Brief June 2019

VOLUME 46 | NUMBER 5 | JUNE 2019

#LawyersMakeADifference

Also inside Law Week 2019 Wrap Up Law, Lawyers and Human Rights Jethro’s Advice to Judges Pro Bono Disbursement Schemes

The Law Society’s Wellbeing and Resilience Programme Did you know? Your membership with the Law Society provides complimentary access to these support programmes through LawCare WA. To find out more about all resources offered through LawCare WA, visit www.lawsocietywa.asn.au/lawcare-wa

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

Volume 46 | Number 5 | June 2019

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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ARTICLES 06

Law Week 2019 Wrap Up

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Lawyers Make A Difference

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Ceremonial Sitting of the Family Court of Western Australia to Welcome Chief Judge Gail Sutherland

35

Meet Law Society/Law Access Law Graduate Richa Malaviya

36

Interview with Kelsi Forrest

37

Behind the Scenes at the Corruption and Crime Commission

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief.

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author.

Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Senior Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Vanguard Press

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Law, Lawyers and Human Rights

39

Mentoring Matters

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'What You are Doing is Not Good!': Jethro's Advice to Judges

40

The UWA Law School Class of 1993 Reunion

Editor: Jason MacLaurin

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32

Pro Bono Disbursement Schemes

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9

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

Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dr Rebecca Collins, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng

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 Junior Vice President & Treasurer: Rebecca Lee

02 President's Report

44 Drover's Dog

04 Editor's Opinion

45 Cartoon

34 Taxing Matters: Intersection Between Family Court Proceedings and Taxation Legislation

46 Law Council Update

42 Family Law Case Notes 43 Quirky Cases

47 Professional Announcements 47 New Members

Immediate Past President: Hayley Cormann Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Emma Griffiths, Matthew Howard SC, Joanna Knoth, Fiona Low, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson Junior Members: Zoe Bush, Brooke Sojan, Demi Swain Country Member: Kerstin Stringer Chief Executive Officer: David Price

48 Classifieds 49 Events Calendar 01

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

Renew Your Membership

Law Week

We are nearing the end of our 2018/19 year and approaching the membership renewal period. If you have recently changed job or address you can update your details by logging in to our member portal (members.lawsocietywa.asn.au).

Law Week 2019 (13 May to 17 May) brought the legal profession and public together with a focus on law and justice in the community. Over 40 Law Week events were held across Western Australia, including around Perth and in regional areas.

Further information on how to renew your membership will be provided via email and a membership renewal pack will be posted to you. Should you need any assistance, please contact the Society’s Membership Team on (08) 9324 8649 or membership@ lawsocietywa.asn.au.

I would like to thank you for being one of over 4,000 members and the Society looks forward to continuing to support you in 2019/20.

Professional Standards Scheme The Society’s Professional Standards Scheme (Scheme) provides a significant benefit for participating members, capping occupational liability and reflecting the commitment by the Society and its members to standards of professional excellence. The Scheme originally commenced on 1 July 2014. A new scheme will commence operation from 1 July 2019.

The Scheme applies to Ordinary, Life and Incorporated Legal Practice (ILP) members. If you are one of these members, you should note that the Scheme is an “opt-out" Scheme. All Members will be required to complete either a Participant Information Form or Application for Exemption Form, which can be found at lawsocietywa.asn.au/pss.

All participants are required to complete a Participant Information Form and return it with the payment. A fee of $50 (per annum) GST exempt, to be remitted to the Professional Standards Council, will be payable for each Participating Member, including ILPs. Any Practitioner Member of the Society who does not want to take advantage of the Scheme will need to seek exemption from the Scheme by completing the Application for Exemption form and returning it to the Society. Further information will be provided in your membership renewal pack, and relevant forms can be accessed at lawsocietywa. asn.au/pss.

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For a comprehensive review of Law Week, please see the article in this edition of Brief. My thanks to everyone who contributed to another successful Law Week, including our valued supporters and sponsors.

#LawyersMakeADifference The Society's #LawyersMakeADifference campaign was launched during Law Week, aiming to communicate with the wider public, break down stereotypes and tell powerful, positive stories of lawyers and their vital work in the community.

The campaign opened with a three minute video featuring discussions with lawyers about their experiences and why their work is important to them. If you haven’t yet seen the video, I encourage you to view it on the Society’s YouTube channel (https:// bit.ly/2VOvMRs) or follow the campaign on Facebook (https://bit.ly/30Kd4yh), LinkedIn (https://bit.ly/2Qsgf8Q) and Twitter (https://bit.ly/2X8vRB7). We welcome your contributions – please tag them on social media with #LawyersMakeADifference.

National Reconciliation Week The Society was proud to support National Reconciliation Week 2019. As part of its commitment to reconciliation, the Society sponsored a banner on St Georges Terrace for the Department of Local Government, Sport and Cultural Industries’ Street Banner Project.

The Society was a supporter of the National Reconciliation Week Breakfast held on 31 May at Crown Perth. An incredible attendance of more than 1,350 made it the biggest ever Reconciliation Breakfast in Western Australia. It was a privilege to hear from all of the distinguished speakers. The Hon Ken Wyatt MP,gave his first address as Minister for Indigenous Australians to the highly engaged audience.

You can read more about the Society's Reconciliation Action Plan at lawsocietywa. asn.au/reconciliation-action-plan.

Ministerial Expert Panel on Voluntary Assisted Dying – Death Certification The Society has written to the Ministerial Expert Panel on Voluntary Assisted Dying (VAD) in relation to the issue of death certification. At a recent Stakeholder Consultation Roundtable Discussion it was suggested that the fact that a death was a VAD death should not be recorded on the death certificate and only the disease, illness or medical condition for which VAD was sought should be recorded.

The Society understands concerns relating to potential distress to family members of the deceased, however in cases of self-inflicted death or homicide the cause of death is shown as such on the death certificate. The cause of death of VAD should be consistent with that practice and VAD should be shown on the death certificate. It is in the public interest that a death certificate should record the true cause of death.

The Society Supports Justice Reinvestment The Society welcomes recent statements by the Attorney General the Hon John Quigley MLA (who called for the development of guidelines to ensure no victim of crime acting as a witness is jailed for missing a court appearance) and Commissioner of Police Chris Dawson (who stated the “vast volume” of Aboriginal children charged with criminal offences in WA could have those offences addressed under community justice arrangements, as an alternative to incarceration). The Society will continue to work closely with all stakeholders to advance practical, evidence-based solutions to drive sustainable change, prevent deaths in custody and make incarceration a last resort.

PEXA – Issue with Joint Authority to Authorise Payment from Law Practice Trust Account The Society is aware of an issue with the PEXA system whereby it does not allow two people (a joint authority) to be required to authorise a payment from the linked law practice trust account, even if that is the authorisation required by arrangement with the bank. The Society is seeking PEXA’s assistance in addressing this issue as soon as possible.

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

This month’s edition has several featured articles related to the Law Society’s recent #LawyersMakeADifference campaign, launched at last month’s Law Week.

We have a series of interviews with members of the profession with a diverse range of backgrounds, experiences, and interests – though united through the topic “Lawyers Make a Difference.”

We also have the Hon Chief Justice Peter Quinlan’s speech ‘Jethro's Advice to Judges’ with a biblical (and also cinematic) perspective upon issues that bear upon the judiciary and the profession generally, and Rosalind Croucher AM’s speech ‘Law, Lawyers and Human Rights’ which highlights the raft of human rights issues that will confront the law and lawyers. And, as always, Brief contains many other items, both informative and entertaining, of interest.

Nevertheless, this editorial must commence with an apology to members that neither Brief, nor the Law Society, had settled upon a final informed position upon a massive controversy presently vexing the profession: being what happened in the final episode of Game of Thrones.

The Editor takes full responsibility, having adopted the purist (or hopefully at least best practice) approach of insisting upon watching all episodes of a series, before watching the final season. Which of course translates into: “unfortunately not having watched even one episode of Game of Thrones”.1 It is appropriate that the important initiative of #LawyersMakeADifference embraces that most modern of characters – the hashtag. The hashtag is a symbol, not only of modern communication and how people interact, but also of how individuals can innovate and cause change, for the better, of systems. This is because the hashtag (in common with the symbol “@” and retweets) was invoked and then driven by users, not by Twitter itself, with Twitter only afterwards adopting the concept.

Indeed, the first use of a hashtag was reportedly on 23 August 2007 by a Chris Messina who proposed using the '£' key (before being no doubt quickly reminded of how confused and angry many get because the 'pound' key looks nothing like a £ and in fact is '#').

04 | BRIEF JUNE 2019

Mr Messina’s first ever hashtag was “#barcamp” which referred to a loosely organised series of technology conferences he helped to create and not, as one might have thought, a series of outdoor forensic advocacy courses held in the South West of WA. All of this would not have been possible, of course, without the invention of the telegraph by Samuel Morse who, on May 24, 1844, sent the first telegraph message from Washington D.C. to Baltimore which read: "What hath God wrought?" The message was ominous and prophetic to be sure, but it was not his idea. The phrase, taken from Numbers 23:23, was the suggestion of an Annie Ellsworth, the young daughter of a friend of Morse. Ms Ellsworth must have been a formidably no-nonsense child, who would have no doubt enjoyed an imposing presence on social media had it been around in her day.

One wonders how some legendary cultural masterpieces would have fared in the days of Twitter. The great Agatha Christie’s famous play The Mousetrap, with its surprise twist ending which audiences faithfully, as requested, did not reveal, holds the record for being the longest running play in the West End. It actually debuted in the Theatre Royal, Nottingham on 6 October 1952, though one suspects that had it done so in the age of social media it may well have closed in December 1952 in an ignominious hailstorm of rude hashtags alternating between “#calleditearly” and “#lame” and “#Istilldontgetit” and “#whathappened? Iwasinthebathroom.”

Another cultural icon, this time of Australian cinema, also might not fare well in the modern world, though for different reasons. Last month’s editorial commented upon on some Australian movies portraying lawyers, mentioning Bruce Beresford’s Breaker Morant but omitting to mention Beresford’s other (very different) classic Don’s Party, adapted for the screen by David Williamson from his play.

Don’s Party has special significance this year, especially given recent events, as it depicts a night 50 years ago when ostensibly normal suburban Aussies gathered for a party to watch the final episode of Game of Thrones, sorry the 1969 Gorton v Whitlam Federal election (the result not going as anticipated, or fervently desired, by the majority of the partygoers).

Those familiar with Don’s Party will recall that one of the slimier characters is the lawyer, Cooley, a crass though smoothish talking Lothario. Those who have seen the movie also know that, given modern sensibilities, it would likely be censored/edited so severely that it would run about nine and a half minutes (which would include Prime Minister John Gorton’s cameo, where he utters the timeless line: “The only polls worth taking any notice of are the polls taking place today”).

Cooley’s character is not everyone’s idea of a lawyer, as he acknowledges in conversation with the uptight dentist, Evan, who says “I believe you're a lawyer” to which Cooley responds “Some of my clients don't!”

Cooley’s interaction with Evan does lead to this classic exchange, with Don chipping in, after Evan finds Cooley in a compromising situation with his wife (all of them making fair points related to their professions): Cooley: If you hit me... I'll sue you for assault! I'm a lawyer.

Evan: I'm gonna smash your bloody teeth in!

Don: He's a dentist!

Those unfamiliar with Don’s Party should give it a look for an interesting take on Australian suburban life in the late ‘60s/’70s – and at least before the movie is banned or re-released in heavily pixelated form.

The modern legal profession is one that, happily, ought to embrace the notion that #LawyersMakeADifference.

In short, every member of the profession is in a positon to make a real difference, and make a valuable contribution – even if one may never rule Seven Kingdoms, sit on the Iron Throne, or have the adventures of Queen Daenerys Targaryen, Queen Cersei Lannister, or a Jon Snow (wait, what?).

NOTES: 1.

The Editor is in fact sitting on a VCR tape of the last episode of Seinfeld, has stored up the final episode of The Sopranos, and is still yet to watch last year’s Preliminary Final between the West Coast Eagles and Melbourne.

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

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Law Week 2019

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY

Law Week 2019, one of the most successful ever, presented over 40 events for the community and launched two major new initiatives: the #LawyersMakeADifference campaign and For the Public, a new information resource tailored specifically for members of the public, available on the Law Society website.

Events were held throughout Western Australia, in both metropolitan and regional areas including Albany, Bunbury, Claremont, Perth, Fremantle, Geraldton, Gosnells, Kalgoorlie, Mandurah, Midland and Subiaco. It has been very pleasing to see continued engagement with Law Week in regional Western Australia.

The Law Week Breakfast provided the perfect context to launch the Law Society’s #LawyersMakeADifference campaign, which sets out to influence and shift all-too-often negative or stereotyped views of lawyers and

06 | BRIEF JUNE 2019

to promote authentic, engaging and diverse stories from the legal profession.

The campaign was launched with a short video showcasing six lawyers sharing their stories, motivations, passions and characters. Using #LawyersMakeaDifference, the video and six individual profiles were released via the Law Society’s Facebook, LinkedIn and Twitter channels to overwhelmingly positive feedback, support and interest in being involved in future campaign activities. To view the powerful and inspiring campaign video, please visit the Law Society’s YouTube channel: https://bit. ly/2VOvMRs. For the Public also went live during Law Week, launching for the first time tailored, high-level information to help the general public navigate burning questions about the law and how to access it. The content provides information on how to assess whether an individual needs legal assistance and how to engage with legal professionals.

Law Week 2019

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Highlights of Law Week included: •

Law Week Breakfast and the Attorney General’s Community Service Law Awards featuring a keynote address by Emeritus Professor Rosalind Croucher AM on ‘Law, Lawyers and Human Rights’. Winners of the Awards were Street Law Centre (for its support of homeless people through the provision of specialised legal advice) and Margie Tannock, Partner, Squire Patton Boggs (for leading her firm's pro bono programme).

•

Law Access Walk for Justice 2019 which attracted 600 supporters to walk along the Perth foreshore to celebrate the vital pro bono work of the profession and to raise funds for Law Access Limited. The event had a superb turnout with members of the judiciary, legal profession and other supporters helping to raise over $80,000 for this very worthy cause.

•

The Law Society’s Young Lawyers Committee hosted a special screening of Connection to Country, raising awareness about how the legal profession, students and members of the public can assist with Indigenous legal issues. The event was well attended with an engaged audience of over 50 people from the legal profession. In keeping with the theme of the event, crocodile and kangaroo canapés inspired by the unique flavours of Aboriginal cuisine were served following the screening, as attendees networked and discussed the film.

•

Youth Civics Leadership Day for Year 10 students from metropolitan and regional schools, with students participating in this event who had displayed leadership potential and civic awareness.

