cast a vote. 6. The electoral system should include a geographical element to ensure that elected representatives can

speak with Aboriginal Peoples and for Aboriginal Peoples about their interests in country and related issues. This is consistent with the nature; organisation and laws and customs of Aboriginal communities.

a212(2) of the Constitution of South Africa.

s17 of the Traditional Leadership and Governance Framework Act 10 of 1997.

s2 of the National House of Traditional Leaders Act 22 of 2009.

a8(4) of the National House of Traditional Leaders Act.

For useful background see Puao-Te-Ata-To Report for the Ministerial Advisory Committee on a Maori perspective for the Department of Social Welfare (Wellington, 1986) and S McClelland, ‘Māori Electoral Representation: Challenge to Orthodoxy’, (1997)17 New Zealand Universities Law Review, pp. 272-291.

s45(1) Electoral Act 1993 at http://www.legislation. govt.nz/act/public/1993/0087/latest/whole. html#DLM308513.

s76(1) Electoral Act. The delineation is therefore by way of cultural association, rather than hereditary acceptance. See E. M. McLeay, ‘Political Argument About Representation: The Case of the Māori Seats’, (2008)28 Political Studies, p. 47.

s77(1) Electoral Act.

Until 1967 only Maori candidates were eligible for election to the reserved Maori seats, but that limitation was removed by the Electoral Amendment Act of 1967.

See The Royal Commission on the Electoral System, Report of the Royal Commission on the Electoral System: Towards a Better Democracy, (Wellington, 1986).

For a general overview and discussion see B De Villiers, Power-sharing options in complex societies – possible lessons from South Tyrol for young democracies on ways to protect ethnic minorities at a regional level’ (2017)16 Journal on Ethnopolitics and Minority Issues in Europe pp1-31.

U Aikio-Puoskari and M Pentikainen, The language rights of the indigenous Sami in Finland – under domestic and international law (University of Lapland, 2001) Annex 1.

a1 Sami Parliament Act.

See Research Centre of Wales “Sami in Finland” (2016) at https://www.uoc.edu/euromosaic/web/document/ sami/an/i1/i1.html.

Finish Official Gazette SSK 17/7/1995/974.

For a discussion about the process of ‘Sami identification’ refer to T Joona, ‘The definition of Sami Person in Finland and its application’ in C Allard and S Skogvang (eds), Indigenous rights in Scandinavia: autonomous Sami law (Routledge, 2016) 155-72. Joona [159] discusses how ‘inclusion’ as a Sami and ‘exclusion’ from being a Sami has become ‘problematic’.

See for general reference: K Deschouwer ‘Kingdom of Belgium’ in J Kincaid and GA Tarr (eds) Constitutional origins, structure and change in federal countries (McGill, Toronto 2005) p.48; A Lecours ‘Belgium’ in AL Griffiths Handbook of federal countries (McGill, Toronto, 2005) p.58.

This is one of the challenges if the proposal of an Advisory Council is put to a referendum since all the details in regard to its establishment and functioning would need to be finalised before the referendum can be called. The risk of persons voting against the constitutional amendment for various, non-related, reasons is high. See for example how previous referenda in Australia failed, most notably the most recent in the regard to the ‘republic’, because of a variety of non-related objections. See in similar vein how constitutional referenda in Canada failed (Meech Lake (1987) and Charlottetown (1992) because so many diverse interest groups found (divergent) reasons to vote against it. R Kopff and A Sayers ‘Constitutional politics in Canada’ in R Blindenbacher and A Ostien (eds) Dialogues on constitutional origins, structure and change in federal countries (McGill-Queen University Press, 2009) 18.

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

Refer for example to Australian Human Rights Commission (2005) “Statement on ATSIC” http://www. humanrights.gov.au/news/media-releases/statementatsic.

For the objectives of ATSIC see s3 Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

Refer to ATSIC’s objects and functions in ss 3 and 7 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). See A Pratt and S Bennett, ‘The end of ATSIC and the future administration of indigenous affairs’ (2004-5) Current Issues Brief at http:// www.aph.gov.au/About_Parliament/Parliamentary_ Departments/Parliamentary_Library/Publications_ Archive/CIB/Current_Issues_Briefs_2004__2005/05cib04.

See s128 Constitution of Australia. The scepticism of Prime Minster Turnbull is on the one hand understandable, but on the other hand the unilateral manner in which he acted by rejecting an constitutional amendment was surprising.

See W Sanders ATSIC’s achievements and strengths: implications for institutional reform (Centre for Aboriginal Economic Policy Research, 2004) at http:// caepr.anu.edu.au/sites/default/files/Publications/ topical/SandersATSICAchievement.pdf.

See http://www.aec.gov.au/elections/referendums/ Referendums_Overview.htm.

ss3 and 101 Aboriginal and Torres Strait Islander Commission Act 1989.

s1(1) of the Sami Parliament Act provides as follows: ‘The Sámi, as an indigenous people, have linguistic and cultural autonomy in the Sámi homeland as provided in this Act and in other legislation. For the tasks relating to cultural autonomy the Sámi shall elect from among themselves a Sámi Parliament.’

The possible reasons for the low voter turnout have been the subject of debate. See for example L Behrendt ‘The abolition of ATSIC – Implications for democracy’ (2005) Democratic Audit of Australia http://democratic.audit.anu.edu.au/papers/200511_ behrendt_atsic.pdf.

a211(3) of the Constitution of South Africa.

D Bizana-Tutu Traditional leaders in South Africa: yesterday, today and tomorrow (M-Phil University of Cape Town, 2008) at http://etd.uwc.ac.za/ xmlui/bitstream/handle/11394/2268/Bizana-Tutu_ MPHIL_2008.pdf?sequence=1.

See W Sanders ‘Participation and Representation in the 2002 ATSIC Elections’ (2004)39 Australian Journal of Political Science, pp175-195 and W Sanders, J Taylor and K Ross ‘Participation and Representation in ATSIC Elections: A 10 Year Perspective’ (2000)35 Australian Journal of Political Science, pp493-513.

NOTES: 1

The term ‘Aboriginal Peoples’ is used for convenience to refer to the rich and diverse identities, languages, laws, customs and interests of the Aboriginal and Torres Strait Islander Peoples.

The nature and scope of matters that would be referred by the Parliament for advice are yet to be clarified. It is not envisaged at this stage that the Advisory Council would have advisory involvement in the legislative process of states and territories. This may be a serious shortcoming since the states and territories legislate on a wide variety of matters that may fall within the scope of the policy areas that the Advisory Council may want to comment on.

Some of the state governments of Australia have been discussing options for a symbolical treaty with Aboriginal People within the particular state, but there seems to be little appetite at a federal level for a formal treaty that would be binding in international and national law. See ‘Victorian Government to begin talks with First Nations on Australia’s first Indigenous treaty’ ABC News (26 February 2016) at http://www.abc.net. au/news/2016-02-26/victoria-to-begin-talks-for-firstindigenous-treaty/7202492.

See https://www.pmc.gov.au/indigenous-affairs/ constitutional-recognition.

Although the exact nature, scope, composition, and functions of such a consultative body are yet to be considered, the deputy prime minter Barnaby Joyce was quick to say the idea of a third chamber of parliament [as a co-legislative chamber] ‘would not fly’ with the electorate. ABC News: http://www.abc.net. au/news/2017-05-29/indigenous-chamber-parliamentwont-fly-barnaby-joyce-says/8568068. Since then the Prime Minster Turnbull has gone further to reject any proposal for an amendment to the Constitution. He was however silent about the possible enactment of an Advisory Council by way of federal statute.

Final Report of the Referendum Council (Commonwealth of Australia, 30 June 2017) 36 at https://www.referendumcouncil.org.au/final-report.

This summary was echoed by a senior Aboriginal leader, Noel Pearson, when he said: “This is not a third chamber, nor reserved seats. The proposal is for an indigenous voice to parliament – an institution set up in legislation, constitutionally guaranteed a say in indigenous affairs.” N Pearson “Memo Richo: Facts count, not lazy fictions” The Australian (8 August 2017) 6.

Security for Costs – can evidence of a policy from an ATE insurer suffice? By Kim May Senior Litigation Manager, Litigation Lending Services Ltd

A recent decision of the Federal Court considered whether evidence as to the existence of a policy of ATE insurance constituted adequate security for the Respondents’ costs When liquidators or administrators look into the affairs of companies under their control, their investigations can sometimes lead to the potential for claims to be brought for the benefit of creditors. However, given the fact that these companies are often without funds, the ability to prosecute a claim can often be impeded if a defendant/respondent puts on an application for security for its costs and such application cannot be met. Traditionally, defendants and courts have preferred security in the form of payment of funds into court or the provision of a bank guarantee. Both of these traditional forms of security involve an upfront payment of funds, which are then effectively quarantined until the outcome of the litigation is known. This adds to the financial burden on the plaintiff/applicant

12 | BRIEF FEBRUARY 2018

of running the claim, particularly if ATE (After the Event) insurance has also been obtained, as the premiums for such insurance are relatively high. In a recent case determined by the Federal Court of Australia, Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited [2017] FCA 699, the issue at stake before the Court was whether it was adequate for the Applicant to provide security for the Respondents’ costs by adducing evidence of an ATE policy it had obtained. In Petersen, the Applicant company (Petersen) brought a representative proceeding on behalf of a class who had all suffered losses arising from their purchase of a financial product which was operated by one of the Respondents, DDH Graham Limited (DDH), as agent

there was the potential for the policy to be cancelled or the amount payable reduced if Petersen either fraudulently or non-fraudulently breached its duty of disclosure to AmTrust;

for the other Respondent, the Bank of Queensland Limited (BOQ). The proceedings were funded by a litigation funder, Vannin Capital Operations Limited (Vannin), a funder registered in Malta. Vannin indicated that it was prepared to provide reasonable security for the Respondents’ costs, but it sought to provide it by way of evidence of a policy of ATE insurance that it had obtained from AmTrust Europe (AmTrust). The Respondents on the other hand asserted that the AmTrust policy did not provide adequate security and that the traditional forms of security, being payment into Court or the provision of a bank guarantee, should be ordered instead. At least one of the Respondents, DDH, had indicated that it might accept an appropriately worded unconditional indemnity in its favour from AmTrust however, Petersen/ Vannin did not offer such indemnity, instead preferring to test the Court’s attitude towards the insurance policy. Relevantly, two Victorian Supreme Court cases handed down in September 2015 held that an appropriately worded deed of indemnity from an ATE insurer may suffice as security for a defendant’s costs.

The Case Against accepting the ATE Policy as Security BOQ and DDH were united in their opposition to Petersen’s position and put forward individually a number of arguments as to why the AmTrust Policy was inadequate as security, including the following: •

The Respondents were not parties to the AmTrust policy and AmTrust had assumed no direct obligation towards them;

•

The policy contained several exclusions, which potentially brought into play circumstances which were beyond the Respondents’ control;

•

The inclusion in the policy of an under-insurance clause which would be detrimental to the Respondents if enlivened as it would decrease the amount payable under the policy;

•

The burden of enforcement of the policy if AmTrust failed to respond to a claim;

•

Aside from policy exclusions,

•

The requirement in the policy that Petersen and its legal representatives control the litigation conflicted with the funder’s entitlement in the funding agreement to exercise a certain level of control, which could lead to a breach of the policy;

•

Certain obligations contained in the policy ran counter to ‘the proper administration of justice’ as they required Petersen’s legal representatives to defer management of any adverse costs arguments to AmTrust, and this might result in Petersen taking a position that was not reasonably sustainable and may lead Petersen’s legal representatives to breach their paramount duty to the court;

•

The cost of obtaining an unconditional deed of indemnity in favour of the Respondents (which Vannin did not do) was approximately $550,000 to cover a potential costs liability of $5.5m. This substantial amount suggested that the risk assumed by AmTrust under the deed was significantly higher than the risk it assumed under the policy, and by implication the policy provided significantly less comfort to the Respondents than an unconditional deed of indemnity would.

One overarching concern voiced by DDH was that acceptance of the AmTrust policy as security ‘renders DDH hostage to the conduct of the Applicant (and Funder), whose interests are opposed to those of DDH in this litigation. There can be no presumption that they have acted, and will continue to act, in such a way as to ensure the limits of the AmTrust Policy remain or will remain available…’. Insurance policies are by their nature full of conditions and obligations, which serve to define and limit the insurer’s risk. But parties who have paid very significant premiums for those policies are likely to be highly motivated to do everything possible to keep them on foot and not do 13

ordered to be given and may vary the time at which, or manner or form in which, the security is to be given. 4. If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. 5. This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security. Additionally, s 1335(1) of the Corporations Act 2001 (Cth) provides:

anything to prejudice the likelihood of them responding positively to a claim. The arguments advanced by the Respondents focused on an assertion that the risk to the Respondents of accepting the ATE policy as security was a significantly higher risk than that assumed by Petersen and Vanninfor example, the Respondents were essentially blind to the process by which Vannin had applied for the policy (and any relevant non-disclosure), they had no control over any circumstances which might trigger exclusions, cancellations or reduced cover, and the evidence suggested that even the insurer considered that the risk assumed by it under the policy was substantially less than the risk it would assume if it provided a deed of indemnity to the Respondents.

Was the ATE policy in this case adequate security? Before undertaking a consideration of the Respondents’ specific objections, Yates J looked at the applicable legislation relating to the court’s power to make an order for security: s 56 of the Federal Court of Australia Act 1976 (Cth) and rule 19.01(1) of the Federal Court Rules 2011 (Cth). Section 56 of the Federal Court of Australia Act provides: 1. The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her. 2. The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. 3. The Court or a Judge may reduce or increase the amount of security 14 | BRIEF FEBRUARY 2018

1. Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. Yates J observed that whereas s 56 of the Federal Court Act provides the court with unconditional power and discretion to order that security be provided by an Applicant, s 1335(1) of the Corporations Act was conditioned on the requirement that for security to be ordered there needed to be evidence at the outset that the corporation would be unable to pay the costs of the defendant if the corporation was unsuccessful in its claim. Therefore s 1335(1) included a threshold requirement before security could be ordered. His Honour stated that in his view there was no reason why an appropriately worded ATE policy might not be an acceptable form of security and furthermore, it might also be capable of negativing the threshold requirement contained in s 1335(1) of the Corporations Act. In this case Vannin had accepted that security should be provided and consequently, Yates J did not need to embark on a consideration of whether the threshold contained in s 1335(1) was met. In any event, these two distinct questions, which Yates J referred to as ‘convergent questions’, ultimately come down to an analysis of the second issue- whether the form of security proposed is sufficient in the circumstances. Yates J considered several United Kingdom cases which favoured acceptance of an ATE policy as an adequate form of security, and noted the position of the courts in those cases

which rejected certain concerns raised by the Respondents in this case. For example, as to the argument that a breach by the insured of a term of the policy could mean that the insurer was able to limit or even cancel the policy, it was held in a case of Geophysical Services Centre Co v Dowell Schlumberger (ME) Inc [2013] EWHC 147 (TCC) that this was only a theoretical possibility and the risk was, on the same basis, merely a theoretical possibility. As stated by Yates J ‘The point here is that, even with an apparently solvent claimant company that is currently trading profitably, there is always a theoretical possibility that things can change unexpectedly and, perhaps, quite rapidly.’ However ultimately, Yates J was not persuaded to accept the AmTrust policy that had been secured by Vannin in this case as adequate security for the Respondents’ costs. In reaching this conclusion, Yates J was persuaded by the following factors: •

The insured under the policy was Petersen, not the Respondents, and whilst Petersen (and Mr and Mrs Petersen) had given undertakings to the Court that they would make claims on the policy, those undertakings did not include undertakings to sue AmTrust to enforce any claim if AmTrust failed to respond positively to any claim, and evidence as to Petersen’s financial circumstances suggested that it would not have the financial resources to sue AmTrust in any event;

•

The undertakings provided were undertakings to the Court rather than to the Respondents, so the Respondents had no direct contractual rights against the Petersen parties and whilst the recent enactment of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) meant that the Respondents might be able to bring a claim directly against AmTrust, there were certain restrictions applicable to the exercise of this right;

•

The potential consequences of nondisclosure (including non-fraudulent non-disclosure) included an ability on the part of AmTrust to reduce its liability or even cancel the policy, and there was inadequate evidence as to the circumstances under which the funder had obtained the policy (Vannin had not given any evidence on the issue);

•

The AmTrust policy contained a

significant number of exclusions and whilst Petersen argued that, in line with the UK position, the associated risk was merely theoretical, the concept of risk ‘reflects a value judgment’ that is likely to differ across different parties. The Respondents had illustrated this by way of the argument that the cost of providing a deed of indemnity at $550,000 indicated that the insurer considered the risk it was exposed to under the policy to be significantly less than the risk it would be exposed to if it provided an unconditional deed of indemnity in favour of the Respondents; •

Even if it were to be accepted that the risk of certain exclusions was theoretical, there were some exclusions which had an associated risk which was much more real, such as a clause in the policy which allowed AmTrust to exclude liability for any costs caused by the negligence of Petersen’s legal representatives. In this case, the Respondents asserted that they were likely to make arguments at trial criticising the way Petersen’s case had been conceptualised and

pleaded and if they did so, that might cause AmTrust to rely on this exclusion on the basis that it supported negligence on the part of Petersen’s legal representatives; •

The risk of cancellation before a costs order was made would mean that there would be no indemnity available under the policy for any costs incurred prior to the cancellation;

•

There was a risk that if Petersen became insolvent, any proceeds received under the AmTrust policy may not be made available to the Respondents;

•

The clause in the policy which required Petersen to resist any application for summary assessment of the Respondents’ costs conflicted with the Petersen parties’ overarching obligation to the Court to act in a way so as to facilitate the just resolution of disputes according to law.

