Brief August 2019 by The Law Society of Western Australia

VOLUME 46 | NUMBER 7 | AUGUST 2019

Beyond the Jargon: What Does AI Mean for Lawyers? Also inside Israel Folau: The Last Line of Defence Vexillology Flagging Copyright in Action: The Surprising History of Australian Flags Technology and the Future of the Courts

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Volume 46 | Number 7 | August 2019

CONTENTS

16 ARTICLES

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 authorâ&#x20AC;&#x2122;s name is not provided, or if readers are not able to locate an authorâ&#x20AC;&#x2122;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.

#LawyersMakeADifference: Melissa Parke

Perth in the International Arbitration Landscape

Israel Folau: The Last Line of Defence

Beyond the Jargon: What Does AI Mean for Lawyers?

Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au

How Lawyers Can Expand Their Range of Influence to be Seen and Heard at Work

Vexillology Flagging Copyright in Action

Communications and Design Officer: Charles McDonald

Aspects of the Relationship Between the Law, Economic Development and Social Change and the Importance of Stability

32 39

Technology and the Future of the Courts Small Firms Network Event Wrap-up

Published monthly (except January)

Senior Communications and Media Officer: Andrew MacNiven RRP $16.00 incl GST. Printed by Vanguard Press

Editor: Jason MacLaurin Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dr Rebecca Collins, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, 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: Greg McIntyre SC Senior Vice President: Nicholas van Hattem

02 President's Report

45 Cartoon

04 Editor's Opinion

46 Law Council Update

22 Taxing Matters

47 Professional Announcements

Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Emma Griffiths, Matthew Howard SC, Gary Mack, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson, Joel Yeldon

40 Family Law Case Notes

48 New Members

Junior Members: Jack Carroll, Brooke Sojan, Demi Swain

42 Quirky Cases

48 Classifieds

44 Drover's Dog

49 Events Calendar

Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Hayley Cormann

Country Member: Kerstin Stringer Chief Executive Officer: David Price

PRESIDENT'S REPORT Greg McIntyre SC President, The Law Society of Western Australia

Welcome to the August edition of Brief. NAIDOC On 31 July 2019 I was privileged to participate as a panellist at the KWM Perth Reconciliation & Empowerment Thought leadership event, “A Conversation from the Heart” in which I described the history of ‘Constitutional recognition’ of Indigenous people, what form it might take and why the proposed ‘Voice to Parliament’ does not comprise a ‘third chamber” of Parliament. I was joined on the panel by Justin Dhu, Executive Officer of the Gumala Aboriginal Corporation and Colin Johnston, from BHP’s Indigenous Affairs Team. The Moderator was Sally Audeyev, a Partner and Reconciliation Empowerment Ambassador of KWM. KWM ran parallel events around the country. Notably, in Sydney Professor Megan Davis was on a panel moderated by the President of the Law Council of Australia, Arthur Moses SC and, in Melbourne, Michael Pelly, Legal Affairs Editor of the Australian Financial Review moderated a panel comprising Tony McAvoy a Wangan and Jagalingou Traditional Owner and Australia’s first Indigenous silk and former Law Council President Fiona McLeod SC.

Criminal Code Amendment (Agricultural Protection) Bill 2019 The Law Society has written to the Law Council of Australia to express its opposition to the proposed amendments in the Criminal Code Amendment (Agricultural Protection) Bill 2019 (Cth). The Bill seeks to amend the Criminal Code Act 1995 (Criminal Code) to introduce two new offences relating to the incitement of trespass or property offences on agricultural land. The first offence would apply where a person uses a carriage service to transmit, make available, publish or otherwise distribute material with the intent to incite another person to trespass on agricultural land. This offence would require that the person is reckless as to whether the other person's trespass or related conduct could cause detriment to a primary production business being carried on the land. A person found guilty of this offence could face up to 12 months' imprisonment. The second offence would apply where a person uses a carriage service to transmit, make available, publish or otherwise distribute material with the intent to incite another person to unlawfully damage

02 | BRIEF AUGUST 2019

or destroy property, or commit theft, on agricultural land. A person found guilty of this offence could face up to five years' imprisonment. The use of the Telecommunications Power in the Constitution to expand the reach of Commonwealth criminal law is a concern. There is nothing intrinsic to that head of Commonwealth legislative power in these offences. The Law Society opposes the amendments and considers that the proposed Bill is completely unnecessary as it appears that the criminal conduct targeted by it can already be effectively prosecuted under existing State criminal offences.

Standing Committee on Public Administration’s Inquiry into Private Property Rights The Law Society recently received a letter from the WA Parliament’s Standing Committee on Public Administration, inviting a submission on the Committee’s Inquiry into Private Property Rights. The letter noted that the Legislative Council had referred an inquiry to the Standing Committee on Public Administration on the following Motion: That the House — a) recognises the fundamental proprietary right of private property ownership that underpins the social and economic security of the community; b) recognises the threat to the probity of the Torrens title system, which guarantees disclosure, and reestablishes the necessity for registration of all encumbrances that affect land including environmentally sensitive areas, bushfire-prone areas and implied easements for Western Power that currently sit behind the certificate of title;

nine months of the date of the referral. The Law Society agreed that an inquiry into these matters is necessary and that guarantees under private property rights should be clearly recognised and has offered to provide further commentary to the Committee.

Ticket Scalping Bill 2018 In July the Law Society received a letter from the Hon Dr Sally Talbot MLC, Chair of the Standing Committee on Legislation, seeking comments in relation to the Ticket Scalping Bill 2018 (WA). The letter sought comments on the Bill from the Law Society by 31 July 2019. The Law Society noted that the Bill goes significantly further than the 2018 Decision Regulatory Impact Statement, which recommended a national approach preferring disclosure on ticket resale websites of the face value of tickets and the fact that the website is not a primary ticket seller. The Law Society also noted the ongoing work to develop a national ban and penalty regime for ticket buying 'bots'. The Law Society noted that limiting resale prices seems particularly problematic when one of the reasons for the existence of a secondary market is primary sellers restricting supply. The solution forecloses the potential for adequate disclosure and competition to resolve consumers’ discontent. In addition, it was noted that there appeared to be a risk that clause 7 of the Bill may be understood to effectively prohibit "invitation only/non-transferable" ticketing which operates by invalidating the ticket if it is transferred. The Law Society was not in a position to recommend the Bill as drafted, particularly given the short time frame to consider its effect.

c) recognises the property rights of government-issued licences and authorities including commercial fishing;

Legal Profession Uniform Law – Proposed Amendment of the Legal Profession Uniform General Rules 2015

d) asserts that fair and reasonable compensation must be paid to the owner of private property if the value of the property is diminished by a government encumbrance or resumption in order to derive a public benefit;

The Law Society received a letter from Legal Services Council requesting comments on the proposed amendment of the Legal Profession Uniform General Rules 2015.

e) directs the Standing Committee on Public Administration to conduct an inquiry into the matters described above — with them as its terms of reference — and to report to the house within

The Law Society supported the proposed amendments, noting that under the amendments withdrawing money from trust accounts is no longer restricted to the principal lawyer and an amendment in relation to opening and maintaining files requires that the file must be opened in a timely manner.

FIND A LAWYER The Law Society’s Find a Lawyer database is the perfect place to connect your practice to the community.

Key reasons to be on Find a Lawyer: • Get FREE referrals from the Law Society • Our database is filtered by area of law, location and language • Have your firm’s details displayed on the Society’s website • The Find a Lawyer web page has over 10,000 views per year

To ensure your firm is eligible for the Find a Lawyer database, at least 50% of your firm’s legal practitioners must be members of the Law Society.

P: (08) 9324 8600 | E: info@lawsocietywa.asn.au | W: lawsocietywa.asn.au The Find a Lawyer service randomly generates referrals based on area of law, location and language. The Society facilitates this service between members and the community, we do not screen, verify or recommend a firm, their capability or experience.

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

This edition features a recurring issue for the profession and Brief: the impact of technology and artificial intelligence (AI).

Technology like FaceApp has led to articles declaring that we no longer own our own faces.3

Federal Court Chief Justice Allsop AO's speech on Technology and the Future of the Courts focuses upon the court as a “human institution; reducible to neither mere place nor service”.

Not owning one’s face begs the question: can you rent it back without one of the chins and better cheekbones and hairline? (Just asking for a friend).

Melissa Coade’s article on AI and what it means for lawyers contains informative and practical observations on what AI can (and can’t) do in the law. It provides assurances that AI will not, of itself, render lawyers unemployable or legal practice a dystopian nightmare. This will come as some relief to many practitioners, though of course many will also be aware from experience that AI is not necessary – human ingenuity is sufficient – to make lawyers unemployable and practice a dystopian nightmare – especially around billing or pay review time, or the end of the financial year (and the EOFY party). While Brief regularly focuses on technology and the law, it also strives to cover a range of topics, encouraging and being very grateful for comment and feedback. This edition has items including High Court Chief Justice Kiefel AC’s presentation on the relationship between the law, economic development and social change and the importance of stability, Chris Edmonds SC on the Israel Folau affair, Dr David Cox on copyright in Australian flags, Julissa Shrewsbury on how lawyers can expand their influence and be seen and heard at work and Jocelyne Boujos’ Taxing Matters segment. It also has many other interesting items including Quirky Cases and the Drover’s Dog. The impact of technology cannot be ignored. Especially when the hottest craze sweeping the nation, including some members of the profession, is 'FaceApp' which uses AI to predict what one will look like in, say 10 or 20 years. Articled clerks do not need this App. If they want to know how they would have looked like in 20 years (had they not undertaken a career in the law) they can just take a photo of themselves on the first day of work, and then another at the celebration lunch after their admission about a year later.1 FaceApp is not free from legal controversy. There is great concern about the app being developed by a Russian company, and what Russians might be doing with our faces.2

04 | BRIEF AUGUST 2019

At least some other 2019 fads concerned more traditional activities – like the exquisitely reckless Bird Box challenge, where people would try to complete tasks blindfolded (inspired by the Sandra Bullock film, where looking at Medusa-like aliens would kill you). The Editor himself is engaged in a terrifying variant of the Bird Box challenge, in teaching his eldest son to drive. Sandra Bullock has a lot to answer for, given the plot of her other blockbuster Speed involved a bomb on a bus that would detonate if the vehicle went below 50 mph.4 And as for FaceApp, surely more fun would be had with a 'DorianGrayApp', showing what you would look like if you lived without restraint for the more enjoyable things in life (or for those who do live like that, what you would look like if you didn’t). The following classic exchange from The Picture of Dorian Gray is instructive: Lord Henry Wotton: "If I could get back my youth, I’d do anything in the world except get up early, take exercise or be respectable", to which Dorian Gray answers "If only it was the picture who was to grow old, and I remain young. There’s nothing in the world I wouldn’t give for that. Yes, I would give even my soul for it."5 Oscar Wilde’s wit is a favorite of lawyers. And, August 130 years ago marked a significant event for Wilde and another favourite of lawyers, Sir Arthur Conan Doyle.

As an aside, the famous Langham hotel, historically frequented by artists and members of high society, including lawyers and judges, is reputedly haunted7 as a few years ago England cricketers and their wives and girlfriends refused to stay there after complaints of “mysterious goings-on at night”.8 To continue with English mysteries, AI may threaten another favourite of lawyers: Agatha Christie novels. A few years ago an AI 'sentiment analysis' program called 'Semantria'9 was deployed to predict the murderer in some Christie novels, including Murder on the Orient Express. Semantria’s formula was [k r, δ, θ, c=f {rk +δ+θP,M, c(3≤4.5}]10 which is interestingly the same formula some AFL clubs are using to explain how they can still make the finals. It can be dispiriting to think that great works of mystery writing can be subjected to AI. The human element in enjoying such works must surely trump anything AI can do. And, without wanting to derogate upon AI or giving away a terrible spoiler to those unfamiliar with Murder on the Orient Express, in guessing the murderer one is, after all, statistically unlikely to miss altogether. NOTES:

1 2 3 4 5

On 30 August 1889 publisher J. M. Stoddart dined with Wilde and Conan Doyle at the famous Langham Hotel and commissioned works from each. Conan Doyle wrote Sherlock Holmes’ The Sign of the Four, and Wilde The Picture of Dorian Gray.

The Sign of the Four contains a lawyers’ favourite: “when you have eliminated the impossible, whatever remains, however improbable, must be the truth” – though it has been suggested the English Court of Appeal rejected this theory in Nulty & Ors v Milton Keynes Borough Council [2013] EWCA Civ 15.6

Around 5.45pm produces the most accurate results. Fake News! See “You no longer own your face” S Fussell, The Atlantic, June 27, 2019. Reference is again expressly made to eldest son’s driving lessons. Readers of any age or generation know how that’s going to end, with or without FaceApp or DorianGrayApp. This exchange also embraces a persistent theme of most infomercials screening after 1.30am. See “Court of Appeal bans Bayesian probability (and Sherlock Holmes)” Understandinguncertainty.org, 25/2/13. “England spooked both on and off the field”, dailymail. co.uk (20 July 2014). Though this seems, historically, to be the reason cricketers traditionally did not take wives or girlfriends on tour. “Semantria” sounds like the pharmacy-only medication someone advises you to take to sleep really well on an international flight to Europe, and you end up waking up 44 hours later in Caracas, Venezuela. The elements to the formula to be released to those who submit letters to the Editor.

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

Melissa Parke #LawyersMakeADifference Melissa Parke is a former Member of Parliament, served as Minister for International Development, and is a former United Nations lawyer. In this article, Melissa outlines her fascinating career path and explains how lawyers can make a difference in the community.

It was only while studying some law units in my business degree that I realised I loved the law. Specifically, I loved the notion of justice and the capacity of law to deliver justice. My fellow business law students and I formed a group called the Volenti Non Fit Injuria society and proceeded to apply that maxim in taverns around the campus. When eventually I had completed both business and law degrees (at Curtin and UNSW respectively), I worked in small general practice law firms in Sydney and Bunbury, valuable experience to be sure, but I wasn’t comfortable with billing and wanted to broaden my horizons. When the Solicitor in Charge position at the Bunbury Community Legal Centre became available, I jumped at it. For the princely sum of $30,000 a year (this was in the early '90s) I assisted disadvantaged people who couldn’t afford to pay a private lawyer. I also conducted community legal education and wrote a weekly legal advice column for the local newspaper, defended people protesting the logging of old growth forests, and advocated for law and policy reform. I trained in mediation and mediated family and neighbour disputes. This led me to realise the benefits of adopting a constructive rather than an adversarial approach to issues, something my legal education and prior experience had not prepared me for. The several years I spent at the legal centre were wonderful and liberating, as I felt I was ensuring access to justice at the local level. I also had a dream to pursue justice at the international level. I went to Murdoch University to study a Masters in Public International Law (human rights) and worked at the university as a law

lecturer. I subsequently landed a legal job in UN peacekeeping in Kosovo. That was the beginning of eight exciting years with the UN, in various locations: Kosovo; Gaza; Lebanon; New York; and Cyprus and in various legal roles: inter alia, setting up a country’s institutions from scratch; chairing a taskforce on trafficking in persons; negotiating access for refugees, UN staff and supplies through checkpoints and border crossings; assisting with the protection of refugees; monitoring and reporting violations of international human rights and humanitarian law; establishing the UN Ethics Office in New York; and advising the UN investigation into the assassination of former Lebanese Prime Minister Rafik Hariri. I returned to Western Australia in mid2007 to stand for the seat of Fremantle in that year’s Federal election, which saw the election of the first Rudd Labor government. Clearly a legal background is useful in a parliamentarian’s work in terms of representing constituents effectively, drafting and reviewing legislation and committee reports, thinking analytically, advocating policy positions and speaking publicly and in parliament. My prior experience as both a community and international lawyer assisted me to tackle issues on multiple levels. After all, international agreements can only be implemented at the local level, whether it be planting trees to tackle climate change or vaccinating a child pursuant to the sustainable development goals. Similarly, local issues can benefit from an international lens, whether it be preventing the impending destruction of internationally protected Ramsar wetlands for the building of a highway, or analysis of our nation’s treatment of Aboriginal people

or asylum seekers and refugees in the context of Australia’s human rights obligations. During my nine-year parliamentary career I was fortunate to serve on the Executive as Minister for International Development and as Parliamentary Secretary for Mental Health, Homelessness and Social Housing. Since leaving Parliament, I have been appointed as an Ambassador for ICAN, the International Campaign to Abolish Nuclear Weapons (2017 Nobel Peace Prize winner) and I am working as a member of the ‘Group of Eminent Experts on Yemen’ investigating human rights violations committed by all parties to the conflict in Yemen, as mandated by the UN Human Rights Council. Fascinating and challenging work, where legal skills are extremely helpful. In closing, my message to lawyers is this: Use your legal skills to follow your dreams, whatever and wherever they may be – there are countless options in life if you are open to them. The Law Society’s Lawyers Make a Difference campaign aims to challenge perceptions, break down stereotypes and tell powerful, positive stories of lawyers and their important work in the community. You can continue to follow the campaign on the Law Society’s Facebook, LinkedIn and Twitter accounts. Use #LawyersMakeaDifference on social media to share your own examples of ways lawyers are making a difference in your community. Visit lawsocietywa.asn.au/lawyersmake-a-difference to find out more.

Israel Folau: The Last Line of Defence Did Rugby Australia act because of a breach of its Code – or for reasons including Mr Folau’s religion? By Chris Edmonds SC This article is written on the assumption that the essential facts of the dispute between Rugby Australia Ltd (Rugby Australia) and Mr Folau prove to be as reported in the media and adopted here.1 Further, as regards the current legal proceedings, the article is confined to the substantive issues likely to arise in the Federal Court following Mr Folau’s application with respect to s772 of the Fair Work Act 2009 (Cth) (Fair Work Act or the Act) and the failure of the settlement conference. That application is based on the termination of his employment being unlawful because the reasons for it included ‘religion’. In that respect, the Court will closely examine the concept of religion and its relationship with the claim by Rugby Australia to have initiated termination because (in summary), in breach of its Code, Mr Folau posted messages on social media disrespecting homosexuals. However, for the reasons discussed, Mr Folau’s application (as presently formulated) is unlikely to provide the occasion, as many commentators have anticipated, for a review and exposition of the law on freedom of religious expression.2 There remains the possibility that such opportunity will arise in the event the application is amended to include additional causes of action.3 Moreover, in the event Mr Folau’s case does not reach the Court, given the public support he has received, particularly from the Christian lobby, the issues considered will inevitably arise in similar proceedings.

Rugby Australia’s termination of its contract with Israel Folau, arising from his social media posts condemning homosexuals, raises some contentious issues attracting widespread media attention. These concern an employee’s rights of freedom of religion and (as a necessary adjunct to that) freedom of speech, and the rights of a minority group to be protected from denigration based on their sexual orientation (or, more specifically, an employer’s right to take action arising from such denigration in the interests of protecting ‘inclusivity’). Mr Folau has recently raised a new argument in a different forum, that his termination was unlawful because it was based on his religion. That is, he asserts his right to express his religious beliefs as a private individual in social media free from control by his employer. But he has done so in a context where the charge against him, in substance, is that he has disrespected a minority 06 | BRIEF AUGUST 2019

group, namely homosexuals, in breach of the employer’s Code of Conduct. Put differently, to the charge that he has offended the sensibilities of the gay community, his response is that his religious rights to express his beliefs must be respected – and prevail.

Background In April 2019 Rugby Australia, by its

Integrity Unit, issued a notice to Mr Folau deeming that he had committed a highlevel breach of the Professional Players Code of Conduct warranting termination of his employment. This followed a post on Mr Folau’s ‘Instagram’ and ‘Twitter’ accounts: “WARNING: Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolaters: Hell Awaits You. Repent! Only Jesus Saves.” Following this, in smaller text, was the message: “Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him.”

Rugby Australia’s contract case Mr Folau has now brought proceedings in the Federal Fair Work Commission claiming that Rugby Australia unlawfully terminated his contract by reason of his religion. The attraction of this argument, from his position, is that it undermines the contract case brought against him. That is, rather than Mr Folau having to defend the case that he breached his contract in the form of the Code of Conduct, Rugby Australia must now defend the charge that termination based on such breach was in the circumstances unlawful. Having regard to public statements about the charge by Rugby Australia, it appears that the Professional Player Code of Conduct mirrored or incorporated provisions of its Code of Conduct (the Code – published on its website). Further, that the relevant terms of the Code were either express terms of his contract (a position Mr Folau has publicly denied), or at least that Mr Folau was made aware that the Code constituted a policy with which, as an employee, he was under an obligation to comply.4 Relevant terms of the Code included, in effect, that: (1) A player must treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation and religious background. This was because any form of bullying, harassment or discrimination has no place in rugby. (2) A player must not make any public comment that would likely be detrimental to the best interests, image and welfare of rugby or a team. Beneath this were some quotations from the Bible (Galatians 5:19-21 and Acts 2:38 and 17:30 – all KJV) in support of his expressed views. This publication followed a similar post by Mr Folau on social media in April 2018 in which, in response to a question asked of him, Mr Folau said in effect that unless homosexuals repent, they would go to hell. Mr Folau later explained that this message was based on the first epistle of Paul to the Corinthians (part of the New Testament). According to media statements by Rugby Australia it had formally and repeatedly warned Mr Folau, after the initial post, about the expectations of him as a player with regard to the use of social media. Further that: “It was made clear to him that any social media

posts or commentary that is in any way disrespectful to people because of their sexuality will result in disciplinary action.” Rugby Australia has said moreover that Mr Folau had given an assurance that he understood its concerns. Mr Folau’s response to the breach notice was to exercise his right to refer the matter to a Code of Conduct Tribunal (the Tribunal). However, it appears Mr Folau was not prepared to withdraw the post nor admit to any wrongdoing in relation to it. Mr Folau was found to have committed “high-level breaches of the Professional Player Code of Conduct.” The Tribunal, by way of penalty, directed the termination of his contract. Upon the expiry of the period in which Mr Folau had to appeal the decision, Rugby Australia acted accordingly.

(3) A player must use Social Media (defined) appropriately and not use it as a means to breach any of the expectations and requirements of a player contained in the Code. (4) A player must not otherwise act in a way that may adversely affect or reflect on, or bring him, or his team, or rugby, into disrepute or discredit. And as to a disciplinary decision (by a ‘Code of Conduct Committee’): (5) A high level breach might be decided on the basis that it was intentional, the consequences were reasonably foreseeable, it may have caused offence to the general public’s sensibilities, it more than likely breached Rugby Australia’s core values (including Respect and Teamwork) and (by way of other factors) it followed a formal warning 07

to him. (6) In determining the appropriate penalty, the Committee might take into account any acknowledgement of culpability, the conduct prior to and at the hearing, remorse for the conduct and steps taken to rectify any wrongdoing. It appears that it was on the basis of these provisions, including in relation to Mr Folau’s refusal to withdraw the post, that the Tribunal found Mr Folau’s conduct constituted a high-level breach of the Code and directed the termination of his contract. However, if under cover of exercising his religious beliefs Mr Folau was protected from being dismissed, then the termination of his 08 | BRIEF AUGUST 2019

contract was unlawful under the Fair Work Act. In that respect the court has powers to make various orders, including awarding a substantial monetary award up to a specified maximum.