•

The Old Court House Law Museum held the unique event of The Life and Music of Dom Rosendo Salvado, an evening of

08 | BRIEF JUNE 2019

music, drinks and canapés as Father Robert Nixon, who currently resides at New Norcia, re-enacted a recital of Salvado’s music held 173 years ago in the very same building and discussed his remarkable life and achievements. The Museum also launched its a new temporary exhibition showcasing many rare and interesting objects related to Salvado and his life, on loan from New Norcia.

•

The CPD Day for Rural, Regional and Remote Legal Practitioners at the Parmelia Hilton Hotel provided tailored CPD for regional practitioners and at no cost for country members of the Law Society. The day provided a rare opportunity for practitioners to come together in an active learning environment, from areas as far as Esperance, Albany, Geraldton, the Pilbara, Margaret River, Busselton, and Karratha. Testimonials from those that attended were overwhelmingly positive and included the statement – “This is a great day. Please continue this for RRR practitioners – we appreciate it!”

•

Law Week concluded with a celebratory Law Week Awards Night at the beautiful Westin Hotel, to announce the 2019 Lawyer of the Year Awards. Congratulations to Kelsi Forrest (recipient of the less than five years’ experience award) and Dr Carolyn Tan (recipient of the more than five years’ experience award).

The night also included recognition of practitioners who have held a practicing certificate for more than 50 years and of our newest Law Society Life Members: Kevin Edwards, Cav. Maria Saraceni and His Honour Judge Hylton Quail. It was a very enjoyable night, with guests sampling canapés and refreshments. A live musical trio complemented the lively conversation and upbeat atmosphere.

Law Week 2019

Special thanks to Law Week supporters and sponsors

Awards Night Principal Sponsor

Sponsor of Senior Lawyer of the Year Award

Community Events and Junior Lawyer of the Year Award Sponsor

Sponsor of the Young Lawyers Committee Event

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#LawyersMakeADifference In Law Week 2019, the Law Society of Western Australia launched a new campaign, #LawyersMakeADifference, to highlight real stories of Lawyers using their skills to help people in our community. These are a selection of those lawyers and their stories...

Tony Chong

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Managing Partner, Squire Patton Boggs Lawyers are funny beasts. There is no doubt the legal profession (like all professions) has changed over the years. The commercial pressure of running a legal practice has increased and is not likely to abate. Lives are increasingly getting complex. Laws are getting complex – none of which are necessarily the doing of lawyers.

There is a general mystique about what lawyers do. It is no wonder that many see what lawyers do as a form of “dark arts.” Some see lawyers as working in ivory towers and out of touch. Others see lawyers as “sharks” and pushing up the price of justice. Is there some truth to this? Perhaps.

Yet, that is not the full story. There remains an air of respectability with lawyers and there is a high expectation that lawyers can deliver solutions and be problem solvers in an increasingly complex environment. Leaving aside all the lawyer jokes (and lawyers do need to grow a thick skin for them), it is often the case that lawyers are the ones that people turn to when help is needed to get out of a serious predicament.

Therein lies the conundrum for lawyers – how do lawyers stay as lawyers in a venerable profession and maintain their oath and duty as officers of the court, and deliver services matching such expectation in a commercially sustainable manner and yet at the same time, get to do what really drove them into the profession in the first place.

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What is not known is why many end up as lawyers in the first place. It is certainly not the prestige nor the thought of how much one may be financially rewarded through the profession. At the most basic level, many enter into the profession to serve – to do good, to help, to get justice for all.

Lawyers are officers of the court, and we owe it to ourselves and are bound by our oath to be ethical at all times. Few professions require such high standards of their members at all times. Lawyers are fortunate to be trained to be logical, analytical and problem solvers. For those reasons, many are asked to serve on community committees, boards and take on leadership positions, and many do such things often on volunteer bases.

The basic urge to help sees many give time and effort to act on pro-bono basis,

often with no or little recognition. But truth be told, it is never the recognition that the lawyer seeks in engaging in pro-bono work. It is the satisfaction from being able to help and be part of the community and the opportunity to influence change and how we live in our community that drive lawyers to do volunteer work and the work they do on a day to day basis.

These days lawyers come in all shapes and forms, with many from varied backgrounds and life experiences. That is to be encouraged. Not all of them will have the typical image of a lawyer wearing suits and ties; but not wearing them does not make them a lesser adviser. It is not what they wear that counts. It is their skills, backgrounds, life experiences and emotional intelligence that are important. It is those very things, together with his or her training, that a lawyer relies on when advising his or her client.

Lawyers do and can make a difference.

Many are just simple hard working and honest people. For many, they make that difference silently, day in, day out – but there is nothing wrong with that. It would of course be nice maybe just one day that they, the lawyers, are not portrayed as sharks but rather as people who love to help, and as people with hearts. That is a nice goal and a nice dream.

#LawyersMakeADifference

Rebecca Bunney Head of Practice – Family Law, Cullen Macleod Lawyers

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When I was about 25, I decided to become a lawyer so that I could help people. I was a mature aged student, with no background, family or friends in the law. In fact I had worked in hospitality for around five years. But by doing that I had met all kinds of people, from all different backgrounds, nationalities and cultures, and I realised that I really like people.

I studied a psychology degree first, but realised that helping people via psychology can take a long time, and only worked if the person was motivated to change. This meant that I was not in control of the outcome, and as a Type A person I needed to have a measurable way to prove to myself that I was doing my job well. Law appealed to me as a more structured way to be able to solve problems and provide an outcome for people.

After finishing my law degree in 2007, I first worked in commercial litigation, banking and finance in a large corporate firm before I moved to a smaller firm in Nedlands, where I eventually chose to specialise in family law. The attraction to family law for me is that I can provide immediate assistance to people, in areas that make a large difference to their lives.

Family law is the perfect marriage between psychology and the law.

Family law advice has to be technically correct but it also has to be delivered in a particularly sensitive way, in language that the client can understand, and taking into account what is often a highly emotional situation. In many cases, I am the first lawyer that that my clients have ever met, which can be overwhelming for them, and makes it more difficult for them to retain the information and advice that I give them. I have to make sure that they understand what I tell them, as while the family law was created for everyday people, it is complex and involves concepts that most people have never heard of until they are sitting in the office of a family lawyer or in the Family Court.

Trust is an integral part of my role, it is necessary for my client to have trust in me, so I have to build rapport and my client needs to feel heard and understood. This doesn’t mean that family lawyers are “counsellors” to their

clients, but our role does require a lot of listening, and yes, almost every client cries at some point in the first meeting.

I have always been comfortable with emotions, so some tears, or some anger, does not interfere with the way that I relate to my clients or how I can provide advice.

Family law is action-packed, and apart from the criminal lawyers, we appear in court more than any other area of law.

We are involved in urgent applications: for money so that my clients can support themselves and their children, or to have children returned to their care.

We are constantly negotiating with the other party (or their solicitor) to reach agreements about what the next steps will be, or before a final agreement can be reached. As the wait to receive a court date can take many months, and it can take years to reach a trial, it is imperative that family lawyers are excellent negotiators. Our ability to reach an agreement with the other side is often the only way our clients can progress their case (including care arrangements for their children, and/or separating their property and finances in a property settlement). We have to be proactive, creative, and realistic about what our clients can achieve.

Family lawyers are like “traffic directors” in that every client almost always needs advice or assistance from some other professional in order for them to have all the information they require in order to make good choices in their family law matter. We routinely refer our clients to financial planners, psychologists, taxation specialists, accountants, addiction specialists, and many others.

Part of our job is to identify what other assistance our client needs, as usually our clients do not know. Our experience tells us what our clients need, and

our relationship with the client means that they trust our judgment and recommendations.

I am lucky enough that my employers allow me to take on as many pro bono clients as I can manage within the practice. My favourite people to act for are grandparents, as I find that a grandparent will only become involved in the proceedings if it is absolutely necessary to ensure that the children are well-cared for. With a grandparent, there is unlikely to be the “tit for tat” that can occur when parents are in dispute over the care arrangements for their children. Unfortunately, the rise of methamphetamine use has meant that there are a lot of children with methaddicted parents, and the grandparents are having to step up to take care of them. This situation is unlikely to change for a while, so I anticipate that many more pro bono applications from grandparents will come across the door of Law Access, and out to the profession.

Family law can be stressful, and sometimes it is difficult to leave the work at work. More people than I can remember have asked me how I can work in this area, and whether I am constantly sad about the stories I hear?

After a while, you learn to have the necessary distance to be an effective lawyer. You need to be objective, and to have a safe distance from your clients. If you are upset by what upsets them, then you are unable to give them the objective advice they need. However, we are not robots, so there are still one or two cases per year that affect me. When that happens, I rely on good support from my colleagues in the office to debrief, identify what has triggered the reaction, and learn from it.

Ultimately after 12 years, I am lucky enough to be doing what I set out to do at law school – help people, and I get to meet and work with interesting people who I genuinely like, so can say for so many reasons, I really enjoy being a family lawyer.

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#LawyersMakeADifference

Sophie Manera

3

Principal Solicitor, Rothstein Lawyers Since December 2017 I have been the Principal Solicitor of Rothstein Lawyers, a boutique law firm in Northbridge that specialises in the areas of immigration and employment law.

Prior to this I was a partner in the firm from 1 January 2017.

My background in volunteering for Centrecare Migrant Services as a university student led to me develop a keen interest in refugee and immigration law. I feel incredibly privileged to have the right to live permanently in Australia, a beautiful country of opportunity. I feel a moral responsibility to put my education to good use and give back to the community in the form of charity work and pro bono legal work. Throughout my childhood I was taught by my parents and teachers to feel grateful for what I have and to assist those with less than me. I'm glad these lessons have stuck with me!

My involvement in providing pro bono legal and migration services via the Law Access program allows me to be involved in complex refugee law matters and try to make a difference in this area.

Through my work as an immigration lawyer, I encountered a client with 12 | BRIEF JUNE 2019

an incredible story. She had been a sex worker in Kenya, a slave in Dubai and the victim of domestic violence in Australia. Despite the incredible hardship she had endured as a young woman (one year younger than me - which hit close to home) her determination and resilience were an inspiration to me. I was privileged to assist her in obtaining a permanent Protection visa. Now that she's an Australian permanent resident her intention is to study law! This young woman ended up spending a period living in a women's refuge run by Starick.

I was able to visit the women's refuge and see first-hand the amazing work of the social workers and counsellors.

I convinced the charity to become an affiliated charity for the HBF Run for a Reason and I pledged to run a halfmarathon to raise money for Starick. So far I've raised more than $1,500!

I'm also a committee member of the Western Australian branch of the Migration Institute of Australia. My involvement with the MIA allows me to connect with other lawyers and registered migration agents with similar interests and promote the migration industry. Since being involved in the MIA I have had the opportunity to organise events, prepare and present CPD seminars and become involved in several different initiatives to assist migrants in Australia. In 2018 I was awarded the MIA Service Award for my volunteer work for the MIA. My latest area of interest is exploring the rights of temporary migrant workers in Australia. There's a lot of overlap between immigration law and employment law, but it can be difficult to reconcile the two areas. Unfortunately, as a result, many migrant workers in Australia end up exploited and with little or no legal recourse. Often, migrants are simply too afraid to come forward. My goal for the future is to work together with the government and relevant stakeholders to create meaningful solutions to prevent migrant worker exploitation.

#LawyersMakeADifference

Sally Bruce

4

Special Counsel, Jackson McDonald I graduated from UWA law school in late '80s. Far from flying into my legal career, a large part of my 20s was spent in ill-health. In my 30s my life began again when I re-started my legal career, forging a lasting bond with mentor and now close friend, Patrick Hughes, who recently retired from the law. What a difference special people can make in your life!

After dabbling in various different areas of law, under Patrick’s guidance I eventually settled in the area of wills and estates, where I have practised now for over 20 years. While perhaps not the most hip area of law, wills and estates has given me the opportunity to do what I love the most, which is working with people and helping them to solve their problems, often in circumstances where family relationships are fraught.

Practising in the area of wills and estates has taught me the importance of listening and helped me to listen better.

I think listening is the key to relationship building which is so important, particular in the area of law I practise in. I enjoy making connections with people and helping them to articulate their final wishes or to bring an end to a long running legal dispute they may be involved in.

It’s so rewarding meeting all sorts of different people, learning about their lives and playing some part, however small, in helping them to get their affairs in order.

If I’ve learned anything in my 20+ years of practice, it’s how similar we all are on the inside. We share many of the same troubles and worries and we all strive for the same sense of peace and justice, no matter what walk of life we’re from.

Sometimes it’s not easy. I’m sure I’m not the only one who lays awake at night worrying about a client or a matter.

Unfortunately, our brains don’t clock off at five o’clock or when we go home (often much later than that!). My mind still races in the background, waking me up at odd hours of the morning, thinking.

There are times I wish I had a switch that I could just turn off at day’s end. I know

I’d get a much better night’s sleep! But you can’t have it both ways. You can’t invest yourself in the client and their issues, and simply switch off at day’s end. Thoughts linger. You want to do the best you can.

I feel lucky to have had the opportunity, through the firm I work for, to help people in difficult situations with legal advice on a pro bono basis. This is something I’ve found very rewarding.

I’ve also been fortunate to join a group of diverse and dedicated people on the board of Diabetes Research WA, through which I’ve had the privilege of contributing towards the special role this charity plays in medical research.

On the whole, I’ve enjoyed my legal career this far and I look forward to the next 20 years (well, perhaps not quite) helping people with their legal problems and contributing as far as I can to the wider community.

13

Ceremonial Sitting of the Family Court of Western Australia to Welcome Chief Judge Gail Sutherland

BEFORE: JUSTICE MONCRIEFF AT PERTH ON FRIDAY, 8 FEBRUARY 2019 JOSHUA THOMSON SC, State Solicitor on behalf of the Attorney General for Western Australia GREG MCINTYRE SC, President of the Law Society of Western Australia JOHN HEDGES SC, on behalf of the Western Australian Bar Association WILLIAM SLOAN, President of the Family Law Practitioners' Association of Western Australia JUSTICE MONCRIEFF: The Court sits this afternoon to extend our welcome to, and to celebrate the appointment of, the Honourable Gail Sutherland as the fifth Chief Judge of the Family Court of Western Australia, whose appointment took effect from 7 January 2019.

I am both pleased and honoured that we are joined on the bench today by the Honourable Peter Quinlan, Chief Justice of Western Australia and the Honourable Robert McClelland, Deputy Chief Justice of the Family Court of Australia.

On behalf of the Court, I acknowledge the traditional owners of the land upon which we meet, the Whadjuk people of the Greater Noongar clan of southwest Western Australia. We pay our respects to their elders both past and present and acknowledge their continuing stewardship of these lands.

I welcome her Honour’s family to share in this occasion. I welcome her Honour’s husband, Tony, her Honour’s daughters, Elizabeth and Kathryn, her Honour’s son, Andrew, and other members of her Honour’s family.