Conclusion Yates J clearly stated that in appropriate circumstances, an ATE policy could

satisfy as security for a Respondent’s costs, and that it may even suffice to refute the usual presumption in favour of security being ordered. However, the reasons articulated by his Honour as going against the Respondents in this case appear to contain some that were ‘deal breakers’, and would be difficult for a Respondent to overcome in any similar application in the future, unless the insurance policy differed substantially in its terms and conditions from that obtained by Vannin in this case. Whilst this is a developing area of law, the factors which tended against a finding in Petersen’s favour in this case suggest that it may be some time before an Australian court is prepared to accept an ATE policy as providing adequate security for a Respondent’s costs. It is likely to require a change in mindset from a position that such policies contain restrictions and limitations that render them inherently risky to one that adopts a less cautious approach. Until such time, parties seeking to rely on insurance policies that they have obtained when confronted with a security for costs application should consider the alternative of offering to provide a deed of indemnity to the other party.

WHAT’S YOUR STYLE CUSTOM HOME DESIGNER/BUILDER It costs no more to build a quality Artique Home, than a standard project builder!

• Free custom design/pricing by Designer/ Builder • No hidden extra costs later - fully specified • A relationship built on trust - Builder direct • Renowned personal service from the Builder/Designer/Director • We build to any budget, any style • Custom home specialists since 1998 • Innovative & timeless style, awarded quality • Liaise direct with the Builder at all times

Discuss your ideas with Malcolm today, your personal Designer/Builder/Director, for your home to your style with the confidence of 30 years of experience in producing great homes.

T: 9240 1142

www.artiquehomes.com.au

enquiries@artiquehomes.com.au

Artique EST. 1988

HOMES

CUSTOM HOME DESIGNER & BUILDER

Experience – C onfidence – Trust

Builders Reg. 9669

Is your professional development CPD Active? for only $20* Complete your CPD points online with unlimited access to over 40 eLearning seminars for just $20 per seminar. Access CPD on your terms.

Unlimited faceto-face seminars Practice Man a

Ethics and

Pro

ibility

ills l Sk

10 Seminar Papers Download 10 seminar papers from a collection of 90 and build a library of knowledge, to read for free, in your own time.

Endless potential for only $800* One flat price for access to an extensive range of seminars from over 200 well respected speakers.

Event Discounts Take advantage of a further 10% discount on registration to Law Society events*

Visit lawsocietywa.asn.au/cpd-active for full details. Call (08) 9324 8692 or email membership@lawsocietywa.asn.au to add CPD Active to your membership.

16 | BRIEF FEBRUARY 2018

ons

ENDLESS POTENTIAL

ONE DECISION

*Terms, conditions and exclusions apply. Inc GST. Figures based on the 2016/17 CPD Programme.

sio

sta

fes

Sub

gem

CPD Active members can attend over 80 faceto-face seminars for no further cost with no limit on the number you can attend.*

The Duty of Confidentiality

This article is adapted from a paper presented at the Law Societyâ&#x20AC;&#x2122;s Ethics on Friday CPD seminar.

By Rick Cullen Director Cullen Macleod Lawyers

Introduction

the transaction or the subject of gossip.

A practitioner's obligation to maintain the confidentiality of their client's affairs is one of many professional duties encapsulated in the Legal Profession Conduct Rules 2010 (WA) (LPCR), in addition to those imposed by statute, law or equity.

Accordingly, each practitioner must ensure that their relationship with their client is one of confidence and trust.

So why is the duty of confidentiality of such importance to warrant specific attention today? Aside from the numerous practical scenarios in which practitioners may encounter issues of confidentiality, the duty is fundamental in establishing a relationship of trust and confidence between solicitor and client1 and in encouraging clients to exhibit 'confidence in legal representation and the legal system'.2 The duty of confidentiality stems from the solicitor-client relationship3 and establishes a foundation upon which full and frank disclosure between Solicitor and client can occur.4 If solicitors are to be in a position to provide effective advice, they need to be informed of all relevant facts. If clients are to make full disclosure of all relevant facts, they need to be able to feel confident that they are doing so for that limited purpose of obtaining advice and that what they say will go no further that it will not be used by the solicitor for personal advantage, disclosed without the client's consent to another party to

This article will focus on: a. the sources of a practitioner's duty of confidentiality; b. the scope of that duty, including the practitioner's obligation to former clients, the obligation in relation to court documents and a practitioner's ability to comment publicly on matters in which he or she has been professionally engaged; c. Limitations on the duty and circumstances where a breach would be justified; and d. Consequences of wrongful breach.

Source of the duty of confidentiality Confidentiality as per the LPCR The obligation to maintain the confidentiality of the client's affairs is one of the fundamental professional duties encapsulated in rule 9 of the LPCR. Rule 9 of the LPCR confirms the duty and sets up categories of exemption from the duty to keep information confidential. Specifically, rule 9(2) of the LPCR provides that a practitioner must not disclose client information to a person other than the client unless the person is:

1. An associate of the practitioner's law practice; or 2. A person engaged by the law practice for the purpose of providing legal services to the client; or 3. A person engaged by the law practice for the purpose of providing administrative services to the client. Client information means information that is confidential to a client of which a practitioner becomes aware in the course of providing legal services to the client.5 Implied term in relation to confidentiality A term is implied as a matter of law in each retainer agreement in that the lawyer will keep the client's affairs secret and not disclose them to anyone without just cause.6 Confidentiality in the fiduciary relationship There is also a duty of confidentiality inherent in the fiduciary relationship between the practitioner and the client arising from the retainer.7 Confidentiality and equity's exclusive jurisdiction Finally, part of equity's exclusive jurisdiction involves enforcing a duty on confidants not to use or disclose information for a purpose inconsistent with the purpose for its communication, which can therefore also be seen as a source of the lawyer's duty of confidentiality.

Scope of duty of confidentiality A practitioner must not without the consent of the client directly or indirectly disclose information received from the client in confidence, or use it in any way detrimental to the interests of the client, or disclose the contents of any brief or instructions to any person except to the extent: 1. required by law, rule of court or court order; or 2. necessary for replying to or defending any charge or complaint of criminal or unprofessional conduct or professional misconduct brought against the practitioner or the practitioner’s partners, associates or employees. As a general rule, once the relationship of Solicitor and client is established, the Solicitor is bound by the duty not to disclose to others the confidential information of their client. At general law, it has been judicially

18 | BRIEF FEBRUARY 2018

stated that all information supplied by a client to his or her lawyer is confidential,8 and that information about a client’s matter communicated to a lawyer in a professional capacity is presumed to be confidential.9 When sourced from the terms of the retainer, the duty of confidentiality lasts as long as is prescribed by those terms. In most cases this extends beyond the termination of the retainer,10 and the death of the client,11 for at least as long as the information in question remains confidential. The LPCR do not generally attempt to define the parameters of confidentiality, other than by way of exception,12 applying the duty to information that is confidential.13 However, it is clear from rule 13 of the LPCR that a practitioner’s duty of confidentiality towards the client continues after the relationship of practitioner and client has ceased. Duty of confidentiality & former clientsRule 13 LPCR There are circumstances where you may act against a former client. However, it is important to be aware of the increased risks of doing so and that you must cease acting if a conflict of interest arises. The duty is not reduced simply because a practitioner has taken on clients with conflicting interests, or whose interests come into conflict during the course of the representation.14 Conflict arises where the practitioner has confidential information from a former client which the best interests of a current client require to be disclosed. The most common problem in acting against a former client is a conflict between: 1. The solicitor’s duty of confidentiality (to the former client); and 2. The duty to act in the best interests of every client, which may demand a breach of the earlier confidence. After the relationship of practitioner and client has ceased, a practitioner has no obligation to defend and advance the interest of their former client.

Rule 13(2) of the LPCR relates to acting against former clients, and states: 1. A practitioner must not provide, or agree to provide, legal services to a person if there is a real possibility that the practitioner would be required, in order to act in the best interests of the person: a. to use confidential information obtained from a former client (as defined at rule 13(1)); or b. to disclose to the person confidential information obtained from a former client.15 2. Subrule (3) notes that Rule 13(2) does not apply if: c.

The former client has given informed written consent to the practitioner providing the legal service; or

d. An effective information barrier has been established to protect confidential information. 3. It is important to be aware of the practical difficulties of even small and medium sized firms maintain effective information barriers and the need to ensure that the information barrier if effective. 4. Guidelines to assist practitioners establishing information barriers are available from the Law Society of Western Australia.16 “Former client” is defined in rule 13(1) of the LPCR as “a person who: 1. had previously engaged a. the practitioner; or b. the practitioner’s law practice; or c. a law practice of which the practitioner was an associate at the time of the previous engagement; or d. a law practice of which a partner, director or employee of the practitioner’s law practice was an associate at the time of the previous engagement; or 2. provided confidential information to the practitioner, notwithstanding that the practitioner was not formally engaged and did not render an account.

Since the decision in Prince Jefri Bolkiah v KPMG (a finn) [1992] 2 WLR 215, it is generally agreed that the only fiduciary duty that survives termination of the retainer agreement is the duty of confidentiality.

No practitioner should, without consent of the former client, accept instructions unless, viewed objectively, his or her doing so will not increase the risk that confidential information may come into the possession of a party with an adverse interest.17

The solicitor’s duty to protect the conflict of interests of former clients still exists pursuant to rule 13 of the LPCR

The restriction preventing a practitioner from acting against a previous client may also arise from a duty of loyalty to

the previous client and consideration of public policy in respect of the relationship of practitioner and client.18 Examples of conflict In Director of Public Prosecutions (Cth) u A Legal Practitioner (2012] WASC 459 the Commonwealth Director of Public Prosecutions (CDPP) sought an order to restrain a Solicitor from acting for or advising the two accused in criminal proceedings. The Solicitor has previously been employed by the CDPP and the ACC in the operation which investigated the two accused. The CDPP argued that although there had not been a breach of confidentiality, their order to restrain the Solicitor was to prevent the possibility of a breach in the future. The Solicitorâ&#x20AC;&#x2122;s Firm requested further details of the alleged confidential information and argued that given the criminal proceedings, all material possession of the prosecution would need to be disclosed to the accused as part of the Crownâ&#x20AC;&#x2122;s obligations of disclosure. E M Heenan J referred to the decision of Steytler P in Ismail-Zai u Western

Australia (2007] WASCA 150 who held at (19) that the authorities reveal three reasons why Solicitors have been restrained from acting against former clients: The first is that in ensuring the protection of confidential information that has been provided by the client to the lawyer in the course of the lawyer/ client relationship... The second is when the court, acting under its inherent supervisory jurisdiction, considers that it is necessary to do so in order to ensure the due administration of justice...The third is that of preventing a breach of a supposed fiduciary duty of loyalty owed by the lawyer to the former client notwithstanding the termination of the retainer. The test applied in the circumstances was whether: (i) information was confidential in nature; 1. which came to the attention of the Solicitor by virtue of employment with the CDPP; and 2. that information may not be disclosed without breaching the duty of confidentiality.

The Court concluded by giving the parties an opportunity to confer so that a satisfactory undertaking could be drafted, that the Solicitor would not act for, or advise either of the two accused in the relevant prosecution or any related matters. In Process Minerals International Pty Ltd v Coleman Bros Pty Ltd [2012) WASC 178, Hall J was required to determine whether the former solicitors of the applicant had in their possession confidential information and whether this information was relevant to SAT proceedings in which the former solicitors were acting for another party against the applicant. At [10] Hall J referred to the test expressed by Ipp J in Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357: I conclude that if by a solicitor acting for a new client there is a real and sensible possibility that his interest in advancing the case of the new client might conflict with his duty to keep information given to him by the former client confidential or to refrain from using that information to the detriment of the former client, then an injunction will lie (362).

Master your career. Real-world programs to master your career. The College of Law offers postgraduate programs developed by practitioners for practitioners, so you can better master your chosen area of specialisation or accelerate your learning in a whole new area of practice. Four intakes per year: February, May, August and November

Enrol today for the May intake at collaw.edu.au/ALP or call 1300 506 402

The applicant was not able to provide sufficient evidence to demonstrate that the firm had in their possession confidential information relevant to the SAT proceedings. Therefore, the evidentiary onus had not shifted requiring the respondent to show how the confidential information was being protected. Duty of confidentiality & public comment - Rule 43 LPCR Solicitors must also be aware of restrictions imposed in participating or publishing information in the public domain. Rule 43(2) of the LPCR prohibits a practitioner from publishing any material or taking steps towards the publication of any material concerning current proceedings that may prejudice a fair trial or otherwise subvert or undermine the administration of justice. The practitioner must not participate in any lecture, talk or other public appearance, radio, television or other transmission, or contribute to any written 20 | BRIEF FEBRUARY 2018

or printed publication, in whole or in part, about a matter in which the practitioner is or has been professionally engaged unless:

argued that Ms Corby was a client of the practitioner, and in making several statements to the media, the practitioner had disclosed confidential information.

1. Participation is not contrary to the interests of the client; and

The first argument by the practitioner was that Ms Corby was not a prospective client. Further, he argued that Ms Corby had given her informed consent for the practitioner to act in her best interests.