The Fair Work Act Mr Folau has made an application based on s772 (1)(f) of the Fair Work Act5 which makes it unlawful to terminate a contract of employment by reason of, or for reasons including, the employee’s ‘protected characteristic’, here, religion. (I mention the subsection also includes, as a protected characteristic, sexual preference.) However, exemptions from this prohibition include where the reason for termination is based on the inherent requirements of the employee’s particular

position. (Exemptions also include where the employee is a staff member of a religious institution conducted in accordance with its doctrines etc and termination is in good faith and to avoid injury to the religious susceptibilities of its adherents.) Importantly, by s783 of the Act, where it is ‘alleged’ that the employer took action for a particular reason, it is presumed that it terminated the contract for that reason unless the employer proves otherwise. That is, once Mr Folau proves the factual foundation for his claim, Rugby Australia bears the onus of proving on the balance of probabilities that the termination was not by reason of Mr Folau’s religion. Thus the Fair Work Act, consistently

with other Commonwealth legislation, recognises the rights of those of a particular sexual preference but provides exceptions with respect to an employer exercising religious beliefs. So for example, the Sex Discrimination Act 1984 (Cth) prohibits discrimination in areas of public activity on grounds including of sexual orientation, but excludes (s37) certain discriminatory conduct of religious bodies, including any act or practice which conforms to its doctrines etc or is necessary to avoid injury to the religious susceptibilities of its adherents. Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR – discussed below) by which everyone shall have the right to freedom of thought, conscience and religion and to freedom of expression.6 Most States (but not NSW) and Territories also have legislation directly protecting freedom of religious expression from discriminatory conduct. Although in the present case there is no evidence of a complaint of a contravention by Mr Folau of the Antidiscrimination Act in relation to vilifying homosexuals,7 there is a latent issue in this case, and which has arisen elsewhere in various circumstances, as to how the rights and interests of ‘protected’ groups are reconciled.8 So far as possible, it is likely that a court faced with a conflict between the interests of these groups would seek to protect the interests of both groups, rather than holding that one interest was ‘superior’ to the other.

The Folau post – the opposing views There are several broad categories of persons described by Mr Folau as “living in Sin” and who will, unless they repent, “end up in Hell”. That would appear to

mean that in Mr Folau’s judgment, based upon passages from the Bible, if such persons continue their sinful conduct, when they die they will face judgment and they (their souls) will go to Hell rather than joining God in heaven. As such, they are encouraged to cease their sinful conduct, to seek forgiveness from Jesus and to believe that he will hear and forgive them. The types of ‘sins’ identified by Mr Folau are listed in 1:Corinthians 6:9 (although in relation to this, as opposed to his earlier, post Corinthians was not cited as a biblical source for his message). These sins are those derived from the Old Testament. It may be questioned how far the categories of those described as sinners, the existence of a waiting Hell and so on would be accepted by mainstream Christians today. Many individuals, Christians and others, who find much in the Bible to admire in the way of its moral teachings (1:Corinthians 13:13 also includes a well-known verse about faith, hope, charity (love)) would likely reject a literal interpretation of many of its passages and the notions urged by Mr Folau. Leaving aside the narrow legal context of the Fair Work Act proceedings, the arguments for and against Mr Folau’s dismissal based on his media post might be summarised as follows. Those supporting Mr Folau’s rights of free speech would say that the message was posted by him in his private capacity and directed at his social media followers – not the public at large. It had no connection with his employment as a professional rugby player. His message did no more than summarise passages from the Bible and reflected the traditional Christian position on the subject. As regards homosexuals, they were not singled out from other

‘sinners’ and in a spirit of Christian love and goodwill, all were invited to repent in order to gain God’s favour. As such it is the homosexuality of these individuals which is condemned, not these persons because of their homosexuality. Mr Folau has publicly stated that he is not a homophobe, and his message was within the permissible limits of free speech, even if, though unintended by him, some readers may have taken offence. For Rugby Australia to insist that he withdraw the post, or cease such messages, was to ask him to deny his religious beliefs, including his duty to publish ‘God’s word’. Further, its immediate response of seeking dismissal of Mr Folau was not proportionate to any breach of the Code, and showed inflexibility in seeking a solution. Those supporting Rugby Australia’s right to terminate the contract would point to the presence of homosexuals within the categories of “sinners” condemned to “Hell”. This inclusion is alongside those who would generally be condemned for their moral and possibly illegal conduct – drunks, liars and thieves. Moreover, as opposed to persons in such other groups who might, as a matter of choice, decide to act lawfully and morally, sexual orientation is by its nature inherent rather than a matter of choice and the sexual impulse in humans has long been recognised as an extremely powerful one.9 The argument that homosexuals are merely one of a number of groups identified by the message and readers, at least if non-Christians, ought to react with the same indifference, is disingenuous. There are reasons why there is legislation protecting homosexuals (namely, centuries of persecution) but not adulterers, idolaters, etc. The claim that the sexual orientation of homosexuals is sinful and (absent repentance) they will be condemned to

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Australia will become the first country to effectively eliminate cervical cancer if vaccination and screening rates are maintained1. Our daughters and granddaughters will likely live in a world that is free of cervical cancer thanks to Professor Ian Frazer AC, former VicePresident and President of Cancer Council Australia and our investment in cancer research. Gifts in wills make a real difference. When writing a Will for a client please ask them to consider including a charitable gift. To find out more contact us on 08 9212 4333 or visit cancerwa.asn.au. Cancer Council Western Australia (Inc). Level 1, 420 Bagot Road, Subiaco, WA 6008. ABN: 15 190 821 561 Lancet Public Health 2 October 2018

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Hell may be regarded as a vilification of homosexuals generally. A young person, perhaps a rugby player, coming into an awareness of his homosexuality, might regard the post as distressing as condemning him as a sinful person and with a moral obligation to change his sexual orientation.10 Within the terms of the Code, the content of the post is, at the least, failing to “treat everyone equally, fairly and with dignity regardless of sexual orientation”. Mr Folau’s reported position on the possibility that he withdraw the post, namely that it was reminiscent of the temptations of Satan, limited the prospects for a compromise.

Unlawful by reason of religion There remains the claim that the termination of Mr Folau’s contract was unlawful because brought about for reasons including Mr Folau’s ‘religion’. As regards the concept of religion, the court will likely be referred to the jurisprudence from anti-discrimination laws and international conventions.11 There has also been an examination of the concept arising in other contexts – for example, whether Scientology was exempt from certain taxes as a religion; or, as framed by the High Court, whether the beliefs, practices and observances accepted by Scientologists are properly to be described as a religion. The criteria were said to be twofold: First, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.12 Mr Folau is a practicing member of the Australian Christian Churches (‘ACC’), part of the World Assemblies of God Fellowship, which is said to be the world’s largest Pentecostal Christian denomination.13 There could be no issue in this case that the beliefs and practices of votaries of this organisation conform to that of a religion, but the description by the High Court draws attention to the distinction between its beliefs and its codes of conduct. In the case of an individual, her or his religious beliefs are regarded as entitled to absolute freedom: But the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one’s religious

beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them.14 Several questions arise in this context. One is whether, as a matter of statutory interpretation, the proscription in s772 (1) (f) is confined to ‘religion’ in the sense of an individual’s belief as a Christian or Muslim etc. That would be fatal to Mr Folau’s application. However, it seems more likely that the concept of religion, for the purposes of the Fair Work Act, includes not merely an employee’s belief but his or her expression or manifestation of that belief. That view is supported by, for example, passages of the Scientology case referred to and art 18 of the ICCPR. But if Mr Folau’s conduct is brought within the ambit of s772 (1)(f) to the extent his public condemnation of homosexuals as sinners reflected the expression of his belief, then the next question is whether his own idiosyncratic view that his belief justified his conduct is sufficient; or whether it is necessary for him to adduce evidence that his conduct was consistent with the codes of conduct and practices of the ACC. That might prove contentious.15 Mr Folau’s position in this respect would also be complicated to the extent it were shown that his post breached relevant provisions of the Antidiscrimination Act (as outlined above). However, under the scheme of the Fair Work Act, it may not be necessary for the Federal Court to hear and resolve either of such complicated issues (doctrines of ACC; possible breach of vilification law). That is because, as mentioned, once Mr Folau has provided a factual basis for his claim of wrongful termination based on his religion, it is presumed against Rugby Australia that it terminated Mr Folau’s contract for reasons including that he was manifesting his religious beliefs. That means the focus moves from Mr Folau’s conduct to the reasons why the executives of Rugby Australia terminated his contract. The threshold consideration here is that, in accordance with the Code, once the matter was referred to the Tribunal, the panel of which comprised three independent members including one representing the players, it was for it, not Rugby Australia, to determine the penalty. Perhaps the correct approach to this aspect is that Rugby Australia was relevantly the employer responsible for dismissal to the extent it initiated the termination proceedings and acted on the Tribunal’s ruling.

The relevant factors in Rugby Australia’s decision would likely have included Mr Folau’s first media post, the warning and assurance given, the second post, his refusal before or during the Tribunal hearing to withdraw the post and the consideration that this conduct was inconsistent with his obligations under one or more provisions of the Code. Rugby Australia would say that had another rugby player in Mr Folau’s position publicly condemned homosexuals in a similar manner for reasons quite unrelated to any religious belief, and continued to do so after a caution etc, they would have made the same decision as to termination. The principles governing the approach of the court in this type of situation have recently been clarified. The central question to be determined by the court is the reason or reasons why the employment was terminated. That is a question of fact to be answered having regard to all the evidence and on the balance of probabilities. It will in the usual case involve evidence by the decision maker. That may include evidence to the effect that the responsible officer had, or would have, taken the same action in similar circumstances against a person who did not have the protected characteristic. If the court accepts the employer’s evidence generally because, for example, providing credible and compelling reasons for the decision, that may be sufficient to discharge its onus of proof. The court might not accept the evidence however, because it contradicts other evidence given by the decision maker, or because other objective facts are inconsistent with it. The employee’s application will be successful if such evidence is not accepted and the proscribed reason (religion) is found to be an ‘operative and immediate reason’, even if not the ‘sole or predominant reason’, for the decision. However, the fact that the employee’s protected characteristic is inextricably intertwined with the reasons for the termination does not preclude a finding that the decision was taken for innocent reasons. That is, it is not a breach of the provision if the decision is taken for a reason whose underlying facts coincide with a protected characteristic, so long as the decision was not taken because of that characteristic.16 Rugby Australia might also seek to bring itself within the exception from unlawful termination on the basis that, irrespective of Mr Folau’s religious beliefs, his position as a high-profile professional player within national and State teams 11

and with a large public following who breached the Code, was the reason for the termination. That might be stretching the intent of the exception.

Freedom of religious expression It will be apparent from this outline that the issues before the court are essentially limited to (1) did the employee have the protected characteristic claimed and, if yes, (2) what were the employer’s reasons for his termination and (3) specifically, did those reasons include that protected characteristic. In the Folau case that means that the court will investigate the concept of ‘religion’ in the context of the Fair Work Act. It will also closely examine the evidence as to the reasons for Rugby Australia’s actions, including the alleged contravention of the Code. That will necessarily involve some consideration of whether Mr Folau’s post might be regarded as failing to treat everyone “equally, fairly and with dignity regardless of sexual orientation.” But that consideration would only be in the context of determining the credibility of the reasons given for termination – not 12 | BRIEF AUGUST 2019

the appropriateness of termination based on those reasons. In the context of an application under s772 (1)(f), what the court will not examine is the issue of the fairness or otherwise of the inclusion in his contract of the relevant terms of the Code, nor of the circumstances in which they were invoked by Rugby Australia. Under the current application, there is no scope for testing Rugby Australia’s conduct against a standard of reasonableness or fairness,17 or against Mr Folau’s (possible) rights of ‘freedom of thought, conscience and religion’ or ‘freedom of expression’.18 Unless and until the application is amended, there is no issue of a breach of contract by Rugby Australia.19 The matter can be tested this way. Were Rugby Australia to lead no evidence as to its reasons, that would not necessarily mean that the court would find that the operative reason for termination was Mr Folau’s religion. Again, assume the court were to not accept the reasons given by Rugby Australia and to find that the true reason for termination was, for example, its view of Mr Folau’s defiant attitude and inflexibility. Or the

court might accept the reasons given by Rugby Australia, but (unlikely) observe that termination appeared to be a disproportionate response to the breach of the Code. In either instance, that would not mean that religion was established as the operative reason.

Folau’s contract case As the case proceeds it seems likely that the claim will be amended to include, for example, breach of contract, justiciable under the court’s associated jurisdiction. That would mean that the procedures adopted by Rugby Australia in initiating and effecting termination would be examined to ensure substantial compliance with any contractual terms, including the disciplinary provisions of the Code. But it may also open the argument that, in exercising a discretion to initiate termination, Rugby Australia was under, and breached, an implied contractual duty to act reasonably and in good faith in the performance of its contract. The High Court has expressly left open the question whether in contracts, including employment relationships, such obligations exist. And at a State and Federal Court level, courts

have expressly found that a party’s exercise of a discretion in relation to the termination of contracts, including employment contracts, must be exercised reasonably and in good faith.20 Relevant considerations as to implication of such a term in fact would include the presence of inconsistent express terms of the contract (including the Code). And as regards implication of such a term at law into employment contracts generally, the court would consider the extent to which ‘unfair’ termination is subject to a comprehensive statutory regime i.e. the Fair Work Act. An alternative approach on a contract case might be that any express terms providing for termination based on certain conditions would be construed so as to require a reasonable state of satisfaction as to the existence of such conditions.21

All such contributors are likely to view with interest, and inevitably some with disappointment, how the Federal Court resolves these various issues.

11.

Art 18 of the ICCPR recognises relevantly that everyone shall have the right to freedom of religion and in public to manifest his religion in practice and teaching. Art 19 provides relevantly for freedom of expression. In each case, such freedom may only be subject to such limitations as are prescribed by law and are necessary to protect the fundamental rights and freedoms of others. The ICCPR is attached as sch 2 to the Australian Human Rights Commission Act 1986 (Cth) under which the Commission has power to investigate alleged breaches of the ICCPR. But that Act does not create justiciable individual rights. In the absence of specific Commonwealth legislation implementing its provisions, the highest use that the ICCPR might be put is that the common law of Australia ought to be developed in a way which is consistent with it. Dietrich v The Queen (1992) 177 CLR 292, 305-6, 321, 359-60. In the event Mr Folau’s application was enlarged to allege breach of contract (discussed below), there may be grounds for him to argue (1) for an implied term, or an obligation, of good faith (2) which required the decision to terminate to be exercised reasonably and fairly and (3) taking into account Australia’s commitment to arts 18 and 19.

12.

Scientology case Note 2, at p137 [17], see also at p174 [18].

13.

Wikipedia contributors. (2019, June 9). Australian Christian Churches. In Wikipedia, The Free Encyclopedia. Retrieved 00:19, June 16, 2019, from https://en.wikipedia.org/w/index.php?title=Australian_ Christian_Churches&oldid=901012499.

14.

Scientology case Note 2 at p136 [16].

15.

According to the cited passage from Wikipedia, Note 13, the doctrinal basis of the ACC contains its central beliefs in 20 articles. There is limited support in the articles, as summarised, for Mr Folau’s position. The ACC website itself records that the Church has 8 fundamental ‘beliefs’. These appear to be directed at conduct by its members rather than to the world at large. See https:// www.acc.org.au/about-us/ retrieved 19 July 2019.

16.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243. Both were decisions taken under pt 3-1 of the Fair Work Act. In the latter case, the division in the High Court shows that the application of the test may still lead to differences of opinion.

17.

See eg Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, 302-3 [136] (claim under pt 3-1 failed, where alternative claim for unfair dismissal would likely have succeeded).

18.

Cf R (on the application of Ngole) v The University of Sheffield [2019] EWCA Civ 1127. A university student was excluded from his course, following disciplinary proceedings, for a post on social media similar to that made by Mr Folau. On an application for judicial review, the High Court was not prepared to intervene. The Court of Appeal upheld his appeal, finding that the University’s adoption of a blanket prohibition of the expressions of ‘traditional believers’ constituted an unlawful incursion into Mr Ngole’s rights of freedom of expression (art 10 European Convention on Human Rights) and that the penalty imposed was disproportionate to the disciplinary findings. (A case referred to by John Steenhof, The Sydney Morning Herald, 4 July 2019).

19.

Cf Smith v Trafford Housing Trust [2013] IRLR 86. An employee, in response to an enquiry, posted a comment objecting to same sex marriage taking place in church. The Trust alleged this constituted misconduct as being in breach of its code of conduct. Following a disciplinary hearing Mr Smith was demoted. He brought a successful action for breach of contract. The court found the allegation of misconduct failed, largely because the posting did not have the necessary work-related context to attract relevant provisions of the code. Were Mr Folau to plead a breach of contract, the matters considered in these two UK cases (Notes 18, 19) may become relevant.

20.

Commonwealth Bank v Barker (2014) 253 CLR 169, 195 [42] (whether there was a general obligation to act in good faith in the performance of contracts, and whether contractual powers and discretions may be limited by good faith and rationality requirements, left open); Bartlett, Note 4, at p651 [49] (obiter – “in forming an opinion [in relation to termination], the Bank was obliged to act reasonably, at least in the Wednesbury sense and at least so far as its process, as distinct from the result, was concerned.”); and recently Bupa HI Pty Ltd v Andrew Chang Services Pty Ltd [2018] FCA 2033 [120][127]. But cf David A Harris Pty Ltd v AMP Financial Planning [2019] VSC 24 [52].

21.

Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84, 94 [39].

Endnotes 1.

In particular based on Statements Regarding Israel Folau published by Rugby Australia on its website April to June 2019, Mr Folau’s article in Players’ Voice April 2018 and extracts of his Application to the Fair Work Commission based on s 772 of the Fair Work Act as published in The Sydney Morning Herald, 7 June 2019. As regards media coverage and comments generally, on-line sources also include The Australian, The Sydney Morning Herald and ABC News; April to June 2019.

Cf Ridd v James Cook University [2019] FCCA 997 [1][2]. Such a review was undertaken by the High Court with respect to freedom of expression on political matters based upon implications arising from certain provisions of the Constitution. The High Court decisions on s116 of the Constitution, which prohibits the Commonwealth from establishing laws which establish, impose or prohibit the free exercise of any religion, are not encouraging for a similar review of individual rights in relation to freedom of religious expression. A more expansive view of religious freedom was made in Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 (the Scientology case) discussed below. There is a case to be made that freedom of religious expression is properly the subject of the political process and Parliament, rather than one for the judiciary.

Summary The issues in this case which have attracted media articles and readers’ comments largely focus on Mr Folau’s rights to religious freedom, and freedom of expression, in his capacity as a private individual and committed Christian. Whilst many of these commentators have expressed that they do not necessarily share Mr Folau’s religious views, they believe he has the right to express them without interference by his employer. In the interests of free speech, his views should be debated rather than shut down. Other commentators have looked at the situation from the perspective of someone in Mr Folau’s influential position as a role model within the rugby community and his obligation to meet his contractual commitments. These include, as many other employees, as regards making comments on social media. Some others have raised the interests of the gay community and the extent to which they have been gratuitously offended and the appropriateness of Rugby Australia’s response in those circumstances. Some Christians wish that Mr Folau would think carefully, before publishing his fundamentalist views, about the harm he causes not just to young gay people and their families but to the cause of the Church as well. At the edges of the commentary, there is a chasm between those who treat the Bible as divinely inspired, central to Christian beliefs and its citation beyond reproach; and those who regard it as an ancient text of historical interest but centred on supernatural beliefs and largely irrelevant to contemporary society. Still others reflect on whether some middle ground might not have been found to avoid the outcome – Mr Folau’s exclusion from his favoured sport and the loss to Australian rugby of a player of exceptional ability.

Denson, N, Ovenden, G & Davies, C 2014, Growing Up Queer: Issues Facing Young Australians Who Are Gender Variant and Sexuality Diverse, Young and Well Cooperative Research Centre, Melbourne – see the main message at p.5.

The terms of the contract between the parties, beyond the terms of the Code of Conduct (assuming the Code to be incorporated or otherwise applicable), are not known. With that qualification, and upon the assumed facts, the potential scope of an additional claim based upon breach of contract is briefly outlined at the end of this article. The Code itself states that it applies to all participants, including players. Such an arrangement is not uncommon in employment contracts as revealed in several of the cases referred to – see eg Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639 [20] (Bartlett), discussed below. Assuming, based on a reported statement from Folau’s team, that his application is under s772, it seems likely that he proceeded under this section (in pt 6-4) rather than in respect of a claim of discrimination under s351 (pt 3-1) because the conditions in s351 (2)(a) were not met (the employee’s action was not unlawful under the Anti-Discrimination Act 1977 (NSW) (the Anti-Discrimination Act)). It may be also that he did not make a claim for unfair dismissal under pt 3-2, because the conditions in s382 (b) were not satisfied (he was a high-income earner not covered by a modern award or an enterprise agreement). Alternatively, in relation to unfair dismissal, he may have elected to proceed under s772 eg to obtain the benefit of the civil penalty provisions (s539).

Australia ratified the ICCPR on 13 August 1980, subject to reservations. As regards the Constitution, the High Court has made clear that s116 is not directed at protecting individual rights as to religion, but at restricting federal legislative power.

Section 49ZT of the Anti-Discrimination Act provides relevantly that it is unlawful for a person, by a public act (widely defined), to incite hatred etc of a group of persons on the grounds of their homosexuality. As to its validity and scope see Sunol v Collier (No 2) (2012) 260 FLR 414.

Anthony Gray has examined the topic in the context of the refusal of accommodation by reason of the guest’s sexual orientation: The Reconciliation of Freedom of Religion with Anti-Discrimination Rights. Monash University Law Review (2016) vol 42(1) 72 (‘Gray’). In Australia questions as to the reach of s18C of the Racial Discrimination Act 1975 (Cth) (which makes it unlawful to do a public act that offends etc someone because of their race) moves the debate from discrimination to ‘vilification’ or ‘hate speech’. Proposed amendments to this Act, widening the basis upon which religious educational institutions may discriminate against persons including on the basis of sexual orientation, have also generated controversy. The subject is now before the ALRC.