I am also pleased to welcome his Honour Judge Kevin Sleight, Chief Judge of the District Court of Western Australia, her Honour Judge Julie Wager, President of the Children’s Court, Chief Magistrate Steven Heath, Dr Adam Tomison, Director

14 | BRIEF JUNE 2019

General, Department of Justice, former judges of the Court, the Honourable Stephen Thackray, former Chief Judge, the Honourable John Barlow and the Honourable Stephen Crooks, current and retired magistrates, principal registrars and registrars of this Court, senior representatives of government and community organisations and many other distinguished guests, legal practitioners and court staff assembled in this room and watching these proceedings by video in the overflow room.

I welcome to the Bar table to address the Court, Mr Joshua Thomson SC, Solicitor General for Western Australia, Mr Greg McIntyre SC, President of the Law Society of Western Australia, Mr John Hedges SC with Mr Stephen Davies SC on behalf of the West Australian Bar Association and Mr William Sloan, President of the Family Law Practitioner’s Association of Western Australia.

Of the many apologies received by the Court, I particularly mention that received from the Honourable Michael Holden AM, also a former Chief Judge of this Court, who is unable to attend by reason of the ill-health of his wife, Margie. On behalf of the Court, I extend our best wishes to them both.

I am confident that much will be said about her Honour’s career in the law, her achievements in practice and,

as a registrar, family law magistrate, Principal Registrar and as the eighteenth permanent judge of this Court, holding a dual commission as a Justice of the Family Court of Australia and now as the fifth Chief Judge of this Court. However, I take this opportunity to add a few short observations of my own.

Her Honour brings to the bench, and particularly to the role of Chief Judge, a wealth of life experience and an extraordinary depth of intellectual rigour and forensic ability, yet presents with a calm and measured manner and with a great humility. Her Honour’s capacity for work and for the achievement of a standard of excellence is well evidenced. Her Honour also brings a wealth of knowledge and understanding of information technology issues and is eminently qualified to lead the Court into the electronic change and emerging systems of information storage and electronic case management.

As any practitioner who regularly appears in this Court would be aware, the workload placed on the Court is not only increasing, but also the additional burden of the greater complexity of matters requiring judicial intervention places an additional strain upon the limited resources of the Court and the ever increasing need for the Court to continually work smarter in the

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management of those limited resources.

On a more personal note, I happily recall the times at the Bar when I was briefed by your Honour. Typically, such a brief was immaculate in its detail, consideration and preparation. Nothing has changed in the approach your Honour has brought to the Bench in this Court and of which the Court will now be the beneficiary in the discharge of your role as Chief Judge. There is no doubt as to the excellence of the decision made to appoint your Honour to the role and I am delighted to be able to welcome your Honour as our new Chief Judge. Mr Thomson.

MR. THOMSON: May it please the Court. The Attorney General regrets that he cannot personally be present this afternoon. Unfortunately, he is travelling from interstate and he is on his way home at the moment. I appear in his place.

I would like to begin by acknowledging the traditional owners of these lands, the Whadjuk people of the Noongar nation and pay my respects to their elders past, present and future. I would also like to acknowledge the many distinguished guests who are present on this occasion and, in particular, I acknowledge the presence of the Chief Justice of Western Australia, Chief Justice Quinlan, and the presence of the Honourable Justice McClelland, Deputy Chief Justice of the Family Court of Australia. We are particularly grateful for your Honour’s presence, given the dual nature of the commissions which judges of the Family Court of Western Australia hold. I would also like to acknowledge members of her Honour’s family who are also present today.

Your Honour, it is both my duty and my privilege to formally welcome you on behalf of the State upon your appointment as the Chief Judge of the Family Court of Western Australia. On an occasion like this, it is traditional to say something about your Honour’s history, however, I will be brief in doing so because your Honour is well-known to all present. I am told that your Honour started in this Court initially on a 12-month contract, but now you have ended up in charge. It is a truly impressive story of a person who has worked her way up through the ranks.

However, before referring to the experience of your Honour, which so well qualifies you for your new position, I would ask that you would allow me to make one slight detour regarding a matter which may not be so well-known about your Honour. I am informed that your Honour recently travelled to New Zealand and undertook a comprehensive tour related to the fantasy novel, The Hobbit.

Given the nature of your Honour’s position

16 | BRIEF JUNE 2019

and your role in dismantling marriages sealed with a ring, I suggest that it would perhaps have been more appropriate to have undertake a tour related to Tolkien’s other novels.

Your Honour was educated in Western Australia. You attended Kent Street Senior High School and then studied law at the University of Western Australia.

Your Honour was admitted in December 1982. After that, your Honour worked in a number of firms, mainly in the area of family law, but also gaining valuable experience in other areas. Your Honour was the managing partner for six years at one of the firms which you joined. I am sure that such experience will now stand your Honour in good stead for managing this Court.

At the same time as all of this, your Honour raised three children. I am not sure whether your Honour found it harder to manage wilful lawyers or wilful children.

In any event, your Honour succeeded at both. Between 2008 and 2009, there was a short divergence in the trajectory of your Honour’s career path. Your Honour became involved in running the Articles Training Program offered by the Legal Practice Board. Once again, your Honour gained valuable experience in other legal areas which would prove to be of significant importance for property disputes in your future role.

In this role at the Articles Training Program, you taught various topics, including business structures and income tax and capital gains tax considerations in commercial transactions. About a decade ago, your Honour then joined the Family Court. In 2009, your Honour was appointed as a registrar and in 2010 you were appointed as a family law magistrate. In recognition of your Honour’s management and organisational skills, you were then appointed as the Principal Registrar in 2017. In February 2018, you were appointed as a judge of the Court and, in March 2018, you received your dual commission as a Justice of the Family Court of Australia.

During the decade since your arrival, your Honour has been an active member of the Court. In addition to your case load, you have been involved in various committees, including the continuing professional education committee, the case management committee and the information systems and technology committee. Your Honour has also been the Court’s representative on various inter-jurisdictional committees, including the West Australian Courts’ Technology Committee and the Federal Court’s Digital Court Program Steering Committee and

Policy and Planning Working Group.

Your Honour’s knowledge of, and facility with, technology is welcome. The use of electronic media is fast becoming the most efficient, if not the only manageable, way to operate a court. It is important that your Honour should be familiar with information technology and able to harness its potential for greater judicial efficiency. It was suggested to me that your Honour even had some working knowledge of the use of artificial intelligence in judicial matters. I assumed that this was not a reference to some of the less clever lawyers who appear before your Honour.

That brings us to your Honour’s latest appointment. Commencing on 7 January this year, you were appointed as the Chief Judge of this Court following the retirement of the Honourable Stephen Thackray. Your appointment truly is a milestone event in the life of this Court.

In its history of over 40 years, you are only the fifth Chief Judge to be appointed to this Court and the first woman to be appointed to the position.

I would like to say something about the importance of the position. To start with, the Family Court of Western Australia represents one of the most complicated intersections of State and Federal law.

I have recently experienced this in a number of different areas, including in relation to the referral of State power to the Commonwealth, which is proposed in relation to the child support regime.

It requires wisdom and discernment to ensure that the operations of this Court remain part of a Federal system, operate consistently with both State and Federal laws and deliver speedy and efficient justice to the people of the State.

Your Honour has both wisdom and discernment in large quantities. The Family Court of Western Australia is also one of the most important courts of this State. Leaving aside those unfortunate enough to brush with the criminal law, it is most likely to be this Court which interacts with ordinary citizens of this State. It is, therefore, imperative that the judges of this Court exhibit an exemplary judicial temperament. That is particularly so given the nature of the types of disputes which come before this Court.

The people who come here often appear in person. They are frequently emotionally invested in the dispute and sometimes they are emotionally vulnerable. The litigated break-up of a long-term relationship is perhaps the worst failure that many ordinary citizens face.

In these circumstances, it is imperative that the judges of this Court are always patient, open minded, courteous, tactful,

firm but understanding, compassionate, humble and practical. It is only in this way that litigants will feel that justice has been served, whichever way their dispute may be determined. Your Honour is a model of these characteristics. No person that I have spoken to has ever mentioned that your Honour has deviated from the judicial temperament which I have just described.

Your Honour’s character played no small part in your elevation to your new role.

On behalf of the Attorney General and the government of this State and the people of this State, I wish you well in your new role as Chief Judge. May it please the Court.

JUSTICE MONCRIEFF: Mr McIntyre.

MR. McINTYRE: Yes. If it please the court, I will commence with an acknowledgement to country in the Noongar language.

Kaia, Kaia, Kaia Nyuny kaditj ngulluck nyinniny Whadjuk Noongar boodjah Nyuny Burruniny quop kaditj kanya Koorah yeye boordahwan Kaia Looking through your Honour’s curriculum vitae, it reads like a classic recipe for how a legal practitioner of outstanding ability, who happens also to be a woman with an average size family, has negotiated a path required to fashion a stellar career during the era through which your Honour has lived. I know your Honour holds your family very dear and it’s very important that your family is able to be with you today; your father Jack, your husband Tony Sutherland and your children, Kathryn, Lizzie and Andrew, your sister Tracie and her husband Brendan, and your brother Gary and his daughter Jess.

Your Honour has also been very deliberate in inviting to this event a large number of senior women in the profession who are sitting behind me and someone

has remarked that it’s unfortunate there are only males sitting at this bar table.

We have also attended numerous sorts of these functions over the years which describe stellar careers of the leaders of our profession. It’s still the case that the vast majority of them have been men. None of them have a curriculum of life with maternity leave line items and a description of how a legal career is negotiated around the fact that another career is also on the curriculum and, in your Honour’s case, included a diversion also into a related teaching career.

It’s a matter of celebration that your Honour is the first woman appointed to the role of Chief Judge of this court. Your Honour joins a growing list of first female heads of jurisdiction. The Honourable Susan Kiefel AC, Chief Justice of the High Court of Australia, The Honourable Elizabeth Evatt AC, the Chief Justice of the Family Court of Australia, The Honourable Diana Bryant AC QC, the Chief Judge of the Federal Magistrates Court who then a decade later also became a Chief Justice, of course, of the Family Court of Australia.

The Honourable Margaret Beazley AO QC, President of the Court of Appeal of New South Wales, The Honourable Mahla Pearlman AO, Chief Judge of the Land and Environment Court of New South Wales, The Honourable Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, The Honourable Kate Holmes, Chief Justice of the Supreme Court of Queensland, The Honourable Margaret McMurdo AC, President of the Court of Appeal in Queensland, Chief Magistrate Elizabeth Bolton in South Australia, The Honourable Carmel McLure AC, President of the Court of Appeal of Western Australia, The Honourable Antoinette Kennedy AO, Chief Judge of the District Court of Western Australia, The Honourable Helen Murrell, Chief Justice of the Australian Capital Territory,

The Honourable Sally Thomas AC, Chief Justice of the Supreme Court of The Northern Territory. The Honourable Justice Kiefel is also the Chief Justice of the Supreme Court of Norfolk Island and The Honourable Maryanne Yates AM, was the first President of the Children’s Court of Western Australia.

At another level, it is disappointing that in 2019 it is still a matter to be remarked upon that the Law Society has, as one of its continuing strategic objectives, promoting diversity within the legal profession and that it’s necessary for the primary focus of that objective to be improving the position of women in the profession. It is both surprising and disappointing that there is a continuing issue about the full inclusion of women in the profession, in the context of the obvious fact of the proportion which women occupy in the community and the high levels at which women have graduated with distinction from law schools over many years now. However, the Law Society will remain focused in its advocacy on gender equity in the profession, noting that the Australian Bureau of Statistics has reported that the gender pay gap remains highest in the legal profession in Australia amongst all workplaces.

Your Honour started with a general practice at Jackson McDonald in banking, securities, leasing, wills, probate and family law for two years, then moved to a family law practice at Ilbery Barblett & O’Dea and after a year there you managed with only three months maternity leave. Indeed, your Honour’s dedication to family law practice was extraordinary, even at that early stage of your practice. It’s apocryphal, as Ms Gorman noted at your welcome in February last year, that your Honour was counsel in a trial when you went into labour and your first child, Kathryn, escaped being the first child born in the Family Court by only two hours.

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Your colleague, Kim Wilson, seems to have had no doubt about your Honour’s dedication when he arrived for a visit the next morning with flowers in one hand and a file in the other. There are some horrific stories of your Honour and your colleagues, Kim Wilson and Paula Wilkinson, working into the wee hours surviving on coffee with curdled milk and that you have a continuing penchant for caffeine ingested by a warm flat Coca-Cola.

You dealt with another three year period between 1990 and 1992, keeping both careers going, by undertaking three month locum contracts, managing the family law practice at Clayton Utz and at Ilbery Barblett & O’Dea doing trial work with Legal Aid WA and as a family law solicitor at DCH Legal. Over the five years between 1992 and 1997, you were employed again at Ilbery Barblett & O’Dea with a diverse family law file loading, including one five month trial involving complex financial matters.

Your Honour told us at your welcome last February of your credo of the seven Ps; prior preparation and planning prevents pretty poor performance. Your Honour is being generous in sharing that credo, for example, in seminars on the seven Ps of interim spousal maintenance in 2013 to the Family Law Practitioners Association and the South West Practitioners Association. Your Honour has also participated in Law Society and Family Law Section of the Law Council of Australia seminars on a range of topics.

Your Honour has also contributed to the work of your former colleague, Peter Cole, at Robert Parkinson & Associates, now Judge Peter Cole OAM of the Federal Circuit Court, in his founding and organising since 1999 of the Law on the Lounge Bali Conference. I did look it up on the website to try and found out what it was about. It seemed to be mostly about accommodation but I’m reliably informed that it’s, in fact, a very intense family law educational experience.

It seems to have occurred despite your Honour’s abhorrence of frequenting Bali that you contributed to at least three papers, although I am told that you only actually attended Bali once. One of your Honour’s most important extra curial endeavours was a collaborative report between the Family Court of Western Australia and the Department of Child Protection on working together to achieve better outcomes for families, which you presented on to the Australian Institute of Judicial Administration Child Protection Conference in 2011.

Your Honour is known to have a love of travel, particularly to Germany, and as my learned friend the Solicitor-General noted,

18 | BRIEF JUNE 2019

you organised a trip of the sites of the Hobbits in New Zealand with the whole of your family, pursuant to your love of tales of Lord of the Rings but I am told that you and Tony are also diversifying a little by going walking in Italy this year. Your Honour is a person of broad interests and is also a follower of opera. The patience required to preside over many of the testing family law cases coming before your Honour is demonstrated by your capacity to sit through The Ring Cycle performance of Wagner which can last for several days.

Noting your Honour’s well-known superior capacity and knowledge in information technology, your Honour is a model of a modern chief judge, is a paragon of impartial judgment. That is a quality you have in common with the Jedi on the light side of the force. Our expectation is that you will bring to the role of Chief Judge the super powers of telekinesis, precognition, telepathy and manipulation of fiscal energy. May the force be with you, if it please the Court.