2. The practitioner gives a fair and objective account of the matter in a manner consistent with the maintenance of the good reputation and standing of the legal profession; and 3. If the practitioner participates in any radio, television or other transmission, the client has given informed consent.19 In Legal Complaints Committee and Trowell (2009) WASAT 42, the State Administrative Tribunal was required to assess whether a Barrister in making statements to the press, had disclosed their clientâ&#x20AC;&#x2122;s confidential information. The client was Schapelle Corby who at the time, had been arrested in Bali for the possession of narcotics. The LPCC

One of the statements to the media concerned the fact that a member of Ms Corbyâ&#x20AC;&#x2122;s Indonesian team of advisers, had proposed that they bribe the Indonesian appeal court judges, and that funds were being solicited in Australia for this purpose. The practitioner argued that as this information concerned illegal activity, it could not attract the duty of confidentiality. The SAT held that once the relationship of Solicitor and client was established, the duty of confidentiality extended to information acquired prior to the formation of the fiduciary relationship (at 370).

obligation applies includes: Documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.20 This substantive obligation, imposed by law, was described by Hayne, Heydon and Crennan JJ in Hearne v Street (2008] HCA 36 at [96] in the following terms: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

In regards to the information that was already in the public domain, the SAT held that this was not a defence to the practitioner’s breach of his duty. At 371:

The obligation also binds any third party, including clients, who come into contact with the document, in the knowledge that the document was obtained through the litigation process.21 Accordingly, practitioners should advise their client of the existence and importance of observing the obligation.

Repetition or confirmation of information by a legal practitioner may give that information a credible status that it might not otherwise have: Camp v Legal Practitioners Complaints Committee (2007) WASC 309 at [70].

If a document is read in evidence in court proceedings, it becomes part of the public domain (at least in relation to those parts of the document which are read) unless the court prevents the publication of it.22

Further, the disclosure of information concerning the illegal activity was also subject to confidence. At 384:

In the Federal Court of Australia, if a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies.23

in our opinion, disclosure by a lawyer of such confidential information could only be justified if made to the appropriate authority or otherwise in accordance with the exceptions to r 6.3 iformer Profession Conduct Rules. It is difficult to see how it could ever jUstify publication to the press. Solicitors must therefore be aware of the risks in making a comment to the media. Duty of confidentiality & court documents

The party who has obtained the document under the process of the court nevertheless remains bound and cannot use the document otherwise than for the purpose of the litigation without the leave of the court.24 This would mean that the creation and use of new documents that contain infonriation from documents obtained from the previous litigation process would amount to a breach of the obligation.

Practitioners have an obligation to maintain confidentiality of court documents. This obligation is to the court and not to the other party to the proceeding. Accordingly, a breach of the obligation is a contempt of court. Ignorance of the obligation is not a defence.

A practitioner may make an application seeking leave to be released from the obligation. However, the applicant must show ‘special circumstances’ justifying the release.25 Examples of where the court has approved such applications include:

The types of material to which the

1. To enable the joinder of parties;26

2. To launch contempt proceedings against the party disclosing the documents in respect of other proceedings;27 3. To allow a defence to defamation proceedings arising out of a criminal investigation;28 and 4. To allow the correction of a misleading statement by the other party.29 Such applications should generally be made to the court to which the undertaking is owed.30 3.5. Disclosure of information already made public The equitable doctrine of confidential information does not protect information that is or has become public knowledge. Accordingly, lawyers owe no continuing equitable duty of confidence in respect of public information.31 As the implied confidentiality term in the retainer is likely to follow the parameters of the equitable doctrine, a similar result should follow in such a case. However, practitioners must exercise caution, because their knowledge of the client’s affairs is likely to be more extensive than the publicly available information, and so there remains the danger that in making any disclosure of information that is public knowledge, a lawyer could disclose some information that is still confidential. For example, in Legal Services Commissioner v Tampoe (2009) LPT 14 the respondent solicitor was struck from the roll as a result of disclosing to the media, in the course of a television interview and subsequent documentary, information concerning his former client’s family and his observations regarding the former client’s criminal trial, which the tribunal found to be confidential, notwithstanding protests by the respondent that the information was in the public domain in view of the notoriety of the client and her trial. Duty of confidentiality & privilege The doctrine of legal professional privilege and the duty of confidentiality can be distinguished in at least four ways: a. legal professional privilege is sourced from public policy rather than from any contractual, equitable or professional obligation owed to clients; b. the communications covered by legal professional privilege form a subset of those communications that come within the lawyer’s duty of confidentiality,32 being limited only to

communications that are directed to securing legal advice or are made for existing or anticipated litigation; c.

once a communication is found to be privileged, there is no further balancing role for the court, and the protection from disclosure is absolute; and communications that come within legal professional privilege are protected from all forms of compulsory disclosure, whereas confidential information outside the privilege must yield to such compulsion.33

4. Limitations including situations that constitute a justified breach of the duty A practitioner may encounter scenarios where he or she is justified in breaching their duty of confidentiality. It is important to keep in mind that a practitioner’s paramount duty is to the court and the administration of justice.34 These duties prevail to the extent of any inconsistency with other rules, including any duty owed to their client. To ensure that the administration of justice is not brought into disrepute, the court has an inherent power to control and deal with members of the legal profession. As observed by Mason CJ in Giannerelli u Wraith (1988) 165 CLR 543, 556 ‘the duty to the court is paramount and must be performed, even if the client gives instructions to the contrary’. Before a practitioner makes a disclosure relying on the exception in rule 9(3) of the LPCR the practitioner must, if there are reasonable grounds to do so, take reasonable steps to test the validity of the law or order. Rule 9(3) of the LPCR outlines circumstances in which a Solicitor is permitted to disclose a client’s confidential information. These include where: 1. the client expressly or impliedly authorises disclosure to that person or if the practitioner believes (on reasonable grounds) that the client has authorised disclosure to that person;35 a. Whether the information should remain confidential as between client and solicitor is largely a matter for the client, who is entitled to waive the confidentiality. b. That waiver may be either express or implied.

22 | BRIEF FEBRUARY 2018

An example of an implied waiver is the situation in which the solicitor is sued by a client for professional negligence. The solicitor obviously cannot sensibly defend the proceedings without disclosing the communications with the client and accordingly, the making of the professional negligence claim impliedly releases the solicitor from the duty of confidentiality which would otherwise apply. As the retainer is usually effected with the firm, rather than an individual practitioner (except where the lawyer is a sole practitioner), there is no impediment to the practitioner who has carriage of the matter disclosing confidential information belonging to the client to other lawyers within the firm.36

2. if the practitioner is permitted or compelled by law to disclose the information to that person;37 3. if the information is disclosed in a confidential setting, solely to obtain advice in connection with their legal or ethical obligations;38 4. the practitioner discloses the information for the purpose of avoiding the probably commission of a serious offence;39 This is distinguished from those communications made by a client to the solicitor before the commission of a crime, for the purpose of being guided or helped in the commission of that crime. Such communications are not protected by the duty of confidentiality.40 5. to prevent imminent, serious physical harm to the client or another person;41 6. to an insurer for the purposes of obtaining or claiming insurance;42 or 7. if disclosure is necessary to respond to a complaint or a proceeding brought against either the practitioner or his employee, the practitioner’s law practice or an employee of that practice or an associated entity of the practitioner’s law practice or an employee of that associated entity.43 a. An investigator has powers to require a practitioner to produce documents for its inspection in order to investigate complaints. An Australian legal practitioner must comply with a requirement under this Part [i.e. complaints] to answer a question or to produce information or a document,

despite any duty of confidentiality in respect of a communication between the practitioner and a client. b. Similarly, the Australian Taxation Office may also require the production of documents relating to the client’s financial affairs (unless they are also privileged).44 Disclosure necessary to prevent or conceal a serious criminal offence A practitioner is entitled to disclose confidential information for the sole purpose of avoiding the probable commission of a serious criminal offence or for the purpose of preventing imminent serious physical harm to the client or to another person.45 Disclosure of client’s intention to disobey a court order Rule 35(4)(c) of the LPCR states that a practitioner informed by a client that the client intends to disobey a court’s order must not inform the court or the opponent of the client’s intention unless either the client has authorised the practitioner to do so, or the practitioner believes on reasonable grounds that the client’s conduct constituted a threat to any person’s safety. Disclosure to substantiate an entitlement or defend a claim arising out of the retainer A practitioner is not bound by the duty of confidentiality to the extent that it is necessary to make a disclosure to a costs assessor or court for the purpose of substantiating the lawyer’s claim to costs or defending a claim brought by the client against the lawyer.46 Nor does the duty of confidentiality preclude disclosure for the purposes of defending a client’s action for the lawyer’s breach of duty.47 Similar notions underscore a lawyer’s disclosure to the court or relevant disciplining body in replying to or defending a charge or complaint of professional misconduct or unsatisfactory professional conduct.48

Breaches of Duty of Confidentiality Disciplinary action and professional misconduct See section 402 of the Legal Profession Act 2008 (WA) in relation to “unsatisfactory professional conduct”. See section 403 of the Legal Profession Act 2008 (WA) in relation to “professional misconduct”.

Legislatively prescribed standards do not exclude the concept of common law professional misconduct. Unauthorised disclosure of confidential communications could lead to disciplinary action against the practitioner. The disclosure could also leave the practitioner open to a civil action by the client, particularly if the disclosure of information caused fmancialloss to the client. The duty to keep confidential a client’s business continues until the client permits disclosure or waives the confidentiality. The duty is not terminated by the end of the retainer nor by the death of the client. In the event of the death of a client the right of confidentiality passes to the personal representative of the client and can only be waived by them. The court’s inherent power to prevent practitioners from acting The court has inherent power to control and deal with members of the legal profession to ensure that the administration of justice is not brought into disrepute. It has been said that the court will restrain a solicitor from acting not only in order to prevent disclosure of confidential information but also to ensure that the practitioner’s duty of loyalty to a former client is respected notwithstanding termination of the retainer.49

Cowell [2003] VSCA 43; BC200301919 at [42].

Rakusen v Ellis Munday & Clarke (1912] 1Ch 831, 840 (Fletcher Moulton LJ).

Fruehauf Finance Corp Pty Ltd v Feez Ruthning (a firm) [1991) 1 Qd R 558, 565; Marriage of Griffis (1991) 14 Fam LR 782, 785; Ridehalgh v Horsefield [1994] Ch 205; [1994] 3 WLR 462,471.

Crest Homes Pic v Marks [1987] AC 829; [1987] 2 AllER 1074; [1987] 3 WLR 293; Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567; Carrington v Sea World Australia Ltd [1992] 2 Qd R470.

Legal Profession Conduct Rules 2010 (WA) r 9(1).

Sybron Corp v Barclays Bank Pic [1985] Ch 299; [1984] 3 WLR 1055.

Parry-jones v Law Society [1969] 1 Ch 1, 7 (Lord Denning); [1968] 1All ER 177; [1968] 2 WLR 397; Unioil lnternational Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 17 WAR 98, 108 (lpp J).

Crest Homes Pic v Marks [1987] AC 829; [1987] 2 AllER 1074; [1987] 3 WLR 293.

Ex parte Coventry Newspapers Ltd [1993] QB 278; [1993] 1AllER 86; [1992] 3 WLR 916.

National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209; 97 ALR 539, 559; Wan v McDonald (1992) 33 FCR 491; 105 ALR 473, 494; Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, 96; 55 ALR 417; 58 ALJR 587; 1Aust Const LR 29 (Mason J).As to the sources of a duty of confidentiality generally see Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37, 40; [1972] RPC 811.

Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567.

Ex parte Coventry Newspapers Ltd [1993] QB 278; [1993] 1All ER 86; [1992] 3 WLR 916; See also Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; 103 ALR 684 (application made to a different judge of the same court with the consent of both parties); Duke Group Ltd (in liq) v Pilmer (1993) 60 SASR 29, 37 (Mullighan J) (application made in the same court but to a judge and not the master who heard the original proceeding); Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 147 ALR 322; 48 ALD 222; 25 AAR 276 (application made to the Administrative Appeals Tribunal in administrative proceedings).

Re a Firm of Solicitors [1997] Ch 1; [1995] AllER 482, 489; [1996] 3 WLR 16 (Lightman J).

Minter v Priest [1930] AC 558, 568 (Lord Buckmaster); D v NSPCC [1976] ac 171, 218 (Lord Diplord); Marriage of Griffis (1991) 14 Fam LR 782,785 (Mullane J).

Mortgage Express Ltd v Bowerman & Partners (a firm) [1996) 2 AllER 836,845 (Millet LJ).

Legal Practitioners Complaints Committee v Trowell (2009) 62 SR (WA) 1; [2009] WASAT 42, 366.

Marriage of Griffis (1991) 14 Fam LR 782, 786 (Mullane J); Stewart v Canadian Broadcasting Association (1997) 150 DLR (4th) 24, 152-3 (Macdonald J).

Gartside v Sheffield Young & Ellis [1983] NZLR 37, 49 (Richardson J).

Legal Profession Conduct Rules 2010 (WA) r 9(3).

Ibid r 9(1).

SeeJorexample, Hilton v Barker Booth and Eastwood (a firm) [2005] 1 AllER 651; [2005} 1 WLR 567; [2005] UKHL BCautionary treatment indicated- Click for CaseBase entry; Eiszele v Hurburgh {2011} TASSC 65;

Parry-jones v Law Society (1969] 1 Ch 1, 9 (Diplock LJ); Brayley v Wilton [1976] 2 NSWLR 495, 496-7 (Bowen CJ).

Legal Profession Conduct Rules 2010 (WA) r 9(3).

Ibid r 9(3)(a).

Legal Profession Conduct Rules 2010 (WA) rule 13(2).

Ibid r 9(2).

https:Ijwww.lawsocietywa.asn.aujwpcontentfuploads/2015/10/Law-Society_Information Barrier-Guidelines-December-2016.pdf

Ibid r 9(3)(b).

Ibid r 9(3)(c).

Ibid r 9(3)(d).

R v Cox & Railton (1884) 14 QBD 153;[1881-5) AllER Rep 68;49 JP 374;54 LJMC 4.

Princejefri Bolkiah v KPMG (a firm) [1999) 2 AC, 237; WLR, 227; AllER, 529.

Wan v McDonald (1992) 33 FCR 491; 105 ALR 473, 492-6

Legal Profession Conduct Rules 2010 (WA) r 9(3)(e).

Legal Profession Conduct Rules 2010 (WA) rule 43(3).

Ibid r 9(3)(f).

Hearne v Street [2008) HCA 36, 96 (Hayne, Heydon and Crennan JJ).

Ibid r 9(3)(g).

O'Reilly v Cmr of the State Bank of Victoria (1983) 153 CLR 1,22;44 ALR 27; 57 ALJR 342;14 ATR64.

Legal Profession Conduct Rules 2010 (WA) r 9(3)(d)-(e).

Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224; Johnstone, McGee & Gandy Pty Ltd v Hockey Tasmania Inc [2012) TASSC 12.

Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110; Lillicrap v Nalder and Son (a firm) [1993] 1 WLR 94; Neder/andse Reassurantie Groep Holding NV v Bacon and Woodrow (a firm) [1995) 1All ER 976, 978, 986-7 (Colman J); Artistic Builders Pty Ltd v Nash [2009] NSWSC 102; BC200901284 at [56]-[57) (Hoeben J).

Legal Profession Act 2008 (WA) s 467.

McVeigh v Linen House Pty Ltd [1999] 3 VR 394 at 398, 400; [1999] VSCA 138; BC9905821at [23], [33]. However, the cases are not entirely settled on that question:Sent v john Fairfax Publication Pty Ltd [2002] VSC 429; BC200206198 at [98]-[100].

PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86, 98; [2002] FCA 905; BC200204047 at [56].