In Christian Youth Camps Ltd v Cobaw Community Health Services Ltd 50 VR 256 [57]-[61] Maxwell P accepted that sexual orientation is a key part of a person’s identity. Gray (at p83-4) also refers to Bull v Hall [2013] 1 WLR 3741, 3755 [52], where Lady Hall said: “Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.”

10.

Reports on the subject show that adolescent homosexuals are at significantly higher risk of self-harm than other adolescents: Robinson, KH, Bansel, P,

How Lawyers Can Expand Their Range of Influence to be Seen and Heard at Work By Julissa Shrewsbury

In this article, personal branding for professional services expert and New Work Consulting’s Director Julissa Shrewsbury discusses how a consideration of your personal brand can increase your ability to influence at work.

There is a lot of discourse at the moment on how traditional company culture in law firms can prevent professional people, particularly young lawyers, from feeling like they can truly demonstrate their value. With the disruption of traditional business models, with an agenda of mental health, diversity and inclusion, and with a trade union being set up to protect young lawyers, there is a lot changing in law firm culture… and yet many professionals still feel bound by the existing expectations of their organisations or by those of other stakeholders. While structure is a good thing and tradition not always a negative, the research and current chatter on the subject suggest there are a lot of lawyers feeling less than empowered about their careers. Lawyers regularly address challenges such as: •

Proving their worth in salary negotiation/performance reviews

•

Being recognised for promotion opportunities or increased

14 | BRIEF AUGUST 2019

responsibility •

Building client relationships and attracting new clients

•

Creating influential networks to help achieve things

•

Negotiating and advocating for clients

•

Avoiding or dealing with bullying and harassment

•

Being seen, being heard

•

Finding confidence and selfassurance

Power differences exist between people and within different situations, and these can create very real challenges and roadblocks to achieving at work. They can be compounded by youth, gender, cultural differences, individual personalities and team dynamics. But when do we contribute to our own powerlessness? There are many instances where you can improve your chances of being seen, respected and valued, by understanding how perceptions are formed and working on your personal power. Increasing your personal power in order to address such challenges involves knowing when to speak up and knowing when to hold back. Knowing what constitutes acceptable behaviour in a particular scenario… where you stand, but also where you can push. It also involves an understanding of the tools to expand that range of influence. In the popular TED Talk ‘How to speak up for yourself’, American social psychologist Adam Galinsky tackles

/ If we advertise accomplishments, we’re not likeable In increasing the width of that middle ground where we find we can positively influence others to help us achieve our goals, Galinsky states that there are two things matter most:

•

Appearing assertive but still likeable by signalling flexibility e.g. giving two options (this is about skilful personal communication techniques)

•

Tapping into the things you are passionate about at work (when you are talking about causes or projects you are passionate about, you naturally appear more assured, and this is ‘attractive’ to your audience)

1. That you seem powerful in your own eyes; and 2. That you seem powerful in the eyes of others.

Personal branding and personal power When consulting to clients on their personal brands, I am partly dealing with the ‘surface’ of how you are perceived: how you come across online, the positioning on your LinkedIn profile, how you introduce yourself in networking situations or with a prospective client or employer. But underneath the surface is where the real work on personal branding lies… and this includes what is stopping you from being seen and heard. ‘Personal power’ could be defined as a feeling of confidence in your own abilities, values and beliefs, alongside the ability to influence others, hopefully in positive ways, for mutually beneficial outcomes. It’s not about coercion, force, or being the loudest – it’s about internal conviction and outward signposts that demonstrate your ability to bring value. the dilemma, ‘When can you speak up? When is it a good idea to push your interests, express an opinion or make an ambitious ask?’1 He explains that we all have a ‘range of acceptable behaviour’ that gets us results. Outside of that range, we can come across as too strong or too weak, and be dismissed or judged negatively, missing out on the opportunity. Galinsky tells us that we all have different ranges that change according to the situation, such as how new we are to a role, whether we have alternatives and are prepared to ‘walk away’, what the relationship dynamics are like, cultural differences and barriers based on gender. He explains the power ‘doublebinds’ we find ourselves in: •

•

The low power double-bind: If we don’t speak up, we go unnoticed / If we do speak up, we get rejected The self-promotion doublebind: If we don’t advertise accomplishments, they go unnoticed

This is where a consideration of personal branding comes in – both the external or ‘surface’ representations and the submerged root system of how your personal influence grows. Personal branding, done well, is all about understanding how you influence other people’s opinions of you, and then implementing tools to amplify your value in their eyes, in ways that feel authentic to you and resonate with your audience. Some of the tools for influence that Galinsky mentions are what I term ‘personal brand tools’: •

Displaying ‘excellent evidence’ to gain credibility in the eyes of others (in personal branding this involves identifying and communicating your personal value proposition)

•

Looking at the situation from the other’s perspective, to understand what they want or need (I use the acronym WIIFM – What’s In It For Me?)

Human patterns of personal power I have worked with hundreds of people on their personal brands, and there are patterns that I consistently come across. People don’t want to appear too pushy, self-promotional or self-absorbed. BUT they do want to be seen, heard and remembered in order to attract the right people and opportunities their way. People have great value to offer through the sum of their skills, talents and experience. BUT they consistently undersell themselves or project a lessthan-favourable impression due to a lack of clarity about what they bring, and/or a lack of influential communication skills. While there are some very real challenges to empowerment at work, people often have more influence over their own situation than they realise. There are many instances where you can shape how people see you and teach them how to treat you. This involves identifying and demonstrating your value and learning skills to expand your influence. It’s about building your personal brand and in doing so, gaining a greater sense of personal power. About the author Julissa Shrewsbury is an Australia-wide thought leader in personal branding for business, author, speaker and New Work Consulting’s Managing Director. Her new book, a comprehensive how-to manual for professional people is entitled, The Powerful Personal Brand: Amplify your profile, communicate your value and own your space. Julissa will be presenting ‘Expanding Your Range of Influence’ in the Law Society’s ‘Twilight Thursdays’ series, on Thursday, 26 September 2019. Register at lawsocietywa.asn.au/cpd-seminars. Endnotes 1

Adam Galinksy, ‘How to speak up for yourself’, September 2016, TEDxNewYork https://www.ted.com/talks/adam_galinsky_how_to_ speak_up_for_yourself

Aspects of the Relationship Between the Law, Economic Development and Social Change and the Importance of Stability By The Hon Susan Kiefel AC Chief Justice of Australia

Bar Association of Queensland Annual Conference Hilton Hotel, Brisbane, Saturday, 2 March 2019 The Bar as a profession plays an important role in our legal system. It is often overlooked that it is not only judges who participate in the development of the common law. Some important decisions are shaped by the arguments presented by counsel to the court. The adherence by barristers to their duty to the court and of high professional and ethical standards is essential to the maintenance of the rule of law and the stability of the system. It is therefore necessary that the Bar continue. But as in the past, it will in the future face challenges which might be thought to 16 | BRIEF AUGUST 2019

threaten its existence. Its future depends upon whether and how it remains relevant in our society. Conferences such as these provide an opportunity for introspection. The theme of this yearâ&#x20AC;&#x2122;s conference is â&#x20AC;&#x153;influence and alienationâ&#x20AC;?. The conference will explore ideas such as the value of stability and innovation in the practice and development of the law; the way in which the law influences, and is influenced by, social and economic changes; and how the law and the Bar address the risk of being alienated from society or parts of the economy.

These are large topics. I propose to touch on just a few aspects of them. In the first place, I will discuss the relationship between the law and economic development. This will involve some reflection on the development by the courts of commercial law and the importance today placed by economic institutions on our legal systems to support economic development more generally. The history of the development of commercial law shows that the courts are capable of responding to changing economic conditions and the demands of commerce. So too is the common law able to adapt to changes in social values and thinking. Rarely, though, will the courts themselves influence economic

[j]ustice and the rule of law are central to the World Bank’s core agenda of … promoting shared prosperity"

Nevertheless, there are aspects of the development of English commercial law which may support Weber’s theory concerning the relationship between the courts as institutions and economic development. It is not unimportant to an understanding of the relationship between law and commerce that English contract law was worked out in the late 18th and 19th centuries in the context of litigation involving shipping, insurance, banking and other commercial enterprises. As Professor Cranston points out2, the English courts were generally supportive of commerce and attempted to reach commercially helpful results. The approach of the courts was to acknowledge party autonomy or freedom of contract. They even gave certain commercial practices the force of law; for example, in allowing commercial custom or trade usage to be applied in the interpretation of commercial contracts. The aim of the courts in providing rules about the interpretation, enforcement and termination of contracts was to provide certainty in commercial transactions. In 1774, Lord Mansfield went so far as to say that in mercantile transactions the object of certainty respecting the legal rules was more important than the outcome of a particular case3. Of course the aim of certainty in the law is not confined to commercial law.

World Bank Group headquarters, Washington DC

or social change. That is in large part because the core values of the common law and our legal system are respectively certainty and stability, and these values inform the role of the courts with respect to the development of the common law. In conclusion I will reflect upon what the Bar might draw from these insights.

Law and economics In an address last year, Professor Sir Ross Cranston considered the question of whether the rule of law was good for the economy and concluded that “the history of English commercial law over the past 200 years lends some support to the link between the law and economic progress”1.

In the early 20th century, Max Weber, the German philosopher, jurist, political economist and one of the founders of modern sociology, wrote of the mutual interdependence of the rational methods and institutions of modern Western law and the West’s economic development. Professor Cranston points to one difficulty in Weber’s thesis. It is that in reality the English common law, particularly in the area of commercial law, might be viewed as something of a maze. To take the common law of contract as an example, it may be acknowledged that it developed as a somewhat haphazard set of rules, especially when compared with the commercial codes of the European civil systems.

The courts not only provided the framework within which commerce could operate, they also provided rational methods of adjudication to which Weber may have alluded. Moreover, the courts themselves developed as institutions in which confidence might be placed for an outcome which was impartial and according to law. In the late 20th century, very different methods from those employed by Weber were available by which to determine the confidence of investors in markets. In one important study in the field of finance4, “data was gathered from 49 countries to match the standard of investor protection, measured by the character of legal rules and the quality of law enforcement”5. It was ultimately concluded that common law countries offer the strongest protections, and French civil law countries the weakest. It placed German and Scandinavian civil law countries in the middle6. Unsurprisingly, it would appear that these conclusions are heavily contested. The methodology is criticised. The common law / civil law divide is said to be overly simplistic. It is pointed out that 17

the study does not explain developments in Asia, and China in particular, where there has been an economic boom despite the absence of many rule of law features and certainty as we know it7. Nevertheless, it is not difficult to conceive of the possibility that strong legal systems, where courts or tribunals are able to operate efficiently in a rule of law context, must be attractive to investors. That is certainly the view for which the World Bank contends. For some time now, the World Bank has stated that “[j]ustice and the rule of law are central to the World Bank’s core agenda of … promoting shared prosperity”8. Publications by senior officials of the World Bank continue to assert that there is a positive correlation between legal stability and economic prosperity. In one such publication it is said that “[w] ithout the legal institutions that allow innovation and entrepreneurship to thrive, other attempts to spur growth are more likely to fail … Property, contracts, and corporate law provide the legal framework to overcome distrust and allow innovative business ventures to flourish”9. Speaking of the adoption 18 | BRIEF AUGUST 2019

by the United Nations of the 2030 Agenda for Sustainable Development, another contributor observed that “[a] distinct feature of the … Agenda is its acknowledgement of rule of law and access to justice as integral parts of development and key drivers of the process of making socioeconomic progress sustainable”10. This author advocates for stability in the law to help unlock the economic potential of nations. She says11: “Stable, transparent legal regimes are key to economic development. Rule of law brings clarity, certainty, and predictability to business transactions and provides recourse in cases of commercial and civil disputes … Effective laws and institutions check coercion and predatory behaviour, enhance competition, level the playing field for economic actors, support entrepreneurship and innovation, and bolster small and medium enterprises.”

Law and society It is not just that our courts are rule of law based that accounts for the certainty and predictability of which World Bank publications speak. In the judicial

methods it employs for decision-making, the common law itself promotes certainty by ensuring that the development of the law is mostly incremental. Whilst its adaptability is its hallmark, certainty and predictability are seen as virtues of the common law for the reason that they engender confidence. Sudden, significant changes of direction in the law do not. This is not to say that the common law does not alter or adapt to change. It is not difficult to find statements in judgments and in extra-judicial writings about the need for the law to be developed to meet changing economic and social conditions, social values and habits of thought. And it must frankly be acknowledged that some judges are more pro-active and see the law as adaptable to meet a perceived social need, rather than as responding to a position which society itself has reached. In Jaensch v Coffey, for example, Justice Deane said that a final appellate court may be obliged to reassess a legal rule “if the law is not to lose contact with the social needs which justify its existence and which it exists to serve”12. But for the most part, judges do not speak of the courts as agents for change

or the law as pre-empting social opinion. Rather, they speak of the law being changed or adapted to reflect current thinking. Sir Harry Gibbs, a voice of reason as well as caution, said that the courts should not feel necessarily constrained to follow earlier decisions, but that the circumstance which warrants this divergence is when the earlier decisions “appear to be out of accord with contemporary principles”13. Sir Gerard Brennan likewise observed that the judicial development of the law might be considered to be a duty of the court “where values change and where the relationships affected by law become increasingly complex”14. One of the clearest acknowledgements of a shift in social thinking was made in R v L15, the rape in marriage case. The husband was charged with two counts of rape of his wife. He challenged the validity of the statute creating the offences. He contended that all Commonwealth legislation relating to marriage preserved the view of the common law that there was a continuing obligation on the part of a spouse to consent to sexual intercourse. The Court did not accept that this accurately reflected the common law at any time, but three judges observed that even if there had been early authority to support the husband’s argument, “this Court would be justified in refusing to accept a notion that is so out of keeping with the view society now takes of the relationship between the parties to a marriage”16. To acknowledge that the law reflects rather than influences changes in social values or thinking is to accept that the courts have a relatively limited role in social change. This is consistent with the requirement that changes in the law must logically or analogically relate to existing common law rules and principles17. It is

also to acknowledge that whilst there is a need, “from time to time, to reformulate existing legal rules and principles to take account of changing social conditions”, it is nevertheless the case that the courts have a “modest and constrained role” in this regard, consistently with the common law tradition18. In a lecture given in 1972, Professor Lawrence Friedman observed “that the idea of law and social change is relatively newly-minted. Before the Industrial Revolution, ideas of law were, on the whole, quite different … [t]here was no current, accepted conception of regular change in the law”19. People were aware that the law was not static, but it would have been inconceivable to view the law as moving in some direction. He said that at least from the 19th century, informed public opinion was willing to conceive of law as a social process20. He was of the view that “law is intimately involved in social change, both as cause and effect”21. Subsequently, in his text on law and society, Professor Friedman was to say that “[i]n modern legal culture … it is hard to conceive of major changes in social life, which do not take place in and through law”22. But “law”, he explained, “means, mostly, statute law … The courts have played, on the whole, a minor and declining role in socio-legal change”23. It might be thought that the courts do not keep to this more limited role in some landmark decisions. My former colleague from the Federal Court of Australia, Justice Ronald Sackville, has argued to the contrary24. Writing extra-judicially, he suggests that in reality most landmark decisions merely reflect societal views of the time. He provides examples to make good his argument. The Communist Party Case25, he says, might be thought to have promoted

libertarian values at a time, post World War II, when there were strong anticommunist feelings. He argues that the decision was not in fact out of step with public sentiment about the attempted use by government of its powers. This was confirmed by the failed attempt, by a referendum held shortly after the Court’s decision, in effect to overturn it26. The decision of the Supreme Court of the United States in Brown v Board of Education27 – the antisegregation case – is another example. Recent scholarship, he said, did not suggest that the decision itself brought about a sea-change in community values and attitudes; rather there had for some time been larger forces at work in the transformation of American society. And it was this that made the decision possible28. Justice Sackville also argued that the decision in Mabo [No 2]29 can be viewed in the same light. I found this rather surprising, for my recollection was of a rather panicked reaction on the part of the media and some angst in the community. Elsewhere I have expressed the view that the Mabo decision might be viewed more of an appeal by the Court to a future understanding and acceptance of the decision which the majority had reached concerning the common law and terra nullius30. But it is my former colleague’s view that by the time Mabo was decided, in 1992, the Australian community had become much more aware of and sympathetic to issues concerning Indigenous people in Australia; the Constitution had been amended to remove discriminatory references to them; and land rights legislation had been in force for 15 years in the Northern Territory31. Moreover, the fact that Parliament promptly endorsed the concept of native title in terms similar to that adopted by the High Court

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suggested to him that the decision in Mabo “was in keeping with mainstream views of the time”32. Needless to say, I would prefer that his argument is correct. Why then does the court, for the most part, see its role in developing and shaping the law as limited to incremental steps? It is for the reason given so long ago by Lord Mansfield respecting the rules of mercantile law. The courts understand that it is necessary that the law be certain if society is to have confidence in it; that confidence would be jeopardised if it were to take sharp and unexpected changes of direction. Especially would this be so if it were to do so in pursuit of a social agenda, which is best left to the legislature to determine and implement. Likewise, it is the aim of the courts to maintain the fact and the perception of legal systems as strong and stable. They do so in part by ensuring that their processes are rational and fair and that the rule of law is observed. And in that latter respect, the Bar has an important role to play, as I observed at the outset. Certainty and stability are core values of the courts, and the strengths of the 20 | BRIEF AUGUST 2019

law and our legal system. They are how confidence is maintained and why financial institutions such as the World Bank connect them with economic progress.

The Bar and the future What, if anything, do these insights about our legal system convey about the future of the Bar? The Bar has dealt with many challenges. In the not-so-distant past it was the loss of self-regulation and then the growth of national and international law firms which, together with multidisciplinary practices, were expected to reduce the work of the Bar. The reality is perhaps more complex. Now there are other forces to contend with. In a recent article in the Asian Jurist, the Chief Executive Officer of a legal business consultancy described the changes taking place in legal practice33: “The legal profession is becoming subsumed by the legal industry. Legal practice is no longer synonymous with legal delivery, and lawyers are not the exclusive providers of legal services. New expertise, organisational structures,

economic models, delivery options, tech-driven solutions, knowledge management systems, process and process management, and financing for customer-centric solutions are hastening the sunset of the legal guild. Not only is the cost of legal services coming under intense scrutiny (even as law firms continue to raise rates and incoming associate salaries), but also the speed and efficiency of legal delivery is increasingly held to business – not legal –standards.” On one view, it might be said that the fees of counsel, senior counsel in particular, are always being attacked for being too high. But for members of any Bar in Australia, the reality now is that competition occurs in a truly national market. No Bar in any State can consider itself as isolated from the forces of this wider market. One needs to take account of the levels at which others of similar experience and standing are prepared to make their services available, for that may be the correct benchmark. A proper understanding of the market within which one operates is essential to the survival of any professional person.

Technology is no longer seen merely as a tool to facilitate the delivery of legal services. It is also portrayed as a possible threat, particularly in the continuing development of artificial intelligence. This might be something of a distraction. Very few commentators with an understanding of legal advice, advocacy, adjudication and dispute resolution would suggest that they could be completely overtaken by AI. Justice Nettle clearly does not think so. Speaking at this Association’s annual conference in 2016, Justice Nettle suggested that there are at least two aspects of legal work that are likely to survive the effects of computational law. In his view, the intellectual processes involved in the evaluation of evidence in litigation where there are disputed facts “are so complex and so much informed by human intuition and experience as to defy synthesisation by any presently available artificial intelligence system”34. He considered that even if future advances in technology make such synthesis possible, it is questionable whether society would accept the use of computers to assess oral evidence. The other aspect his Honour identified involves “the application of opentextured laws”35. There is a difference, he observed, between the scientific reasoning employed by computers and legal reasoning. Scientific reasoning assumes there can only ever be one proper outcome, whereas where a law is open-textured, “logic and reason (as applied under the rubric of legal reasoning) will often yield more than one possible outcome”36. There will always be issues for the Bar to grapple with. It can never afford to feel comfortable about its survival. But just as the courts adhere to core values in defining their roles and maintaining

public confidence, so too should the Bar reflect upon its strengths, its enduring qualities. They are clearly identifiable. The Bar is a true profession – not just a means of making money through the pursuit of business models. For society to view the Bar as having a continuing role, it is necessary that those qualities which engender confidence and trust are maintained. They are integrity, independence, intellectual rigour, a strong sense of public duty, and of course obedience to their duty to the courts. These qualities must be maintained regardless of pressure which may be felt for change, if the Bar is not to lose its relevance.

Endnotes 1 2 3 4 5 6 7 8

12 13 14 15

Cranston, “The Rule of Law: Good for the Economy?” in Graya Magazine, No 132 (2019) 24 at 34. Cranston, “The Rule of Law: Good for the Economy?” in Graya Magazine, No 132 (2019) 24 at 33. Vallejo v Wheeler (1774) 1 Cowp 143 at 153. La Porta et al, “Legal Determinants of External Finance” (1997) 52(3) Journal of Finance 1131. Cranston, “The Rule of Law: Good for the Economy?” in Graya Magazine, No 132 (2019) 24 at 24-25. Cranston, “The Rule of Law: Good for the Economy?” in Graya Magazine, No 132 (2019) 24 at 25. Cranston, “The Rule of Law: Good for the Economy?” in Graya Magazine, No 132 (2019) 24 at 25. World Bank Group, “Justice and Rule of Law” (28 April 2015) available at <http://www.worldbank.org/en/topic/ governance/brief/justice-and-rule-of-law>. Mohieldin “Foreword” in Fariello, Boisson de Chazournes and Davis (eds), World Bank Legal Review, Vol 7 – Financing and Implementing the Post-2015 Development Agenda: The Role of Law and Justice Systems (2016) ix at x. Khan, “Shifting the Paradigm: Rule of Law and the 2030 Agenda for Sustainable Development” in Fariello, Boisson de Chazournes and Davis (eds), World Bank Legal Review, Vol 7 – Financing and Implementing the Post-2015 Development Agenda: The Role of Law and Justice Systems (2016) 221 at 222. Khan, “Shifting the Paradigm: Rule of Law and the 2030 Agenda for Sustainable Development” in Fariello, Boisson de Chazournes and Davis (eds), World Bank Legal Review, Vol 7 – Financing and Implementing the Post-2015 Development Agenda: The Role of Law and Justice Systems (2016) 221 at 232-233 (citations omitted). Jaensch v Coffey (1984) 155 CLR 549 at 600; [1984] HCA 52. Jaensch v Coffey (1984) 155 CLR 549 at 555. Gala v Preston (1991) 172 CLR 243 at 262; [1991] HCA 18. (1991) 174 CLR 379; [1991] HCA 48.