JUSTICE MONCRIEFF: Mr Hedges.

MR. HEDGES: If it please the court, it’s my honour and privilege to speak on behalf of the WA Bar Association this afternoon on the occasion of your Honour’s welcome as the Chief Judge of this court. Your Honour has taken over the leadership of this court. You inherit a culture of service to the public which has been cultivated by your predecessors over many years and is reflected in the courtesy and helpfulness of all of the staff. I have no doubt that this feature of the court will go from strength to strength with you at the helm.

The Family Court Bar numbers about 26, of which at least half are women. Our experience is that the court has always bent over backwards to accommodate our schedules. Your Honour has taken over the callover of recent times and your continued support is greatly appreciated.

One of the challenges that face all practitioners and judicial officers of this court is the management of matters where one or both parties are unrepresented.

I have appeared in a number of matters before your Honour where the other side appeared in person and I found it quite difficult to maintain an even demeanour.

Your Honour certainly set an impeccable example of respect and civility and they are qualities which we all admire.

The workload of a Family Court practitioner can be relentless and stressful. To manage these pressures, your Honour has placed a premium on outside interests and physical fitness.

My learned friend, Mr McIntyre, has

commented upon your passion for the operas of Richard Wagner. Your Honour and his Honour Magistrate Glass rank Tristan & Isolde very highly and I pondered upon the similarities between that musical drama and a day in court.

It is to be noted that a performance of Tristan takes about six hours, including an hour for a meal break and an interval of about 20 minutes after the first act, fairly similar to the court’s schedule. At the end of the opera, some people are just relieved that it’s over. Tristan and Isolde, through the forces of destiny, become starstruck lovers, leaving disappointed suitors in their wake. Misunderstandings occur and, by the end of the opera, no one is left standing. Fortunately, that is not the experience of all litigants in this court.

In relation to your Honour’s commitment to physical fitness, for some years you could be found in the early mornings clad in Lycra creating havoc with the notoriously impatient drivers in Perth’s western suburbs. In your love of cycling, you are in the esteemed company of your predecessor who could often be seen in his yellow vest navigating the perils of the riverside cycling path and of the former President of the Court of Appeal, The Honourable Carmel McLure. I am told that of recent times you have ceased wearing Lycra which, for a cyclist, is a heresy but forgivable.

At one time you took a two weeks holiday to cycle from Albany to Perth. You have also ridden with your husband in the rather challenging terrains of France and Germany. In addition to cycling, your Honour is often seen leaving the Family Court about 6.00pm at the commencement of what many would see as a long walk home. I am sure that your Honour’s skills as an administrator will enable you to continue to look after your physical fitness in the many satisfying years that lie ahead of you. If it please the court.

JUSTICE MONCRIEFF: Mr Sloan.

MR. SLOAN: May it please the Court.

It is a privilege to appear today on behalf of the members of the Family Law Practitioners Association of Western Australia on the occasion of this ceremonial sitting to welcome the appointment of Justice Sutherland as Chief Judge of the Family Court of Western Australia. May I begin by joining the other speakers in acknowledging the traditional owners of the land on which we meet, the Whadjuk people of the Greater Noongar clan and by paying my respects to their elders past, present and emerging.

Before proceeding with my welcome remarks, may I address another point briefly. I would like to acknowledge the proactive approach of the State Attorney to family law matters here in Western Australia. On behalf of the Family Law Practitioners Association, may I express appreciation to the State Attorney and also to the State government for the support they have provided to this Court in the form of the promptness of the making of this appointment. The appointment was announced before the previous Chief Judge had completed his term in office. The result was that there was not a single day of delay between the former Chief Judge completing his term and the new Chief Judge commencing her term.

Those of us who work in the system know that this continuity in the provision of judicial resources to the Court will make a material difference to the people of Western Australia, particularly those who need to access the services of the Court. I won’t repeat the long list of acknowledgements already given, but if I may pay particular attention to the acknowledgement of your Honour’s family who are here this afternoon, including your husband, Tony, and your children, Kathryn, Lizzie and Andrew. Your

Your Honour has established an enviable reputation, firstly as a practitioner and then as a magistrate.

Based upon their experience of your Honour, the family law practitioners in this State warmly welcome your appointment.

Honour’s father, Jack, is also with us this afternoon.

Since your admission to practice in Western Australia in 1982, your Honour has accumulated some 37 years of experience across the legal profession, spanning a number of firms, including Jackson McDonald, Ilbery Barblett & O’Dea and Robert Parkinson & Associates.

Before appointment to judicial office, your Honour was a founding partner of what was at the time, and remains today, one of the largest family law firms in Perth.

In 1994, your Honour was recognised by the Law Society as an accredited specialist in the field of family law. As other speakers have described, your Honour was first appointed as an officer of this Court in 2009, initially as a registrar. Your Honour went on to become a specialist family law magistrate and then later the Principal Registrar. As other speakers have mentioned, your Honour was appointed as a judge of the Family Court of Western Australia at the start of 2018. The Family Law Practitioners Association President of the day, in welcoming your Honour as a then incoming judge, described your Honour in the following terms:

Those sentiments apply equally as much today as they did then. I would like to briefly mention just a few of the aspects of the interaction your Honour has had with Family Law Practitioners Association.

As a practitioner, your Honour served on the Family Law Practitioners Association committee, including as treasurer. In those days, the Family Law Practitioners Association did not have very much, if any, paid administrative support.

Consequently, your Honour held the office of treasurer during a period when taking on that position meant that you were signing up for quite a lot of work.

Through that voluntary work, your Honour made a significant contribution to the profession. As a then very junior practitioner, I can remember coming on to the Family Law Practitioners Association committee during the same time that your Honour also served. I remember being impressed by your Honour’s hard work, and the place that your Honour had

Indigenous Law Clinic year Murdoch University Law students enrolled in the ILC: Michelle Henderson, Tanielle Martin, Ella McLeod, Mollie Ann Middleton and Mayoori Nadesan.

The Indigenous Law Clinic (“ILC”) is a partnership between Murdoch University’s School of Law and the Aboriginal Family Law Services. The ILC came into being through the vision of Corina Martin, CEO of AFLS and Anna Copeland, Director of Clinical Legal Programs, Murdoch University to provide legal assistance to Indigenous people living in remote regions and provide Murdoch University Law students with practical legal experience. It is structured as a three-point elective unit, running throughout semester 1 and 2 of 2019.

Through the ILC, the students have been exposed to legal problems facing Indigenous clients in the regions, assisting in casework, practice in file management and provision of legal services to real clients. Guest speakers have included Chief Judge Thackray of the Family Court, and Professor Robert Guthrie of the Office of Criminal Injuries Compensation.

The ILC involves Murdoch Law students working under the supervision of Lawyers from AFLS one day per week at Murdoch University. In semester 1 of 2019 five final

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earned for herself as a significant member of the profession, widely respected by her colleagues.

Your Honour has been generous in making time available to be a speaker, as part of the Family Law Practitioners Association's program of educational events, most recently in 2017, when your Honour took the opportunity to address our annual conference on the important topic of the Court’s digital program and plans to transform for the future.

Our members will warmly welcome your Honour to the stage to continue the tradition of Chief Judge’s delivering the state of the State address during the opening plenary at our annual conference later this year.

Your Honour has also been a contributor to judicial education at a national level.

Your Honour co-authored a paper on collaborative practice presented in 2011 at the Australian Institute of Judicial Administration Conference. This Court was established by legislation that was passed in 1975. Some 44 years later, in 2019, your Honour is the first woman to have been appointed to the office of Chief Judge. Your Honour’s appointment provides us with an opportunity to pause and reflect as to the position of women in the legal system in Western Australia.

The most recent figures from the Legal Practice Board of WA report a total of 6,549 legal practitioners in Western Australia, of which some 3,257 or 50 per cent are women. The most recent figures from the WA Bar Association tell us that of the 224 local members of the Bar, some 54 or 24 per cent are women. The 1994 report of the Chief Justice’s task force on gender bias reported that, at that time, five per cent of the combined judges of the Supreme, District and Family Courts in Western Australia were women. By the time of the 20th anniversary review in 2014, that figure had increased to 20 per cent.

Upon your Honour’s appointment as a judge of this Court, the then president of the Law Society said that your appointment, along with others that were announced at the same time, demonstrated that “women are becoming more and more empowered in the legal profession and within our community. All of the data relevant to corporate Australia and the various professions demonstrates that the advancement of women leads to significantly improved outcomes for the organisations and, in this case, will do so for our judicial system”.

In closing, if I might look ahead to the future for a moment, the Family Court Act tells us little about the nature and

20 | BRIEF JUNE 2019

function of the office of Chief Judge.

Section 10 merely tells us that there is to be a Chief Judge. Beyond that, the scope of the role is defined in part by tradition and convention, but also, in part, by how the incumbent chooses to define the role and what innovations they bring to the role. Writing in an academic David Malcolm AC said: The two most obvious functions of the head of jurisdiction are to exercise judicial power as a judge of the court and to assume responsibility for the administration of the court.

But he also made clear that those two aspects were not the full extent of the role. He went on to say: The role of head of jurisdiction is obviously much more than that of judge and administrator. Heads of jurisdiction have a responsibility to ensure that the court promotes change and reform.

The family law practitioners of Western Australia have great confidence in the continuing contribution your Honour will make to the administration of justice in this State following your elevation to this office. We congratulate you on your appointment and we wish you well in discharging the functions of the office.

May it please the Court.

JUSTICE MONCRIEFF: Your Honour.

CHIEF JUDGE SUTHERLAND: Thank you. May I begin by also acknowledging the traditional owners of the land upon which we meet and to pay my respects to their elders past, present and emerging.

Your Honours, former judicial officers, honoured guests, members of the profession, family and friends, thank you all for attending this afternoon. I would also like to particularly acknowledge the presence on the bench today of the Chief Justice of Western Australia and the Deputy Chief Justice of the Family Court of Australia. Welcome.

To the speakers at the bar table, thank you for your warm welcome and your kind words. I do appreciate the extra efforts you have made in trying to find something new and different to say, particularly as it has only been 12 months since we were all gathered here to acknowledge my appointment as a judge. The appointment of a new head of jurisdiction is always a significant milestone in the life of a court.

Since its inception just over 42 years ago, there have only been five chief judges of the Family Court of Western Australia, including now myself. Over the years, I have had the honour and the occasional terror of appearing before all of my predecessors. They were judges whom

I admired tremendously for their intellect and for their work ethic.

When I was preparing for this speech I was surprised at how often the number five kept coming up. For example, since its inception, this court has never had a compliment of more than five permanent judges at any one time and, as you have heard, I am only the fifth woman to be appointed as a judge of the court and the fifth chief judge of this court.

Mr Speakers, a number of you also highlighted another number; the fact that I am the first woman to be appointed the Chief Judge of this court. I think that that is also a milestone worth acknowledging.

Times have changed but not necessarily as fast as we would all hope or think. It was not that long ago that as a young solicitor, I was hauled before the principal registrar at the time and told off for wearing trousers into court instead of a skirt. Needless to say, I’ve continued to wear trousers into court pretty much ever since.

I am very honoured to be the Chief Judge of this court. Mr. Thomson, I thank the Attorney-General and the State Government for appointing me. I appreciate the trust and the confidence shown in me by this appointment. Mr. McIntyre, Mr. Hedges and Mr. Sloan, I also thank your members for their support and good wishes. I have been quite overwhelmed by the number of congratulatory letters, cards, emails and calls that I have received in the last few weeks from your members and I appreciate it very, very much.

At his welcome sitting just a couple of months ago, The Honourable Justice Will Alstergren, the Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, touched upon a number of challenges facing those two courts. Unlike those courts, the Family Court of Western Australia operates from a single registry and, effectively, forms of a single point of entry for litigants needing to access its services. As the former Attorney-General for the State of Western Australia, The Honourable Ian Metcalfe observed during his speech at the opening of this court in June of 1976: The concept of a State Family Court will have many advantages over its counterparts in the eastern states, not the least of which will be convenience to the public, the avoidance of duplication of courts, the reduction in cost to litigants, economy and time and expenditure.

From our vantage point here in the west, we can be very grateful for the foresight

shown by past legislators in enabling the creation of our State Family Court. When my husband, Tony, and I discussed the Family Court of WA as an institution, its structure and the way it goes about its business, we often liken the court to a strongly built platform, constructed with interlinking vertical and horizontal beams.

No doubt, such discussions are one of the many reasons why our three children all decided to move out of home so soon.

The court is vertically integrated, by which I mean that its judges, magistrates and registrars all work together under one case management system and applying the same set of rules. Such a structure gives the court the flexibility to respond and adapt to changed circumstances and better manage its workload.

At this point, I thank and acknowledge the dedication, commitment and integrity of all of the Judges, Magistrates and Registrars of this court.

As you have heard, since I started at the court just under 10 years ago, I have been a Registrar, Docket Magistrate, a Trial Magistrate, Principal Registrar, Judge and now Chief Judge. I know my colleagues well. I know how hard their jobs are and how hard they all work and the sacrifices they make in trying to maintain some sort of a work life balance. I consider myself very privileged to work with them.

I also acknowledge and thank all the other members of the court team, the family consultants, the managers, the registry staff, the security team, the judicial support staff and legal associates for their hard work and dedication in getting the job done. A special thank you, at this point, also to Kathy Mayze, Louisa Halliday and Lex Carlson-Clark for their work in arranging this afternoon’s sitting.

The judicial officers, the family consultants and other members of the court’s team regularly work together in committees, exchanging ideas, learning from each other and problem solving.

We also get to occasionally socialise together as well, whether it be through our wonderful social club led by Clint Miller, one of our court officers, or the various other activities that we engage in.

All of these activities contribute towards creating a cohesive and psychologically healthy working environment. I said at my welcome sitting 12 months ago that since joining the court I had observed that there was a real collegiate atmosphere at the court which seemed to permeate the entire building, from the front registry right up to the Chief Judge’s chambers. It’s an attitude of “my door is always open, what can I do to help”. I’m honoured to be part of such a great team. If I was to set myself

just one goal during my tenure as Chief Judge, it would be: don’t stuff that up.

The Family Court of WA is also horizontally integrated, by which I mean that the court has forged strong links and connections with other State courts, agencies and organisations whose clients are involved in or intersect with the family law system. It includes information sharing arrangements with other courts whose work and clients regularly intersect with our own, such as the Children’s Court and the Magistrates Court of Western Australia. It also includes information sharing and other arrangements with State agencies, such as the Department of Communities the West Australian Police.

These arrangements are absolutely vital to the work that we do, for example: in enabling the court to quickly access relevant information concerning parties when dealing with urgent or ex parte applications concerning their children.