Public confidence in the proper administration of justice is maintained where a former solicitor is able to establish that there is no real risk that confidential information of a former client will come into the possession of interests adverse to the former client.50 NOTES:

Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975) QB 613; [1975) 1AllER 41; [1974) 3 WLR 729; Pacific Basin Exploration Pty Ltd v XLX NL [1985) WAR 11. See, for example, Esso Australia Resources Ltd v Plowman (Ministerfor Energy and Minerals) (1995) 183 CLR 10; 128 ALR 391, 403; 69 ALJR 404 (Mason CJ). In Home Office v Harman [1982) 1AllER 532 it was held that the obligation continued to apply even though the document is read in open court, but this position has been reversed by procedural rules. Australian courts followed this approach (see Ainsworth v Hanrahan (1991) 25 NSWLR 155, 164; Pacific Basin Exploration Pty Ltd v XLX NL [1985) WAR 11) but the position now appears to be that in Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10; 128 ALR 391; 69 ALJR 404.As to the release of details of proceedings in chambers see Hodgson v Imperial Tobacco Ltd [1998) 2 AllER; [1998) 1 WLR 1056.

Rakusen v Ellis Munday and Clarke [1912] Ch 831, 840 (Fletcher Moulton LJ).

Federal Court Rules 2011 (Cth) r 20.03(1).

Marriage of Griffis (1991) 14 Fam LR 782, 791(Mullan J).

British American Tobacco Australia Services Ltd v

Associate/Senior Associate

Employment Law

About HLS Legal

Requirements

HLS Legal is a commercial law firm specialising in employment law, industrial relations, litigation and OHS for corporate clients.

The ideal candidate will have: • a minimum of 3 years + PAE in employment and/or industrial relations law; • private practice experience and preferably be working in the area of employment law in a law firm; • an aptitude for providing clients with commercial legal solutions; • litigation experience; • the ability to work as part of a close knit team as well as lead and mentor junior lawyers; • excellent academic results.

The Position HLS Legal is seeking an Associate or Senior Associate level lawyer to join our busy practice which continues to experience growth.

The successful applicant will work on a range of complex employment and IR matters across our corporate employer client base. To apply, please send your resume to Jenelle Allsop at jallsop@hlslegal.com.au

An Australian Approach to International Commercial Arbitration By The Honourable Wayne Martin AC Chief Justice of Western Australia

Adapted from an address to the 5th International Arbitration Conference, Perth, 21 November 2017

nine different courts with the capacity to supervise international arbitration, and the consequent possibility of divergent approaches emerging from those courts;

The rebadging of the series of events which have together been collectively presented as ‘Sydney Arbitration Week’ for the last four years under the banner ‘Australian Arbitration Week’ has much more than cosmetic significance. Whenever two or more Australian practitioners interested in international commercial arbitration gather, it is only a question of time before invidious comparisons are made between the paucity of international commercial arbitration in Australian seats, as compared to the flourishing arbitration scenes in other better recognised seats, both in our region and further afield. In the course of discussion it is likely that attention will be given to the incongruity between the relative infrequency of international arbitration in Australia, and the significant representation of Australian practitioners - as counsel and arbitrators - in arbitrations conducted all around the world. During a recent visit to London and Paris, I was struck by the number of Australian practitioners working at all levels in the field of arbitration, from the junior to the most senior, and I am sure that the same holds true of other significant arbitral centres like Singapore, Hong Kong, Beijing and so on.

The competition between Australian cities, and the legal professions within those cities - a competition which does not exist in most other countries competing for seats - almost all of which have a single city where all relevant participants will be located, whether that be London, Paris, Singapore, Hong Kong, Beijing or Kuala Lumpur.

When discussion turns to the reasons for this incongruity, and the unpalatable but undeniable truth that, despite the best efforts of everybody at this conference, Australia punches below its weight as a seat, the contributing factors identified will likely include: Australia’s federal structure - leading to

24 | BRIEF FEBRUARY 2018

The last decade or so has seen a clear convergence of approach in Australia’s superior courts with respect to the support and encouragement of commercial arbitration, overcoming the first part of the problem to which I have referred. I suspect this convergence of judicial approach is not readily acknowledged by Australia’s commercial rivals in this field. However, if we are to address the second problem to which I have referred, it is essential that we promote a single national arbitral face to the world, putting aside our parochial rivalries. That is why I am so pleased that the series of significant events which had a somewhat parochial flavour have been rebadged as a national event, which will occur in different Australian cities from time to time. That step will, of itself, stimulate the development of a unified Australian arbitral profession - an objective which is already well advanced.

Western Australia’s Contribution to the National Scene I am delighted that, with only a little prompting from me, the three institutions which convene this conference decided that the first venue for the conference

outside Sydney should be Perth. It would be entirely inconsistent with the remarks I have just made for me to now catalogue the competitive advantages which Perth enjoys as a seat for international commercial arbitration, as compared to other Australian seats. However, there is no inconsistency in me briefly identifying the significant contribution which Western Australia can make to the national arbitration profession.

Energy and resources Western Australia has some of the most significant deposits of minerals and energy on the planet. Iron ore, liquefied natural gas, gold, nickel and more recently lithium are exported from Western Australia on a scale which matches any mineral province in the world. As a consequence, Perth has become a recognised hub for energy and resources law, and is home to many experienced practitioners in that field. Mining and resource development projects are of course invariably associated with the construction of very large pieces of plant and infrastructure including ore and gas treatment plants, railways and ports, which has in turn attracted lawyers with expertise in those fields to Western Australia as well. I note that the first session in this conference is to address arbitration in the gas, energy, resources and projects sectors.

Commerce Exports from Western Australia represent more than 40% of the value of all goods exported from Australia.1 If Western Australia was a country, its GDP would

Although the Convention was settled on 30 June 2005, it did not come into force until more than 10 years later on 1 October 2015 when the European Union (EU) deposited its instrument of approval.7 The United Kingdom government has indicated a commitment to international civil judicial cooperation, and an intention to participate in The Hague conventions to which it is already a party, post Brexit.8 As of today, only the EU,9 Singapore and Mexico have ratified the Convention, although the United States of America signed the Convention on 19 January 2009, the Ukraine on 21 March 2016, China (as I have mentioned) on 12 September 2017, and Montenegro on 5 October 2017.

The Hague Convention on Choice of Court Agreements and Australia place it just outside of the largest 50 economies in the world.2 Commerce in Western Australia has developed a truly international character.

Geography and time-zone Situated on the rim of the Indian Ocean, close to the developing economies of the Indian subcontinent, south-east Asia and northern Asia, Perth enjoys regular and convenient connections with most major centres in Asia and more than half of the world’s population lives within 2 hours of Perth time.3 The Western Australian resource sector also has strong links to Africa. I note that another session in this conference will address the development of arbitration in Africa, and that Africa has also been a significant source of investorstate arbitrations including the first such awards to be enforced by an Australian court.4 I will come back to this topic a little later.

Arbitral facilities State of the art dedicated arbitral and mediation facilities have recently been opened by a private provider in Perth.5 I hope that in the very near future, those facilities will be augmented by facilities for mediation and arbitration in the David Malcolm Justice Centre which are also state of the art, and which will soon be made available for private hire. So, there is every reason to conclude that Western Australia can make its fair contribution to the development of a national face for the arbitral profession in Australia. I am sure that many of you are thinking “well he would say that wouldn’t he?” But these views are not idiosyncratic, and

are shared by others without my parochial sentiment. Last week it was announced that Perth has been chosen as the venue to host the 2018 Chartered Institute of Arbitrators Diploma in International Commercial Arbitration - a programme which is provided as a joint venture between the Singapore, East Asian and Australian branches of the Chartered Institute. The Perth programme will follow similar successful programmes in Singapore in 2016 and in Hong Kong last month, and can be expected to attract participants from all around the globe. The choice of Perth as the venue for next year’s programme is another very significant step forward in the development and promotion of a unified Australian arbitration community.

A significant recent development I would like now to briefly refer to a very significant development in the field of international commercial dispute resolution which occurred a little over two months ago, when Australia’s largest trading partner, China, signed the Hague Convention on Choice of Court Agreements (the Convention). This significant step is obviously consistent with China’s drive to become an integrated member of the global economy, in conjunction with its ‘Belt and Road’ initiative.6 Although I am not aware of any pronouncements made by China in relation to likely reservations with respect to any provisions of the Convention, or the time which the ratification process is likely to take, it seems unlikely that China would have taken the step of signing the Convention unless it was committed to moving towards ratification within a reasonable time-frame.

In October 2016, the Joint Standing Committee on Treaties of the Australian Parliament recommended that Australia accede to the Convention and take binding treaty action, noting that, at that time, Asia was under-represented in the Convention10 - a situation which will, of course, change dramatically if and when Australia’s largest trading partner ratifies. The government has subsequently stated that the Convention would be implemented domestically through the passage of an International Civil Law Act.11 A Bill for that Act was proposed to be introduced in the autumn 2017 sittings of the Commonwealth parliament,12 and in January of this year, the Council on General Affairs and Policy of the Hague Conference reported that it was hoped Australia would be in a position to accede to the Convention during 2017.13 However, it seems that our legislators may have been a little distracted by other matters recently. Detailed discussion of the scope and effect of the Convention is well beyond the scope of these brief remarks. It is sufficient for present purposes to say that, generally speaking, the Convention would confer upon parties choosing a national court as the forum for the resolution of their disputes, roughly the same measure of enforceability of the judgment as is conferred upon international arbitral awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)(the New York Convention). The New York Convention has been the fertiliser which turned the previously barren ground of international commercial arbitration into a veritable cornucopia.

The Draft Hague Convention on Recognition and Enforcement of Foreign Judgments

The Hague Convention on Choice of Court Agreements is no threat I respectfully join other judicial commentators in expressing the view that the development of an international regime providing enforceability to parties who wish to choose a court as the forum for the resolution of their dispute is entirely consistent with, and provides no threat to, international commercial arbitration.14 One of the great strengths of international commercial arbitration has been the flexibility which it offers to parties who wish to fashion a bespoke solution for the resolution of their disputes. It is entirely consistent with that philosophy to provide parties with the opportunity, if they wish, to choose a court as the forum for the resolution of their dispute. International commercial arbitration would not have received the strength of support it has enjoyed from participants unless it was perceived in the marketplace as having considerable strengths. However, this is not to say that international commercial arbitration is perfect, or without blemish. A number of commentators have observed that the complaints of cost and delay which have been directed at courts for centuries, and which provided great stimulus for the alternative of arbitration, are now being directed at international commercial arbitration.15 On the other hand, procedural reform in the courts has blunted some of those long-standing criticisms. International commercial arbitration can be confronted with procedural obstacles which do not impede courts 26 | BRIEF FEBRUARY 2018

in areas like the provision of enforceable interim relief (by way of injunction or other interim order) and in relation to the joinder of parties who are not parties to the arbitration agreement. Critics also point to the lack of a developed transparent body of jurisprudence with respect to international commercial arbitration, and the consequent inability of international arbitration to assist in the convergence of international commercial law16 - a convergence which is obviously highly desirable in an increasingly global economy. Commentators also point to the inability of arbitral institutions to regulate the conduct of practitioners, resulting in forensic strategies which have been described as gaming the system or as guerrilla tactics.17 Unlike arbitral tribunals, courts have the capacity to regulate the conduct of practitioners, ultimately by controlling the right of audience. The placement of courts as another tile in a mosaic of international commercial dispute resolution, at the choice of the parties, provides another option to parties concerned by one or more of those aspects of arbitration, and augments the range of mechanisms available to those engaged in international commerce for the resolution of their disputes. For my own part, I do not see anything antithetical, threatening or confronting in the development of this alternative to international arbitration. I draw support for this view from the observation that Singapore, a great and very successful promoter of international commercial arbitration, has ratified the Convention.

The Hague Convention on Choice of Court Agreements only applies if parties agree to select a national court as the forum for the resolution of their dispute. However, there will also be cases in which international commerce will be facilitated by enhancing the enforceability of court judgments in appropriate circumstances. To that end, a Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments is in the course of preparation, and the Special Commission charged with the project met in The Hague for the third time last week.18 Although it is, of course, too early to proffer a view with respect to the merits of a convention which remains in draft, it is difficult to argue coherently against expansion of the opportunities for the efficient and definitive resolution of international commercial disputes in the context of a rapidly expanding international economy.

Investor-State arbitrations Finally, I am unable to resist the temptation to dip my toe, ever so gently, into the maelstrom of debate surrounding investor-state arbitrations. Provisions in trade treaties providing foreign investor protection, and the arbitrations which they can generate, have been the subject of recent vociferous criticism.19 Critics include the then Chief Justice of Australia, who drew attention to the fact that an investor-state arbitration brought against Australia would have involved the determination, by an arbitral tribunal, of a question which was significantly similar to that which was determined by the High Court of Australia, had the case not been resolved on a preliminary basis.20 His Honourâ&#x20AC;&#x2122;s concern at the prospect of the decision of Australiaâ&#x20AC;&#x2122;s highest court being implicitly impugned or undermined by the inconsistent decision of an arbitral tribunal is entirely understandable. On the other hand, damage to the commercial interests of international investors as a result of decisions of domestic courts applying laws promulgated by the State is a significant component of the sovereign risk to which provisions of this kind are directed. In my respectful view, the understandable sensitivities of national courts applying domestic laws need to be viewed in the context of the mitigation of sovereign risk, and the imbalance of power between investors and state parties which provisions of this kind are intended to mitigate.

Sovereign risk is undoubtedly a significant fetter on international investment and therefore upon international trade and commerce. The mitigation of fetters on international trade must generally be in the interests of all, especially the best interests of the many residents in developing countries whose lives might be changed for the better by international investment and trade. The real question, as it seems to me, is not so much whether investor-state dispute settlement provisions are, in themselves, a good thing or a bad thing, but rather whether, in the context of a particular trade treaty, the mitigation of sovereign risk which they provide is necessary and justifiable, in furtherance of bilateral trade. In this context I note that Australia now seems to be taking a case by case approach on these issues,21 which appears consistent with the views which I and others have expressed. Other criticisms of investor-state arbitrations include the hoary old chestnuts of delay and expense,22 and the capacity which ISDS provisions provide for forum shopping, whereby international companies can channel investments through subsidiaries in a particular jurisdiction in order to take advantage of the provisions in a particular treaty.23 It seems to me that these are areas in which the development of international commercial courts might offer the possibility of mitigating some of these concerns. A standing international court, with permanently employed personnel and judicial officers and established procedures and infrastructure might be quicker (if properly resourced) and cheaper than the ad hoc tribunals which dominate this area, and if given sufficient coverage, would likely reduce the incentive for forum shopping. However, I am not so naïve as to under-estimate the many hurdles which would have to be overcome to achieve international consensus in this area.

BWA-Ad264 200218.indd 2

Law Permanent Bureau, Suggested Further Work in Support of Forum and Law Selection in International Commercial Contracts (No 5 January 2017) [4], [8] <https://assets.hcch.net/docs/a357a94b-5bac-44c59fa3-4f1a079b2411.pdf>.

NOTES: 1

Australian Government Department of Foreign Affairs and Trade, Australia’s Trade by State and Territory 2015-16 (February 2017) 14 < http://dfat.gov.au/aboutus/publications/Documents/australias-trade-by-stateand-territory-2015-16.pdf.>.