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17 18

20 21 22 23

24 25 26 27 28 29 30

31 32 33

R v L (1991) 174 CLR 379 at 390 per Mason CJ, Deane and Toohey JJ, see also 402 (Brennan J), 405 (Dawson J). Breen v Williams (1996) 186 CLR 71 at 115 per Gaudron and McHugh JJ; [1995] HCA 63. D’Arcy v Myriad Genetics Inc (2015) 258 CLR 334 at 350 [26] per French CJ, Kiefel, Bell and Keane JJ; [2015] HCA 35. Friedman, “General Theory of Law and Social Change” in Ziegel (ed), Law and Social Change (1973) 17 at 18 (emphasis in original). Friedman, “General Theory of Law and Social Change” in Ziegel (ed), Law and Social Change (1973) 17 at 18. Friedman, “General Theory of Law and Social Change” in Ziegel (ed), Law and Social Change (1973) 17 at 20. Friedman, Law and Society: An Introduction (1977) 164. Friedman, Law and Society: An Introduction (1977) 164. But see the discussion of some exceptions at 164-165. Sackville, “Courts and Social Change” (2005) 33 Federal Law Review 373. Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] HCA 5. Sackville, “Courts and Social Change” (2005) 33 Federal Law Review 373 at 388. 347 US 583 (1954). Sackville, “Courts and Social Change” (2005) 33 Federal Law Review 373 at 384-387. Mabo v Queensland [No 2] (1992) 175 CLR 1; [1992] HCA 23. Kiefel, “The Adaptability of the Common Law to Change” (The Australasian Institute of Judicial Administration, Brisbane, 24 May 2018) 8 available at <http://www.hcourt.gov.au/assets/publications/ speeches/current-justices/kiefelj/KiefelCJ24May2018. pdf.pdf>. Sackville, “Courts and Social Change” (2005) 33 Federal Law Review 373 at 388. Sackville, “Courts and Social Change” (2005) 33 Federal Law Review 373 at 389. Cohen, “Legal Delivery at the Speed of Business (and Why It Matters)”, Asian Jurist (October 2018) 34 at 37. cf Legg, “New Skills for New Lawyers: Responding to Technology and Practice Developments” in Lindgren, Kunc and Coper (eds), The Future of Australian Legal Education: A Collection (2018) 373 at 379. Nettle, “Technology and the Law” (Bar Association of Queensland Annual Conference, 27 February 2016) 9 available at <http://www.hcourt.gov.au/ assets/publications/speeches/current-justices/nettlej/ nettlej27Feb2016.pdf>. Nettle, “Technology and the Law” (Bar Association of Queensland Annual Conference, 27 February 2016) 9 available at <http://www.hcourt.gov.au/ assets/publications/speeches/current-justices/nettlej/ nettlej27Feb2016.pdf>. Nettle, “Technology and the Law” (Bar Association of Queensland Annual Conference, 27 February 2016) 16 available at <http://www.hcourt.gov.au/ assets/publications/speeches/current-justices/nettlej/ nettlej27Feb2016.pdf>.

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Taxing Matters

Small Business Taxation Division: A New Division of the Administrative Appeals Tribunal By Jocelyne Boujos Partner, Sceales Lawyers Small business in Australia employs 6 million people, or half the workforce. New provisions introduced by the Government, with the support of all major political parties, have the potential to transform the way small businesses operate. One of the most significant of those changes is a Small Business Tax Tribunal, a new division at the Administrative Appeals Tribunal (“AAT”) which has been in operation from 1 March 2019 with twenty-six matters commenced in the division up to the end of May. The Assistant Treasurer, the Honourable Stuart Robert MP announced the creation of the new small business taxation division (“SBTD”) as one of a range of measures to make it easier, cheaper and quicker for small business to resolve tax disputes with the Australian Taxation Office (“ATO”). The SBTD is part of the whole of government plan to help small business applicants access the tribunal’s services including, with a concessional fee, supported legal advice and the involvement of an Australian Small Business and Family Enterprise Ombudsman (“ASBFEO”). The SBTD will offer an early case assessment process and provide dedicated case managers. It is considered that these features will facilitate information sharing and help to tailor a more appropriate review process for applicants, adapted to the unique circumstances of each case. Alternative dispute resolution processes have been established, which are intended to be user friendly with members and staff having a solid understanding of the challenges facing small business taxpayers. Bernard McCabe the Deputy President and division head of the Taxation and Commercial Division of the AAT has published the following comments: “The new processes…will promote earlier settlement and resolution of disputes mostly without needing a hearing. The early case assessment process will ensure that the AAT knows more about the applicants and the Commissioner’s case at an earlier stage than currently so dispute resolution processes can be used to maximum effect.” It is considered that a transparent, independent review process in the AAT will assist individuals in their own decision making and promote confidence in the quality of the AAT decisions. The AAT has published two key documents available on the AAT website, which set out the processes in detail: a) Practice Directions Review of Small Business Taxation Decisions; and b) Guide to Small Business Taxation Division. It is intended that these documents will be reviewed after the SBTD has been in operation and adapted accordingly if required. The decisions that will be subject to review will be small business taxation decisions, these are decisions made under a taxation law administered by the Commissioner of Taxation (“Commissioner”), in relation to a small business entity. Under the Income Tax Assessment Act 1997 (“ITAA97”), a small business entity is an entity that carries on a business in the

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current income year with an aggregated turnover (as defined in ITAA97) of less than $10 million. This definition is contained in s 995 of the ITAA97. One of the most innovative proposals is provision for access to legal/taxation advice through the ASBFEO. The ASBFEO is a Commonwealth Government agency that provides independent assistance to small businesses and family enterprises in resolving various disputes with other businesses or commonwealth Government agencies. The ASBFEO service assists small businesses with the review process, including general and legal advice about whether or not it is advisable to seek review of the Commissioner’s decision of the AAT as well as advice during the review process. The office is there to help legally unrepresented clients. That is, the client could have an accountant assisting them, and they may still approach the ASBFEO for further assistance. The office has assisted 20 taxpayers up to the end of May. The Commissioner may engage an external legal service provider to act for the ATO in the SBTD. The Commissioner has policies which explain when they will consider engaging an external lawyer, for example when the outcome of the matter may affect many people or businesses, or it has a high level of technical or factual complexity. If the Commissioner decides to engage external legal services, they may also decide to meet the costs of legal representation for small businesses with no legal representation up to an amount equal to that expended by the Commissioner on its external legal services. The Commissioner must advise the AAT and the small business representative if it engages an external legal service provider. The current ASBFEO Commissioner, Kate Carnell (“the Ombudsman”), indicated that she has concerns about the interaction between the ATO and small businesses which appealed to AAT in respect of ongoing collection and recovery activities of the ATO. The essence of her concern is the provision in the ITAA97 which permits the Commissioner to continue collection and enforcement procedures even if an enterprise has appealed to a court or tribunal against a tax decision. The Ombudsman has noted that 12% of those businesses that challenge before the AAT found that the ATO continued to take action against them. The Ombudsman had examined 143 cases of people who appealed to the AAT and the ATO took action against 17 of those 143 enterprises. Accordingly, an essential part of the tribunal is that the ATO will not take recovery action against those taxpayers that appeal while the case is continuing, unless the taxpayer behaved in an adverse manner such as leaving the jurisdiction or dissipating assets. The ATO has confirmed that if it appeals the AAT’s decision it will fund the taxpayer’s reasonable costs of appeal. This is important as the court system can be too expensive for a small business entity. The initial impression of this new SBTD, in the short time that it has been operating, is that the large focus on early case conferencing with a view to resolving matters as quickly and inexpensively as possible within the division is to be encouraged and applauded.

Perth in the International Arbitration Landscape By Gwynette Govardhan Solicitor, HopgoodGanim Lawyers

The author attended a recent event1 featuring distinguished panellists including former Supreme Court Chief Justice and Law Society Life Member, the Hon Wayne Martin AC QC, Barrister Kanaga Dharmananda SC of Quayside Chambers and Samantha Lord Hill of Freshfields Bruckhaus Deringer, who shared tips for successful arbitration as well as key insights into recent developments in the Asia-Pacific region.

Arbitration clauses generally

concerned about the neutrality of the court.

Arbitration clauses are commonly seen in large commercial contracts, particularly in circumstances where there are multiple international parties to the transaction. However often due to urgency surrounding international commercial deals, parties in such transactions do not typically view arbitration as a key term of their commercial contract and fail to give proper thought to the clause.

Australia’s sophisticated court system, experienced legal professionals, experts in the construction industry and relative neutrality in the international community are noteworthy strengths of the seat, however the federal system of government brings about a challenge to present uniformly as one nation on the international stage.

This can give rise to potentially catastrophic consequences in future, such as for example subjecting one party to local courts in a risky jurisdiction in enforcing a judgment. When considering the insertion of an arbitration clause into an agreement, parties should give particular consideration to the seat, the venue, the number of arbitrators, and of course, cost. While having fewer arbitrators does reduce costs in the first instance, the panel unanimously agreed it is important to ‘look behind the seat’ to determine what expertise and specialist knowledge arbitrators in that seat can bring to adjudication proceedings. In particularly complex construction matters, having additional tribunal members who can quickly and accurately determine key technical issues (such as a delay expert or quantity surveyor) can be a key cost and time saving tool. Ms Lord Hill stressed that legal practitioners and their clients must understand the significance of the difference between ‘venue’ and ‘seat’ in arbitration. While the seat of arbitration refers to the legal location of the arbitration (or jurisdiction), parties can elect to hold the headings elsewhere, known as the ‘venue’.

Perth in the international arbitration landscape While Singapore, London and Hong Kong have traditionally been regarded as reliable and well established arbitration seats, following recent international events and in Hong Kong’s case, increased political uncertainty and resulting strikes, Perth now has an opportunity to emerge as a worthy choice of arbitration seat, particularly for parties in the Asia-Pacific region where there may be opposing political alliances existing in the background and who are

While the geographical remoteness of Perth at times mitigates participation in international business, our proximity to key commercial hubs such as Singapore and Hong Kong and the fact that Perth is in the same time zone as these hubs, make Perth jurisdiction a favourable choice of seat in arbitration, bearing in mind an advantage of arbitration is that the seat and venue of arbitration can be different.

Best practice for large constructionbased international arbitration The former Chief Justice urged Perth legal practitioners to actively promote Perth as an arbitration seat to international clients and gave advice to lawyers engaging in international arbitration: 1) Resourcing – both financial and human resources must be in place to facilitate arbitration. In particular, access to key personnel in the firm and experts must be readily available. 2) Early engagement – ideally engage with clients before the Notice of Dispute is sent. This then allows time to review evidence in real time and plan a proper data management process based on what evidence is presented. 3) Identify the real issues – in complex construction disputes there will be some matters and facts that are mutually agreed upon by the parties. It is important to bring to surface the critical issues central to the arbitration so that resources are channelled towards dealing with those issues only. 4) Identify a clear forensic strategy – a roadmap of where you want to go with the arbitration, including formulation of a timetable and budget and identification of key personnel who will be utilised in the arbitration.

5) Identify a clear settlement strategy – timing is everything when designing settlement strategies. Practitioners are urged to consider alternative or informal settlement processes such as mediation. 6) Data collection and retrieval – in the age of digital storage it is critical to not just collect large amounts of data, but to have proper data management systems to accurately mine relevant information from the data. In this instance more data is not necessarily more beneficial. 7) Understand the project – given the complex and highly technical nature of construction matters, legal practitioners must properly understand their client’s project and operation. 8) Obtain factual evidence early – this assists in informing the tribunal of the critical matters. 9) Manage expert evidence – it is critical that legal practitioners identify issues experts are likely to be asked about. This component of the arbitration process also involves identifying agreed assumptions of fact and contentious assumptions and ensuring experts agree on their method of analysis to save time and money. 10) Choose the tribunal carefully – case managers should be proactive and tribunal members should have complementary skills and expertise. Particularly in complex construction matters, look for arbitrators who have specialist knowledge in the relevant area.

Conclusion Given the highly specialised nature of construction arbitration, it is vital that legal practitioners know the tools available to be utilised to ensure efficient, timely and cost effective settlement. Being immersed in the project central to the arbitration is the first step to ensuring legal issues are correctly identified and allocated resources and appropriately choosing a tribunal and experts. Endnotes 1

Hosted by Corrs Chambers Westgarth, the Society of Construction Law Australia and the Asian Australian Lawyers Association.

Beyond the Jargon: What Does AI Mean for Lawyers? By Melissa Coade This article first appeared in LSJ, the flagship publication of the Law Society of NSW. It is republished here with permission.

The case for artificial intelligence (AI) in legal practice is no longer pie-in-the-sky science fiction. The future is here and all kinds of lawyers are using AI-assisted technologies. Here's why AI is relevant for you and your firm.

Popular culture will have you believe that evil lurks in the pseudo-soul of the artificial intelligence (AI) machine. With AI capabilities, formerly innocuous technologies can become scary realities like self-navigating bombs and autonomous weapons. And that’s where so many mainstream headlines about the power and possibility of AI fall: in the realm of a terrifying, uncontrolled dystopia. In 2017, the late Stephen Hawking told Wired magazine he feared AI may replace human beings altogether, citing self-improving systems as the main reason. Julia Shaw’s book, Making Evil, references the notion of “artificial evil”. First coined by philosophers Luciano Floridi and Jeff Sanders in 2001, the “artificial evil” label is meant to describe the wrongdoing of autonomous, nonhuman agents. While Shaw has a problem with the argument that “artificial

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evil” can be made by, and understood with, mathematical models, she considers the response to an AI chatbot that Microsoft released in 2016, where things went wrong quickly.

If this is all you read about AI and its capabilities, you may be horrified or feel threatened by the dark future it represents. But guess what? AI is already here, you are probably already using it.

The chatbot named Tay was designed to engage with people in “casual and playful conversation”. She was meant to sound like an American woman between the ages of 18 and 24, and learn from interactions on Twitter to develop into a functional and conversational online robot.

Many of the conveniences AI-assisted technologies have brought to human lives are already deeply integrated into legal practice, with simple innovations like the predicative text suggested for finishing your sentence in Gmail or a quick search of case law in a database.

“Tay tweeted a huge amount in the one day she was active, generating approximately 93,000 tweets,” Shaw writes.

So, what exactly is AI and how can you think about its best uses for your own advantage?

“Almost immediately, people began tweeting racist and misogynistic comments at Tay, who learnt how to echo these sentiments. It took less than a day for Tay to go from tweeting, ‘Humans are super cool’ to ‘I f*****g hate feminists and they should all die and burn in hell’ … People online had made an artificial intelligence into an artificial evil. Tay was terrifying and was quickly shut down.”

AI already touches much of what we do Dev Mookerjee, the Asia Pacific Chief Technology Officer for IBM Watson Solutions, is of the view that many of us fail to realise just how pervasive AI technologies are. So much so, we do not realise that we already use AI technology daily, in our jobs and at home.

“All good technology should be like that,” Mookerjee says. “AI is a set of technologies which is not discrete or separate. It is infused in what we do. Lawyers are using it already and that’s a good thing.” Internet searching is a common, everyday task most lawyers of all levels would do. The basis of being able to complete that task relies on AI technology, Mookerjee explains. “If you look back 20 years, when the internet wasn’t everywhere and internet search was in its infancy, you had sole practitioners who would do their research in a very different way. They would call up people, they would go to libraries and there were massive leatherbound books on shelves behind them. They knew exactly which book to open and what to actually search for. That’s gone,” Mookerjee says. “That story has changed because AI has helped internet searches become so much easier. The main point you need to take away is that AI is not a black box that stands alone in the corner making noises.” A recent survey of legal operations professionals by US data analytics company OpenText found that 34 per cent of 95 respondents working within in-house legal departments use AI technologies. Meanwhile, another 66 per cent of respondents indicated that spending on AI would increase in 2019. For Mookerjee, who flies around the world speaking with international clients and partners about how AI can offer a solution to their business problems, the language surrounding the technology can make a big difference. He prefers the term “augmented intelligence” to AI, which puts the emphasis on technology augmenting human intelligence. “AI is something that is new and different, it causes us to think twice about what this alien thing is. Whereas, if you call it ‘augmented intelligence’, then the word ‘intelligence’ is about the human being,” Mookerjee says.

‘Narrow AI’ is good and it probably won’t take your job AI can perform tasks such as visual perception, speech recognition, decision-making, and translation between languages. The processes used to perform these tasks can include expert systems and machine learning (supervised, unsupervised and neural networks). According to a paper written by UNSW’s Professor Michael Legg and Dr Felicity Bell from the Law Society of

NSW Future of Law and Innovation in the Profession (FLIP) joint research project, FLIP Stream, the AI developments most relevant to legal services are expert systems, machine learning and natural language processing. The application of these systems makes tasks like automated advice, document drafting, due diligence, online dispute resolution, eDiscovery, contract review and outcome prediction possible. Neil Sahota, writing for Forbes, recently addressed the question of whether AI would put lawyers out of business. Together with Michael Ashley, Sahota (a United Nations AI expert) has authored Own the A.I. Revolution: Unlock Your Artificial Intelligence Strategy to Disrupt Your Competition. No matter how sophisticated the technology becomes, Sahota speaks with a number of experts who claim that AI “will never be a substitute for the judgment and decisionmaking that only humans can provide”. One way to classify AI is by delineating “strong AI” and “weak AI”. Independent “thinking” AI falls into the first category, while weak AI relies on programs to mimic human thinking, without reasoning in the same way that a human does. Currently, AI works best with welldefined and focused tasks like reading a text or ‘understanding’ a contract clause. Mookerjee says there is little use for the “strong” kind of AI that is all-knowing and all-thinking. “Lawyers in fact are, by nature, narrow in their focus and specialisation. And that is how, not just in law but in most industries, things happen. That is also how AI is being rolled out,” Mookerjee explains. “That is not because AI needs to be rolled out like that, but because we are fixing real-world business problems which are narrow in focus.”

Perspective matters, aim for efficiency AI will transform legal practice as part of a broader movement in law to automate. That is the view of UK-based strategy and innovation advisor Richard Tromans of Tromans Consulting. He suggests that sole practitioners scratching their heads as to how AI relates to them should refocus their attention on what tools can bring greater efficiency to their practice and how to automate basic tasks. “It’s all part of a broader movement to drive efficiency and deeper insight in the law through automation,” Tromans says. “AI is just one means to an end – one

of many different ways to achieve the above. Automation is the goal. AI is one set of tools to get there. “If you use Google, you use an AI system. So any lawyer can use this tech.” Although he concedes that those law firms with a dedicated legal AI system on their wishlist will need to invest in a software licence that is not cheap, Tromans says most lawyers who are only looking to improve efficiencies and automate tasks can find affordable AI products on the market. The end objective should be to solve problems quickly and inexpensively. “If your client wants work done to a fixed fee and you want to protect margins on process work, then AI or automation is the only way to do this,” Tromans says. “Automation does help profits, but this depends on the client environment you are in. Just using tech alone does not make you more profitable – there needs to be a client context for it to be worthwhile economically.” He adds that it is those practice areas with the least amount of repeatable tasks that will benefit the least from AI technologies. No practice area, however, will be immune to the efficiencies it can achieve. According to Mookerjee, clients expect modern lawyers to be engaged with and open to using AI-assisted technologies. This expectation means the legal profession must be willing to abandon its culture of resistance to change. “This takes people one step from ‘I don’t know what I don’t know’ to ‘I know what I don’t know’,” Mookerjee explains. He adds that universities and law schools nationwide are beginning to take awareness of technology seriously, helping to shift the mentality of the next generation of lawyers. More senior practitioners should think about what extra training they can do to brush up on their skills, he adds, and should consider getting onto online platforms like Udemy or Coursera. “The universities are doing some good work by having multi-faceted training available earlier. It encourages students to recognise that they might be going into law but they should also do a technology unit,” he says. “For lawyers who have been in practice for the last 15 years, they also need to appreciate what changes are coming, not just because the industry is changing but also because the client base is changing.”

Vexillology Flagging Copyright in Action Part 1: The surprising histories of the Australian National Flag, the Australian Red Ensign and the Australian Aboriginal Flag

By Dr David Cox, Barrister, Francis Burt Chambers Introduction Recent media commentary1 has illustrated how little is known about copyright within the broader community and it has also highlighted a disturbing misunderstanding of key copyright concepts. The commentary in question included discussion on whether copyright subsists in the iconic black, red and gold, Australian Aboriginal Flag, who owns it and attempts by an exclusive licensee of the copyright owner to enforce the copyright. To put your mind at ease, the design of the Australian Aboriginal Flag is a work in which copyright subsists. It was created in 1971, by an artist of Aboriginal descent called Harold Thomas. We know all of this because the Federal Court of Australia has said so. Twice!2 On a daily basis, literary, dramatic, musical and artistic works are created in vast quantities. On creation of these works, copyright automatically subsists as long as the work satisfies the statutory requirements3. Despite this, if media reports are to be believed, the practice of copying works without authorisation is a widespread and serious problem. While this mischief could be addressed by enforcing the copyright in the works4, an analysis of the Court lists and recent judgements indicates that little is being done by the owners of copyright to address this mischief. The reason for the apparent failure to enforce the copyright is not known. In most cases, economics will play a large role in the decision-making process. Other considerations that are likely to impact on the decision-making process will include the widespread perception that copyright law is difficult to understand/apply, and the perceived difficulty with which good quality evidence could be assembled to prove the creation of the Work in which the copyright is said to subsist, or to prove the chain of title to the copyright5. This article seeks to address some of the potentially avoidable non-economic reasons that may be disincentivising the enforcement of copyright. The first part is published here, the second part is to be published in next month's edition of Brief. In this first part,

26 | BRIEF AUGUST 2019

aspects of the vexillology of the Australian National Flag, the Australian Red Ensign and the Australian Aboriginal Flag are explored in order to provide key factual material that will be used in part 2 of the article to explain key concepts in copyright law in a practical and illustrative way. The various flags have been chosen for a range of reasons. Importantly they are all quite simple works, with very well examined backgrounds, in many ways, flags are ideal subject matter to explain key concepts of copyright law.