It also includes regular meetings and opportunities to share information and ideas with other stakeholders in the family law system, including organisations such as Anglicare, Centacare, Communicare, Relationships Australia, Legal Aid Western Australia, the Aboriginal Legal Service and professional bodies representing lawyers, including the Law Society, the Bar Association and the Family Law Practitioners Association.

At this point, I wish to specifically acknowledge and thank two of my predecessors, former Chief Judge Stephen Thackray and former Principal Registrar David Monaghan for the enormous work they undertook in helping this court to form such strong working relationships with the other stakeholders in the family law system. I also take this opportunity to publicly acknowledge and thank the heads of the other courts and the representatives of the agencies and organisations who are present today for their work in this regard.

I look forward to continuing and building upon those good working relationships with you all into the future. They are relationships that are enormously valuable to West Australian families who become involved in the family law system and their children, in particular.

I also wish to especially acknowledge the professionalism, care and commitment with which the lawyers who practice in the family law jurisdiction in Western Australia go about their work. This includes your commitment to assisting your clients to resolve their family law disputes outside of the court room, for example, by using other dispute resolution services such as mediation. The workload of this court

would be even more crushing if not for the profession’s preparedness to engage with and promote such services to their clients.

Unsurprisingly, in an environment where resources are limited, the court continues to face some challenges. The number of cases that comes before the court and the complexity of those cases, continues to grow including, in the last 12 months, a spike in the number of new financial matters.

There continue to be delays in getting matters to trial. The court does not have enough court rooms. If it wasn’t for the fact that the Federal Court, the Supreme Court and the Magistrates Court have all regularly helped us out by allowing us to use some of their court rooms, we would be in real trouble. In the absence of increased resources, solutions to all of these issues are very challenging. They require a commitment to questioning the court’s existing practices and procedures with an open mind, listening to the other stakeholders that are part of the family law system, properly evaluating options, having regard, however, to the core functions and the responsibilities of the court, and only then committing to change.

Given the incredibly strong platform that is the Family Court of Western Australia, I have every confidence in the court’s ability to do just that.

Finally, I want to thank and acknowledge my family and friends, many of whom are present again today. I wish to especially mention my dad Jack; my husband Tony; my children Kathryn, Andrew and Elizabeth, who together with her partner Dale, flew in from Melbourne yesterday; my sister Tracie and her husband Brendan; my brother Gary and his daughter Jess; my brother Ian and his partner Sharon; and Tony’s brother Michael and his wife Ruth.

At my welcome sitting 12 months ago I had a lot to say about the wonderful love, support and encouragement that I have always received from my family and my friends. I’m not going to repeat it all again, save to say that without them I would not have gotten very far at all. Thank you.

JUSTICE MONCRIEFF: Thank you. The court will now adjourn.

21

Law, Lawyers and Human Rights

By Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission Law Week Breakfast, Perth, 13 May 2019

Acknowledgments Thanks to Greg McIntyre SC, President of the Law Society of Western Australia, for the wonderful invitation to speak at the opening of Law Week in Perth.

I would like to begin my contribution by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past, present and emerging, of the Noongar people of the Whadjuk nation and I also acknowledge any Indigenous guests in the audience today.

I also acknowledge the presence of the many eminent people pointed out by Greg McIntyre, but recognise particularly the Hon John Quigley MLA, AttorneyGeneral of Western Australia, the Solicitor-General of Western Australia, Joshua Thomson SC, Judges, colleagues past and present, and everyone else here this morning.

Introduction In thinking about what to use as my theme this morning, I took my cue from the Law Society’s campaign theme this week #LawyersMakeADifference. I want to talk about the framing of human rights in Australia and the role of law and lawyers in this process. Hence my title 22 | BRIEF JUNE 2019

for today: ‘Law, Lawyers and Human Rights’.

I came into my present role after a long period in the academic world, with a keen focus on legal history, and then a ten-year ‘apprenticeship’ in the world of statutory office-holding at the Australian Law Reform Commission. By December last year, when I had been in my role as President of the Australian Human Rights Commission for about a year and a quarter, a number of threads coalesced in my mind.

As I see it, we are very much at the crossroads of facing so many issues in the human rights firmament.

The human rights debates over the last decade or so in Australia have been somewhat confrontational. They have often focused on ‘bits’. Sections of Acts— even sub-sections of Acts.

Battlelines were drawn. Sides were taken. Politics was drawn in on these sides. Social media exacerbated everything. It was not very helpful. ‘A house divided against itself’. It was very ‘reactive’.

While we have had debates on these very specific sections, we have not paused and thought about the bigger picture. The result is that what was an

innovative system for protecting people’s human rights in the 1980s is now out of date, not comprehensive and falling behind practices across most other democratic nations in the world.

So I put my law reform hat on and asked: as a law reformer, how do we solve the current situation—the ‘divided house’?

Or at least map a way forward?

We have to open up the conversation.

Acknowledge the history of the Commission as Australia’s National Human Rights Institution. Wrap in previous attempts at reform, take things as ‘given’, and generate forward momentum.

I also wanted to get above and ahead of politics.

I threw out a ‘sky anchor’, as it were, framed as a ‘national conversation on human rights’, asking, ‘what kind of Australia do we want to live in?’. I referenced the last stanza of a poem by Indigenous poet, Oodgeroo Noonuccal, (Kath Walker as I knew her in my schooldays), ‘A Song of Hope’.

To our fathers’ fathers The pain, the sorrow; To our children’s children The glad tomorrow.1

So, combining these two thoughts, the question I am putting is, ‘what kind of Australia do we want for our children’s children?’ and using this to frame the national conversation.

We wrote Terms of Reference, in law reform style, aiming high, setting objectives to be met by the end of this year: •

to recommend an agenda for federal law reform to protect human rights and freedoms fully;

•

to recommend priorities for reforming federal discrimination law to make it more effective and less complex;

•

to articulate key actions that all governments must take to adequately protect the human rights and freedoms of all Australians; and

•

to identify how we can build community understanding and partnerships to realise human rights and freedoms.

There are many places for law in this conversation—and lawyers. I will work through a range of issues to illustrate.

Australian Bill of Rights

Acts.

I thought I’d start with one of the hot topics: the idea of an Australian Bill of Rights—a big piece of law. We have been reflecting on this idea on-and-off, in postwar times, since 1973, when the first Bill of this kind was put to the Australian Parliament by then AttorneyGeneral Sen the Hon Lionel Murphy.

More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, 10 years ago.

But just because ‘everyone else’ has one, does that necessarily mean that we need one too?

Engaging with this issue again is one part of our national conversation—why don’t we have an Australian Bill of Rights?

Curiosity and the natural habits of the legal historian took me back into the history of the Commission, as I wanted to become fluent on this subject. I also firmly believe that to make recommendations for the future, we have to understand the past, to inform the present, and to be properly informed about why and how we should recommend change.

The question of whether we should have such a Bill or Charter is one I have pondered on before coming into my current role, both in my legal history work and in leading the Freedoms Inquiry at the ALRC. But, having come into this role, I have come to look at the question differently. This is the story of my particular ‘road to Damascus’ journey.

While the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation—commonly referred to as a Charter of Rights or a Human Rights Act—Australia stands alone in the Commonwealth for not having introduced such protection, at least at the Commonwealth level.

Into the history, then—

There is already considerable momentum in this direction. In the last week of February, Queensland joined Victoria and the ACT in having state Human Rights

When the Commission was put on a permanent foundation in 1986, as ‘HREOC’— some of you may remember this acronym—after its predecessor

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Commission, established in 1981 with Dame Roma Mitchell at the helm, had completed its designated five years, it was designed in tandem with an accompanying Australian Bill of Rights Act. The 1981 Commission had been established after Australia had ratified the International Covenant on Civil and Political Rights (ICCPR) the previous year. It had been vested with jurisdiction to hear complaints in relation to the ICCPR and other international instruments. But the 1986 Commission was designed with this jurisdiction sitting directly under domestic law, in the proposed Australian Bill of Rights Act, with the complaint-handling functions to be exercised under that Act rather than the Covenant. The Bill was passed in the House of Representatives, but did not survive the Senate.

The functions of complaint-handling under the ICCPR for Australia continue to sit with the Australian Human Rights Commission—but not directly as domestic legislation. But this is rather invisible—at least in the eyes of the public.

So we are, in visual terms, a doughnut, with a hole in the middle. Historically, then, it is a missing piece in our 1986 architecture.

But do we need one today?

When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18, chaired by the Hon Philip 24 | BRIEF JUNE 2019

Ruddock, I was struck by the fact that both of the broad sets of protagonists (pro-protection of religion; pro-LBGBT rights) saw an answer, even ‘the’ answer in having an Australian Bill of Rights.

This was even from those who had been ardent opponents of such a charter in previous times.

But it also struck me that having one was not an end, in and of itself, but the beginning or the unravelling of many more questions. There are certainly gaps in our coverage of the protection of rights, and religious freedom is a good example, but whether we introduce an Australian Bill of Rights; what it would look like; the relationship between a federal statute and the existing and any future state and territory charters; and what role the Australian Human Rights Commission will play, are all key questions.

I must confess that I was a little—a lot— resistant to the idea of a Bill of Rights in Australia before I came into this role. The American experience of a constitutional Bill of Rights, and litigation about rights in the courts, so publicly played out, were somewhat discouraging. Our own constitutional drafters took a different approach. Not having a revolution as a propelling force in our constitutional imagining, we were more reserved.

It is not that our constitutional tradition was ‘opposed to rights’ but rather ‘opposed to judges having power to protect them from interference by legislation’.2 Those who drafted our Constitution, ‘preferred to place their trust in Parliament to preserve the

nature of our society and regarded as undemocratic guarantees which fettered its powers’.3 Hence my own hesitation on the subject.

Common law rights clearly overlap with rights now collectively called ‘human rights’, arising principally from the wave of international conventions in the aftermath of the Second World War, like the ICCPR. Some would also argue rights that were quite well-protected before such conventions. English legal historian, AW Brian Simpson wrote, for example, that: In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.4 Hence, why do we need one?

Why do we need one?

While our Constitution protects some rights, expressly or impliedly, and the rule of statutory construction, known as the ‘principle of legality’, acts as a handbrake on encroachment of rights, does this go far enough? I have come to the conclusion that it does not.

Let’s take each idea in turn.

First, the common law. Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence, but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law.

Second, there is the negative expression of rights.

The problem of much of our human rights protections in Australia is that they are framed in the negative—in terms of what you can’t do. This is the way that our set of four federal Discrimination laws work (Race, Sex, Age and Disability); and, like the common law, they rely on a dispute before offering a solution.

(This has also framed some of the contemporary discourse and criticism about human rights being driven by ‘identity politics’.)

This is not to say that our discrimination laws are not important. They directly reflect international commitments, being domestic implementations of them, and can achieve many positive systemic outcomes through the conciliation that is the heart and soul of the complaintshandling processes, that are the principal vehicles of operation of discrimination laws.6

So what changed my thinking? It was not one specific Damascene moment, but a growing realisation, with three parts.

First, that while our sense of rights is embodied in a long and glorious history in the common law,5 the common law has its limits. Secondly, it was a realisation that the statutory expression of rights is played out in the negative, reliant on individual disputes; and what coverage there is, is patchy. Thirdly, was my experience in observing, and being responsible for, the complaintshanding processes of the Commission, where I have seen how it is not about courts and litigation so much, but about what happens with that only as a last resort possibility (at least for most of our complaints).

Our discrimination laws are also a mishmash, reflective of the context and times of their introduction, over four decades. Amendments have been somewhat haphazard; and the effect of some not properly understood. The political compromises which drove them have been forgotten, and what was envisaged as a temporary expedient to secure passage of legislation becomes part of the permanent structure of the law, without thinking of why: why was it there, what is its purpose now, is that purpose still relevant or necessary?

What protection there is, is also limited.

The panel inquiry I was part of also focused on the distinct lack of, or limited, protection of freedom of religion in Commonwealth law. There is some protection in relation to discrimination on the ground of religion in the context of employment, but it is limited, based on the International Labour Organisation Convention of 1958, ILO 111, which has been part of the Commission’s complaint-handling structure since 1986.7 There is also some Fair Work Act jurisdiction and some under State laws.

There is also inconsistency between the meaning of discrimination in the four federal laws and extremely complex differences in legal standards, which again reflect the different points in time at which each piece of legislation was introduced.

The third part of my journey was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, which it has had since the very first days under the Racial Discrimination Act. Complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these ever end up in court; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

For example, if we look at the number of complaints the Commission has received and conciliated over the past 20 years, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.8 Compare the situation now in relation to the implied freedom of political communication in the Constitution— this is entirely played out in the High Court. (We are intervening in a matter right now). Only a tiny percentage of complaints matters handled by the Commission get anywhere near a Court.

The kinds of objections that lawyers may have to the imprecision of rights language framed as laws, needs to be set in a context in which most arguments about rights happen not in a judicial environment at all. It is also about seeing the experience of those common law jurisdictions that have made the leap into the legislative model, and that the world has not fallen in as a result.

The framing of rights If I asked you, here and now, about your ‘rights’, and you thought about it a bit, you would most likely speak of the common law and, yes, the magna carta.

This is not a bad place to start. The delightful educational videos produced

25

by UK group, ‘RightsInfo’, trace human rights in the UK sense to magna carta.

But magna carta is not what you might describe as a highly accessible document, in the medieval Latin of 1215 when it was sealed. It is iconic, perhaps ‘the vibe’ of our understanding of rights,9 but is this what you would like to pin up on your fridge to instruct your children and grandchildren about rights?

On access to justice, how about this: Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam!

(To no one will we sell, to no one will we refuse or delay, right or justice) (I can see this as a really inspiring conversation with my grandchildren over their cornflakes. It has a kind of Star Wars resonance, but as to filling their imagination on access to justice, I doubt it.)

26 | BRIEF JUNE 2019

The part for politics The essential idea that a Bill or Charter of Rights captures is a positive framing of rights. It is one of the actions that the Commission has supported for many years to ensure an effective system to promote and protect human rights in Australia.

But in throwing out my sky anchor, and with a law reform perspective, I am locating the issue of an Australian Bill of Rights within the context of the outcomes sought, and, in that context, recognising that the decision whether, or not, to introduce a federal Bill of Rights is ultimately a political one. Understanding that reality is essential to our process too: the art is to look at a whole menu of law reform options, including a Bill or Charter as a principal one—and not making it ‘a Charter or nothing’ proposition.

Even without a Bill of Rights, the positive framing of rights can have other expressions.

One of our goals is that law and policy makers explicitly consider the impact on human rights of their decisions and are accountable for this impact.

For policy makers, a Charter could include a positive duty, but you could also get some way there through the Code of Conduct for the Australian Public Service.