World Bank, World Development Indicators database – Gross domestic product 2016 (17 April 2017) 1 <http:// databank.worldbank.org/data/download/GDP.pdf>; Australian Government Department of Foreign Affairs and Trade, Australia’s Trade by State and Territory 2015-16 (February 2017) 74 < http://dfat.gov.au/aboutus/publications/Documents/australias-trade-by-stateand-territory-2015-16.pdf.>.

Government of Western Australia Department of Jobs, Tourism, Science and Innovation, Key facts -Shared time zone < http://www.jtsi.wa.gov.au/invest-in-wa/keyfacts/shared-time-zone> (accessed 20 November 2017).

Lahoud v Democratic Republic of Congo [2017] FCA 982.

The ADR Centre, 32 St Georges Terrace, Perth WA 6000.

A foreign policy and economic strategy of the People’s Republic of China which aims to systemically promote the cultural, economic and developmental connections between Asia, Europe and Africa and their connecting seas. See People’s Republic of China National Developmental and Reform Commission, Visions and Actions on Jointly Building Silk Road Economic Belt and 21st Century Maritime Silk Road (28 March 2015) <http://en.ndrc.gov.cn/newsrelease/201503/ t20150330_669367.html>.

The EU made a declaration under Article 21 of the Convention, under which certain insurance contracts will fall outside the scope of the Convention, except in certain cases provided for in paragraph 2 of that declaration. See HCCH, Conventions, Protocols and Principles – Status Table <https://www.hcch.net/en/ instruments/conventions/status-table/print/?cid=98> (accessed 20 November 2017). HM Government, Providing a cross-border civil judicial co-operation framework: A future partnership paper (22 August 2016) 6-8 <https://www.gov.uk/ government/uploads/system/uploads/attachment_data/ file/639271/Providing_a_cross-border_civil_judicial_ cooperation_framework.pdf>; House of Commons Justice Committee, Implications of Brexit for the Justice System, House of Commons Paper No 9, Session No 9, Session 2016-17 (22 March 2017) 15 <https:// publications.parliament.uk/pa/cm201617/cmselect/ cmjust/750/750.pdf>.

With the exception of Denmark.

Parliament of Australia Joint Standing Committee on Treaties, Report 166: Choice of Court Agreements – Accession (10 October 2016) [3.4].

It was proposed that the International Civil Law Act would implement the Convention and also the Hague Principles on Choice of Law in International Commercial Contracts which were approved by the Hague Conference on Private International Law on 19 March 2015. See the National Interest Analysis [2016] ATNIA 7, Australia’s Accession to the Convention on Choice of Court Agreements [2016] ATNIF 23 [22]–[24].

Australian Government Department of the Prime Minister and Cabinet, Legislation Proposed for Introduction in the 2017 Autumn Sittings <https://www.pmc.gov.au/ sites/default/files/publications/2017-autumn-public-list. pdf> (accessed 20 November 2017).

Council on General Affairs and Policy of the Hague Conference - Hague Conference on Private International

See, eg, Chief Justice Marilyn Warren AC and Justice Clyde Croft, ‘An International Commercial Court for Australia - looking beyond the New York Convention’ (Paper presented in an abridged version at the Commercial CPD Seminar Series, Melbourne, 13 April 2016) 16.

See, eg, Queen Mary University of London – School of International Arbitration, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration 7 <http://www.arbitration.qmul.ac.uk/ docs/164761.pdf> (accessed 20 November 2017).

See, eg, Chief Justice Robert French AC, ‘Convergence of Commercial Laws – Fence Lines and Fields’ (Paper presented at the Singapore Academy of Law Conference, Singapore, 22 January 2016) 16-17; Chief Justice Robert French AC , ‘Transnational Dispute Resolution’ (Paper presented at the Supreme and Federal Court Judges’ Conference, Brisbane, 25 January 2016) 14-15; Chief Justice Thomas Bathurst AC, ‘The Importance of Developing Convergent Commercial Law Systems Procedurally and Substantively’ (Paper delivered at the 15th Conference of Chief Justices of Asia and the Pacific, Singapore, October 2013) 11.

See, eg, Justice Clyde Croft, ‘Recent Developments in Arbitration: at Home and Abroad’ (Paper presented to the Arbitration Special Interest Group at the Resolution Institute, Melbourne, 16 October 2017) 8-9; Chief Justice Sundaresh Menon, ‘Some Cautionary Notes for an Age of Opportunity’ (Keynote Address, Chartered Institute of Arbitrators International Arbitration Conference, Penang, 22 August 2013) 4-5.

HCCH Special Commission, Legislative Projects – Judgments, <https://www.hcch.net/en/projects/ legislative-projects/judgments/special-commission1> (accessed 14 November 2017).

See, eg, D Jones, ‘The Problem of Inconsistency and Conflicting Awards in Investment Arbitration’ (Paper presented at the German – American Lawyer’s Association, Frankfurt, March 2011); Marta Latek, European Parliamentary Research Service Briefing, Investor- State Dispute Settlement (ISDS); State of play and prospects for reform (21 January 2014) <http:// www.europarl.europa.eu/thinktank/en/document. html?reference=EPRS_BRI(2015)545736>.

Chief Justice Robert French AC, ‘Investor-State Dispute Settlement – A Cut Above the Courts?’ (Paper presented to the Supreme and Federal Courts Judges’ Conference, Darwin, 9 July 2014) 4–6.

See Australian Government Department of Foreign Affairs and Trade, Free Trade Agreements <http:// dfat.gov.au/TRADE/AGREEMENTS/Pages/tradeagreements.aspx> (accessed 20 November 2017).

D Gaukrodger and K Gordon, ‘Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community’, OECD Working Papers on International Investment, 2012/13, OECD Publishing, 19 <http:// dx.doi.org/10.1787/5k46b1r85j6f-en>.

D Gaukrodger and K Gordon, ‘Investor–State Dispute Settlement: A Scoping Paper for the Investment Policy Community’, OECD Working Papers on International Investment, 2012/13, OECD Publishing, 51-54 <http:// dx.doi.org/10.1787/5k46b1r85j6f-en>.

20/2/18 11:09 am

Snapshot

2018: A year of significant changes to privacy law, affecting legal practices and clients

•

A number of significant reforms to privacy law commence in 2018. Legal practitioners will need to consider the impact on clients, as well as on the operation of their own legal practices.

•

The changes will affect all medium-large Australian businesses; some smaller businesses depending on the nature of their business; all Australian government agencies; and to a lesser extent State and Territory agencies and small businesses in their capacity as employers.

•

The changes include mandatory notification of data breaches, the extension of European data protection law to Australia, and new rules designed to bring about cultural change across the public sector.

By Anna Johnston Director, Salinger Privacy

will include bodies not regulated by the APPs, such as State and Territory agencies and most small businesses, in their capacity as employers; and

February - Notifiable data breaches Who is affected Commencing 22 February, amendments to Part IIIC of the Privacy Act 1988 (Cth) will affect almost every organisation in Australia in some way: •

•

all entities already required to comply with the 13 Australian Privacy Principles (APPs), which includes all Australian government agencies, almost all businesses and non-profits with a turnover of more than $3M pa, plus some smaller businesses such as health service providers and contracted service providers to the Commonwealth; all organisations which receive Tax File Numbers (TFNs) – which

28 | BRIEF FEBRUARY 2018

•

credit providers and credit reporting bodies.

The key requirements The amendments require notification of certain types of data breaches. Notifiable data breaches are incidents which involve the loss of, or unauthorised access to or disclosure of, personal information (or a TFN, or credit eligibility/reporting information), and which are likely to result in serious harm to one or more individuals. When a data breach meets this threshold test, notification is required, as soon as practicable, to both the Australian

Background Although unrelated to each other, three significant legal reforms will each commence in 2018, impacting on the manner in which organisations handle personal information. The reforms, spread throughout the year, are: •

mandatory notification of data breaches under the Privacy Act 1988 (Cth)

•

the General Data Protection Regulation (GDPR), a European privacy law with extra-territorial reach into Australia, and

•

the Australian Government Agencies Privacy Code.

Privacy Commissioner and the affected individuals. The Privacy Commissioner is part of the Office of the Australian Information Commissioner (OAIC). The legislation sets out the factors which impact on whether or not a data breach is ‘likely to result in serious harm’; the timeframes in which an assessment must be carried out on a suspected breach; what a notification must contain; and how a notification must be made. A failure to comply with the new notification requirements attracts a civil penalty of up to $2.1M. The takeaway There are two objectives driving the move towards mandatory notification of data breaches. The first is to fulfil a duty of care to the affected individuals, by letting them know that their personal information has been put at risk. The second is to create a sufficient financial disincentive, such as to prompt organisations into investing more in their privacy and security programs, to avoid data breaches in the first place. What to focus on To prepare for a data breach, every organisation should prepare a Data Breach Response Plan. Having a plan in place can clarify what needs to be done when and by whom, in the first few hours and days after a data breach is discovered. To avoid data breaches in the first place, the privacy team or legal advisor should be working hand-in-hand with the information security team. Staff need privacy training and constant reminders of privacy messaging; and third-party contractors, vendors and suppliers need to be bound by appropriate terms and subject to additional controls to avoid becoming the weakest link in the security chain.

Further resources The OAIC has guidance material available at www.oaic.gov.au. Salinger Privacy has Privacy Tools including a template Data Breach Response Plan available at www. salingerprivacy.com.au.

May - The GDPR Who is affected Commencing 25 May, the GDPR will regulate not only businesses based in the European Union (EU), but any organisation anywhere in the world which provides goods or services (including free services) to, or monitors the behaviour of, people in the EU. The GDPR will replace the current set of differing national privacy statutes with one piece of legislation, and will offer a one-stop-shop approach when dealing with the privacy regulators across all 28-member states of the EU - including the UK post-Brexit. The key requirements In addition to harmonising the privacy rules across the EU, the GDPR introduces some new privacy obligations (although using the European term ‘data protection’ rather than ‘privacy’). One is the Accountability principle, which requires organisations to be proactive. This means that if an organisation doesn’t have an effective privacy compliance program, it can be found in breach of its data protection obligations even if it doesn’t suffer a data breach. Although by no means a European invention – APP 1 in the Australian Privacy Act has the same objective – the financial penalties attached to the GDPR are intended to kick-start proper privacy governance in even the most recalcitrant organisations. To help achieve this, the GDPR embeds a proactive requirement to do ‘data

protection by design’, or as we tend to know it in Australia, ‘privacy by design’. The technique used to ensure privacy is built-in to project design is known in the GDPR as Data Protection Impact Assessment, or here as Privacy Impact Assessment (PIA). The GDPR also has a strong focus on getting reactive strategies right. It sets a default timeframe for notifying data breaches of only 72 hours, which adds further complexity for Australian organisations already adjusting to the new Australian notification scheme (above). However the GDPR also offers escape clauses for organisations that have appropriate technical and organisational measures in place to protect data, and recognises de-identification as a risk management tool (while also recognising its limitations). The GDPR also updates the scope of privacy law to cover such things as data portability and the ‘right to erasure’, and aims to ensure that algorithmic decisionmaking is subject to human review. The takeaway The objectives of the GDPR are to harmonise privacy law across the EU and streamline its application, and dramatically increase the penalties for non-compliance. Fines for failing to comply with the GDPR will reach up to €20M, or 4% of a company’s annual global turnover, whichever is the greater. These new penalties are aimed squarely at the tech behemoths which could previously afford to shake off smaller fines as the price of doing business. What to focus on Organisations of any size and sector in Australia will need to determine whether they fall within the scope of the GDPR, and then prepare accordingly. Turning ‘privacy by design’ into a reality

poses significant challenges for any organisation. There is often a cultural divide between legal practitioners who are comfortable with principles-based law and concepts like ‘within reasonable expectations’, and system engineers who need to code for decision-making in a binary fashion. A comprehensive privacy management program and a culture of conducting PIAs on new projects will be needed to ensure compliance with the GDPR as well as Australian privacy principles, as well as embed a culture of building privacy protection into all decision-making. Further resources The OAIC has guidance material about the GDPR and Australian businesses available at www.oaic.gov.au. Official guidance from the EU privacy regulators is available through the Article 29 Working Party, as advisors to the European Commission; see http://ec.europa.eu/ newsroom/article29/news-overview. cfm. Salinger Privacy has a free Privacy Officer’s Handbook, to explain what should be included in a comprehensive privacy management program, as well as a guide to de-identification for privacy advisors; both are available at www. salingerprivacy.com.au/publications.

July – Australian Government Agencies Privacy Code Who is affected The Privacy (Australian Government Agencies – Governance) APP Code 2017,

known as the Australian Government Agencies Privacy Code, is a legislative instrument made by the Australian Privacy Commissioner. Commencing on 1 July, the Code will affect all Australian government agencies, as defined at s.6(1) of the Privacy Act, with the exception of Ministers.

a culture of privacy and report regularly to the agency’s executive •

Regularly reviewing and updating privacy practices, procedures and systems, including the agency’s Privacy Policy and collection notices

•

Conducting or commissioning a PIA on all projects involving new or changes ways of handling personal information that are likely to have a significant impact on the privacy of individuals, and

•

Providing appropriate privacy education or training, on an annual basis, to all staff who have access to personal information.

The key requirements Australian Privacy Principle 1 is the accountability principle, requiring all organisations – whether public or private sector – to establish a privacy management program and effective governance, in order to achieve compliance with the remaining APPs when handling personal information. The new Code prescribes certain steps that public sector agencies must take, in order to comply with APP 1. The new requirements include: •

Preparing, annually reviewing and updating a Privacy Management Plan, which should set out the agency’s privacy goals and the actions it plans to take to achieve them

•

Having a designated Privacy Officer as the primary point of contact for internal and external advice on privacy matters

•

Having a designated Privacy Champion, which must be a senior official, and whose role is to provide leadership within the agency on strategic privacy issues, promote

The takeaway After a year or so of some spectacularly embarrassing ‘privacy fails’ by Australian government agencies, an intervention was needed to re-build public trust and confidence in the Government’s ability to handle and secure the personal information of all Australians. The Privacy Commissioner proposed this new Code as a way of triggering cultural change across the public sector. The objective of the Code is therefore to promote good privacy governance within agencies, but the Code can equally be seen to set a benchmark for private sector businesses and non-profits alike. What to focus on The new Code will set new standards for federal government agencies, which will increase demand for lawyers who understand how to assess privacy risks and conduct PIAs on behalf of client agencies. Further resources The OAIC has a checklist guide to the Code available at www.oaic.gov. au. Salinger Privacy has a free Privacy Officer’s Handbook, to explain in more detail what should be included in a privacy management program, as well as training modules, templates and checklists to assist with conducting PIAs; see www.salingerprivacy.com.au.

Anna Johnston is the Director of Salinger Privacy. Salinger Privacy has a range of privacy tools to assist compliance, including training modules, template policies and procedures. See www. salingerprivacy.com.au This article first appeared in the Law Society of NSW Journal, issue 41, February 2018.

30 | BRIEF FEBRUARY 2018

Perpetuity periods and vesting dates – some common myths

By Grahame Young Barrister, Francis Burt Chambers

More than 50 years ago, Western Australia enacted pioneering legislation, the Law Reform (Property, Perpetuities and Succession) Act 19621 to deal with some of the myriad problems arising from the rule against perpetuities2. The rule against perpetuities provided that a future interest is void from the outset unless it must vest within the period being a life in being plus 21 years from the date of the instrument creating the interest (with additional gestation periods for unborn children). The rule was applied at the time of creation and any possibility, no matter how unlikely, that the interest might vest outside the perpetuity period was sufficient to invalidate the disposition. Some of the bizarre possibilities included magic gravel pits, precocious toddlers and fertile octogenarians. Another consequence of the rule was the adoption of ‘Royal Lives’ clauses

specifying the descendants of Queen Victoria, or a subsequent monarch, as the lives in being to take advantage of their fertility and longevity3. One of the best-known reforms was the introduction of an optional perpetuity period of up to 80 years. Others included a ‘wait and see’ rule and presumptions concerning capacity for childbearing, now lagging advances in modern medical technology. It must be noted that the legislation in other Australian jurisdictions does not necessarily follow the Western Australian model and South Australia has abolished the rule entirely.