Flags A flag is a piece of cloth, commonly bunting, of varying size, shape, colour, and device, usually attached by one edge to a staff or cord, and used as an ensign, standard, symbol, signal, decoration, display, etc6 intended to be used in communication7 or as an indicia of rank or nationality. Since ancient times, flags have been carried into battle as standards that indicate where the troops travelling with the flag are from. In more recent times flags have taken on much broader usage. Whether they are literary, dramatic, musical or artistic in nature, all works, and flags are no different in this regard, draw from, or were inspired by, the existing knowledge and ideas known to the creator at the time

Australian National Flag (Australian Blue Ensign)

of creation. In this way, no work can truly be said to have been created in a vacuum. By focusing on the way that ideas are conveyed to an audience (i.e. the expression of the ideas) and not the ideas simpliciter, a clear line is drawn separating what can and cannot be the subject of copyright. The difference between drawing inspiration (using a concept or idea) and copying (making a reproduction of all or part of

an existing work) can only be determined based on the facts of the case. This will be illustrated in the second part of the article by reference to the creation of the Australian Blue and Red Ensigns in 1901. For completeness, the Australian Blue Ensign is now officially known as the Australian National Flag. As an area of law that is plagued by the need for subjective assessments, Copyright has a reputation that it can be difficult. In order to illustrate key copyright concepts in the second part of the article, this first part of the article sets out history/development of the Australian National Flag, the Australian Red Ensign and a number of flags that existed prior to the design of the Australian National Flag (which was originally called the Australian Blue Ensign) and the Australian Red Ensign. This â&#x20AC;&#x153;prior artâ&#x20AC;? will discussed in part 2 of the article to illustrate issues such as authorship; copying; substantiality; and subsistence of copyright and some of the applicable tests that need to be applied in order to determine those issues.

The Australian National Flag and the Australian Red Ensign The Australian National Flag (previously known as the Australian Blue Ensign)8 and to a lesser extent the Australian Red Ensign are

Australian Red Ensign Flag

well known symbols of Australia. Elements of the Australian National Flag and the Australian Red Ensign The Australian National Flag and the Australian Red Ensign appear to be defaced versions of the Victorian Blue and Red Ensigns, respectively. In turn, the Victorian Blue and Red Ensigns appear to be defaced

in the southern night sky. Initially, the four brightest stars in the Southern Cross (α-crucis, β-crucis, γ-crucis and δ-crucis) were each depicted with a different number of points. The number of points that were used for each star was said to indicate its brightness in the night sky. The number of points of each star was subsequently made the same (seven points). This was done to reduce manufacturing costs. The Southern Cross included on the flags as a reminder of Australia’s geographic location.

versions of the British Blue and Red Ensigns that were in use after 1801. The Australian National Flag and the Australian Red Ensign each have four distinct elements. These are: •

•

The first element: the background or field of the Flag. In common with the British Ensigns and the Victorian Ensigns, the Australian National Flag and the Australian Red Ensign have blue or red fields, respectively. The blue field was intended to be used for official and naval purposes whereas the red background was intended for use by the Merchant marine and for other civil purposes. The second element: the 1801 version of the Union Jack9 located in the canton10. This element covers approximately 25% of the total area of the flag and was included in the design of the flag as a reminder of common British colonial heritage of each of the colonies that combined in 1901 to form the Commonwealth of Australia. The third element: the Commonwealth Star (also known unofficially as the Federation Star), located in the lower hoist quadrant11. The Commonwealth Star was originally a white star with six points representing the six states that federated on 1 January 1901 to form the Commonwealth of Australia. While New Zealand was not one of those states, it had been invited to join and around the time of Federation the possibility still existed for it to do so. At the time of the National Flag Competition (discussed below) a contingency plan was developed in the event that New Zealand joined the Commonwealth. If that occurred, there was discussion that an extra point would need to be added to the Commonwealth Star12. While New Zealand eventually chose to remain separate from Australia, an additional point was nonetheless still added to the Commonwealth Star in 1908. The change from a six pointed star to a seven pointed star was proclaimed in the Gazette on 22 May 1909. Reports from the time suggested that this seventh point was added to represent present and future Territories in the Commonwealth, another explanation for the change suggested that it was done to ensure that the same Commonwealth Star on the Australian Coat of Arms was also used on the flags13. The fourth element: a depiction of Crux or Crux Australis, the constellation that is more widely known as the Southern Cross, located on the fly14. The Southern Cross is a constellation of five stars (or more correctly five groups of stars). These stars are currently only visible from the southern hemisphere. They are some of the brightest stars

National Flag Competition It is popularly believed that the design of Australian National Flag and the Australian Red Ensign were selected from the entries to a 1901 competition to design a national flag to be used by the newly created nation (the “National Flag Competition”). The popular belief is not entirely correct. Shortly after the six Colonies came together forming the Commonwealth of Australia, the British Secretary of State for the Colonies requested that the Commonwealth of Australia recommend a flag for the endorsement15. At the time of the request, several media organisations had already commenced competitions to design a flag to be used as the Australian National Flag. In April 1901 these competitions were consolidated, and the resultant National Flag Competition was run by the Commonwealth. Entrants in the National Flag Competition were asked to submit a design for a red ensign to be used for merchant service and public use, and a blue ensign which was to be for naval and official use. There were 32,823 entries to the National Flag Competition. The judging criteria for the National Flag Competition is said to have required the judges to consider the history, heraldry, blazonry, distinctiveness, utility and cost of making it up in bunting. However, while that may have been the stated criteria, it would also appear that the judges were keenly looking for a flag that would be likely to please the “home office”16. On 3 September 1901, at a ceremony at the Exhibition building in Melbourne, the judges provided their report to the Rt Hon Sir Edmund Barton MHR, Prime Minister of Australia. The report stated that the judges had determined that there were five winners of the National Flag Competition17. The Winners were as follows: •

Annie Dorrington, a Perth based artist (1866-1926);

•

Ivor Evans, a 14-year-old schoolboy from Melbourne (1888-1960);

•

Lesley Hawkins, apprentice optician from Leichhardt in Sydney (1883-1966);

•

Eggbert Nutall, an architect from Melbourne (1866-1963); and

•

William Stevens, a first officer from

Auckland, New Zealand (1866-1928). Having announced the winners, the Prime Minister then unveiled the new national flag which was then hoisted up the flagpole to be seen by the dignitaries who were attending the ceremony. The Prime Minister referred to this flag as being a composite of the winning entries (the “Composite Flag”). It is unclear what the Prime Minister meant by the term “Composite”. It does however suggest that contrary to popular belief, none of the winning entries was an exact match with the Composite Flag. This analysis is consistent with National Archives of Australia fact sheet No. 102, that describes the Composite Flag as “…embodying the general ideas of the five successful competitors, but different in detail”18. Accordingly, the winners of the National Flag Competition may have inspired the designs for the flags, however, inspiration and creation are vastly different concepts in the context of Copyright Law. The consequences of the winners inspiring, as opposed to creating, the Composite Flag will be explored in detail in part 2 of this article. The design of the Composite Flag was apparently loved by the Prime Minister, but that love was not shared by all. Some people found the Composite Flag to be too close to the Victorian Ensigns for it to be used as the national flag, others suggested that the competition was fixed to ensure the winning entry was a British Ensign combined with a badge that was representative of Australia19. Irrespective of these concerns, and without any debate in the National Parliament or a popular vote, the design for the Composite Flag20 was sent straight through to the Colonial Office in London for approval. In late 1902, King Edward VII approved the flag design. The Composite Flag design that King Edward VII approved, was not the same as the flag that had been unfurled on the day of the announcement of the winners of the National Flag Competition. British Admiralty altered the design by “standardising” the number of points on the stars representing α-crucis, β-crucis, γ-crucis and δ-crucis after the modification, each of those stars were depicted with seven-points. The smallest star in the Southern Cross, ε-crucis, remained unchanged as a five-point star21 (the “First Modification”). The news that King George VII had approved the Composite Flag, as it appeared after the First Modification, was announced in the official Gazette on 23 February 190322. The intention of the Government in 1903 was that the Australian National Flag (then known as the Australian Blue Ensign) would be used for official purposes and on naval ships. Australian Red Ensign was intended to be used as the flag of the Australian merchant fleet and it was also intended to be used as the flag for non-official purposes.

In one of its first outings in the international scene, the Australian National Flag was carried as the official flag of Australia by the Australian team flag bearer when leading the Australian contingent competing at the 1904 Olympic Games in St Louis, USA. In 1908, the Admiralty at the request of the Government again modified the Composite Flag. This modification increased the number of points on the Commonwealth Star from six points to seven points (the “Second Modification”). In the second part of this article, the impact of the First and Second Modifications will be discussed. The modifications will be important material for the discussion of substantiality and subsistence. By restricting use of the Australian National Flag to use for official purposes and on naval ships, the Government wanted to preserve the importance of that flag. That objective, however, may have been lost on the Australian public. By 1940, the Australian National Flag had been preserved to such an extent that it risked becoming irrelevant. The Australian National Flag had so rarely been seen in public that many people mistakenly thought that the official flag of Australia was the Australian Red Ensign. Through widespread use, the Australian Red Ensign had become instantly recognisable by the public and it was rapidly becoming the de facto flag of Australia. In the 1930s and 1940s, in addition to concerns that the Australian Red Ensign was being accepted by the public as the official flag of Australia, the Government was also concerned that if the popularity of the Australian Red Ensign was not arrested, the red field of the Australian Red Ensign might be seen to suggest that Australia had communist sympathies. In order to address these matters, in 1941, the Prime Minister, the Rt Hon, Robert Menzies, issued a press statement in which he confirmed that it was the government’s preference for the Australian Blue Ensign to be used as the Australian National Flag. Mr Menzies went on to confirm that the Government no longer wanted to restrict the use of the Australian Blue Ensign. In February 1947, the then

Prime Minister the Rt Hon. JB Chifley, issued a press release that encouraged the public to follow the information in the Menzies press release of 1941. Mr Chifley then went on to also indicate that, noting that there should be no restriction on the use of the Australian Blue Ensign (as the Australian National Flag). The press releases had little, if any, legal effect. It was not until 1951, when King George VI approved the recommendation by the Government that the Australian Blue Ensign be adopted as the Australian National Flag, and the subsequent enactment of the Flags Act 1953 (Cth) that the status of the Australian Blue and Red Ensigns were finally settled23. By proclamation under Flags Act, the Australian Blue Ensign was made the most senior of the two flags, being officially designated to be the Australian National Flag. Use of the Australian Red Ensign is largely restricted to use on merchant ships that are registered in Australia. On a small number of limited occasions, such as on National Flag Day (3 September each year), the Australian Red Ensign makes a terrestrial appearance. When it does so, the Australian National Flag takes the position that is highest in the order of precedence and the Australian Red Ensign takes second highest position24.

of the winning entries in the National Flag Competition. Each of these flags is discussed in greater detail below. Simply having features that are included in earlier flags, however, does not necessarily mean that the later flags are copies of the earlier ones. While the question of copying is an open one and relevant to the subsistence of copyright, it is a question that allows consideration of how much a work can resemble an existing work and still be a work of separate and independent creation. The answer to this question is not a simple one but it will be considered in Part 2 of this article.

The British Red Ensigns History records that in 1770, James Cook and the crew of HM Bark Endeavour were the first Europeans to visit the eastern coast of Australia. At the time of the visit, ships like the Endeavour were required to

Prior Existing Flags

(Old) British Red Ensign (1707-1800)

While there is some doubt as to who designed the Australian National Flag, and this is discussed in greater detail in the second part of the article, on the likely erroneous assumption that the winners of the National Flag Competition had each designed a flag that was identical to Composite Flag, each of the winners must have followed a very similar design path and in doing so they are likely to have given consideration to the same background materials and may also have taken each of the features of the Composite Flag from the same prior art materials. The table at the foot of the page sets out similarities between a number of earlier flags that may have contributed to the creation

fly the flag that indicated where it came from. The Endeavour was in the service of the Royal Navy at the time of its voyage, but it was not attached to any fleet. This, in accordance with the convention at the time, the Endeavour flew the (old) British Red Ensign25. Following the visit of the Endeavour in 1770, the (old) British Red Ensign became a frequent sight in the waters off the east coast of Australia26. The use of the old British Red Ensigns ceased at the end of 1800. Following the Act of Union 1801 (UK), which merged Ireland and the Kingdom of Great Britain into the United Kingdom of Great Britain and Ireland, the Union Jack was changed to include a

Name of the Flag

Time between first use and the National Flag Competition

Field of the Flag

Union Jack

Federation Star

Southern Cross

(Old) British Red Ensign

~200 years

Red

Does not include St Patrick’s Cross.

(New) British Blue/Red Ensign

~100 years

Blue/Red

Yes

Anti-transportation league Flag

~50 years

Blue

Yes

The stars of the Southern Cross are depicted in yellow, each star with eight points

Victorian Blue/Red Ensign

~30 years

Blue/Red

Yes

Yes, each star has the same number of points as the equivalent star in the composite winning design

28 | BRIEF AUGUST 2019

Victorian Blue and Red Ensigns

British Red Ensign (1801-)

reference to Ireland. The change that was finally settled on was to include a diagonally oriented red cross to the earlier Union Jack comprising the crosses of St Andrew and the St George27. This redesigned Union Jack replaced the Pre-1801 version that had previously formed part of the British ensigns. In common with ships of today, ships in the 1800s, were required to fly an ensign to indicate where they were travelling from. Noting the large quantity of goods, particularly agricultural products, that were shipped out of Australia in the 19th Century, there can be no doubt that the new British Blue and Red Ensigns were commonly flying in Australia particularly around ports and harbours at that time.

Anti-transportation League Flag Around the middle of the 19th Century, the Australasian League for the Abolition of Transportation was established in Launceston. The organisation subsequently

Anti-transportation League Flag

set up branches in several other colonies. The stated objective of the League was to stop the transportation of convicts. At a meeting of the Victorian branch of the League in Melbourne in 1851, a flag was unfurled as the flag of the League. The flag was created by combining a British Blue Ensign and representations of the five stars of the Southern Cross28. This flag is believed to be the first flag used in Australia that depicted the stars of the Southern Cross as they appear in the night sky29. Its use, however, was not long lived. The League succeeded in its lobbying efforts and in 1853, it was announced that convicts would no longer be transported to Launceston in Tasmania. Not long after the announcement, having achieved its objective, the League was closed, and with that closure, the use of the League’s flag was discontinued.

Following the passage of the British colonial Naval Defence Act 1865 (Imp), each, then independent, state colony was authorised to establish a naval defence force. The Naval Defence Act went on to specify that each naval vessel that formed part of a colony’s naval defence force was to fly a Blue ensign with “the seal or badge of the colony in the fly thereof.” In accordance with the Naval Defence Act each colony went on to design and adopt a flag that would represent it. In 1876, New South Wales and the Queensland flags were adopted; in 1877, the Victorian flag was adopted; in 1895, the Western Australian and Tasmanian flags were adopted; and much later in 1904, the South Australian flag was adopted. These flags subsequently went on to become the familiar state flags that we know today. The Victorian state flag of 1877 was not the first flag that was approved for use by the Colony of Victoria. About seven years earlier, in 1870, the Colony of Victoria obtained approval from the Admiralty in London to use newly designed blue and red ensigns on its naval and civilian maritime vessels, respectively. These Victorian Blue and Red Ensigns had been designed in accordance with the requirements of the Naval Defence Act 1865 (Imp). Differing only in the colour of

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the field of the flag (the background colour), the Victorian Blue and Red Ensigns were created by adding a depiction of the stars of the Southern Cross to the then applicable British Blue and Red Ensign. To vexillology the Victorian Blue and Red Ensigns are comprised of the Union Jack in the upper left-hand corner adjacent to the hoist or flagpole30 and the stars of the Southern Cross are depicted to the right of the Union Jack in a position known as “the fly”. The

Victorian Blue Ensign

Victorian Red Ensign

brightness of each star of the Southern Cross is depicted by the number of points on star31. According to the Naval and Military Gazette, issued on 30 April 1870, the Victorian Blue Ensign was approved for use on Australia’s first warship which at the time was a Victorian vessel (HMCS Nelson). The Victorian Blue and Red Ensigns were inaugurated on board the HMCS Nelson on 9 February 1870.

Australian Aboriginal Flag As mentioned previously, the copyright in the Australian Aboriginal Flag has twice been the subject of Court proceedings.

Harold Thomas who had previously been recognised as the designer of the Flag. In an effort to stop these claims, Mr Thomas commenced proceedings in which the authorship of the Australian Aboriginal Flag and the status of any copyright in it were in issue (“Ownership Proceedings”). The matter was heard by the Hon Justice I.F. Sheppard AO QC who at the time held a dual appointment as Justice of the Federal Court of Australia and President of the Australian Copyright Tribunal. His Honour found that the Australian Aboriginal Flag was created by Mr Harold Thomas in 1971 and that all copyright in the Flag belonged to him32. Several years after the Ownership Proceedings, the Australian Aboriginal Flag again returned to Court. This time, Flags 2000 Pty Ltd, to whom Mr Thomas had granted an exclusive licence of his copyright, issued proceedings against a Perth based flag seller (Mr Smith) alleging that Mr Smith had breached Mr Thomas’ copyright in the Australian Aboriginal Flag by his display and sale of Australian Aboriginal Flags (“Infringement Proceedings”). In his reasons, the Hon Justice A.H. Goldberg AO QC of the Federal Court of Australia affirmed Mr Thomas’s authorship of the Australian Aboriginal Flag and his ownership of all copyright in it. His Honour then went on to find that Mr Thomas’ copyright in the Australian Aboriginal Flag had been breached33.

30 | BRIEF AUGUST 2019

Mr Thomas settled on the colours black, red and yellow for his flag, these colours were chosen because they were the main colours that were being used by Aboriginal artists at the time. Mr Thomas produced many different prototype designs. One of these had the black panel on the bottom and the red panel on top. The design was rejected because Mr Thomas considered that the layout was too obvious and it was a balanced picture. Mr Thomas said that he: “…wanted to make it unsettling. In normal circumstances you’d have the darker colour at the bottom and the lighter colour on top and that would be visibly appropriate for anybody looking at it. It wouldn’t unsettle you. To give a shock to the viewer to have it on top had a dual purpose, was to unsettle... The other factor why I had it on top was the Aboriginal people walk on top of the land.” The design that Mr Thomas finally selected featured: 1.

a black panel at the top half of the flag. This panel symbolised Aboriginal people. Mr Thomas also used black to convey messages such as “black consciousness, black awareness, black power, be proud of your blackness and our understanding of what black American culture was all about”.

a red panel in the lower half of the flag to represent the earth.

In the centre of the flag is an ochre coloured circle. The circle was to represent the Sun.

Creation of the Australian Aboriginal Flag The Ownership Proceedings and the Infringement Proceedings have ensured that the history of the creation of the Australian Aboriginal Flag is well documented. Further, having been comprehensively analysed in Court on two separate occasions, it is a useful, and rarely seen, case study to show how aspects of copyright work in practice. The Ownership Proceedings were originally commenced in the Australian Copyright Tribunal, but they were later shifted to the Federal Court of Australia. Mr Thomas sought a declaration that he was the author/ designer of the Aboriginal Flag. Much of the following discussion is summarised from the judgment in the Ownership proceedings. In 1971, Mr Harold Thomas, was employed by the South Australian Museum to sketch flora and fauna and to assist the curators when they were handling materials of cultural significance to Aboriginal People.

The first occasion, occurred shortly after the Australian Aboriginal Flag was proclaimed to be a Flag of Australia under section 5 of the Flags Act. The July 1995 proclamation was the impetus for the first round of proceedings. Following the proclamation several people started to make claims that they had designed the flag and not Mr

marches had lacked a symbol that he thought would unify the participants in of the NAIDIOC marches. Mr Thomas knew that a flag could serve such a purpose. Drawing on his artistic training and his knowledge of protest movements around the world, Mr Thomas set about designing his flag.

Mr Thomas was involved in the Aboriginal protest movement at the time, and he supported the efforts of the National Aborigines and Islanders Day Observance Committee (NAIDOC) to celebrate his culture and heritage. The annual NAIDOC week was approaching and Mr Thomas was aware that there would be a march on the streets of central Adelaide to celebrate NAIDOC. Mr Thomas had attended the NAIDOC marches in previous years. Mr Thomas thought that the previous

Mr Thomas showed the completed design to a friend at the museum, Sandra Hanson. Ms Hanson had access to some coloured fabric and she agreed to sew the flag for Mr Thomas. In a remarkable piece of luck, Ms Hanson kept a piece of the black and red fabric that she had used for posterity. When she was called to give evidence, Ms Hanson retrieved the fabric from the archival collection of the South Australian Museum where it was stored and she showed the fabric to the court in support of her evidence. Once Ms Hanson had completed sewing the flag, Mr Thomas took the flag and displayed it during the 1971 NAIDOC march in Adelaide. Following that march, the flag was given to a prominent activist Mr Gary Foley who had come to Adelaide for the march. Mr Foley took the flag with him back to Sydney and the Flag then became a regular feature at protests and campaigns concerning Aboriginal rights. Over time, the Flag was

accepted by a broad range of members in the Aboriginal community as a flag that represented them. Life of Copyright in the Australian Aboriginal Flag The Australian Aboriginal Flag is a work that satisfies the criteria for the subsistence of copyright. Mr Thomas retains ownership of the copyright in the flag. While this will be discussed in more detail in Part 2, the date on which copyright in the Australian Aboriginal Flag will expire is not yet known. Since Mr Thomas is known to be the author of the design of the Aboriginal Flag, pursuant to s33 of the Copyright Act, the Australian Aboriginal Flag will continue to be protected by copyright under the current laws, until 31 December in the year that is 70 years after the end of the calendar year in which Mr Thomas passes away. In part 2 of this article the duration of copyright will be discussed. There is no doubt that copyright such as Mr Thomas’ copyright lasts for a very long period. As a key message from this article, it is critical that authors, and their advisors alike, understand that whenever copyright is created, it will continue until long after their death. In this way the copyright could be valuable property that can pass to the author’s descendants. If the author wants to avoid huge challenges for their descendants, there are some simple steps that they can take to reduce later difficulties. The steps include retaining evidence relating the creation of the work and ensuring that any assignments have been documented in accordance with the Copyright Act. Simple, sure, but without these steps being taken, the practical consequence is that the subsequent owners of the copyright are unlikely to be able to enforce the rights, thereby rendering them worthless. Enforcement of Copyright While the focus of this article is not commercialisation of Mr Thomas’ copyright, for completeness, it should be noted that Mr Thomas has licenced the copyright on at least two occasions. In or about 2000, Mr Thomas licenced the copyright in the Australian Aboriginal Flag to Flags 2000 Pty Ltd. Flags 2000 Pty Ltd issued the Infringement Proceedings. In 2003, Flags 2000 Pty Ltd were successful in the Infringement Proceedings. In late 2018, Mr Thomas granted another licence34 over his copyright to a company called WAM Clothing for it to use the flag on clothing etc. WAM Clothing has sent out several letters of demand alleging infringement of Mr Thomas’ copyright. Mr Thomas has been unfairly criticised for the activities of WAM Clothing. The first criticisms were made by two Aboriginal companies who had received letters of demand from WAM Clothing. The companies have argued that the Australian Aboriginal Flag should not be owned by anyone. They have claimed that the flag

should be common property. While it is understandable that these companies may think this way, the Copyright does exist, and it belongs to Mr Thomas. Mr Thomas is entitled like any other person to profit from the expression of his talents. The fact that his creation has subsequently been made a National Flag is Mr Thomas’ good fortune but otherwise it should not impact on the ownership or enforceability of copyright in the Australian Aboriginal Flag. The second criticism concerns the identity of one of the owners of WAM Clothing. WAM Clothing, is not an Indigenous owned company and it is apparently associated with a man who was previously involved with Birubi Art. In 2018, Birubi Art was prosecuted by the ACCC35 for having misled and deceived consumers in relation to the sale of supposedly authentic Aboriginal artworks. These works had actually been manufactured overseas with limited, if any Aboriginal contribution to their creation. Six days after having been found to have engaged in prohibited conduct, on 29 October 2018, the board of Birubi Art resolved to enter voluntary liquidation. In June 2019, Birubi Art was ordered to pay a $2.3 million penalty36. A number of commentators have expressed concern that Mr Thomas is associated with a person who was previously involved with Birubi Art. It is true that Birubi Art has been found to have engaged in poor conduct. That company is however in liquidation. The reasons for Mr Thomas entering into the licence with WAM Clothing is a matter for Mr Thomas and no one else. It is no one else’s business. In these circumstances, it is unfair to both Mr Thomas and to WAM Clothing that such concerns are being raised on public. Mr Thomas should be afforded the privileges and respect that any other copyright owner is entitled to expect.