With respect to lawmakers explicitly considering the impact of laws on human rights, we went partly down that road with the introduction of the Parliamentary Joint Committee on Human Rights in 2011, and the requirement to produce ‘compatibility statements’ with human rights.10 There are several other committees, some very longstanding,

that scrutinise bills and other instruments for compatibility with rights too. The processes of scrutiny of legislation in Australia are strong, as the Freedoms Report of the ALRC discussed, but there is also room for improvement.11 The beauty of a Charter, and other measures that frontload rightsmindedness, is that they are expressed in the positive—and they are ahead of any dispute.

A Charter names them; it provides an obligation to consider them and a process by which to do it—together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

Now on theme of ‘rights-mindedness’, what about lawyers?

Lawyers Lawyers are, after all, the lynchpin in protecting rights. But how fluent are lawyers on human rights?

When I think about my own legal education, in studying Arts/Law at Sydney University, the most ‘radical’ subject then was, perhaps, Jurisprudence, still reflecting the influence of Julius Stone, taught by Professor Alice Erh-Soon Tay, with a focus on ‘law in action’ rather than ‘law in the books’. But apart from that, it was a ‘straight down the line’ professional degree. No options. Just a set of compulsory subjects. For lawyers of my generation, the language of human rights was essentially foreign, and for many it still is.

And for those older-generation lawyers, it is interesting to reflect on that parallel generation of English judges, old school, who were thrown into the world of the Human Rights Act 2000 (UK), a domestic

implementation of the European Convention on Human Rights. One of those is Lord Neuberger. Speaking at a conference in Melbourne in 2014, on the role of judges and their human rights experience, he remarked: Initially at least, the attitude of many lawyers and Judges in the UK to the Convention was not unlike that of a child to a new toy. As we became fascinated with the new toy, the old toy, the common law, was left in the cupboard.12 In other words, lawyers get used to it.

Like new toys. Lord Neuberger also spoke of the influence of convention/ human rights thinking on the common law and of the effectiveness of the dialogue model (not the override model of the US) in leading change.

But for the generation of lawyers who are emerging now, the story is rather different. They have fluency in this language. These are not ‘new toys’. They also have expectations, of themselves— and their nation.

statutory mandate given to us by parliaments since 1981.

So the ‘sky anchor’ is there. The aspiration is that through our work we can truly contribute to the ‘glad tomorrow’ for our children and our children’s children.

Endnotes 1

Commission’s first Human Rights Day Oration on 10th December last year, presented by the two Royal Commissioners of the NT Royal Commission, Mick Gooda and the Hon Margaret White AO, Mick, a former Social Justice Commissioner, concluded his speech with this last stanza.

2

Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9, 25.

3

Australian Capital Television v Commonwealth (1992) 177 CLR 106, [23], Dawson J.

4

AW Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2004). Common law rights may therefore be seen as largely ‘residual’: Hugh Tomlinson, Richard Clayton and Victoria ButlerCole, The Law of Human Rights (University Press, 2009) 28.

5

See, eg, the discussion in Australian Law Reform Commission, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws (Report No 129, December 2015) ch 2 (Freedoms Report).

6

See my forthcoming article in the Australian Law Journal on this topic, ‘”Seeking equal dignity without discrimination”: The Australian Human Rights Commission and the handling of complaints’.

7

Australian Human Rights Commission Act 1986 (Cth) s 3, definition of ‘discrimination’. This form of discrimination is different from ‘unlawful discrimination’ under the federal Discrimination Acts, and is drawn from the Convention Concerning Discrimination in Respect of Employment and Occupation, Opened for Signature 25 June 1958, 362 UNTS 31 (Entered into Force 15 June 1960).

8

Looking at Annual Reports from July 1998 to July 2018.

9

Referencing the Australian movie, The Castle.

10

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

11

Freedoms Report, [3.95].

12

Lord Neuberger, ‘The role of judges in human rights experience: a comparison of the Australian and UK experience’ (Speech, Supreme Court of Victoria, Melbourne, 8 August 2014), [29].

Concluding comments There is much for us all to do, and this is what led me into the world of pitching a sky anchor of aspirations to lead this year, to involve you, as lawyers, to reimagine our system of protections of human rights and freedoms, in today’s world, respectful of our federation, respectful of our commitments to the international community, and respectful of the part that each of us, with the separation of powers, can play.

Moreover in leading this Australian Conversation on Human Rights, the Commission, as Australia’s National Human Rights Institution is taking seriously—and aspirationally—the

I was reminded of this wonderful poem in the

27

'What you are doing is not good!': Jethro's Advice to Judges1 The Honourable Justice Peter Quinlan Chief Justice of Western Australia, 14 May 2019 Remarks delivered to the Perth Hebrew Congregation Law Week 2019

It is a great privilege to be invited to speak tonight to the Perth Hebrew Congregation as part of Law Week 2019.

May I begin by acknowledging the Whadjuk people of the Noongyar nation, the traditional owners of the land on which we gather tonight, and pay my respects to their Elders past, present and emerging.

Before turning to my theme tonight, can I first identify my jumping-off point?

There has begun, in recent times, an important public discussion in relation to judicial stress and judicial wellbeing.

This discussion has recently found expression in both academic publications and the popular media,2 much of which has been prompted by research being conducted by Carly Schrever, the Judicial Wellbeing Officer with the Judicial College of Victoria. It has also, of course, arisen in the tragic context of the suicide of two judicial officers in Victoria.

Ms Schrever’s research builds upon a large body of Australian and international research in relation to rates of stress and 28 | BRIEF JUNE 2019

depression within the legal profession, including, in this State, the Law Society of Western Australia’s Report on Psychological Distress and Depression in the Legal Profession delivered in March 2011. These earlier reports, in relation to legal practitioners, revealed high levels of psychological distress and risk of depression in the law students and practising lawyers who were surveyed, when compared with Australian community norms.3 Ms Schrever’s research has moved that focus to the judicial arm of government.

A precis of Ms Schrever’s results thus far were recently reported in the Australian Law Journal.

Ms Schrever observed in this context that judicial stress was once an ‘unmentionable topic’, a description she sourced to the Honourable Michael Kirby AC CMG, who delivered a paper on the topic in 1995 when President of the NSW Court of Appeal.4 Justice Kirby’s address sought to ‘break the silence’ on a topic which might otherwise have remained shrouded in embarrassment or stigmatization.

Well, the silence has now well and truly been broken.

Ms Schrever’s precis included the following results: First, on a validated and widely used measure of non-specific psychological distress, judicial officers reported elevated rates of moderate to high distress, compared to the general population and the barrister arm of the legal profession.

But when we look at distress in the very high range, judicial officers rate considerably lower than the general population and all levels of the profession. Second, on a widely used screening tool for symptoms of mental health concerns, judicial officers reported symptoms of depression and anxiety at rates similar to the general population – a rate which is dramatically lower than that found for the wider legal profession. Taken together these findings suggest that, unlike the rest of the legal profession, there is not a widespread mental health problem among the Australian judiciary, but there is a stress problem.

Ms Schrever concluded: It must be remembered, however, that the Australian judicial system is diverse and dynamic, and the

pressures bearing upon the courts are constantly changing. While, longitudinal analysis is required to empirically determine the directional trend of judicial stress, the current research provides a sound basis for decisive intervention to support judicial wellbeing. Neither an individual nor a system can sustain elevated and increasing stress indefinitely, without showing signs of strain and impaired functioning.

The quantitative finding that judicial officers experience elevated nonspecific psychological distress, coupled with the qualitative suggestion that the sources and experience of judicial stress are on the rise, indicates a simmering occupational health and safety concern that demands attention.

Judicial officers are the pinnacle of the legal profession, protectors of the rule of law, and the third arm of government, and as such their occupational wellbeing and sustainability is a vital community concern. Fortunately, as noted in the opening, work is already underway within many Australian courts to discuss and address judicial stress, and movement is afoot to progress the additional research and analysis required to support these efforts.

Against the backdrop of these findings and observations, I propose to reflect a little further why this work matters – not simply as an occupational health and safety concern, although it clearly is such a concern and a very important one at that. I thought I would pose a few ideas as to why it matters for everyone, and in particular for the administration of justice as a whole.

And without wishing, in any way, to downplay the Hon Michael Kirby’s significant contribution to this issue and

this discussion, may I venture to suggest that the stress of judicial work was identified as a real problem much earlier than in the pages of the Australian Bar Review in 1995. Indeed, at least a few thousand years earlier.

Which brings me to the title of my address tonight, ‘What you are doing is not good!’: Jethro’s Advice to Judges. I refer of course to the difficulties faced by the first judge identified in the Torah, the Lawgiver himself, Moses.

The Book of Exodus provides us with account of Moses’ daily work as a judge: ‘Moses sat to judge the people, and the people stood about Moses from morning till evening. When Moses’ father-in-law saw all that he was doing for the people, he said, ‘What is this that you are doing for the people? Why do you sit alone, and all the people stand about you from morning till evening?’ And Moses said to his father-in-law, ‘Because the people come to me to inquire of God; when they have a dispute, they come to me and I decide between a man and his neighbours, and I make them know the statutes of God and his decisions.’

Moses’ father-in-law said to him, ‘What you are doing is not good.

You and the people with you will wear yourselves out, for the thing is too heavy for you; you are not able to perform it alone. Listen now to my voice; I will give you counsel, and God be with you! You shall represent the people before God, and bring their cases to God; and you shall teach them the statutes and the decisions, and make them know the way in which they must walk and what they must do. Moreover choose able men from all the people, such as fear God, men who are

trustworthy and who hate a bribe; and place such men over the people as rulers of thousands, of hundreds, of fifties, and of tens. And let them judge the people at all times; every great matter they shall bring to you, but any small matter they shall decide themselves; so it will be easier for you, and they will bear the burden with you. If you do this, and God so commands you, then you will be able to endure, and all this people also will go to their place in peace.’

So Moses gave heed to the voice of his father-in-law and did all that he had said. Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, of hundreds, of fifties, and of tens.

And they judged the people at all times; hard cases they brought to Moses, but any small matter they decided themselves. Then Moses let his father-in-law depart, and he went his way to his own country.’

You might notice two things that are immediately apparent from this story (besides the anachronistic reference to judges being men, a matter I shall endeavour to rectify later).

The first is to notice Jethro’s prescription of a hierarchy of judges as rulers of thousands, of hundreds, of fifties and of tens. So while, on the other side of the Hellespont, the Greeks may have been the first to establish the jury system (as told by Aeschylus in The Eumenides), Moses’ father-in-law may well be the first person to have suggested the establishment of a judicial hierarchy.

The second point to notice is Jethro’s emphasis on the need for adequate judicial resources. As Jethro comments ‘the thing is too heavy for you; you are not able to perform it alone’. At its most basic level the word ‘alone’ in this

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29

being a good judge and having a healthy human life away from work, where the judge attends to his or her important human relationships.

And just to drive this point home, there is an important etymological allusion in the phrase ‘what you are doing is not good (lo tov)’. It is this: the expression lo tov appears only twice in the whole of the Torah. It appears in this passage and in the creation story at the beginning of Genesis, specifically when the Creator says ‘It is not good that man (or a human) should be alone’. ‘It is not good (lo tov) that a human should be alone’. context refers to the fact that the work is not work that can be carried out by only one person. This is no doubt true.

There is an ever present need for more judges to keep up with the growth of litigation. Let this then be a Torahic admonition to executive governments everywhere to monitor and maintain the judicial resources necessary to serve the community.

But it is not these more obvious features of the story that I wish to draw out, nor this more obvious understanding of the word ‘alone’ (l’vad). I want to dig a little deeper.

You will recall that Jethro begins his speech to Moses with the expression ‘What you are doing is not good’. The Hebrew from which the phrase ‘not good’ is translated are the words lo tov.

What you are doing is lo tov.

What does exactly Jethro mean by this?

In what way is what Moses is doing ‘not good’ (lo tov). After all he is performing a public service to the people. Surely that is ‘good’ (tov).

Is Jethro saying that Moses will become physically and mentally exhausted and so be incapable of continuing to work?

That he should rest, so as to be able to come back the next day to start judging again. That otherwise he will suffer burn out. As though Jethro were a kind of Midianite Occupational Health and Safety Officer.

Maybe. But I suspect that there is more to it than that.

As lawyers we all know that understanding a text requires consideration of context. So let’s delve into a little context.

And one matter of context that might help us to understand what Jethro might really be getting at, is to ask: who is it that notices and provides the admonition to Moses? After all, surely anybody could 30 | BRIEF JUNE 2019

have seen that Moses was standing about from morning until evening judging the people. His brother would have noticed it. His generals would have noticed it. The elders would have noticed it. The people coming to be judged would have noticed it. Yet none of these called him out and told him.

Rather, the person who calls him out is Jethro: his father-in-law.

This is emphasised by the context. In the passage immediately preceding this passage we are reminded that Jethro had just arrived at the camp from his home in Midian having heard about the things Moses had been doing. And Jethro has brought with him his daughter (and Moses’ wife) Zipporah, and their two sons, Gershom and Eliezer.

And so we know that Jethro sees something that the other onlookers do not see. Jethro sees that while Moses is spending all of his time judging the people, he is not at home with his wife and children. So while Jethro’s admonition is expressed in terms of concern for Moses and the people with him, can I suggest a sub-text to what Jethro is saying that is something like ‘What you are doing is not good. You are neglecting your obligations to be with your family. You are not attending to the important human relationships in your life.’

'And that’s not good for you, it’s not good for them and, importantly, it’s not good for justice. Because, if you want to be a good judge you have to attend to your human relationships. How are you going resolve other people’s disputes, and bring justice to their relationships, if you don’t attend to your own relationships?'

So I suggest that Jethro’s statement that what Moses is doing is not good (lo tov) is not just a statement about exhaustion, but about making clear the link between

Nowhere else does the expression lo tov appear in the Torah. So we should pay close attention to it.

Also notice that the word ‘alone’ (l’vad) appears again in this passage. Just as Jethro said ‘What you are doing is not good… you are not able to perform it alone’, the earlier passage says ‘It is not good that [you] should be alone’. They are practically the same sentence.

And ‘alone’ (l’vad) clearly in this second context is not just talking about numbers: as if it said ‘It is not good that there should be only one of you’. It is clearly saying that it is not good for you to be without relationship; human relationships that enable you to know and understand the world around you.

So, what I want to suggest is that Jethro’s advice to Moses isn’t just that, in order to be a good judge (to be able to deliver justice), there need to be more of you. Rather it is something more profound, that this business of judging, and delivering justice, isn’t something you can do as an isolated individual but is something that requires you to be a person immersed in ordinary human relationships.

So much of judging (or lawyering for that matter) involves qualitative value judgments. In every area of the law we find them: ‘has the defendant exercised reasonable care’, ‘did the accused use reasonable force’, ‘what would a reasonable businessperson understand the contract to mean’, ‘is the sentence fair and just’ etc. These are not simply questions of logic, as if the application of a syllogism (or an algorithm or calculus) could produce the right answer. They are normative and evaluative questions that involve a lot of ‘ought’ as well as a lot of what ‘is’.