The Western Australian provision The 80-year rule has become embedded in the psyche of trust practitioners, and others dealing with trusts. Unfortunately, it seems that for some that has been at the expense of referring to the actual wording of the Act. Some myths have resulted. Section 101 of the Property Law Act 1969 is headed “The perpetuity period”. It provides: In determining whether any limitation is invalid as infringing the rule against perpetuities, the perpetuity period is, for the purposes of that rule, such period of years not exceeding 80 as may be specified in the instrument creating that limitation or, if no such period of years is specified, the period that is applicable under the rule at law. Three things may be noted: first, if no

period of years is specified, then the rule at law applies; second, any period up to 80 years may be specified; and third the period is to be specified in the instrument creating the limitation4. Although the Act deals with all limitations, this article will confine itself to the ubiquitous family discretionary trust. Further, this article only deals with the position where Western Australian law applies, and does not consider the case where a different proper law applies, or the possibility of a change of the proper law from that in force in Western Australia.

Myth 1 â&#x20AC;&#x201C; The 80 year period applies automatically That is the case under the equivalent Act in New South Wales5, but the WA Act is different, the 80 year period is optional. The myth manifests itself in a number of ways. In its crudest form, it is assumed that the perpetuity period, that is the date by which a trust must vest, is in all cases 80 years from the date of the trust deed6. Last year, I was confidently advised that a trust, on which I was asked to advise as to other matters, must vest by 2030. A cursory glance at the deed showed it had been established in 1950. The WA Act only applies to instruments executed after 6 December 1962, so the rule at law was applicable. Further, at least one of the relevant lives in being was still alive and

32 | BRIEF FEBRUARY 2018

in good health so the perpetuity period would extend to at least 2038. Another assumption is that it is not necessary to specify a perpetuity period in the deed. The result in that case is quite clear, the rule at law applies. I have seen a number of standard form deeds which do not specify a perpetuity period7. I have no doubt the drafter had assumed that the 80-year period would apply. Because the rule at law will apply, the first task is to identify the relevant lives in being. The perpetuity period will then be 21 years after the death of the survivor of them. This period may be shorter or longer than the 80-year period, but it will be uncertain, a problem the reform was intended to resolve. In some cases, a vesting date of 80 years after execution has been specified, and the drafter may have assumed that is sufficient, as it would be in some other jurisdictions8. It may be possible to argue that by so doing in WA it can be implied that the period until vesting is also a specification of the perpetuity period, but that is not what the WA Act says and what the Acts in the other jurisdictions have sought to remedy. In any event, in most cases the vesting date is simply expressed as a date, say, 30 June 2055 and not as a period of years, making the argument unlikely to prevail. Consider also the situation where a testamentary trust does not state a perpetuity period but provides it is to

vest 18 years after the testatorâ&#x20AC;&#x2122;s death or some other short period. Would it then be implied that that also specifies the perpetuity period so that the vesting date could not be extended until the death of the surviving life in being plus 21 years? In most cases the failure to specify a perpetuity period so the period at law is applicable will have no practical effect because of the wait and see rule and the likelihood that one of the lives in being will survive for at least 59 years. However in some cases, notably taxation and family disputes, the failure may prove to be critical to the outcome.

Myth 2 â&#x20AC;&#x201C; The perpetuity period and the period until vesting are the same The difference between the perpetuity period and the period until a trust vests can be simply expressed: the perpetuity period is that in which the interest must vest; the vesting date is the date by which all interests under the trust will vest, subject to early vesting or any allowable extension of the vesting date. The vesting date is independent of the perpetuity period, save that it must not fall outside that period. A trust deed can specify a perpetuity period of up to 80 years, and also provide for an earlier vesting date. I have seen examples where that has been done. In trusts to which the rule at law applies, it is quite common that the vesting date

sufficiently broad variation power, or if a court authorises the variation under the powers in sections 89 or 90 of the Trustees Act 19629. The question then is, if the deed specifies both a short vesting date and a short perpetuity period, can the perpetuity period also be extended under those same powers? In my opinion that is not possible. The WA Act states that the perpetuity period is “such period of years not exceeding 80 as may be specified in the instrument creating the limitation”. On the face of it this means what it says, the perpetuity period is that specified in the original instrument and cannot be extended. The counter argument is that the original instrument can be varied, but the varied instrument is not that which creates the limitation.

Some practical considerations

is earlier than the applicable perpetuity period.

Myth 3 – A short perpetuity period can be extended When the modern family discretionary trust became popular from the 1970’s onwards, for a time some practitioners provided for short vesting dates of 30, 40 or 50 years. The reasons are obscure but may have reflected a view that was a sufficient period for succession to the next generation to happen and that provision for a succeeding generation was impractical or pregnant with difficulty and the possibility of conflict. Such short vesting dates can be postponed to a later date within the perpetuity period if the trust has a

A perpetuity period should always be specified in a trust deed or testamentary trust governed by the law in force in Western Australia or where the trustee holds an interest in land in this state. It can be a period of years, but if not, should clearly identify the relevant lives in being, who need not be beneficiaries. Unfortunately, if a period of years is desired but no period is specified, I consider the better view is that the omission cannot be remedied by a subsequent deed. Given the longevity of the royal family and of the population generally, if a maximum period before compulsory vesting is desired and the uncertainty is acceptable, consideration can be given to including a Royal Lives clause, or a Family Lives clause, so long as it is possible to identify the relevant lives at the outset and it will be possible to ascertain if the survivors are still living when it becomes necessary

to determine whether the period has expired. I do not consider it is possible to specify a hybrid period, such as the longer of 80 years or 21 years after the death of the last surviving life in being. The WA Act requires specification of a period of years not exceeding 80 and the specification of an indeterminate period does not do that. I have never seen the sense of the alternative, which was once common, of the period being the shorter of 80 years or a Royal Lives period. I do not think there is any reasonable likelihood in the foreseeable future of legislative reform to adopt the South Australian abolition, or the greater certainty provided in other jurisdictions, so until then practitioners should take care to follow the requirements of the WA Act. NOTES: 1

This Act was repealed and re-enacted by the Property Law Act 1969.

The ‘modern’ rule against perpetuities is better called the rule against remoteness of vesting, but in deference to virtually universal usage, the former term is used in this article.

Re Villar [1929] 1 Ch 243, and see the website tracing descendants of the late King George V https:// en.wikipedia.org/wiki/Descendants_of_King_George_V_ and_Mary_of_Teck (downloaded 1st February 2018, complete as at 16 January 2016)

“Limitation” is a defined term covering any interest which may be created or given.

The Perpetuities Act 1984. The ACT Act is similar to NSW, the Acts in other jurisdictions follow the WA model, but with variations, see endnote 8.

A recent publication by a leading WA law firm states “The vesting of a trust is unavoidable in WA as a trust can only exist for a maximum period of 80 years.” The first part of the statement is accurate, but the second exemplifies the myth.

Two were prepared by national firms, perhaps indicating a belief that the provisions in NSW, Victoria or Queensland also applied in WA.

In Queensland and Victoria the legislation specifically provides specifying a date before or within the 80year period as the date of vesting is taken to be the specification of a perpetuity period.

Re Glenister [2001] WASC 133, Coote v Clark [2007] WASC 97.

Shearn HR Legal - Human Resource + Recruitment is proud to announce its 20th Anniversary in 2018, having first opened the doors on 16 February 1998 and still going strong! It has been a pleasure working with the legal fraternity, locally and afar, over all these wonderful years and it is our aim to continue doing so, for many years to come. Please call or email for a confidential discussion about your most important asset, you or your firm, for your legal career needs and requirements. Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au

2018 WA Lawyer of the Year Awards Winners (L-R): Nicholas van Hattem, Simon Creek and Alain Musikanth. Photo: The Scene Team (www.thesceneteam.com.au)

THE LAW SOCIETY LAWYER OF THE YEAR AWARDS In the lead up to Law Week, the Law Society invites members to submit entries to the Law Society Lawyer of the Year Awards. The Law Society Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment. Do you know someone who could be th Law Society Lawyer of the Year? Nominations for the Law Society Lawyer of the Year Awards are now open until Friday, 20 April 2018. 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). Winners are announced at the Law Week Awards Night and Cocktail Evening, hosted by Bankwest on Friday, 18 May 2018. For full criteria and further information, please visit lawsocietywa.asn.au/law-week

Law Society Lawyer of the Year award recipients Practitioner with more than five years’ experience 2017 – Simon Creek and Nicholas van Hattem 2016 – Claire Rossi and Glen McLeod 2015 – John Fiocco 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier 2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2017 – Krista McMeeken 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack 2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

Proudly sponsored by Lawyer of the Year

34 | BRIEF FEBRUARY 2018

(less than 5 years’ experience)

lawsocietywa.asn.au Law Week 2018

Lawyers who offer free, high-quality legal advice wanted Individuals and legal organisations to be recognised for their free assistance Attorney General John Quigley is inviting legal practices, practitioners and community organisations to nominate candidates for the 2018 Attorney General’s Community Service Law Awards. Presented as part of WA Law Week in May, the two Law Awards recognise one individual legal practitioner and one organisation which have provided outstanding pro bono legal services to the Western Australian community.

manslaughter of Josh Warneke in 2010. The winner of the 2017 organisational law award was HHG Legal Group, which has a long history of involvement in the local community. Nominations for the 2018 awards are now open and must be received by the Department of Justice by 2pm on Tuesday 17 April 2018. Now it its 12th year, the previous winners of the individual award include: •

“One of the reasons these awards are so important is that they publicly acknowledge both those individual lawyers and legal organisations who have chosen to donate their time and skill to help those who may not otherwise access it,” Mr Quigley said. The 2017 individual law award winner was lawyer Sam Vandongen. Mr Vandongen's work included acting entirely pro bono as lead counsel for Pintupi man Gene Gibson, wrongly convicted of the

•

Michael Tucak (2016) for the Individual Award for pro bono legal services he provided to the Western Australian arts and cultural community for more than 20 years and King & Wood Mallesons for the Organisational Award for providing pro bono services since 2011, representing more than $1.7 million in fees, and equating to more than 5,580 hours in pro bono time. Adam Levine (2015) who coordinated pro bono work for K&L Gates’ Perth office and provided pro bono legal services to Manna Inc.

•

Elspeth Hensler (2014) who acted for refugees, foster carers and war veterans.

•

David Jenaway (2013) who handled the day-to-day management of Herbert Smith Freehills’ pro bono program.

•

Kylie Groves (2012) who used her legal skills and experience

For more information, visit www.justice. wa.gov.au/lawaward.

Fact File •

Nominations for the 2018 awards are now open and must be received by the Department of Justice by 2pm on Tuesday 17 April 2018.

•

For more information, visit www. justice.wa.gov.au/lawaward.

Law Week Special CPD Day for Rural, Regional and Remote Legal Practitioners Save Friday, 18 May 2018 the Date Location: The Law Society of Western Australia, level 5, 160 St Georges Terrace, Perth • • • •

6 points across all 4 competency areas Includes 2 Law Mutual (WA) Risk Management points Country members of the Law Society: No Cost Country non-members of the Law Society: $150 inc GST

FREE

Law Society Country Members

Registration also includes attendance at the Law Week Awards Night and Cocktail Evening on Friday 18 May 2018. To register your expression of interest, please email cpd@lawsocietywa.asn.au

BOOK REVIEW

The Varieties of Restitution 2nd Edition By Ian Jackman SC Review by Thomas Camp Solicitor, Mony De Kerloy Barristers and Solicitors

Those interested in restitution and unjust enrichment tend to fall into two camps. Some subscribe to the theory that there is a distinct area of private law which recognises liability in certain cases where a defendant has been unjustly enriched at the expense of the plaintiff. Others believe that there is no one defining feature which connects the law of restitution, bar the remedy itself. Ian Jackman’s The Varieties of Restitution is Australia’s most comprehensive work from this latter school of thought. Jackman’s second edition, coming 19 years after its initial publication, is timely given the recent release of the pro-unjust enrichment second edition of Edelman and Bant’s Unjust Enrichment and Mason, Carter and Tolhurst’s third edition of Restitution Law in Australia. Jackman strikes a fine balance between the argumentative and the informative, producing a text full of vigorous debate that also provides a comprehensive summary of the law as it stands. The result is a worthy read for anyone interested in the topic.

The Author’s Thesis Jackman’s proposition is that there are three principal categories of injustice which create an obligation to make restitution: 1. when money (or a necessitous in kind benefit) is received by the defendant from the plaintiff, its retention will be unjust when the conferral of the incontrovertible benefit is nonvoluntary. Non-voluntary conferrals include those arising from mistake, duress, undue influence or a total failure of consideration (sometimes referred to as a failure of basis); 2. when a voluntary benefit in kind is

36 | BRIEF FEBRUARY 2018

conferred, it will be unjust to allow a defendant to fail to fulfil a genuine, though often implicit, promise to pay. Such a promise may arise from the fact that the provision of the benefit would not be reasonable without payment; and 3. in the case of restitution for wrongs, recognition of injustice aims to protect the integrity of certain facilitative institutions of private law, such as private property or fiduciary relationships, from those who would utilise their benefit without submitting to their burden.

argues, will lead to a more coherent and sensible development of the law. Although not a work on the scale of Mason, Carter and Tolhurst’s Restitution Law in Australia or Edelman and Bant’s Unjust Enrichment, this text builds on the first edition and is an important expression of an alternative view to the theory of unjust enrichment. But the length (226 pp) inevitably requires certain questions to be ignored. For instance, no room has been set aside for considering the suggestion that the unifying feature of the law of restitution is in fact unconscionable conduct.1

Assessment

Parts of the book also seem rushed. For instance, the author may be mistaken when he suggests that the advocated unjust factor of “ignorance” is encompassed within the law surrounding mistake. The unjust factor of “ignorance” would capture transactions where the payer is unconscious of the transaction itself, such as theft or payments made by computer error.2 Jackman claims that the High Court has confirmed that ignorance of a transaction is the same as ignorance of a fact relating to a transaction,3 yet the cases cited by Jackman go no further than saying ignorance of a fact or effect of a law relevant to the transaction can be a vitiating mistake.4

The author’s thesis is advanced by insightful consideration of myriad cases both historical and contemporary. Jackman asks the reader to question how these cases, which are often disparate, can be brought together under the umbrella of unjust enrichment. He then opines that the far better solution is to adopt his categorisation, which is closer to the historical position. We are told his legal fictions do not obscure in the same way as those fictions extant in the theory of unjust enrichment. His proposal, he

The liability to make restitution when a transaction occurs in complete ignorance was considered in two appeal court decisions in 2016.5 Tellingly, the right to recover advanced and discussed in those cases was not based on mistake. In Fistar v Riverwood Legion and Community Club Ltd6 the NSW Court of Appeal held that there is a right to recover the value of the traceable product (obtained by applying equitable principles) of property received by the volunteer. However, the court ultimately found that the trial

The Updates The major addition to this edition is Chapter 2, which deals with the history of the law of restitution. This chapter succinctly saunters through an oft underexplored period of history in this area of law, revealing to the reader a disjointed and often patchwork development. A consideration of this chapter leaves the reader with little doubt as to why subsequent attempts at reform have struggled to unify these classes of liability.

judge had been wrong to categorise the appellant as a volunteer and set aside the order for restitution.7 In Great Investments Ltd v Warner8 the Full Federal Court dismissed an appeal against an order for restitution of bonds transferred without the transferor’s knowledge or authority, purportedly pursuant to a power of attorney. In coming to this decision, the court held that there can be a strict liability claim against a recipient, without authority, of company assets. The court suggested that the claim may be based on unjust enrichment.9 These decisions are mentioned in footnotes in later chapters and while Jackman may believe the plaintiffs could instead have claimed based on a mistake stemming from ignorance of the transaction, we are left to guess. The book is also occasionally burdened by laying siege to a fort which has long been abandoned. To describe the mainstream opinion (of academics) towards the law of restitution or unjust enrichment in this country as the belief in a principle of law with direct application which imposes liability on a defendant for unjust enrichment at the plaintiff’s expense, as Jackman does,10 is surely to torture the meaning of mainstream.