10.

11.

12. 13. 14. 15. 16.

17. 18. 19.

20. 21.

22. 23.

24. 25. 26.

Read Part 2 of this article in the next edition of Brief. Notes 1.

2. 3.

4. 5.

6. 7. 8. 9.

27. See https://caama.com.au/news/2019/harold-thomascreator-and-copyright-owner-of-the-aboriginal-flagresponds-to-his-critics; https://www.abc.net.au/ news/2019-06-11/new-licence-owners-of-aboriginalflag-threaten-football-codes/11198002; http:// theconversation.com/explainer-our-copyright-laws-andthe-australian-aboriginal-flag-118687; https://aiatsis. gov.au/explore/articles/aboriginal-flag (All retrieved 22/07/19). The copyright in the Australian Aboriginal Flag holds the dubious and rare honour of twice being considered in Court proceedings. Copyright automatically subsists in a work on its creation, provided the work is a literary, dramatic, musical or artistic work that is original, substantial and satisfies the connecting factors requirement. There is no need for the work to be registered nor does any fee need to be paid before copyright subsists. Copyright subsists on creation and in Australia this occurs without the payment of a fee or the filing of any documentation. The way that this can be done will vary on a case by case by case basis. It will however require at least all assignment documents to show the chain of title for the author, and it will then also require proof that the author created the work. In the case of artistic works, some artists create a photographic dossier in which they are depicted alongside the incomplete work at various stages of its completion. Similarly, in the case of literary, dramatic or musical works, early signed drafts of the work might be retained. Macquarie Online Dictionary and Thesaurus. For example, flags are used to convey semaphore messages. The Australian Blue Ensign was conferred the official status of the Australian National Flag once the Flags Act 1953 (Cth) became law. The 1801 version of the Union Jack was created

28. 29. 30. 31.

32. 33. 34.

35.

36.

following the union of the Kingdom of Great Britain and Ireland to form the modern-day United Kingdom. Prior to 1801, the Union Jack was comprised of the cross of St Andrew being overlain with the cross of St George. From 1801 an additional cross that is said to be the cross of St Patrick, was added as a reference to Ireland's place in the union. A vexillological term referring to the upper left-hand quadrant of the flag that abuts the flagpole. This Vexillogical honour point is considered to be the most important location on a flag (see https://www.ausflag. com.au/history.asp (retrieved 25/7/19)). In the language of vexillology, the hoist is that por/tion of the flag that abuts the flagpole. The lower hoist quadrant therefore is the portion of the flag that is located beneath the Union Jack. The Argus (Melbourne, Vic 1848-1957), page 9, Wednesday 4 September 1901. https://www.flagsaustralia.com.au/NationalFlag.html (Retrieved 19/7/19); and https://en.wikipedia.org/wiki/ Flag_of_Australia (Retrieved 19/7/19). A vexillological term referring to the location on the flag that is furthest from the hoist. This request arrived in Australia in the form of a dispatch dated 29 November 1900; see www.naa.gov.au/ collection/fact-sheets/fs102.aspx (retrieved 25/7/19). In their report the judges describe the Composite Flag in the following terms: “… to all intents and purposes the present flag of the state of Victoria with the addition of the large 6 pointed star typifying the union of the states…” the judges then went on onto indicate their desire to please the officials in the colonial office in London when they stated “…Such a combination should be easily distinguished as a symbol of distress, is original in character, and should be agreeable to the home authorities as they have already given their sanction to the “Southern Cross” being shown in some of the State flags , such as New Zealand, Victoria etc, and exception could not be taken to one star under the ‘Jack’”; See the report which is published in The Argus (Melbourne, Vic 1848-1957), page 9, Wednesday, 4 September 1901. Each winner received an equal share of the £200 prize money. www.naa.gov.au/collection/fact-sheets/fs102.aspx (retrieved 25/7/19). Note, this description is in accordance with the requirements of the ensigns that were to be created pursuant to the Naval Defences Act 1865 (Imp). This is discussed below in relation to the Victorian Blue and Red Ensigns. Essentially the Victorian Blue and Red Ensigns with the addition of a six pointed version of the Commonwealth Star included under the Union Jack. Australian Flags, Australia, Department of the Prime Minister and Cabinet, Awards and Culture Branch (3rd Ed) Barton, ACT: Department of the Prime Minister and Cabinet, 2006, page 41. Commonwealth of Australia Gazette No. 8, 20 February 1903. Royal assent was given to this Act by Her Majesty Queen Elizabeth II during her visit to Australia that followed her coronation. The Flags Act 1953 (Cth) is one of the few pieces of legislation to which the sovereign has elected to by-pass the Governor General, and to personally ensure that the Act passes into law. https://www.pmc.gov.au/sites/default/files/publications/ australian-flags-excerpt.pdf (Retrieved 19/7/19). Traditionally, blue ensigns were reserved for naval and official purposes whereas the red ensigns were used by the merchant marine and for other civilian purposes. It is possible that this flag or similar flags had been flown off the Western Australian coast prior to this date, since there was a substantial amount of European shipping activity both naval and civilian in that area at that time for present purposes however it is clear that at least from 1770 the old British Red Ensign was a flag that was known in Australia. It had been known elsewhere for much longer. In 1801 a diagonal red cross was added to the Union Jack supposedly to represent the entry of Ireland into the United Kingdom. Strangely, despite hype to the contrary, a diagonal red cross has never been a traditional symbol of Ireland, nor prior to 1801 was a diagonally oriented red cross depicted on a white background been associated with St Patrick (see https://www.flagsaustralia.com.au/HistoricalFlags.html (retrieved 18/7/19). The stars of the Southern Cross were depicted in gold and located right of the Union Jack. See https://www.flagsaustralia.com.au/HistoricalFlags. html (Retrieved 19/7/19). In vexillogical terms this position in the position of honour. The stars of the Southern Cross are depicted on the Victorian Blue and Red Ensigns as follows: Moving clockwise from Alpha-Crucis which is depicted as a 9 pointed star positioned at approximately 6 o’clock, Beta Crucis is depicted as an 8 point star, Gamma Crucis is depicted as a 7 point star, Delta Crucis is depicted as a 6 point star and finally, Epsilon Crucis is depicted as a 5 point star. Thomas v Brown (1997) 37 IPR 207. Flags 2000 Pty Ltd v Smith [2003] FCA 1067. https://www.theguardian.com/australia-news/2019/ jun/11/company-that-holds-aboriginal-flag-rightspart-owned-by-man-prosecuted-for-selling-fake-art (Retrieved 25/7/19). https://www.welcometocountry.org/birubi-accc-fakeaboriginal-art (Retrieved 25/7/19); https://www.9news. com.au/national/fake-aboriginal-art-indonesia-birubi-artguilty (Retrieved 25/7/19). Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595 https://www.abc.net.au/news/2019-06-26/federal-courtimposes-$2.3-million-penalty-on-birubi-art/11247904 (Retrieved 25/7/19); Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996.

Technology and the Future of the Courts By The Hon James Allsop AO, Chief Justice of the Federal Court of Australia* TC Beirne School of Law, University of Queensland Special Lecture Series on Technology and the Future of the Legal Profession

This article was first published in The University of Queensland Law Journal and is reproduced with permission.

Introduction Technology is woven into our daily lives. It is the now, and the future. One does not need to look too far to see mistaken disregard of technology in the past. Take the Western Union electrician who, in 1876, sent the company president an internal memo claiming that “[t]his ‘telephone’ has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us.” As core public institutions, courts need to take a leading role in the responsible implementation of technology in the law and in legal practice, with a specific emphasis on problem solving and the facilitation of the just resolution of disputes in a quick and inexpensive manner, while still maintaining the fundamentally human character of the courts. The uptake of technology is not about the use of buzzwords. 32 | BRIEF AUGUST 2019

This lecture first looks at the role of the court in the uptake of technology. It then looks at what has been achieved, what could be achieved, and some lessons learnt along the way. Finally, I will discuss the three core outcomes technological uptake should address, and some of the challenges which may arise (or have already arisen): (a) practical obstacles to implementation, including the need for behavioural change across the profession; (b) ensuring access to (not obstruction of) justice; and (c), perhaps most critically, the implications of the use of big data and artificial intelligence for public trust and confidence in the courts as public institutions. I do not want to sound cynical when I discuss these challenges. I am not. There are always going to be challenges when developing and improving a deeply ingrained system or way of doing things. Knowing what these challenges may be and how to address them will enable better policies and processes to be implemented.

Section I: Role of the courts Courts are human institutions. I have referred to the courts in this way before.1 In my view, the human element of institutions, especially public institutions, is too often neglected. Courts are public institutions made up of people. Their purpose is the exercise of public governmental power of a special, protective kind: the judicial power. This power is the manifestation and application of equality before the law, impartiality (both substantive and apparent), the rights of parties to properly ventilate and respond to disputes and allegations against them, and the fair and (as far as possible) correct determination of questions of fact and law. These are not quantifiable features; they are not reducible to statistics and metrics. They are not fully digitisable. As Chief Justice Kiefel noted in a keynote address at a recent ABA national conference, it is a human ability to evaluate complex evidence and apply nuanced legal reasoning to cases past and present with competing possible outcomes.

By saying the courts are human, I mean that courts involve human reasoning and emotion, and that the courts are humane, but there is also something more. To explain this I need to come to the topic of the abstractionism and deconstruction of whole human thoughts, human values, and human institutions into what is seen as their taxonomically organised and abstractedly expressed constituent parts. There is a modern cast of mind in deconstructing a whole proposition into a series of abstracted definitional propositions. The impetus is often a sensible one, perhaps to “unwrap”, as is sometimes said, the constituent elements of a whole idea or entity. From that process one may well get valuable insight, but the process often goes further, past insight or explanation, to definition through abstraction. The deconstructed parts then stand as the default, the re-presentation, of that human whole idea or human whole entity. For instance, instead of describing the fairly straight-forward human traits that make up a good judge using language that is experientially based – intelligence, experience, legal knowledge, decency, fair-mindedness, patience, and balanced good judgment – some would define these human qualities in an abstracted hierarchy or framework using language that is abstractedly definitional. The same can happen with courts with the development of so-called frameworks for excellence through abstracted definitional terms written on the premise that one can define excellence or fair-mindedness or good judgment. One knows when one is reading this kind of material because one is overcome by the suffocating sense of meaninglessness of the phraseology being used. This overwhelming of human institutions by deconstruction, abstraction and bureaucratisation has struck at universities and hospitals and other institutions. There are countless protocols, quality assurance manuals, procedure manuals, mission statements, check lists, questionnaires, and formal requirements written in language that needlessly abstracts and categorises, and that deadens thought and does little, if anything, to illuminate. The essence of the problem is that the experientially human is deconstructed and abstracted into definitional or quasi-definitional form in an endeavour to be certain and measurable and complete. This cast of mind treasures price over value, measurement over evaluation, and a certain structure over the elusive place of talent. It founds the tyranny of metrics.2

How is this of importance for court governance and organisation in the context of technological change? The human element is important for a number of reasons. One of particular note is that we must be wary of talk that reduces the courts to a mere service or place. Richard Susskind, IT Adviser to the Lord Chief Justice of England and Wales, posed what is, in my view, an inadequate and binary question in his 2013 book, Tomorrow’s Lawyers: “is the court a service or a place?”4 The court is not just a service, nor is it just a place. It is the embodiment of judicial power and the guardian of the rule of law; fundamentally so. So, if I could, I would suggest that throughout this lecture and going forward, you dive headfirst into this topic of technology and the courts with the human role of the courts, and the law, in mind.

Section II: What the courts have achieved and could achieve It can be useful to conceptualise the uptake of technology by courts from more than one perspective, distinguishing in particular between the internal (or back office) and external (or front of house). Back office digitisation refers to developments such as the digital stamping and storage of documents filed in court proceedings. Front of house digitisation refers to the move to presenting digitally in the courtroom, and more generally digital engagement with the court. Back office digitisation may sound stale, but it is critical. Front of house digitisation cannot work completely or cohesively without it. In order to create apps that give litigants answers based on previous cases, or to have a virtual hearing, the data and documents need first to be digitally stored. There are a variety of ways in which technology has been embraced by courts in the back office context. Much has changed since the 19th century, when Charles Dickens worked as a court stenographer in London. Indeed much has changed since the 20th century. The Federal Court of Australia, if I may say, is a good example. In 2014, the Federal Court implemented the National Court Framework, or NCF. The NCF harmonised and streamlined the operation of the Court. There had in the past been a certain lack of cohesion in how each of the State registries functioned, and within each registry, how individual judges ran his or her docket. The uniformity of national practice, and the corresponding certainty of expectations afforded to litigants and

practitioners alike, eventuated through the Court embracing technology. The Court’s adoption of the Electronic Court File as a complete and synchronised system for judges, court staff and parties before the NCF was an important first step in the Court embracing the possibilities afforded by technology to enhance the way in which fair and accessible justice can be provided, and be seen and felt to be provided. In the Federal Court, documents are filed electronically on the eLodgment system, at any time, from anywhere. They are then sealed, or stamped, electronically. Prior to eLodgment, originating applications would be left at the relevant registry counter and eventually sent to a Registrar for manual checking, signing and sealing. The turnaround could be several days. Then, the sealed documents would be left in pigeon holes in the Registry for the law firm or litigant to check and collect. With the eLodgment system and digital file, the Registry aims for a 24-hour turnaround. Often, it only takes a couple of hours. Indeed, many documents have no turnaround time at all: originating application, winding up applications, and documents lodged that do not require a fee to be paid or a return date to be fixed are automatically accepted. The Federal Court is not the only court making headway in this regard. In Australia, the New South Wales Supreme Court has its Online Registry, the Victorian Supreme Court has an electronic filing and case management system called RedCrest, and the Queensland Courts have adopted online filing for matters ranging from filing a statement of claim to applying for family violence protection orders. In Western Australia, it has been mandatory to file electronically in the civil jurisdiction of the Supreme Court since 1 March 2018, and in South Australia, a new eFiling system called Registry Online was recently launched. In Tasmania, litigants can even use email attachments to lodge court documents. There are also a plethora of international examples. The United States and commercial courts of China are some of the many courts taking steps to further and better incorporate technology into the daily functioning of the courts. In the United States, some courts started adopting electronic filing systems as early as 1993. Even where eFiling is undertaken, few courts recognise the eFiled documents as the official record of the court, resulting in a parallel manual processes. EFiling is not an electronic court file. 33

Systems like the Electronic Court File and eLodgment are critical because they provide the platform to make the court a more accessible and timely dispute resolution platform. For example, the Victorian Bushfire Royal Commission estimated that it reduced hearing time by 25% due to the electronic accessibility of documents. In this context, it is valuable to add that the uptake of technology is not restricted to constant innovation; there is also value in leveraging familiar technologies that are part and parcel of modern daily life. Even Excel spreadsheets and PowerPoint presentations have vastly changed the way in which evidence is presented in court proceedings. A perhaps more interesting example is in Dubai, where the Small Claims Tribunal (SCT), a videodriven digital court, has given claimants the option of using instant messaging apps to give defendants notice. It will also be making its website and document lodgement portal accessible through a mobile phone app. This brings me to front of house operations. The Dubai SCT’s implementation of supportive technologies has made the institution considerably more accessible to users. Another good example of such a humancentred design approach is the Civil Resolution Tribunal (CRT) in Canada. The CRT is Canada’s first online tribunal, and deals with small claims disputes of under $5,000, as well as strata property issues of any amount in the province of British Columbia. As of 1 April this year, the CRT will also start to deal with motor vehicle accident and injury claims of up to $50,000. The first level of public engagement with the CRT is the “Solution Explorer”. This program asks questions and diagnoses the dispute at hand. It provides free legal information and resources like letter templates to assist users to resolve the dispute. If this fails, parties can apply to the CRT for dispute resolution. From there, the parties can use the CRT’s online negotiation platform to negotiate a result; can mediate the dispute with agreements being turned into enforceable orders; or have the dispute determined by a tribunal member. With the introduction of this system, only 6% of small claims filed reach tribunal members for adjudication. This is where we can see that courtannexed technology need not only focus on the final judicial determination of disputes. The court journey starts well before one even steps foot in a court, and in the majority of cases, ends before that point too. The CRT is one example. I-CAN!, the Interactive Community 34 | BRIEF AUGUST 2019

Assistance Network in Orange County in the United States, is another. I-CAN! provides interactive modules addressing the legal issues which self-represented litigants often find themselves working through. Self-represented litigants are taken through the modules to find the appropriate forms to file in court. By 2012, the system generated about 182,000 pleadings in California. Not only does this mean self-represented litigants are able to better understand legal processes, but it also saves time and money for under-funded legal aid centres. A further example is Uit Elkaar, based in the Netherlands. It is a user-pays online conflict resolution platform currently configured to assist people with separation or divorce. The users collaborate on personal divorce agreements, online and in their own time. The platform has seen a very positive response from users and lawyers alike. Use of the platform led to over half of the participants experiencing ‘low’ or ‘very low’ stress levels during their separation, with another 36% experiencing ‘normal’ stress levels.4 The average completion time of separation agreements was 24.3 active hours; that is, hours actively spent on the platform. Because of the ability of users to spread this time as they wished, 84% felt they had more control over the process of separation than traditionally was the case. I should note that as of March 2017, the Dutch Legal Aid Board announced that the platform would be discontinued, although it has since been resurrected and continues to function, with different funding sources. The use of AI is not limited to making legal information and procedural guidance more accessible. AI, also known as machine learning, is a burgeoning area. It is based on the idea of ‘artificial neural networks’; the machine uses the source data, in the way a human uses experiences and knowledge, to reason. AI is playing more of a role in the court context. Singapore recently announced its AI court technology programme, which would include AI decision-making for some minor misdemeanours. China has also adopted AI in its courts. In the Hebei province, an application called “Intelligent Trial 1.0” assists judges in analysing data and trends for use in decisions. In Liaoning province, the courts have launched a robot called “Heping Fabao” which provides 24-7 AIbased legal advice to citizens. AI-based case review has also been introduced, where a program analyses cases, flags issues regarding evidence, and looks at factually and legally similar cases for

the benefit of the judge. This program has, thus far, led to over 30 criminal convictions being overturned. None of these advancements have AI replacing judges completely. Even assuming AI programs could be programmed with the will to do justice and the discretional flexibility to respond to the constantly changing factual circumstances in each and every case which “make the mechanical application of legal rules to human situations ordinarily objectionable”,5 there are a number of things that AI needs in order to be successful. One is large amounts of quality data. AI needs to refine and test its algorithms. In order to do this, it needs data; swathes of it. We are lucky in Australia, as we have been digitising judgments for some years now. The Federal Court has about 35,000 electronic court files. But not every file relates to the same issues, so the data on a specific issue is probably less than the numbers suggest. Further, say new legislation in a particular area changes the law dramatically, rendering precedent unhelpful. Then there is no sea of data for the algorithm to rely upon to come to its conclusion. AI also needs algorithms. Yet, who owns the code? This raises IP concerns. Another concern is whether biases may be (deliberately or not) embedded in algorithmic reasoning, an issue I will address when I come to the challenge of maintaining public trust and confidence. Putting these concerns aside for the moment, AI has shown its value in the realm of supportive and advisory tools for small matters like in the Canadian CRT; to make legal information, guidance, and the courts themselves more accessible and in line with society’s daily digital usage. Digital hearings are very important in this regard. The Federal Court does not at present have any plans to roll out digital hearings as a default position, but there is scope to introduce the option of having some digital hearings. Parties already have the ability to appear remotely. In the Online Court of the Local Court of NSW, practitioners can appear online in procedural and interlocutory matters, and even General Division matters listed for Defence Callover (if the parties agree).6 In the Federal Court, an eCourtroom (which is like an online chatroom) is regularly used for case management activities, for example to settle bills of costs. This ability to appear remotely via videolink can enhance access for people in regional areas, or even within cities. You may be aware

David Malcolm Justice Centre, Perth

that in the family law context, the Sydney metropolitan area is serviced by only the Sydney CBD and Parramatta locations. This means it would take a minimum of over an hour to reach either location from, say, Campbelltown. Not only is this difficult for people to access, physically, but there often are safety concerns in the family law context. To have the capacity to facilitate video links makes the courtroom more accessible, financially and geographically, and can make the process of accessing the court more cognisant of the human element. In turn, this feeds into creating and maintaining public trust and confidence in the courts. Related to digital hearings, although in a commercial law context, some matters have started adopting what is called e-trials. In e-trials, all documents are on an online system managed by a third party company. Some of the uploaded documents are confidential or internal, and are not shared. Some are court documents: shared with both the other parties and the judge. This is, admittedly, an expensive way to conduct a hearing. Yet it can prove more efficient in very large matters. You may have noticed that I have, thus far, largely avoided use of the word “efficiency”. It can be both helpful and useful, but it has its weaknesses. Evaluation of the operation of a court as

an institution exercising judicial power must be, as I noted earlier, humanly focused. Words such as “efficiency” can too easily enable reductive analysis of organisations, especially public institutions like courts and tribunals, which function not for purposes like wealth maximisation, but to facilitate, determine and enforce the effective, just and (as far as possible) accurate resolution of disputes. Courts embody the exercise of judicial power; the guardianship of the rule of law; the humanity of the individual.