Consider this observation from Chief Justice Gleeson in New South Wales v Fahy, concerning whether a defendant’s conduct in a negligence case was ‘reasonable’:5

This has since been referred to, somewhat unfortunately, as a ‘calculus’. What is involved is a judgment about reasonableness, and reasonableness is not amenable to exact calculation. The metaphor of balancing, or weighing competing considerations, is commonly and appropriately used to describe a process of judgment, but the things that are being weighed are not always commensurate. …

[T]here are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result.

Similarly, Oliver Wendell Holmes, the great American jurist, began his famous lectures on the common law observing that ‘The life of the law has not been logic: it has been experience’.6 If experience is the life of the law, then our appreciation of what is reasonable, fair and just, will come as much, if not more so, from our human relationships as it does from books. Our own human relationships, both as judges and lawyers, are the raw material from which we fashion our understanding of these essential but elusive qualities. And so they need as much attention as the books do, if we are to be able judge wisely and justly.

This is what I want to suggest Jethro was really getting at: ‘What you are doing is not good for justice. Go home, Moses. Spend some time with your wife and sons, and with your friends. It is there that you are going to gain the understanding of ordinary human experience that will enable you to be a good judge and to bring peace to the people. You’ll be better for it. And so will justice.’

Let me give one final example of this idea, this time providing some gender balance.

It is an example from two of the great Hebrew prophets of our own age, the

American filmmakers Joel and Ethan Coen.

The Coen Brothers’ 1996 film Fargo tells the story of Marge Gunderson, a small town police chief from Brainerd, Minnesota, who is investigating a double homicide (some ‘malfeasance’ as she describes it). Marge’s investigation leads her into a dark world of extortion, kidnapping, greed, betrayal, brutality and murder, in which she ultimately prevails, bringing (at least the remaining) offenders to justice.

Marge is a modern day Moses figure.

She is the archetype of the good law woman. She is strong, wise, courageous, unfailingly courteous, compassionate and just. She is, to use the Hebrew, a tzadeket: a righteous one.

And, throughout the film, in a beautifully subtle way, the Coen Brothers, point us towards the source of Marge’s righteousness.

The action of the film takes place over the course of only a few days. Amidst all the violence and mayhem that is depicted, each day opens and closes with a scene with Marge at home, usually in bed, with her husband Norm, a fairly non-descript man, who paints ducks for a living. We come to understand that it is her life away from the law that gives Marge the strength, the wisdom and the ‘uprightness’ to be able to fulfil her important and serious public duties. It’s when she returns ‘to Norm’ that she finds the raw material to be able to carry out those public functions.

That is, she returns ‘to norm’; her normal life. The ordinary human relationships in which she works out what it is to be wise, just and reasonable. Or, as we might put it, what is ‘normative’.

It is the same with modern day judges.

Not only for their own wellbeing but for the good of justice, it is necessary for them to return to the norm of

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ordinary human relationships as the raw material for discerning what is wise, just and reasonable. This is the deeper implication of the recent focus on judicial wellness, a realisation that it is not simply an additional extra – a means of ensuring judges are occupationally fit – but rather an essential part of what it is to be a judge.

Of course, for Marge it is a particular ‘Norm’ but her particular human relationship doesn’t exhaust the kinds of human relationships that provide that raw material. Those human relationships will be different for everybody; but whatever they are, they are essential to the wellbeing of the judge and of the health of the justice system as a whole.

Fargo ends with an image of Marge and Norm in bed. One of the last things Marge says to Norm is ‘Heck Norm, you know we’re doing pretty good’. ‘We’re doing pretty good’, or, to round off the Hebrew ‘tov lanu’.

And so we have our choice: Jethro, ‘What you are doing is not good (lo tov)’ or Marge, ‘We’re doing pretty good (tov lanu)’?

The interests of justice depend upon it.

Thank you for your time.

Endnotes 1

2

3

4

5

6

I gratefully acknowledge, for their assistance with the Hebrew translations, Mr Marcus Solomon SC and Dr David Solomon.

See e.g. Schrever, Australia’s First Research Measuring Judicial Stress and Wellbeing: A Preview of the Findings (2018) 92, ALJ 859-862; Pelly, ‘Stressed Out Judges Turn to Drink’, Australian Financial Review, 7 May 2019 https://www.afr.com/business/legal/ stressed-out-judges-turn-to-the-drink-20190506p51kly (accessed 8 May 2019).

See N Kelk et al, Courting the Blues: Attitudes Towards Depression in Australian Law Schools and Legal Practitioners (Brain & Mind Research Institute, University of Sydney, (2009).

‘Judicial stress – An unmentionable topic’ (1995) 13 Australian Bar Review 101.

New South Wales v Fahy (2007) 232 CLR 486 at [6].

Holmes, The Common Law, Little Brown & Co (1881), page 1.

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31

Pro Bono Disbursement Schemes The Law Society’s Access to Justice Committee

BACKGROUND The Access to Justice Committee has identified that there is a lack of awareness within the profession about the existence of the Law Access pro bono disbursement scheme. This article seeks to provide further information about the scheme and to encourage lawyers to get involved in pro bono work more generally.

The approach taken to allocating and accounting for disbursements may impact on either the pro bono budget, or the budgets of the teams working on the matter. Some law firms have the capacity to absorb these costs, but many do not.

In some cases, potential disbursements can affect the decision on whether to take on a matter in the first place.1 The Australian Pro Bono Centre’s 2016 National Law Firm Pro Bono Survey identified that large and mid-sized firms in Australia are paying significant amounts for external disbursements in their pro bono legal work, and that interpreters fees are one of the main categories of disbursements incurred.2 These out of pocket costs can be a challenge for firms’ pro bono programs, in particular for small and mid-sized firms.

A summary of the schemes around Australia is available here: https://www. probonocentre.org.au/provide-pro-bono/ disbursements.

PRO BONO DISBURSEMENT SCHEMES Law Access scheme Law Access has established a disbursement scheme for pro bono lawyers who take Law Access referrals (thanks to an original generous donation from Allen & Overy which has been 32 | BRIEF JUNE 2019

replenished by a donation from the Allen’s Linklaters Foundation and by further donations made to Law Access by our supporters). The scheme is reliant on lawyers who win pro bono cases reimbursing the scheme where referrals are successful and favourable pro bono costs orders are made. Law Access also relies on donations to top it up. The fund is small, with a maximum of $5,000 normally available in the fund at any given time. Information on how to apply for a Law Access Disbursement Grant can be found in the guidelines on the Law Access website lawaccess.net.au.

the full disbursement costs.

•

Paying for an interpreter for proofing a witness in a case where an employee successfully established extensive underpayment including conditions akin to modern slavery.

•

Paying for travel and accommodation for a pro bono barrister to advise and represent Aboriginal parents ina remote community on care and protection issues.

•

Paying for travel, accommodation and interpretrs in a public interest judicial review referral which was settled and where Law Access was able to recover our full disbursement costs.

Subject to the availability of funds, an application can be made for a matter that has been referred through Law Access to a pro bono lawyer.

The fund may cover fees for such things as: (a) Interpreter or translator fees where these are not otherwise able to be covered by Government grants; (b) Expert reports; (c) Application fees; (d) Transcript fees; (e) Solicitors’ travelling and accommodation expenses; or (f) Any other expense of this nature which needs to be covered by the client.

The fund will not pay for office expenses such as fax, telephone and photocopying fees.

Some examples of how the fund has been utilised by Law Access to date are: •

Obtaining transcripts in a part-heard Magistrates Court criminal law matter in which the pro bono lawyer achievd an acquittal and recovered

Commonwealth scheme The Commonwealth Government provides funding for disbursements in certain Commonwealth legal matters. For more information please see Australian Government AttorneyGeneral’s Department’s Disbursement Support Scheme. Where Commonwealth funding is available it should be used instead of the Law Access Disbursement Scheme. One of the problems with the commonwealth scheme is that no expenditure can be made prior to approval of the expense and the approval process usually takes 28 days.

This can cause problems in matters requiring more rapid turn-around.

Examples include the cost of: •

expert reports

•

obtaining court transcripts

•

expert witness fees.

The expected cost of disbursements must exceed $500 (inclusive of GST).

This can be a problem in pro bono referrals where interpreter or service costs come in at less than $500 but where the client is indigent and the firm cannot meet the cost.

No assistance is available for: • • •

criminal matters state or territory legal matters, or overseas legal matters.

No assistance is available to people who are receiving, or are eligible for: •

•

a grant of legal financial assistance from the Commonwealth Attorney General’s department under another scheme, or assistance from a legal aid commission.

Legal Aid scheme The Civil Litigation Assistance Scheme (CLAS) operated by Legal Aid may provide funding in certain civil matters to cover both professional legal fees and disbursements. Applications must be made by lawyers on behalf of plaintiffs.

Where Legal Aid funding is available it should be used instead of the Law Access Disbursement Scheme.

The CLAS helps people run civil litigation cases in court. The CLAS helps pay for legal costs, including legal representation, in cases where a grant of aid is not normally an option.

In return, if you receive funding from the CLAS you must pay Legal Aid WA 20% of any settlement or court judgment you receive, and amounts you are able to recover from the other parties for your legal costs.

The CLAS is subject to both means and merits tests. Applications for the CLAS funding must be made by a lawyer for their client.

The CLAS does not cover :

the Family Court) and the Administrative Appeals Tribunal are eligible for an exemption from, or reduction of, those fees if the person: •

has been granted legal aid;

•

is the primary holder of a particular benefit or concession card;

•

is younger than 18 years;

•

an Independent Children’s Lawyer appointed to represent a child’s interests in proceedings under the Family Law Act 1975 (Cth);

•

is imprisoned or detained in a public institution;

•

is in receipt of a youth allowance, Austudy or ABSTUDY benefit; or

•

(or is a body) that bhas been granted assistance under Part XI of the Native Title Act 1993 (Cth).

Western Australia Supreme Court The Court or a Registrar may, on the grounds of financial hardship or in the interests of justice, waive, reduce, refund or defer the court fee. Reduced fees are also available to small business and non-for-profit associations. An application must be made by submitting a Form 2 (Application to Remit Fees) to the Supreme Court Registry. Small business and not-for-profit associations will need to complete and submit a Form 1 (Declaration that person is operating a small business or not-for-profit association) to have the fee reduced.

It is available to holders of a Pensioner Concession Card, Health Care Card, Commonwealth Seniors Health Card, Department of Veterans’ Affairs cards, those receiving legal aid, a youth training allowance, Austudy or Abstudy payments, those under 18 years of age, an inmate of a prison or someone who has otherwise been legally detained in a public institution, and those who can demonstrate they would experience financial hardship if required to pay the full fee.

•

family law disputes

•

criminal charges

•

immigration cases

•

commercial disputes

•

environmental matters

•

defamation cases

District Court

•

prerogative writs

•

workers’ compensation.

Applicants in possession of eligible concession cards can apply for an automatic waiver for filing fees. Further, the Court can authorise waivers, reductions, refunds or the deferral of fees generally, for special reasons, which are defined as follows;

COURT FEE WAIVERS Commonwealth It should also be noted that people liable to pay fees in Commonwealth courts (the High Court, the Federal Court of Australia, the Federal Circuit Court and

a. financial hardship; b. that an important right or obligation

affecting the community or a significant part of the community will be determined; or c. that the development of the law generally will be affected so as to reduce the need for further litigation.

Reduced fees are also available to small business and not-for-profit associations Applicants seeking an automatic waiver of filing fees must present at the Court registry with the relevant concession card to claim the concession. All other applications to have a fee reduced, refunded, waived or deferred will require applicants to complete and submit a Form 2 (Application to Remit Fees) with the District Court Registry. Small business and not-for-profit associations will need to complete and submit a Form 1 (Declaration that person is operating a small business or not-for-profit association) to have the fee reduced.

Family Court You can apply for an exemption or reduction of the standard court fees.

To be eligible, you can show the Court that you either: •

meet the fee concession criteria; or

•

are experiencing financial hardship.

Whether it is a fee reduction or exemption depends on the type of fee.

Divorce and nullity application fees can be reduced, and you can get an exemption for other fees.

Magistrates Court The Magistrates Court allows applications for fee concessions where the person is a concession card holder, is experiencing financial hardship or the concession is in the interests of justice.

Cost of court transcripts in State Courts Where a pro bono referral of a part-heard matter or a mater on appeal occurs the pro bono lawyer normally needs to seek transcript. This can prove costly. Law Access is aware that the Supreme Court does offer some reductions in costs (but not full fee waivers) but there is no formal state scheme apart from the very limited CLAS which provides transcript reimbursement.

Notes 1

Australian Pro Bono Centre, Report on the Fifth National Law Firm Pro Bono Survey — Australian firms with fifty or more lawyers (March 2016) 55, http://www. probonocentre.org.au/wp-content/uploads/2017/03/ Report-on-the-Fifth-National-Law-Firm-Pro-BonoSurvey.pdf.

33

Taxing Matters

Intersection Between Family Court Proceedings and Taxation Legislation

By Clare Thompson Barrister, Francis Burt Chambers A couple of recent high profile cases have illustrated the intersection between Family Court proceedings and taxation legislation.

Commissioner of Taxation v Tomaras [2018] HCA 62; (2018) 362 ALR 253 arose out of a matrimonial dispute seeking property orders in the Federal Circuit Court.

The wife had sought an order transferring her tax debt of $256,078.32 plus GIC, which had arisen during the course of the marriage, to her husband. The tax debt arose from unpaid income tax, Medicare levy, penalties and GIC, and the Commissioner had obtained a default judgment for $127,669.36 in 2009, on which GIC continued to accrue. Proceedings for a review of the assessment under Part IVC Taxation Administration Act 1953 had not been commenced by the wife. The husband became bankrupt in November 2013 and in December 2013 the wife commenced the proceedings in the Federal Circuit Court.

At the hearing in August 2016, the trial Judge did not determine whether the order sought should be made, but instead referred the following question on a case stated to the Full Court of the Family Court of Australia: Does s 90AE(1)-(2) of the Family Law Act 1975 (Cth) grant the court power to make Order 8 of the final orders sought in the amended initiating application of the Wife?

Order 8 was: Pursuant to section 90AE(1)(b) of the Family Law Act 1975 (Cth), in respect of the applicant wife’s indebtedness to the Commissioner of Taxation for the Commonwealth of Australia taxation related liabilities in the amount of $256,078.32 as at 9 August 2016 plus General Interest Charge (GIC), the respondent husband be substituted for the applicant wife as the debtor and the respondent husband be solely liable to the Commissioner of Taxation for the said debt.