PEXA_LSWA_HP_horiz_183x130mm_FA_OL.indd 1

The more likely characterisation of the mainstream opinion, in both academia and the courts, is that unjust enrichment provides a useful explanation of why the law recognises liability in a variety of different cases, which can be identified by focusing on four issues:

forceful and thoughtful. With the second edition of his book, Jackman has ensured his will be a voice listened to in any future debate. NOTES: 1

See for instance Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 [70] (Gummow J), quoting P Finn, ‘Equitable Doctrine and Discretion in Remedies’ in WR Cornish, R Nolan, J O’Sullivan and G Virgo (eds), Restitution: Past, Present and Future: Essays in Honour of Gareth Jones (Oxford, Hart Publishing, 1998) 252.

the enrichment must be unjust; and

See for instance Edelman and Bant, Unjust Enrichment (Oxford, Hart Publishing, 2016) 281.

g. a court should consider if defences apply.11

Page 45.

See David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, 369 [27]; Hookway v Racing Victoria Limited & Anor [2005] VSCA 310; (2005) 13 VR 444 [21].

Summary

Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81; (2016) 91 NSWLR 732; Great Investments Ltd v Warner [2016] FCAFC 85; (2016) 243 FCR 516.

[2016] NSWCA 81; (2016) 91 NSWLR 732.

Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81; (2016) 91 NSWLR 732 [30]-[31].

[2016] FCAFC 85; (2016) 243 FCR 516.

Great Investments Ltd v Warner [2016] FCAFC 85; (2016) 243 FCR 516 [69].

Page 37.

See the discussion in Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited [2017] ACTCA 29 and in particular [92].

d. the defendant must be enriched; e. the enrichment must come at the expense of the plaintiff; f.

These criticisms are not to suggest that the book is more broadly infected by the same problems; many great works have blemishes and to dissuade future readers would be to do them a disservice. Nor should the reader view the books subject as being of merely academic interest: Edelman J’s appointment to the High Court creates a tantalising prospect that many of the areas explored by this book may come under renewed focus in our country’s highest court. The text is at once comprehensive and concise,

12/2/18 2:12 pm

DROVER'S DOG In the style of his much publicised relative, Red Dog, your Dog recently hitched a ride to the South West of the State, visiting Bunbury, Busselton, Dunsborough, Margaret River and Augusta, and places of gastronomic delights, especially the Bunbury Market! The Dog salivates at the thought of a pepper steak or chicken and leek pie from the Market. The Dog spent one of his happiest half hours sitting on a concrete wall in the car park, munching the best pie he has ever tasted, no accompanying salad, wine, beer or coffee! Simply scrumptious! The construction which has taken place in Bunbury and Busselton, the tasteful development of the Busselton foreshore, and the restaurants located around the west end of Bunbury are most impressive. It is too easy to fly by in a steel cocoon on wheels headed for Margaret River, Yallingup or the like without pausing to see what is on offer in places such as these. Disappointingly, the prevalence of mobile phones at restaurant tables, supplanting the opportunity to engage in lively discussion about issues of the day, or even to taste and enjoy the dishes provided in the restaurants, is as much in evidence there as in Perth and Fremantle. Interesting to read that Mr. Zuckerberg has, in the interest of his teenage daughters, taken steps to modify Facebook to emphasise content generated by family and friends so as to have an impact on wellbeing of its users. The Dog had time to visit and admire so many attractions in the area, including golf courses, the incredible beaches, the Boranup forest (where the Pup recently married in what is the most magnificent cathedral of karri trees in the world), and diving for crayfish off Cape Leeuwin. Nothing beats a fresh caught crayfish grilled over coals with garlic and butter! Restaurants such as Leeuwin Estate, The Goose, Little Fish, Hamelin Bay Winery and many others are as good as or better than many of the places which one visits while abroad, expecting more, but not necessarily getting it. The cleanliness, orderliness and safety of our society is in a class of its own. When the Dog spent time in Paris he was always struck by the fact that dog owners did nothing to clean up “l’ordure” left by their pets on

38 | BRIEF FEBRUARY 2018

the sidewalk. In WA owners do it (almost) automatically! There is no doubt that collectively we live in Paradise. The Dog is interested to see the Attorney General announced an inquiry into the third party funding industry by the Australian Law Reform Commission. Its terms of reference describe, amongst other things, the “increased prevalence of class action proceedings”. The issue of access to justice and legal costs have long been the subject of discussion – a quip attributed to Sir James Matthews, an Irish judge, was that “justice is open to all, like the Ritz Hotel”. There are those who advocate litigation funding and class actions, to enable parties to have the dispute resolved by Court proceedings. Does litigation funding enable them to get the best result? Arguing by selected instance is always open to challenge, but a settlement which springs to mind is that concluded in Clarke v Great Southern Finance Pty Ltd (in liquidation). This required insurers to pay $23.8 million to the plaintiffs and group members. Of that, $20 million was reimbursement of legal costs due to M&K Lawyers, and $3.55 million payable to the lead plaintiffs and the group members, representing a payment to each investor of about $19 per wood lot. Croft J described this as “a very modest payment, to say the least…the judgement would have yielded absolutely nothing”. The investors continued to be liable to the Defendant for the unpaid loans. Not dissimilar in terms of the issue it raises is the outcome of the settlement in the Kilmore East-Kinglake fires, an award of $494 million, Maurice Blackburn charging and recovering $100 million in

fees while the work relating to distribution of the settlement proceeds was overseen by the Supreme Court of Victoria. The Dog wonders whether “access to justice” comprehends payment of legal costs of this magnitude, and which party enjoys such access to best advantage? Perhaps the genie is out of the bottle, and we have to live with it? Curled up on the lawn at the Settler’s Inn at Margaret River waiting for festivities to commence the Dog chanced upon copies of papers presented at the AIAL National Conference in July 2017, with a paper by Senator the Hon George Brandis QC entitled “ ‘Green Lawfare’ and Standing: the view from within Government”, on the one hand, and by Professor Andrew Macintosh of the ANU Law School entitled “Lawfare, Liberal Standing Rules and Environmental Citizen Suits: a Reply to the Attorney General”, on the other hand. These were complemented by a paper presented by Professor Matthew Groves, Professor of Public Law, La Trobe University entitled “Lawfare and the Enemy within our Public Law”. The Dog, not given to reading legal articles while in holiday mood, formed an impression that the proceedings at the Conference had the potential to match any bar room brawl! It would have been exciting to hear the clash of sword on shield as the gladiators resorted to “Lawfare” - a term with which the Dog was not previously familiar!!

Send your submissions to the Dog via brief@lawsocietywa.asn.au

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

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 In March 2016, the Federal Court of Australia found that Valve Corporation (Valve) had contravened various provisions of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) and imposed a $3 million fine on top of declarations and orders for an injunction, publication of a corrective notice and the implementation of a compliance program. Valve is a company based in the State of Washington in the USA and operates an online game distribution network known as “Steam”. Valve Corporation v ACCC [2017] FCAFC 224 was an appeal by Valve and a cross-appeal by the ACCC to the Full Federal Court of Australia (FCAFC). Valve appealed on 12 grounds which can be summarised as follows: 1. that the consumer guarantees in Div 1, Pt 3-2 of the ACL do not apply to supplies of computer games by Valve to Australian consumers; 2. that representations made either through its electronic subscriber agreements or refund policies, would

not mislead a reasonable consumer into believing that Valve was not required to provide refunds; and 3. the pecuniary penalty imposed was manifestly excessive. The ACCC cross-appealed in relation to two alleged chat room representations (that customers were not entitled to a refund) which the primary judge found not misleading. This cross-appeal was dismissed on grounds that the representations did not actually mislead complainants in the case. Valve argued that s 67 of the ACL, headed "Conflict of laws", operated to exclude contracts where the objective proper law is not Australian law and thus the ACL did not apply as the law with the closest and most real connection was Washington State law. In support, it pointed out that the subscriber agreements had a Washington State choice of law clause, that payments for subscriptions were made in US dollars and were processed in Washington State. Valve similarly argued that it did not engage in conduct in Australia as it is a corporation based in Washington State which dealt with customers on internet browsers through servers and representatives located in Washington State.

The FCAFC rejected Valve’s arguments, stating, amongst other factors, that consumers had subscribed and thus agreed to Valve’s agreements and policies within Australia, and that "supply" of games took place where it was downloaded - in Australia. Furthermore, s 67 was not intended to and does not limit the ACL in the manner contended, which in essence meant the ACL will only apply if the objective proper law of the contract in question was Australian law. The FCAFC also agreed with the primary judge that a reasonable consumer would construe the representation in Valve’s subscriber agreements that “All Steam fees are payable in advance and are not refundable in whole or in part” as a statement that Valve was not required to provide refunds. Finally, the FCAFC agreed with the primary judge's determination as to penalty and that it was open for him to consider that Valve's conduct had a substantial effect on consumers, there was a causal link between loss suffered by Valve's consumers and its profits, and that Valve lacked a culture of compliance with Australian law. Author: Fiona Poh, Solicitor at DLA Piper

Small Firms Network The Young Lawyers Committee has been working on expanding our Small Firms Network (SFN). The SFN has been designed to facilitate networking for graduates and lawyers from small, boutique and medium-sized firms. The YLC has found that often practitioners are less inclined to attend events if they have to attend on their own and our aim is that graduates and lawyers in smaller firms will be able to find support and friendship through attending our SFN events. The YLC recently held an informal get together for the SFN on Wednesday, 1 November 2017 at Public House. It was a fantastic event, made more enjoyable by the warm evening and outdoor setting at Public House. The YLC received some fantastic feedback on the night and were encouraged to hear SFN events are of a benefit to graduates and lawyers. Those that attended the event clearly spread the words to their friends and colleagues, and we received further expressions of interest to join the SFN. Please contact the YLC on younglawyers@lawsocietywa.asn. au to express your interest in joining the SFN.

40 | BRIEF FEBRUARY 2018

Aunt Prudence Juris: your one stop solution to problems after law school

Dear Aunt Prudence, How do I stop family and friends from asking me for "quick advice"? I now mentally prepare myself with several standard disclaimers before going to gatherings, and it is exhausting having to constantly repeat them.

Yours in frustration, Mistreated and Always Demanded

Dear MAD, Firstly dear – how do you think I feel?

Ever wondered about how to recover from a faux pas at work, how to reject work-social invitations without becoming a pariah, or whether honesty can cost you your job? Life as a junior is filled with perils, but it’s not all doom and gloom! The YLC is starting a column to answer those beleaguered questions of yours or to hear your side of the story.

No question is too big or small, and Auntie loves a nip of gossip! So send your burning questions to Aunt Pru at http://freesuggestionbox.com/pub/ iddzxds

Auntie is kidding, of course. Unfortunately, being in the legal profession means that you become somewhat of a beacon to people in any kind of legal distress. It doesn’t matter whether you are a conveyancing solicitor or a QC exclusively operating in admiralty law – expect to field questions about DUIs, boundary fencing disputes and (shudder) painfully intimate Family Court proceedings for the rest of your working life. In time, you will become used to it and accept it as an occupational hazard, like doctors being accosted by people with unusual rashes everywhere they go. It is important to avoid giving advice though in these sorts of situations as you don’t want to risk giving negligent or incorrect advice. Remember you’ll only be getting a brief snapshot of the full story from whoever is asking, and you need all the facts before giving any advice, quick or otherwise. And let’s face it, depending on how far into the night you are (and how many espresso martinis you’ve consumed – no judgment), your advice may not be all that helpful anyway. Explain that it’s not your area (even if it is) and if you think your firm can help them, tell them to give your office a call on Monday morning. Then change the subject. Worst comes to worst, you'll be able to afford a few more of those espresso martinis. After all, when problems knock, you should build a door.

Hugs and Kisses, Auntie

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding. E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth. We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.

FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Children – Mother allowed to relocate to wherever she was posted in her employment with the Australian Defence Force In Wendland [2017] FamCAFC 244 (21 November 2017) the Full Court (AinslieWallace, Ryan & Aldridge JJ) dismissed the father’s appeal against Judge Vasta’s order that permitted the mother (who had worked for the Australian Defence Force for 18 years since she was 20) to relocate their child (4) to wherever she was posted. The child lived with her in Town H in Queensland, spending time with the father each week and “it was not known if, when or where the mother might be posted”. The father argued that “until the location of any posting was known informed decisions could not be made as to … the child’s best interests” ([5]). By the time of the appeal, however, the mother had been posted to another State. The Full Court said (from [10]): “ … [During the relationship] [t]he child was placed in on-base day care where the mother was working and the paternal grandmother also took care of the child. The father continued to work full time. [11] The primary judge found that … the parties planned to move as a family in the event the mother was required to work elsewhere. ( … ) [29] … [H]is Honour … clearly [took] into account … the … report writer[‘s] … opinion that a relocation would diminish the relationship between the child and the father and paternal grandmother. ( … ) [33] It was submitted that the order … erroneously gave the mother a ‘blank cheque’ as to the child’s future ( … ) [35] The … judge … correctly noted … that the mother is likely to be subject to further postings. ( … ) [and] was of the view that the order he made was supported by s 60CC(3)(l) [an order least likely to lead to further proceedings] ... This course was … open on the evidence. ( … ) [41] … [T]he … judge was not obliged to accept the opinion of the … report writer. … It is for … [him] to determine the weight to be given to it: see Muldoon & Carlyle [2012] FamCAFC 135 … at [105] ( … ) [57] [T]he … judge found that the order proposed … permitted the child to spend time with the father in a manner [air travel] 42 | BRIEF FEBRUARY 2018

that was reasonably practicable and could be afforded. … [T]his finding was open on the evidence. ( … )

Children – Full Court allows mother to relocate for 2-4 years overseas where her partner was posted

[73] ( … ) [W]eight was given to the … report writer’s opinion, but … also … to the mother’s freedom to pursue her career and to live where she wished and … the effect on the child if the mother were forced to abandon her career and remain living in Town H. Significant weight too was given to the finding that in the event of a relocation the child would still maintain a meaningful relationship with the father, albeit one of a different nature.