(and to an extent, cannot) consider usability, efficacy, or fairness of justice, whether perceived or actual. Perhaps a different term of evaluation is required that considers the court from the litigant, advocate and solicitor’s perspective; one encapsulating those and other alternative evaluative measurements, throughout the court journey.

Section III: Outcomes (and associated challenges)

It can also be counterproductive to pursue “efficiency” above all else. In trying to be efficient, it is possible to accidentally create systems which are unintuitive, or so cumbersome and unwieldly that they make that process less efficient in practice. This is especially so in an institution serving the public. In driving efficiency, it is possible to eliminate the interaction that give the court the flexibility and discretion it needs to deal with the myriad of situations it is asked to deal with on a daily basis, in a human way.

There are three recurring themes throughout my discussion of the technologies which have been adopted by courts around the world: keeping up to date with the digital era, ease of access, and public trust and confidence. These should not be viewed as mutually exclusive. They are each interlinked; the first two particularly feed into the third. Importantly, these are the outcomes I see as key to the successful design and implementation of technology in courts; the outcomes courts should be striving for as they look at ways to integrate new technologies.

This is why the term “efficiency” is insufficient. Even if it could capture the holistic functioning of the court, which I am not persuaded it can, efficiency derives such measurement from the perspective of the court; it does not

Why am I focusing on outcomes? Why not merely conceptualise technologies as back office and front of house, as supportive or disruptive? The answer is connected to my earlier discussion of the human in the court. It is not good enough 35

David Malcolm Justice Centre, Perth

to design and adopt technology viewing the court as a mechanical body of people stamping documents and hearing arguments. Keeping up with the digital age means courts are not left behind. Ease of access makes justice more accessible. Public trust and confidence is at the very core of the functioning of the courts. These outcomes are human, and approaching technological uptake through the lens of these outcomes is critical. I raise this because, after all, the product designer of the next â&#x20AC;&#x2DC;big thingâ&#x20AC;&#x2122; in court technology could be sitting in this very lecture theatre. Take a step back, look at the three outcomes of ease of access, the digital technology, and public trust and confidence, and you will in fact be a step closer to designing a usable, functional, flexible system. The three key challenges that I see as arising in this context are therefore geared towards these three outcomes. The first challenge is the practical implementation of technology. The second is ensuring that technology does not become a barrier to justice. The third relates to maintaining public 36 | BRIEF AUGUST 2019

trust and confidence in the courts when there is considerable distrust of some technologies. (a) Practical Obstacles to implementation There is no one-size-fits-all approach to technology and the future of the courts. A number of factors can impact the usefulness or feasibility of adopting different technologies. The type of court is relevant. Judging from the uptake of technology in different Australian courts, it may prove easier for self-administering courts such as the Federal Court to implement a wider variety of technological change in a faster, more flexible manner, because of the greater control they have over the allocation of their budget. The type of matter is relevant. Is the matter civil or criminal, simple or complex? E-trials, which I mentioned earlier, can be worthwhile in very document-heavy matters, while they would definitely not be cost-effective in simpler matters. In family law

matters where safety is a concern, technology can facilitate the safe, remote appearance of parties. Yet, in commercial matters where the credibility of a witness must be ascertained with reference to their responses to questions and documents put before them, appearance by videolink may prove inadequate.7 In matters where there is a self-represented litigant who wishes to hand up hard copy documents to the judge, appearance by videolink may again prove inadequate. So while there is great potential in the use of technology in courts, one must balance enthusiasm for new technologies with the recognition that the courts are faced with cases of varying natures; they vary in terms of appropriateness for certain technologies, and require varying levels of flexibility. This is not to say that the push to full digitisation is to be criticised; merely that it need be balanced and adopted at a rate that makes parties feel comfortable. The willingness of those involved is relevant. That is, we need behavioural change; for judges, barristers, lawyers, and also clients and litigants to be willing

to embrace technology in the courts. Digital docments are increasingly more reliable and user-friendly. One element of this behavioural change which might be hardest to come by is the trust (and distrust) of technology. I referred to the etrial systems earlier. But there may well be concerns about security, and documents being hacked. The risk is there, and creates a mental impasse that many will need to overcome before entrusting all of their documents (confidential, sensitive, personal) to a cloud-based database. The available data is relevant. As mentioned earlier, in order for AI to provide sufficiently accurate information and guidance, it needs the input of a sufficiently large database of information and judgments. The contracts are relevant. As courts enter into contracts for technological services or the creation of code for court-run apps, there needs to be an awareness of the need for contracts which do not bind the court into arrangements which are inflexible or prove, in practice, not to work. The intellectual property is relevant. Leading on from the importance of the contracts is the question of who owns what intellectual property; the data in an app, the assessments and predictions it makes, the code. Can users access, or even be entitled to, an explanation of the process and logic of automated decision-making? The risk of overly ambitious technological structures. There have been some calls for digitisation that strike me as potentially overambitious; blinded by what can be achieved rather than what is reasonable and usable. For example, wholly virtual courts, at all stages of the pre-court and court process. There are definite benefits to a virtual approach in some circumstances, such as (but not necessarily limited to) urgent interlocutory and routine case management or directions hearings. Yet, there are also limitations. I would like to mention two such limitations. The first is the inherent difficulty in creating a whole or over-arching technological structure, and the risk that courts and departments will be over-ambitious if attempting to do so. Institutions must avoid replicating (in a new form) structures that are rooted in the past and in past ideas – automating but not transforming, without the flexibility to incorporate not only shifts in thinking but also shifts in technology. One only needs to look at the changing variety of USB ports to recognise how

quickly technology changes, and, in turn, how quickly technology becomes out of date. I say this because there have been disasters in this space. Do not underestimate the ease with which money can be spent in misconstrued attempts to integrate overly ambitious plans with a varied and ever-changing justice system. A sports car jumps from 0 to 100 in a number of seconds because it has few variables and a fixed mechanical and electrical environment. Courts are more closely a reflection of life, with the chaos and change that life brings. In a court, there is no fixed mechanically definable environment. So it is risky to design technological structures which cannot adapt to change, whether it be social, legal or technological. A plan for integration of technology is likelier to succeed if an approach of incremental growth is pursued. Such an approach is also likelier to address the needs and concerns of the individuals seeking redress through the court system; preventing a situation of isolation through technology. This links to the second limitation: the need to retain and respect the human aspect of the courts. As I earlier mentioned, I am not persuaded that the formulation of courts as service or place, which has been grasped by some commentators as the question to ask,8 does not have limitations. The court is a human institution; reducible to neither mere place nor service. This brings me to the next challenge, ensuring access to justice. (b) Access (not a barrier) to Justice If I may return here to Richard Susskind, this time to his 1998 book The Future of the Law. I think it important to note, as judicial officers have before me,9 the metaphor that Susskind aptly uses at the start of this book to remind readers, and the profession, of what we as lawyers, judges, and courts, are here for. There is a gathering of the leading manufacturers of electric drills. The executives are shown an image of the latest, biggest and best electric drill and asked whether this is the product the company sells. They answer “yes”. But then, they are shown a perfect hole in a wall, and reminded that the hole, the output of the drill, is the product they are selling. Consumers are passionate not about the drill but about what the drill can do; about the outcomes. While it is an oversimplification and generally inaccurate to compare a public institution to a profit-geared company, this metaphor is a good reminder that courts and other institutions must keep in mind their real role, which I discussed earlier, not just the snazzy new technologies.

This is particularly pertinent when it comes to access to justice, the second broad challenge faced in the context of technological change in the courts. As is apparent through the earlier examples of technologies in courts, technology has increased access to justice in many ways. Further, parliamentary documents, statutes and case law are freely available on the internet. The impact is palpable. AustLII is a fantastic example. It receives over 600,000 hits each day. While technology has so much scope to enhance access, there are also legitimate concerns it can, in some circumstances, be a barrier to justice. It is critical that this not become the case. Lawyers representing disabled clients have expressed worry that their clients would not have the devices necessary to read electronic documents or would have difficulty using such devices. Indeed, many Australians with a disability report a lack of confidence and knowledge as a reason for not accessing the internet.10 Even for those without disabilities, it would not be enough to rely a mere mobile phone. One would need a computer or iPad, even in matters which may appear more straightforward. For example, in migration appeals in the Federal Court, which generally take up to half a day in hearing, there are courtbooks hundreds of pages long. It would not be a pleasant or easy experience to wander through that information on a phone screen. While some have suggested that the courts go fully digital, simply providing devices to those who are unable to afford them and training to those unable to use them,11 this would be very costly and potentially unrealistic at this stage. In 2016-17, 14% of households did not have access to the internet at home.12 The level of internet access from home for Indigenous Australian households is well below the national average, and diminishes further with remoteness. Age also plays a role: while the national average for Australians who are internet users is 87%,13 only 55% of people aged over 65 are internet users.14 So it is important that traditional methods of access to the courts are maintained until society is at a stage where full digitisation is more realistic. Danger lies in making sweeping basal assumptions – literary and full comprehension of language are examples. (c) Public Trust and Confidence Finally, interwoven throughout all of this discussion and action about technology and the future of the courts is the need 37

to maintain (and enhance) public trust and confidence in the courts, as an institution.

There are many ways of programming fairness into algorithms. Yet each targets a different kind of fairness.

A greater accessibility of legal material assists with ensuring a level of transparency and accountability in judicial decision-making, and can be further enhanced by perhaps publicly providing further information. For example, the United States federal courts publicly publish their reserved judgments lists. This openness of information is not to be feared, nor resented. It is necessary for the functioning of a trusted public institution; public trust that the courts should continuously strive to uphold.

There is wilful blindness, which treats subgroups the same regardless of their distinctions, like race or gender. Yet such an approach is merely creating an algorithm which is unaware, it does not create an awareness or consideration of fairness.

Yet, while technology can make some things more accessible and smooth for the parties involved, the use of big data and AI can also make some processes less transparent and less understandable; not just to the general public but also to lawyers themselves. An example of a potential issue is the one of bias I noted earlier. Where AI is used to come to conclusions based on a data set, it uses certain artificial neural lines of reasoning. There may be concerns over unconscious bias or outdated values being present in past decisions and thus being imported into the reasoning applied by the AI when determining present decisions. Now, the experts do say the AI would be able to recognise and counter such biases. This is good. But it does raise the question: who is deciding on the coding that removes or counters or prevents different biases from being imported? It is important that the public not perceive this as stemming from the executive. The courts must be independent – and be perceived as independent – from government and politics. Decisions of courts and tribunals must also be – and be seen to be – capable of self-reflection and flexibility. For this reason, if AI were to be used to make decisions in small or simple matters, there would need to be scope for human judicial review of those decisions. Otherwise, the development of case law would begin to stagnate. There is also the question of whether a judge-bot can be vested with Ch III judicial power, but I will leave that for another time. I would just like to conclude my discussion of AI and public trust and confidence with a question, to highlight the difficulty of programming an algorithm. How does one program a “fair” algorithm? 38 | BRIEF AUGUST 2019

A second approach would be to ensure statistical parity in the outcomes, for example by selecting an equal share of people from protected and nonprotected groups. However this would require someone to be constantly verifying and modifying the thresholds and groups. It also would not account for underlying difference in the subgroups; the nuance. Predictive equality is possibly the most balanced approach to address fairness. Predictive equality does not force equality in the outcome, but in the algorithm’s performance or accuracy across different groups. That is, the algorithm is de-biased through a number of steps including: •

identification of the specific relevant subgroups;

•

identification of the set of metrics that define fairness and the hierarchy within that set;

achieve, and what we need to keep in mind. There are challenges created by the permeation of society by technology, but also great opportunity. The unexpected pitfalls may exist, hidden in plain sight. Look at where social media is taking us. The courts have a substantial role to play in leading the way in the uptake of technology in the legal field, and we are very motivated and excited to play it. Thank you again for having me commence this lecture series. I have no doubt that the discussions that follow – which range from text analytics and the law firms of the future, to digital legislation and demystifying AI – will contribute substantially and critically to the present impetus to weave technological developments into the heart of the courts, the profession, and the law.

Endnotes *

2 3 4

•

training with a data set that is sufficiently large; and

•

identification of features that can identify a protected subgroup (such as postcodes) and either removal or adaptation of those features.

Such programming of fairness could come at a cost of lower accuracy, because there may be simply less data (or less reliable data) for certain subsets of the population. It also reflects the set of metrics that define fairness; who determines this set? Is it flexible? Does it change with shifting social norms? Can it explain its reasoning? These questions are still being answered. I would challenge the assumption that they can. I have grave reservations as to humanity and its emotional intuitive responses on perceptions being algorithmically reproduced.

Conclusion It is impossible for this speech to cover all of the potential technological advancements and achievements that can play a role in the future of the courts. I have today tried to focus on a few key areas: what we have achieved, can

9 10 11

12 13

I acknowledge, with thanks, the contributions of my associate for 2018-19, Deniz Kayis, and of Warwick Soden, Jessica Der Matossian and Maura Winston. See Courts as (Living) Institutions and Workplaces, Chief Justice Allsop, 2019 Joint Federal and Supreme Court Conference, upon which I have drawn for this discussion. See Jerry Z Muller, The Tyranny of Metrics (Princeton University Press, 2018). Richard Susskind, Tomorrow’s Lawyers (Oxford University Press, 2013), 99. Roger Smith, Rechtwijzer: why online supported dispute resolution is hard to implement (20 June 2017) <https://law-tech-a2j.org/odr/rechtwijzer-why-onlinesupported-dispute-resolution-is-hard-to-implement/>. Michael Kirby, ‘The Future of the Courts – Do They Have One?’ (1998) 9(2) Journal of Law, Information and Science 141. Local Court of New South Wales, Practice Note 1 of 2015 – Local Court Civil General Division – Online Court Protocol, 25 September 2015. See e.g. Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 at [78]; Blackrock Asset Management Australia Services Limited v Waked (No 2) [2017] FCA 479 at [46]; Magi Enterprises Pty Ltd v Luvalot Clothing Pty Ltd (No 2) [2017] FCA 1143 at [20]; Vasiliades v Commissioner of Taxation (No 2) [2017] FCA 185; and Deputy Commissioner of Taxation v Binetter [2017] FCA 69; 104 ATR 858 at [8]. See e.g. Robert Size, ‘Taking advantage of advances in technology to enhance the rule of law’ (2017) 91 Australian Law Journal 575. See e.g. Kirby, above n 4. ABS, 4430.0 – Disability, Ageing and Carers, Australia 2015. See e.g. Robert Size, ‘Taking advantage of advances in technology to enhance the rule of law’ (2017) 91 Australian Law Journal 575, 25-26. ABS, 8146.0 – Household Use of Information Technology, Australia, 2016-17. With ‘internet user’ defined to mean persons aged 15 years and over who accessed the internet in the last three months. ABS, 8146.0 – Household Use of Information Technology, Australia, 2016-17.

Small Firms Network Event Wrap-Up By Sean Gomes Solicitor, Leaker Partners

Networking is an integral career skill for any young lawyer to develop, and connecting with fellow practitioners has numerous professional and social benefits.

On Thursday, 27 June 2019, the Law Society’s Young Lawyers Committee held a Small Firms Network event at the Public House bar. The event had its best turn out yet, with over 30 ‘small firmers’ mingling over canapés and refreshments. The Young Lawyers Committee thanks those who attended and the Law Society for putting on the food and event staff.

Yet young lawyers working in smaller firms might find they lack the same networking opportunities and resources, not to mention young lawyer co-workers, that might be found in larger firms. Recognising this, the Young Lawyers Committee established the Small Firms Network, an initiative to encourage small firm young lawyers to develop networks outside of their firm.

The Small Firms Network is open to young lawyers (under 35 years of age or less than five years postadmission experience) working at small firms (fewer than 20 fee earners). If you would like to join the mailing list, please email younglawyers@lawsocietywa.asn. au. The next Small Firms Network event is scheduled for later in the year.

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

Children – Artificial conception – Sperm donor wins bid in High Court for fatherhood In Masson v Parsons [2019] HCA 21 (19 June 2019) the High Court allowed Mr Masson’s appeal against a declaration by the Full Court of the Family Court of Australia that he, as a sperm donor, was not a parent of the child. The appellant had provided sperm to the mother in the belief that he would father the child, would be named on the birth certificate and enjoy an ongoing role in the child’s life. The Full Court of the Family Court found that because the birth mother and her wife were not de facto partners at conception s 60H of the Family Law Act did not apply. It was held that s 79 of the Judiciary Act 1903 (Cth) applied such that the Status of Children Act 1996 (NSW) applied, which presumed that the donor father was not a parent. In making that decision, the Full Court held that s 60H “leaves room” for the operation of State laws as to parentage, there being nothing in the Family Law Act that “otherwise provides”. Rejecting that decision, the High Court held that Part VII of the Family Law Act “leaves no room for the operation of contrary State or Territory provisions” ([45]); that the Full Court was wrong to invoke s 79 of the Judiciary Act to “pick up” the NSW Status of Children Act; and that whether or not a person was a “parent” under the Family Law Act is a question of fact and degree, determined according to the “ordinary, contemporary understanding of a ‘parent’ and the relevant circumstances of the case at hand” ([29]). 40 | BRIEF AUGUST 2019

Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said ([3]) that the appellant “had an ongoing role in [the child’s] financial support, health, education and general welfare and … enjoys what the primary judge [Cleary J] described as an extremely close and secure attachment relationship with the child”, agreeing with Cleary J who said, relying on Cronin J’s reasoning in Groth & Banks [2013] FamCA 430, that while the appellant did not qualify as a parent under s 60H he qualifie[d] as a parent otherwise than under that provision ([24]).

Property – Long marriage – Husband’s initial contribution of land soared in value due to rezoning In Jabour [2019] FamCAFC 78 (10 May 2019) the Full Court (Alstergren CJ, Ryan & Aldridge JJ) allowed the wife’s appeal against Judge Mercuri’s contributions-based assessment of two-thirds: one third in favour of the husband after a 25 year marriage that produced three adult children. The husband owned a half interest in three parcels of land (30, 30 and 44 acres) at cohabitation, having bought them from his father in 1975 for $26,000. After 11 years of marriage, he sold his interest in the 30 acre lots to acquire all of the 44 acre lot. Originally used for a farm, the property was rezoned for residential use in 2010 and was sold in October 2017 for $10,350,000. The net pool was $9,033,913 plus superannuation of $371,686. At first instance, the Court found ([125] of its reasons) that the parties’ contributions during cohabitation

were equal; observed that the value of the property represented almost 90 per cent of the non-super pool; cited Williams [2007] FamCA 313 and Zappacosta [1976] FamCA 56; and concluded that the husband “bringing … Property A … into the relationship has made a significant contribution which needs to be appropriately recognised in the division of property between the parties”. The Full Court ([31]) accepted the wife’s submission that “the primary judge erred in seeking a nexus between contributions and a particular item of property when assessing contributions holistically over a long marriage and when considering the assets of the parties on a global basis ... quarantining from the assessment of contributions, all of the other contributions made by the parties … ”. Before reassessing contributions at 53:47 in favour of the husband, the Full Court said (at [43]): “ … [T]he Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of ‘the myriad of other contributions that each of the parties has made during the course of the relationship’ (Williams at [26]).”

Children – Final order made after discrete trial as to unacceptable risk at which father found to pose such a risk In Rodelgo & Blaine [2019] FamCAFC 73 (26 April 2019) the Full Court (Strickland, Kent & Hogan

JJ) dismissed the father’s appeal against a parenting order made by Judge Jarrett after a discrete hearing as to whether the children were at risk of harm from either parent. After finding that the father did pose such a risk, Judge Jarrett directed each party to file written submissions as to whether a further hearing was necessary or final orders should be made based on the finding of risk ([34]). The mother and ICL supported final orders. The father objected. Judge Jarrett made a final order that the mother have sole parental responsibility, that the children live with her and spend supervised time with the father not less than two hours each fortnight. The father appealed, arguing that he had been denied procedural fairness. The Full Court said that the trial judge’s approach “was permissible pursuant to Division 12A of Part VII of the Act” ([6]) and cited s 69ZN as to the principles for conducting child-related proceedings, s 69ZQ(1) by which a court “must decide which of the issues … require full investigation and hearing and which may be disposed of summarily ([7]) and s 69ZR as to the court’s power to make findings and orders at any stage” ([8]). The Court continued at [35]-[36]: “ … [T]he trial of the discrete issue involved each of the parents and the[ir] witnesses … giving oral evidence and being cross-examined. … [T]he family report writer and … the expert psychiatrist were the only … witnesses who did not give oral evidence … but … [they did provide] written reports … [the facts contained in which] were not in contest. [36] … [B]oth the mother and the ICL provided written submissions … that it was in the children’s best interests for the Court to proceed to make final orders. Whilst … the father sought to have a

further hearing … there was no agitation by [him] to the effect that he wanted the opportunity to cross-examine either of the expert witnesses before the Court proceeded to make final … orders. His written submissions … [were] largely a re-agitation of complaints about the mother … ”

Children – Suspension of watch list order in error as later consent order meant discharge of interim orders In Sadasivam & Seshan [2019] FamCAFC 76 (1 May 2019) an interim watch list order was made in 2017 relating to the mother and the parties’ child; a final consent order was made in 2018 (which was silent as to its effect on interim travel restrictions); and the mother applied for the suspension of the interim orders so that she could travel with the child to India (being a non-Hague Convention country). The suspension was granted by Judge Kelly but set aside on appeal by Austin J, sitting in the appellate jurisdiction of the Family Court of Australia. Austin J said (from [17]): “The parties assumed the interim injunction and … watch list order made in September 2017 continued to apply for the duration of their two year terms. That can be the only rational explanation for why the mother later brought her application in January 2019 to temporarily suspend those orders ( … ) [26] … [A]ll interim orders made … during the litigation … were spent … by the final parenting orders which were made with the parties’ consent on 1 August 2018. Although the interim orders were expressed to operate until September 2019 they were … still … interim … Interlocutory orders may be discharged at any time before the trial or settlement of an action, but are ipso facto

discharged by determination of the action, since interim orders are only intended to regulate the parties’ conduct in one form or another until the action between them is finally determined according to law [authority cited]. ( … ) [29] Not only did the final parenting orders of 1 August 2018 exhaust all antecedent interim orders, all outstanding applications for parenting orders also merged in the consent orders. ( … ) [30] Therefore, the … application filed by the mother in January 2019 and entertained by the primary judge … was incompetent for two reasons. [31] First, it sought the temporary suspension of the interim injunction and the interim airport watch list order … when those orders no longer existed. ( … ) [32] Second, the mother’s application was filed in the form of an Application in a Case, befitting an application for interlocutory or procedural orders, and was apparently set down for hearing in a duty list in the mistaken belief that only interim orders were sought and would be made. The error was perpetuated by the primary judge, who entertained it as an interim application and later described the appealed orders as ‘interlocutory’ in the reasons for judgment delivered when dismissing the father’s stay application. ( … )”