In Boyle & Zahur and Anor (No. 2) [2017] FamCAFC 263 (14 December 2017) the Full Court (Thackray, Murphy & Carew JJ) allowed the mother’s appeal against Justice Gill’s dismissal of her application to relocate overseas with the parties’ two daughters (12 and 11) for the duration of the posting of her partner, a government agency employee, to Country “H” for 2-4 years. The children who lived with the mother spent alternate Friday, Saturday and Wednesday nights with the father under a consent order. In remitting the case for rehearing the Full Court said (from [91]):

Property – Husband brought 96.5% of $2m pool into short childless marriage – Assessment of 60:40 set aside by Full Court In Anson & Meek [2017] FamCAFC 257 (7 December 2017) the Full Court (Murphy, Aldridge & Cleary JJ) allowed the husband’s appeal against Judge Hughes’s property order in the case of a childless couple who were married for 5 years. The wife left her job as a CEO @ $180,000 p.a. to live with the husband in Asia before the couple returned to Melbourne. The wife had undergone failed IVF treatment. Before cohabitation the husband owned 96.5% of the parties’ property, including a farm worth $1.86m at trial. Total assets in Australia were valued at about $2m. His pre-marital assets in “Country T” ($1.76m) were placed in a separate pool and considered as to s 75(2) only. Judge Hughes assessed contributions as to the $2 million pool as 80:20 in favour of the husband, adjusted by 20 per cent for the wife under s 75(2). Murphy J (with whom Aldridge and Cleary JJ agreed) said ([30]) that the trial judge erred in finding that contributions were equal during the marriage, in that part of the wife’s stressful IVF was precohabitation ([31]) as was her non-financial contribution to the acquisition of the farm by providing advice as to its purchase ([32]); the husband’s financial contributions preand post-separation were “overwhelming” ([36]) and the post-separation increase in the farm’s value represented 30% of the cohabitation period ([48]). It was also held that her Honour’s finding as to the duration and quantification of the wife’s impaired future earning capacity was flawed ([53][82]). The case was remitted for rehearing by another judge.

“There … is no issue that the children should have a relationship with their father. There … is no issue that the children love their father and want a relationship with him and … that they would miss their father if they moved to Country H. Equally, there … is no issue that the reduction in face to face time with their father (noting, again, that the proposed move was temporary) was not ideal. These matters are the axioms upon which the vast majority of so-called ‘relocation cases’ proceed. Yet, the task is to fashion orders which best meet the best interests of the children by reference to the proposals of the parties or those fashioned by the Court (subject to procedural fairness … ) by reference to ‘the reality of the situation’. [92] As a consequence, orders that contemplate a continuation of the existing orders which thwart the legitimate desire of the mother and are contrary to the wishes of relatively mature children, involves a conclusion that those orders are more in the best interests of the children than other available alternatives. [93] A central inescapable fact in this case is that parental hostility and conflict to which the children were exposed and the impact upon the children … arose during the currency of the existing orders which his Honour’s judgment and orders would see continued.” 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.

Faroe Islands, Denmark

Ex Juris Faroe Islands Australians are great travelers and lawyers are no different. Each month a reader of Brief tells us about their favourite travel destination.

Faroe means sheep in Danish and this is certainly true of the islands which are in reality the tops of a sunken mountain range about midway between Scotland and Iceland. The islands are part of Denmark and are a wildlife loverâ&#x20AC;&#x2122;s dream, with spectacular green mountains ending in basalt cliffs to the sea. Access to the larger island, close to Thorshavn, the capital, is by tunnel, while further islands are reached by ferry or helicopter. Some of the older buildings have turf roofs easily maintained by throwing the occasional sheep up to eat the grass. Allow a minimum of one week to fully appreciate this northern paradise. The Faroese are (in)famous for The Grind, the slaughter of whales which seems to involve the whole population, but do not judge them on that. They

will passionately argue in favour of this ancient custom. Iceland and the Faroe Islands grew rich from cod fishing. Nowadays, fish farms and tourism are the main industries.

(until you try to buy a Danish with one in Copenhagen). On foggy days (a frequent occurrence), curl up with Eric Linklater's The Dark of Summer or Craig Robertsonâ&#x20AC;&#x2122;s The Last Refuge, or find the places referred to in these detective novels.

Tell us about your favourite (or not so favourite) destinations and why you travel there. Please send your contributions to brief@lawsocietywa.asn.au

The Faroese have their own currency, the Faroe Kroner which in theory is interchangeable with the Danish Kroner

Law Council Update

Call for justice targets on 10th anniversary of Apology to Australia's Indigenous peoples The Law Council redoubled its call for the Australian Government to create a series of justice targets to end the disproportionally high imprisonment rates of Aboriginal and Torres Strait Islander peoples. The renewed call comes on the 10-year anniversary of the Rudd Government’s Apology to Australia’s Indigenous peoples and one day after the Turnbull Government’s tabling of the 10th Closing the Gap report. Despite representing less than three per cent of the population, 27 per cent of all adult prisoners identify as Aboriginal and/ or Torres Strait Islander. Since the apology was given 10 years ago, imprisonment of Aboriginal and Torres Strait Islander peoples has increased by 88 per cent. Law Council President, Morry Bailes, said the incarceration rates of Aboriginal and Torres Strait Islander peoples is nothing short of a national crisis, requiring a strong national response. “Australia’s Indigenous imprisonment rates continue to be among the worst in the developed world,” Mr Bailes said. “Justice targets must be put back on the national agenda. These targets will help drive change among all Australian governments by outlining clear markers for improvement and creating accountability for falling short. “As set out in the Change the Record Coalition’s Blueprint for Change, targets could include: •

to close the gap in the rates of imprisonment by 2040; and

•

to cut the disproportionate rates of violence against Aboriginal and Torres Strait Islander peoples,

to at least close the gap by 2040, with priority strategies for women and children. “We are also anxiously awaiting the release of the Australian Law Reform Commission inquiry into Incarceration rates of Aboriginal and Torres Strait Islander peoples and hope it kickstarts change in this area,” Mr Bailes said.

44 | BRIEF FEBRUARY 2018

The Law Council also expressed disappointment at the Australian Government’s response to the Royal Commission into the Protection and Detention of Children in the Northern Territory. “The Australian Government had a unique opportunity to demonstrate national leadership regarding the important findings of the Royal Commission,” Mr Bailes said. “Unfortunately, it missed the chance to deliver a national, comprehensive, intergovernmental response to the recommendations. This includes on the landmark recommendation to raise the age of criminal responsibility. “It is clear, as with the Closing the Gap report, we need strong Australian Government leadership and intergovernmental cooperation among states and territories,” Mr Bailes said.

State and Territory support urged for National Redress Scheme The Law Council today encouraged states and territories to sign onto the Australian Government’s national redress scheme, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. The COAG communique noted that leaders ‘acknowledged the work underway to establish a national redress scheme.’ Law Council President, Morry Bailes, said the peak legal body had long supported the establishment of a national redress scheme for survivors of institutional child sexual abuse. “These survivors often experience long lasting trauma, and in many cases, are not able to receive appropriate redress or compensation,” Mr Bailes said. “Implementation of the Royal Commission’s recommendation to establish a national redress scheme is critical for the provision of effective redress for survivors. “A national redress scheme, whereby states and territories participate as recommended by the Royal Commission, is the most effective way of ensuring that

Australian survivors can equally access redress,” Mr Bailes said. Mr Bailes said the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 was landmark legislation, but still requires improvement. This includes: •

the use of delegated legislation within the proposed measures;

•

current and future eligibility for redress under the scheme;

•

the process for reviewing decisions made under the scheme;

•

the legal effects of an offer made under the scheme; and

•

privacy concerns regarding disclosure of protected information.

“We look forward to working with Parliament to address these concerns,” Mr Bailes said. Mr Bailes also supported the Prime Minister’s announcement that he will deliver an apology to the survivors of institutional child sexual abuse by the end of the year. “An apology is a very meaningful act, which can often be the first step in the healing process. It is an acknowledgment that Australia, and its institutions, failed to protect many children from child sexual abuse,” Mr Bailes said.

Vital the rule of law is upheld despite warring words Ensuring the rule of law is respected and maintained is vital to the strength of Australia’s legal system, the Law Council of Australia has reiterated. The national peak body, representing the legal profession, backed colleagues at the Law Institute of Victoria in defending the rule of law, particularly the independence of the judiciary. Law Council of Australia President, Morry Bailes, said recent attacks on Victorian judges were not useful and eroded public confidence in the judiciary. “The Law Council shares the views of the Law Institute of Victoria. There is no place for political attacks on the judiciary undermining the independence of judges and magistrates,” Mr Bailes said.

Professional Announcements Career moves and changes in the profession

Jackson McDonald Jackson McDonald is delighted to announce the recruitment of prominent mining and project finance lawyer, Brendan Fyfe to the Partnership.

Paul Gribble

Rebecca Strom

Boutique firm attracts best and brightest Boutique law firm LSV Borrello Lawyers has continued its strategic growth with the appointments of Paul Gribble and Rebecca Strom as Principals. Rebecca joins LSV Borrello from Corrs Chambers Westgarth where she was a partner for more than five years and worked in the property and infrastructure team for more than 15 years. Paul was previously at Clayton Utz where he practiced for more than almost 30 years, for 21 of those he was a partner.

An established and internationally Brendan Fyfe recognised legal practitioner, Brendan joins Jackson McDonald from the Hong Kong partnership of an international law firm. Brendan brings significant experience in natural resources projects-based, banking and large-scale commercial transactions throughout Asia, Australia, the Americas and the Middle East. Brendan’s appointment and international transaction experience reflects and reinforces Jackson McDonald’s ongoing WA focus, whilst supporting the firm’s inbound Asian strategy.

Hollingdale Mediation Michael Hollingdale has established Hollingdale Mediation to provide independent mediation and facilitation services. Michael is an accredited mediator through the Law Society of Western Australia and the Resolution Institute. The firm accepts appointment from law firms and in-house corporate counsel. Level 28, AMP Building 140 St Georges Terrace Perth WA 6000 p +61 8 9389 6295 m +61 438 143 309 e michael@hollingdale.com.au www.hollingdalemediation.com.au

New Members New members joining the Law Society (February 2018)

Ordinary Membership Miss Natasha Dougall King & Wood Mallesons Ms Caitlin Moustaka Allens

Miss Gabrielle Lindsay Milton Graham Lawyers

Mr Mitchell Rosario Murdoch University - School of Law

Ms Jade Olynyk Jackson McDonald

Ms Notre Dame Saez Gomez Galarza Charles Darwin University Law School

Associate Membership Restricted Practitioner Mr Ramesh Bajaj Peel Community Legal Services Ms Cordelia Coleman Ellery Brookman Pty Ltd Mr Kirk Dundo KD Legal Mr Jeremy Heenan tlers Barristers & Solicitors

46 | BRIEF FEBRUARY 2018

Ms Lynette Avins Edith Cowan University - School of Business & Law Mr Jamie Davidson University of Notre Dame Australia Mr Kayne Leeson Murdoch University - School of Law Miss Andrea Neoh Price Sierakowski Corporate

Mr John Theodorsen Curtin University – Business and Law Ms Amanda Turacchio Murdoch University – School of Law Ms Zebelene Wates Charles Darwin University Law School

Classifieds

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late GLEN MICHAEL MCLEOD (DOB 10/2/1966, DOD 10/11/2017) formerly of Unit 1, 17 Moondah Close, DUNSBOROUGH WA 6281 please contact Peter Heerey Lawyer on 6424 1122 or email tanyaheerey@bigpond.com within one month of the date of publication of this advertisement.

FULLY SERVICED OFFICES Four fully serviced offices ranging in size from 7.8m2 to 16.5m2 are available for immediate occupancy in the heart of the Legal Precinct (Cnr Irwin/Hay) at highly competitive rates. Suitable for sole practitioners who want to avoid administrative hassles, but enjoy the benefits of a collegiate environment. Enquires to Lee 9221 8337 or email lee@nightstyle.com.au

BRIEF For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

The Essential Legal Assistant Starting on Monday, 9 April 2018 5.30pm â&#x20AC;&#x201C; 7.30pm | Delivered online 10 week course

985

$ A must for legal assistants wanting to build meaningful skills and knowledge, necessary for working in a contemporary practice.

Same days, same time, same course content â&#x20AC;Ś delivered live online with legal topics delivered via our eLearning portal. This enables legal support staff in the CBD, regional, rural and remote Western Australia to participate in this programme, from their work or home computer. Book online at: www.lawsocietywa.asn.au/cpd

With thanks to our CPD partner

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

MARCH 2018 Friday, 23 March Tuesday, 20 March Current Issues in Environmental Law Mindfulness: the powerful weapon Thursday, 8 March for dealing with distressed clients Online legal research skills including Tuesday, 20 March Monday, 26 March accessing free resources (Webinar) Insolvency: Safe harbour & IPSO Facto Unbundling of legal services Tuesday, 13 March Wednesday, 21 March Tuesday, 27 March Using encryption: ensuring only Third Party Dispute Finance in the those who you want to see it, are the Drafting guidelines for effective Resources Sector correspondence (Webinar) only ones who can see it! CPD Seminars

Wednesday, 14 March The Challenges of Ethical DecisionMaking for In-House Counsel Wednesday, 14 March “Nobody Told Me There’d Be Days Like These!” - Stress, Pressure, & Ethical Decision-Making in the Practice of Law Thursday, 15 March Beware the Ides of March - the dark arts of costs

Wednesday, 21 March A view from the bench Thursday, 22 March Maximising your billable hour through managing your time and building resilience

Wednesday, 28 March Migration Law Update Part 2

Thursday, 22 March Expert Evidence: instructions, privilege and waiver of privilege

APRIL 2018

MAY 2018

Membership Events

Commencing Wednesday, 4 April Pilates – Six week course

Thursday, 3 May Sole Practitioner and Small Firm Forum

Thursday, 12 April Society Club Cocktail Party

Monday, 14 May Law Week Breakfast and the 2018 Attorney General’s Community Service Law Awards

Thursday, 19 April YLC Inter Profession Networking Cocktail Event

Tuesday, 27 March Joint Form of General Conditions for the Sale of Land in Western Australia - 2018 update

Tuesday, 15 May Walk for Justice

Wednesday, 16 May Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee Thursday, 17 May Social Justice Opportunities Evening Friday, 18 May Law Week Awards Night and Cocktail Evening

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 8692. For all upcoming events and further information please visit lawsocietywa.asn.au 48 | BRIEF FEBRUARY 2018

LAW WEEK 2018

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 and the 2018 Attorney General’s Community Service Law Awards, Monday, 14 May 2018, Parmelia Hilton Perth • Walk for Justice, Tuesday, 15 May 2018 • Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee, Wednesday, 16 May 2018, Supreme Court of Western Australia • Social Justice Opportunities, Thursday 17 May 2018 • Panel Discussion - My Culture My Story: Aboriginal Women Leaders in Law, Friday, 18 May 2018, Old Court House Law Museum, Perth • Law Week Special CPD Day for Rural, Regional and Remote Legal Practitioners, Friday 18 May 2018, Law Society • Law Week Awards Night and Cocktail Evening, Friday, 18 May 2018, Bankwest Place, Perth Visit lawsocietywa.asn.au/law-week for more information and to register for these events.

With thanks to Law Week supporters and sponsors

Lawyer of the Year Award and Community Events Sponsor

Cocktail Evening Host Sponsor

Quickly create accurate legal forms and documents Reduce risk of errors by only entering matter information once n Access to 6000+ automated and maintained legal forms n Your firmâ&#x20AC;&#x2122;s own precedents can be easily automated n Up-to-date legal rates and charges in one place n Subscribe to over 5000 legally drafted By Lawyers* precedents

To book an obligation-free demonstration: 1300 886 243 | sales@leap.com.au | www.leap.com.au/features/legal-content Invest in LEAP for $239 per user per month (plus GST). *By Lawyers is a companion product of LEAP $45 per user per month (plus GST)