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

The Tale of the Troublesome Tractor By John McKechnie QC

In 1904, Mr Holt first tested his steam powered track type tractor in Stockton, California. World War One brought track vehicles to prominence and they were ideal for farming and road works. By the 1920s, a Cletrac track type tractor was the one to have. The Cletrac Model F was a revolutionary crawler designed for cultivating and other row-crop duties. “Cletrac Model F is the tractor farmers everywhere have been waiting for since the beginning of the tractor industry”, ads proclaimed. “A tractor that actually replaces the horse and mule, that will do all the work on the average farm and yet sells at a price the average farmer can afford to pay”. This tale is about Cletrac tractors in Western Australia, where widely differing views as to their reliability were discussed and litigated. The Cletracs were distributed and sold by Messrs Drummond and Dvoretsky, motor vehicle dealers of 42 William Street, Perth. In 1922 the Motorist and Wheelman magazine was anxious to secure firsthand information about the modern tractors’ work under Australian conditions and dispatched a representative on a tour with Mr Dvoretsky on 24 May 1922. They proceeded to Quairading via York, Greenhills, Kauring, Balkuling and Dangin. At Quairading we spent the night and on the morning of 25 May, made an early start for Kwolyin. A Cletrac tractor had already been dispatched to this latter site by train which machine had been purchased by Mr Clements for use on his property about eight miles distance from the township. On arrival we found the tractor still on the track but hardly two or three minutes had elapsed before the mechanic, Mr Dvoretsky Junior, had the engine revolving with a musical roar. The tractor was shifted from the truck to the road and negotiated various obstacles climbing down the ramp in first class fashion. On this first occasion, I had seen the Cletrac in action, I was considerably surprised at its ease of control and the small space it required for turning. Being on the road, the tractor required a supply of fuel to take it the eight mile journey

42 | BRIEF AUGUST 2019

to the scene of future labours. The Cletrac made good work with an eight disk shearer after 180 points of rain. The gentleman in charge of Mr Clements’ property, Mr Hamon, arrived on the scene and assisted with the final officers. In order to allow Mr Hamon to observe the Cletrac’s principles of operation, the writer took charge of the sulky which had conveyed him to the siding and for about two miles along the road, Mr Hamon watched the mechanic on his job. The wheel was then handed over and without the least difficulty, Mr Hamon drove the machine for the remaining six miles to the homestead. This fact in itself speaks very highly of the simplicity which characterises the Cletrac control. At a later point, Mr Hamon was properly instructed in the mysteries of oiling up in accordance with the neat chart which the manufacturers supply with every machine. The Great Southern Herald of Katanning also sang the praises of a Cletrac tractor on 13 December 1922: F W Maine has received word from Messrs Drummond and Dvoretsky that they last week received an order from the Peel estate group settlement, for four Cletrac tractors W model for immediate delivery. This speaks volumes as to the merits of this tractor. The first Cletrac received was sold to the Peel estate nine months ago where it has been working continuously at heavy descrub, ploughing, drainage and log hauling. Giving no trouble whatever and the account for spares has amounted to just under £5. The tracks were in perfectly good order and show little or no signs of wear. The Southwest Times in Bunbury reported on 14 October 1924: Last week a demonstration was given by Mr Dvoretsky of Drummond and Dvoretsky, when with Mr C A W Trigwell’s Cletrac and a road

plough, several chains of road were ploughed in remarkably quick time and according to reports to the entire satisfaction of the large gathering of spectators. A portion of the Bunbury Road near the residence of Mr John Trigwell and also a portion of the Old Goldfield Road received attention. It may have been these advertisements and articles, or perhaps the gentle blandishments of Mr Dvoretsky, that persuaded the Sykes to purchase a Cletrac tractor for the considerable sum of £466 11s 7d. The Sykes farm was at Pithara, just south of Dalwallinu. It was said that the Cletrac tractor was as capable of efficiently and economically doing the work of eight horses in hauling a harvester or a seven-furrow plough. The tractor was delivered to the farm on about 11 September 1923. Mr Barnes, an experienced mechanic employed by Drummond and Dvoretsky, was engaged to drive the beast. Sadly, things began to go wrong. First the rivets, then the rings on the rear sprocket became loose and had to be rebolted. Then the machine shed its bowels into the oil sump in which small pieces of white metal had been found and subsequently a set screw. Mr Barnes tried to fix it again. The letters between the Sykes and Mr Drummond, show continuing manifestation of problems including an intent by Mr Drummond, to blame «unskilful usage was the cause of the troubles». This argument at trial was given short shrift by Justice Burnside: In my judgment the vendors of agricultural machinery for use by the farming community are not entitled to claim immunity on the ground of the want of mechanical skill on the part of the farmer. It is common knowledge that the very recommendation upon which sales are affected is that no special knowledge or machinery is required to operate this class of machine. Their very simplicity is their highest attraction. It is very doubtful whether any such machines would be sold if only skilled mechanics had to be employed to use them. Justice Burnside may have had in mind an article in Farm Implements and Tractors showing an 11-year-old boy driving a Cletrac. His photograph was captioned “An experienced hand”. During the past season, he took care of 40 acres of oranges on rocky bench land without damaging a single tree and saved his father upwards of £1,000 in labour alone. The Cletrac tractor was the subject of other legal actions. Messrs Drummond and Dvoretsky sued Mr Hester and Son who were orcharders in Bridgetown for failing to purchase a second-hand tractor or pay for the freight.

Mr Keening for the plaintiff conceded the tractor was delivered in bad condition but contended that the plaintiff had lost no time in replacing worn parts. To do this, new castings had been ordered from Perth but some of them had been defective and broken down immediately. Mr Dvoretsky had therefore obtained others from his own farm. In the meantime, the tractor had done all the cultivating that was necessary in the defendant›s orchard while waiting for the parts to arrive. The court however found in favour of Mr Hester. Mr McKenny, described as a farmer of Kojonup also had a Cletrac tractor. He was unhappy with it. He offered Mr Barnes a fiver if he could make the tractor go for two hours. However, the tractor «went bung» after running for three quarters of an hour. Mr McKenny required the tractor for the purpose of fulfilling contracts into which he had entered for sinking dams. He said “it is of no use to him whatever it will not work. It is not a machine that can economically work a dam, sinking or farming”. Judgment was given, again against Messrs Drummond and Dvoretsky. The Sunday Times on 6 July 1924 reported on Mr Barnes’ new enthusiasm: … the first privately owned aeroplane in the State is the 110hp Sea Cone, recently purchased by Mr F J Barnes, who proposes utilising it for business purposes in the eastern Wheatbelt. Mr Barnes was until recently, connected with the firm of Drummond and Dvoretsky in Perth but is now located in Kwulyn. Maybe his tribulations with Cletrac tractors caused him to seek solace in the skies. Messrs Drummond and Dvoretsky seemed to have survived the litigious tangle. On 19 February 1930, the Daily News reported that Mr Dvoretsky of Messrs Drummond and Dvoretsky, the Agents for Cletrac tractors will combine business and pleasure on a trip to Sydney. Gradually track vehicles lost favour to tractors with tyres which were more versatile and easier to fit among the seed rows. After World War Two, track vehicles regained some popularity as Western Australians cleared a million acres a year to open up land for farming. Much bushland was cleared by stringing a chain between two former tanks. Such is progress. The impact of tracks on our soil remains in the degradation of marginal land and the effect on the climate. Adapted from McKenny v Drummond Dvoretsky (1926) 29 WAR 6; Sykes v Drummond Dvoretsky (1925) 27 WAR 126

Dr ver's Dog Send your submissions to the Dog via brief@lawsocietywa.asn.au

Your Dog has always enjoyed a game of rugby, with the rough and tumble that goes with it, the engagement with the audience and the singing (more so in the UK). He is aware that Percy QC does not share that view, but so it is! As Your Dog has previously observed, the controlling body, Rugby Australia, did a cracking job in destroying the Western Force (WF) in favour of an Eastern States squad, the Melbourne Rebels, with less than half the membership of WF. Once again, so be it! A patient dog waits for the moment to snap at an ankle: Your Dog comforts himself with the thought that at some stage the officials of Rugby Australia will turn their eyes to the west, beguiled by a visit to Margaret River, timed to coincide with a rugby game in this State and financed by what remains of its sponsors’ funds. Justice will be done – nothing quite like looking at the victim rolling on the floor clutching his ankle and screaming for help! It may be, however, that the bite comes in the aftermath of Sheffield University’s proceedings to suspend Mr Ngole! Chris Edmonds SC has contributed to this month’s edition with “Israel Folau – The Last Line of Defence”, which makes for interesting reading as to what he considers the Courts may decide. Since Mr Edmonds wrote his article, the Court of Appeal delivered its judgment in The Queen (on the application of Ngole) and The University of Sheffield [2019] EWCA Civ 1125. Against the backdrop of that decision Folau will be a fascinating matter, assuming it is not settled before it gets to a hearing. The following quotation from paragraph 125 and following of Ngole underscores an aspect of the debate that may well occur: 123. Ms Hannett represented the University with real ability and great clarity. In the course of her exchanges with the Court during argument before us, the University’s position was tested fully. In an important exchange, Ms Hannett helpfully clarified the University’s position as regards what we consider to be a fundamental point: she made it clear that any expression of disapproval of same-sex relations – however mildly expressed – which could be traced back to the person making it, would be a breach of the professional guidelines for social workers as far as the University was concerned. This point does not appear to have been articulated in these precise terms before the judge below, and there appears to us to be considerable tension with what had previously been expressed to be the University’s concern. 124. Ms Hannett’s clarification is helpful because it confirms what is apparent from the records of the disciplinary proceedings: namely, that the University told the Claimant that whilst he was entitled to hold his views about homosexuality being a sin, he was never entitled to express such views on social media or in any public forum. 125. As the argument developed before us, it became clear how wide Ms Hannett’s submission must be taken. Aside from expressing views on-line or in social media, or such old-fashioned modes of expression such as writing in a local newspaper or speaking or preaching on a street corner: even expressing these

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views in a church, at least in a community small enough for these views to be known and associated with the speaker, would, it is said, be sufficient to cross the line. 126. The breadth of the proposition became clear in another way, conveniently referenced from the ambit of the HCPC regulations in question here. If social workers and social work students must not express such views, then what of art therapists, occupational therapists, paramedics, psychologists, radiographers, speech and language therapists: all professions whose students and practitioners work under the rubric of the same general regulations? What of teachers and student teachers, not covered by the HCPC regulations, but by a similar regulatory regime? For present purposes it is not easy to see a rational distinction between these groups. All are usually engaged with service users who often have no opportunity to select the individual professional concerned. Very many of these professions deal on a day-to-day basis with personal problems of a particular nature, where the social, family and sexual relationships of the client or service user are relevant, sometimes central. 127. In our view the implication of the University’s submission is that such religious views as these, held by Christians in professional occupations, who hold to the literal truth of the Bible, can never be expressed in circumstances where they might be traced back to the professional concerned. In practice, this would seem to mean expressed other than in the privacy of the home. And if that proposition holds true for Christians with traditional beliefs about the literal truth of the Bible, it must arise also in respect of many Muslims, Hindus, Buddhists and members of other faiths with similar teachings. In practice, if such were a proper interpretation of professional regulation supported by law, no such believing Christian would be secure in such a profession, unless they resolved never to express their views on this issue other than in private. Even then, what if a private expression of views was overheard and reported? The postings in question here were found following a positive internet search by the anonymous complainant. What if such statements had been revealed by a person who had attended a church service or Bible class? 128. It will immediately be clear that an absolute prohibition of the expression of such religious views is some way distant from the rather elevated debate about the use of religious language and the Appellant’s obligations to grasp and act on the potential misunderstanding of religious language and how and when to deploy it - which held the stage below. The more nuanced way in which the University’s case was put below is likely to have coloured the Judge’s findings and conclusions. However, the blanket prohibition espoused by the University from the outset of the disciplinary hearings is clear from a detailed and careful analysis of the records of the hearings such as we have carried out above. 129. In our view, such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate. Your Dog anticipates that it will be a long time before the final whistle is blown in this match!

Law Council Update

Law Council on the detention of Dr Yang Hengjun in China Statement from Law Council of Australia President, Arthur Moses SC The Law Council of Australia strongly supports remarks by the Minister for Foreign Affairs, Senator the Hon Marise Payne concerning the criminal detention of Dr Yang Hengjun in China, and welcomes the Minister’s interventions in relation to this very troubling matter. The Law Council has previously expressed grave concerns and made representations to the Australian Government in relation to China’s treatment of the ChineseAustralian writer who has been detained in China on suspicion of “endangering national security”. The Law Council remains concerned that Dr Yang does not appear to have the benefit of any of the traditional safeguards expected of an independent criminal justice system and the rule of law, including access to a lawyer of his choice, the right for the public to know what he is being detained for and when it is expected that he will be released. Despite China being a signatory to the International Covenant on Civil and Political Rights (ICCPR), a person who is arrested may not receive information about the reason for their detention, may not have access to the courts or independent legal representation, and may face very difficult conditions of detention. People are routinely held for months or years under these conditions. Communication with family members, and in the case of foreigners, consular officials, is also extremely limited. The treatment of Dr Yang appears to constitute several breaches of the United Nations' Basic Principles of the Role of Lawyers (the Principles). The Principles exist to protect individuals who are charged and promote a fair trial by ensuring they are able to access the lawyer of their choice to act for them without fear or favour. Principle 1 states that all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings. The Principles also protect lawyers who are called to act for unpopular persons or

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persons whom a Government alleges has broken the law. It is vital for every nation to have an independent legal profession that can practice without fear of reprisal, to promote the administration of justice and ensure a fair trial. The Law Council stands ready to offer any assistance required to the Australian Government in this important matter.

Put children first, abandon flawed family court merger A coalition of domestic violence service providers, specialist family law and child protection legal assistance providers, academics and legal practitioners are urging the Federal Government not to reintroduce the flawed family court merger bills in the 46th Parliament, warning the merger would hurt – not help – children and families. In a joint statement, Women’s Legal Services Australia (WLSA), Rape & Domestic Violence Services Australia, three academics of the UTS Faculty of Law and the Law Council of Australia called on the Government to abandon the merger proposal and instead explore holistic alternatives for reform. “Our organisations represent different sectors of the community but we are united by grave concerns that the merger will only hurt families and children already at their most vulnerable, not solve the problems plaguing the family law system,” WLSA spokesperson, Angela Lynch AM, said. “Each day our members see first-hand the system’s impacts on Australians in need of specialist family law assistance. We must pursue reform that is best for children, families and victims of domestic violence and not one that is solely driven by economics,” Ms Lynch said. “Successive governments have failed to do what must be done to improve the system: provide adequate funding and sufficient resourcing of the courts, and legal aid and the legal assistance sector; and a coherent structure to stop children and victims of family violence falling through the cracks. The merger will not address these matters and could result in the potential loss of specialisation,”

Executive Officer – Rape & Domestic Violence Services Australia, Karen Willis, said. “More Australians come into contact with the family law system than any other part of our justice system. There is no doubt the family law system is overworked, under-funded and in need of reform. But Government must go about family law reform the right way, putting children and domestic violence victims first and considering all options on the table in consultation with community,” said Miranda Kaye, Dr Tracey Booth and Dr Jane Wangmann, law academics at the UTS Faculty of Law. “The Government has acknowledged that the merger proposal was only a ‘short term fix’ but it is not even that. Families need real, long-term solutions that will improve the cost, length and accessibility of justice, not mirages or band-aid fixes that increase confusion and complexity. The merger was not passed by the 45th Parliament with good reason, and should not be passed now,” said Law Council President, Arthur Moses SC. “The Australian Law Reform Commission’s recent review of the family law system raises prospects of alternate reform and holistic structural change that differ significantly from the merger and deserve careful consideration, as do other proposals including the model proposed by the Semple Report,” Mr Moses said. The organisations are jointly calling on the Parliament to: •

Refuse to reinstate the flawed merger proposal;

•

Consider and consult on alternative models of structural, holistic reform to benefit children, families and victims of family violence; and

•

Invest further funds and resources in legal assistance, the Family Court and Federal Circuit Court.

Last year each organisation made submissions to the Senate Legal and Constitutional Affairs inquiry into the merger bills, highlighting further concerns about the proposal.

Professional Announcements Career moves and changes in the profession

Tim Kennedy

Claire Hawke-Gundill

Conor Breheny

Jack Carroll

Carol Hamilton

Carolyn Riley

Kott Gunning Lawyers Kott Gunning Lawyers are delighted to announce the promotions of Tim Kennedy to Partner in our Commercial Dispute Resolution team and Claire Hawke-Gundill to Partner in our Wills, Estate Planning and Trusts team. Tim Kennedy joined Kott Gunning in 2018 bringing with him 13 years of experience in commercial disputes with a focus on property and construction. Claire Hawke-Gundill has worked with Kott Gunning since 2011 and primarily practices in Wills, Estates and Trusts. We are also proud to announce the promotions of Conor Breheny of our Commercial Dispute Resolution Team to Senior Associate, Jack Carroll in our Commercial Dispute Resolution team to Associate, Carol Hamilton in our Local Government team to Associate and Carolyn Riley in our Insurance Team also to Associate. O’Sullivan Davies Lawyers O’Sullivan Davies Lawyers welcomes family law expert Nicola Jansen. Ms Jansen was admitted as a lawyer in 2011 and has practised exclusively in family law ever since. In 2017, she become one of only 47 practitioners in Western Australia recognised by the Law Societies of all States as having specialist knowledge in family law.

Nicola Jansen

Established in 2000, O’Sullivan Davies Lawyers based in Perth is a specialist family law practice and every year since 2012 has been named as one of Western Australia’s First Tier Law Firms by Doyle’s Guide. Ms Jansen joins a team of 32 staff. O’Sullivan Davies Lawyers Consultant Nicola Watts says that Ms Jansen comes with a wealth of experience.

Stirling Owen

Tihana Nevjestic

Lynn & Brown Lawyers Lynn & Brown Lawyers are delighted to announce the return of Stirling Owen as Senior Associate and the promotion of Tihana Nevjestic to Senior Associate. Stirling returns to Western Australia bringing with him his wealth of knowledge in the commercial litigation field after practising in New South Wales and furthering his advocacy skills. Stirling returns to us as the head of the dispute resolution team. Tihana returns after being on maternity leave and is back in the insurance law field acting for our major clients in the Magistrates, District and Supreme Courts. Tihana joined the firm in 2014 and has extensive experience in complex litigation as well as being an effective negotiator. We are excited to have both Stirling and Tihana back on board and see their return as an important contribution to the continuing growth of our business and the strength of our firm.

Dawn Williams

Bronte De Cuyper

Michael Raw

Slater and Gordon Three WA lawyers in the motor vehicle accident and workers’ compensation practices have been promoted for the 2019-20 financial year. In motor vehicle accident, Dawn Williams and Bronte De Cuyper have both been promoted from Lawyer to Associate. In workers compensation, Michael Raw has been promoted from Lawyer to Associate. Slater and Gordon General Manager Nunzio Tartaglia said the Western Australia lawyers had shown tremendous commitment and dedication to assisting clients. 47

Classifieds

PERTH’S BUSINESS VALUATION EXPERTS  Family Law Disputes  Partnership Dissolutions and Admissions

 Licensing Applications  Bank Opinions  Purchaser and Vendor Opinions

Missing Will

INDIVIDUAL CBD OFFICES AVAILABLE FOR RENT

Any person or firm having knowledge of any Will made by ERNEST DOMINIC DAVID of Port Kennedy born on 4 January 1974 died on or about 20 November 2018. Please contact: Kristina Donoghue of Avon Legal on 9274 1977

• great location close to Courts and SAT • all offices have natural light and good views • from $195 per week - includes shared use of meeting room and reception area and internet access and outgoings

Missing Will

Level 4, Equus Building, Perth

Phone Andrew on 9225 6618 to inspect

Contact:

Graham O’Hehir MBA

Managing Director 0438 882 626 or graham@buyabusiness.com.au

www.buyabusiness.com.au

Would any person or firm holding or knowing the whereabouts of a will of the late GAVIN MILBURN ARNOLD of 12 Kylie Terrace Binningup Western Australia, date of birth 17 April 1966 who died between 6 and 7 February 2017 please contact Michelle Reinmuth of Simmons Wolfhagen Solicitors Hobart Tasmania michelle.reinmuth@simwolf.com.au or 03 6226 1200 or Level 4, 99 Bathurst Street Hobart Tasmania.

Would anyone holding or knowing the whereabouts of a Will for the late BRODY JOHN FORD late of 5 Constitution Gardens, Bibra Lake, Western Australia born on 13 August 1992 who died on 3 March 2019 please contact Tyn Receveur at DAVID MOSS & CO, PO Box 5744 ALBANY WA 6332 Email: tr@dmoss.com.au

New Members New members joining the Law Society (July 2019)

Ordinary Membership

Mr Liem Vo PricewaterhouseCoopers

Miss Aimee Jones DLA Piper Australia

Restricted Practitioner Mr Ryan Hammersley PricewaterhouseCoopers Mr Mark Ryan Ernst & Young Mr Jagpreet Sandhu Clifford Chance

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Ms Sophie Radford McKenzie and McKenzie Barristers, Solicitors and Notaries

Associate Membership

Ms Tiana Tran Office of the Auditor General

Mr Declan Hooper Curtin University

Mr Elliott Tripp Deakin University

Mr Norman Jacka The University of Western Australia - Law Faculty

Mr Vafa Vojdani University of New England

Mr Dominik Kepinski Clifford Chance

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events

AUGUST 2019 CPD Seminars

Membership & Education Events

Wednesday, 14 August LinkedIn for Lawyers (Webinar)

Wednesday, 7 August Sir Ronald Wilson Lecture

Saturday, 17 August and Sunday, 18 August Practical Advocacy Weekend

Thursday, 22 August Sole Practitioner and Small Firm Forum

Thursday, 22 August Leading in Law

Thursday, 29 August Law Access Information Evening for Young Lawyers - How to get involved in pro-bono work

Friday, 23 August Ethics on Friday: Lawyers Reporting Ethical Breaches to the LPCC

SEPTEMBER 2019 CPD Seminars

D E T A D P U E B TO

Thursday, 12 September Twilight Thursday: A Lawyerâ&#x20AC;&#x2122;s Duty of Confidentiality

Thursday, 26 September Twilight Thursday: Expanding your range of influence

Friday, 13 September Ethics on Friday: Ethical issues for lawyers using social media

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640. 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