The Full Court (Thackray, Strickland, Aldridge JJ) answered the question yes: (2017) 327 FLR 228; (2017) 57 Fam LR 112; (2017) 106 ATR 878; [2017] FamCAFC 216.

The High Court answered the question in the following terms: Although in relation to a debt owed to the Commonwealth by a party to a marriage s 90AE(1) confers power to make an order that the

34 | BRIEF JUNE 2019

Commissioner be directed to substitute the husband for the wife in relation to that debt, it is otherwise inappropriate to answer the question without it being found, or agreed, that, within the meaning of s 90AE(3), the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage, and it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and without the court being satisfied that, in all the circumstances, it is just and equitable to make the order (my emphasis).

So, “yes, but”. Legislative change is likely in this area, most probably enshrining the criteria on the exercise of the power.

Ellison v Sandini Pty Ltd (2018) 354 ALR 484; (2018) 125 ACSR 249; [2018] FCAFC 44 also arose out Family Court proceedings. Sandini Pty Ltd was joined to a matrimonial dispute in its capacity as trustee for the Ellison Family Trust and orders made that it transfer shares it held in a publicly listed entity to Ms Ellison. After the orders were made the shares were in fact transferred to a company associated with Ms Ellison, on her request. It also transpired that the shares were not owned by Sandini atf for the Ellison Family Trust, but by Sandini atf Karratha Rigging Unit Trust (KRUT), so that the wrong entity was joined to the Family Court proceedings.

Two questions arose: did GCT event A1 occur by reason of the making of the orders in the Family Court, and was rollover relief available to the transferor of the shares?

The Full Federal Court (Siopis, Jagot JJ, Logan J dissenting) found that CGT event A1 did not occur because the orders did not effect a transfer of themselves, for amongst other reasons, the party joined to the Family Court proceedings was Sandini Pty Ltd, but not atf the trust which actually held the shares.

There was no ability for the company in its correct trustee capacity to be joined to the Federal Court proceedings so that it was bound by any orders, when the Family Court orders remained in place. As a result, CGT rollover relief was not available to Sandini atf KRUT because it was not a party to the Family Court orders. It was also not available to Sandini Pty Ltd atf KRUT because Ms Ellison was not the transferee of the shares and section 126-15(1)(a) ITAA 1997 requires the transferee to be a party to the marriage for roll-over relief to be available.

Special leave was refused.

Meet Richa Malaviya Law Graduate at the Law Society and Law Access Limited

As part of its commitment to supporting young lawyers, the Law Society employs a law graduate, who also performs work with Law Access Limited. Meet Richa Malaviya.

Richa splits her time at the Law Society with the Advocacy and Programmes teams. Richa has also been working with Law Access, which performs valuable legal work on a pro bono basis for the benefit of vulnerable people in our community who require access to justice.

Graduates work under the supervision of the Principal Lawyer at Law Access and the experience gained is designed to assist in working towards completion of the Practical Legal Training (PLT) requirement for admission as a lawyer in Western Australia. These arrangements with Law Access are separate to the graduate’s paid employment at the Law Society. There is a competitive recruitment process for the role, which is advertised.

Brief caught up with Richa to discuss her experiences working at the Law Society and Law Access.

What initially attracted you to studying law and pursuing a career in the legal profession?

I did not grow up intending to become a lawyer or pursue a career in the legal profession; it just was not a career path I thought was suitable for me. Instead, I found myself studying Cyber Forensics and Counter Terrorism and it was not until around 2015 as part of my then job, I was tasked with working on deaths in custody casework and research.

As part of this work I attended the majority of the Ms Dhu coronial inquest during November 2015 and March 2016 (including the findings in December

2016). It was here I fell in love with the mechanisms and capabilities of the legal justice system and profession as a whole.

My time at Law Society has been split equally between the Programmes and Advocacy teams.

I saw firsthand an avenue of law which could defend the rights of those who were no longer present to defend themselves, and gave hope and justice to families at times they needed it most.

It was through these inquest proceedings and through the time I spent talking to families, where I saw in myself, the value in becoming a lawyer.

In Advocacy, my interests in Indigenous legal issues and access to justice were fostered and saw me contributing to research, attending committee meetings, providing comment on submissions and assisting with the Law Society’s RAP initiatives.

Tell us more about the work you do at Law Access. What has been the most interesting aspect and what has been most challenging?

Law Access in many ways is the face of legal issues of the wider WA community, where individual applicants and not-forprofits can seek legal assistance from us.

It is through the work there that I interact with members of the public who often fall through the gaps and require legal assistance the most.

The most challenging aspect of the work is talking with potential applicants who may not be able to afford private assistance and have been constantly referred from one legal service provider to another. Sometimes we need to let these applicants know their matter has limited prospects of success, or that their limitation date has passed and we are unable to assist them. It can also be challenging to hear the applicants’ stories of how they have been taken advantage of or how one misguided decision catapulted their whole lives into disarray.

One of the more interesting aspects has been working on the variety of matters which present themselves to us, and the ability to monitor the trends and prevalence of legal issues which are of concern to the public.

Can you tell us about the special projects you have been working on at the Law Society?

In Programmes, I actively partook in the #LawyersMakeADifference campaign, working extensively on it from conception stages to its official launch during Law Week 2019. I also worked extensively on updating the content for the website adapting the content to make it more user-friendly and accessible to the general public.

I’ve had a fantastic time working on all of these projects with some really amazing people.

How has your experience gained at the Law Society and Law Access helped prepare you for your future legal career?

I was fortunate to obtain this competitive position and equally fortunate to gain the experiences I’ve had. I’ve interacted with so many wonderful people, including members of the public, lawyers, and stakeholders in the public and private sector.

Being a law graduate at Law Society and Law Access has prepared me for my future legal career by showing me firsthand how the profession works in Western Australia. I’ve gained insight into how the wider public interacts with the legal profession, what the most prevalent legal issues in the community are, and I’ve seen how the legal profession supports one another often working together to achieve a common goal. I have gained skills, experiences and general understanding of the legal profession which I am sure I will use throughout my legal career.

35

Interview with Kelsi Forrest 2019 Law Society Lawyer of the Year (Less than five years' experience category)

By Melanie Callow

During Law Week 2019, Kelsi Forrest was the recipient of the Law Society of Western Australia’s 2019 Lawyer of the Year Award (less than five years’ experience).

In 2012 Kelsi was the inaugural recipient of the Aboriginal Women’s Legal Education Trust and this year won Women Lawyers of Western Australia’s (WLWA) Junior Woman Lawyer of the Year Award. Kelsi was interviewed by Melanie Callow on behalf of the joint WLWA and Law Society Committee.

Tell me about you. Why did you choose to study law?

I am Wadjuk Balardong Mineng Nyungar and have kin connections with Yamatji and Wongi mob. I grew up on Yamatji country in Geraldton. I have always wanted to study law and be a lawyer. I saw it as an opportunity to effect change amongst Aboriginal peoples and our community and that drives me to this day.

I studied at UWA, I didn’t get direct entry, but followed an alternative path and went through the School of Indigenous Studies’ Aboriginal Pre-Law Programme in 2011. I was then part of the last cohort of LLB students at UWA, and also studied a Bachelor of Arts (majoring in Political Science and Indigenous Knowledge).

I generally liked studying and do miss it now that I am practising which is part of the reason why I took up tutoring Aboriginal law students at UWA last year. The transition from study to practice has been relatively seamless – I was lucky that I secured a law clerk job working part time in my final year and then was offered a graduate job so that continuity has been good. I was admitted in late 2017 and have been at Roe Legal Services for three years now.

What has your career path been like so far?

I have only practised at my current firm but whilst I was at university I was fortunate enough to be part of a couple of Aboriginal cadetship programs which are basically paid internships where you can either work part time during semester, or full time during holidays. They are offered in a number of sectors and generally match students up with the relevant field you are studying in. Initially I worked for the Australian

36 | BRIEF JUNE 2019

Public Sector and spent my holidays in Canberra working for the Attorney General’s department. Then I secured a cadetship with Legal Aid WA where I worked in a number of their divisions and this also included a couple of trips up north on circuit. I also clerked at DLA Piper over one summer.

They were all really great eye-opening experiences that gave me a lot of insight into the organisations that made me understand the types of work I could get into.

By chance, I randomly came across an ad on SEEK for a law clerk at Roe Legal Services and got the job here. I love it. I never really thought when I started studying that I would end up in the native title sector but I’m glad that I did. I really enjoy working with Aboriginal peoples and organisations all across WA. There is a lot of travel involved but I think that’s one of the great things about my job, I love going out and connecting with people and communities and I think a lot of my clients appreciate that.

I’m not really sure just yet where I see my career heading, I am okay with seeing what happens for now, especially given I am only a year and a bit into practice.

In 2012, you were the inaugural winner of the AWLET scholarship.

What did receiving that mean for you?

The financial assistance helped a lot but the thing that set this scholarship apart for me was the opportunity to gain insight into the profession as well as the mentorship opportunities. My mum and dad are both in education and the rest of my immediate family all work in other areas, and while I have some extended family in the law, the ability to make connections and relationships within the profession through the vehicle of the scholarship has been invaluable.

I also think the scholarship was a vote of confidence in me as a student and the path that I was pursuing, to have that support from people like Clare Thomson and Elspeth Hensler and Women Lawyers of WA has been special.

You recently won joint Junior Woman Lawyer of WA. What did receiving that award mean for you?

Elspeth actually contacted me and asked

if she could nominate me. I was very proud to be nominated for the award and I didn’t really think I had a chance of winning, just because I am still quite junior and I know the high calibre of women lawyers that are nominated for the awards (having been to a number of Honours dinners through the scholarship).

I feel really proud to have won the award, the Honours dinner was an amazing night and I am so grateful to have shared it with the people who made it possible, my unbelievable support system.

Representation matters and I know that women lawyers understand this, to have Aboriginal women celebrated and supported is so valuable to me and our Aboriginal community.

I don’t do what I do, both in my professional work and in my work in the community, for awards, but it is always something really special to be acknowledged and recognised for it, it makes me want to keep going and if ever I waver or have doubts about my path, I can always look back and know that other people appreciate me and the work that I do.

What are your words of encouragement for other junior lawyers?

Try and find the work that you are most passionate about and all of those hard years will be worth it.

If you had a message for more senior members of the profession what would that be?

Embrace diversity and support diverse voices coming through the profession in any way you can.

What has been the proudest achievement of your legal career to date?

Definitely winning this award and just generally being able to do every day what I have always wanted to do – work with Aboriginal people and communities.

Behind the Scenes at the Corruption and Crime Commission Law Week 2019 Wednesday, 15 May 2019

The usually secretive Corruption and Crime Commission opened its doors to the public and a full house during Law Week, staging a mock examination before the Commissioner.

was confronted with clandestine photos, emails, telephone intercepts, computer forensic analysis and finally, surveillance footage of him taking delivery of free TVs, a hairdryer and a 'fat puppy', being a wad of cash in an envelope.

The Commission was investigating Mr Melon (Mr Sean Mullins), a procurement officer at the Department of the Outdoors. Mr Melon had awarded the tender for supply of some really big TV screens to his old mate, Mr Crum, after telling Mr Crum of the prices submitted by other bodies.

After the examination was concluded, the audience engaged with many questions about the Commission and its work.

Utilising the Commission's powers, Mr Melon

Mr Melon looked beaten and not even his lawyer, Ms Nadia Pantano, could save him from his doom, even though several of her objections were upheld.

The Commission was proud to be part of Law Week.

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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 Law Society facilitates this service between members and the community, we do not screen, verify or recommend a firm, their capability or experience.

Law Society of Western Australia Professional Standards Scheme The Law Society of Western Australia Professional Standards Scheme (Scheme) provides a significant benefit for Law Society members. The (original) Scheme commenced on 1 July 2014 and does not apply to claims prior to that date or prior to your commencement with the Scheme. That Scheme ceases on 30 June 2019 and will be replaced by the second Professional Standards Scheme which will operate from 1 July 2019 to 30 June 2024.

Subject to any member’s application for a higher maximum liability cut-off, the Scheme caps occupational liability of participating members to an amount of $1.5 million, $5 million or $10 million depending on the insurance policies and total annual fee income of the law practice.

Participating members are required to disclose their limited liability status to clients. Failure to do so is an offence under the Act. This is an opt-out Scheme which, subject to the provisions of the Professional Standards Act 1997 (WA) applies to Law Society members. Subject to the Act, members may “opt out” by applying for exemption from the Scheme. The Scheme will cease to apply to such a member from the date the exemption is granted.

For further information in relation to the Scheme, please visit the Law Society’s website or contact the Scheme Coordinator on (08) 9324 8653 or by email to pss@lawsocietywa.asn.au

38 | BRIEF JUNE 2019

Mentoring Matters The Law Society’s Mentoring Programme for Junior Practitioners (1-5 years PAE) and Aboriginal and Torres Strait Islander Law Students has been available to members annually since 2008 and runs from June/July through to May the following year. The Programme is now also available to practitioners with five or more years post admission experience.

Originally funded by 10 law firms, the Law Society in recent years has recognised the importance of mentoring and now funds the Programme as a member benefit.

In the last five years, the Law Society Mentoring programmes have seen in excess of 300 mentee and mentor matches.*

Is mentoring for me?

Busy lives, heavy workloads, navigating the legal profession and making effective career decisions are common sentiments from prospective mentees.

Yet one to two hours every four to six weeks with a mentor can provide welcome conversation, links to networks, and advice from someone that understands the highs and lows of the profession.

Being matched with an independent legal professional supports career development discussions and professional development direction advice. The Programme ensures career direction can be safely discussed with an objective yet experienced practitioner.

The range of issues can range from a difficult situation or general workplace query and the options for managing them can be discussed in an informal environment.

Apart from career direction, the benefits of mentoring are numerous and range from increasing mentee’s confidence in practice competencies and potential, developing greater appreciation of the complexities of decisions to be made, providing opportunities to network, increasing understanding of a professional perspective – the norms, standards, values, ideology, history and politics of the profession.

It may surprise you to hear that our mentors also talk of benefits in participating in the programme. Comments range from providing exposure to fresh ideas, gaining personal satisfaction in teaching and sharing experiences and improving skills of counselling, listening, modelling and leadership as well as being informed of the issues confronting young practitioners in entering the profession at a time of rapid change.

“It felt most rewarding to provide positive assistance to a young member of the profession taking the next step up in her career.”

“Rewarding to help others’ plan, action and reach their goals.”

“Remembering what it is like to be a junior; process assists me with my supervision of junior lawyers.”

Some mentors have been with the Programme from its inception, some mentoring relationships extend way beyond the assigned programme and we have been delighted to have mentees return to the Programme in consecutive years to connect with another esteemed member of the profession. In the last five years the number of mentors has increased to reflect a broader cross section of the profession complementing the very experienced mentors that continue to participate in the Programme. The broader base of mentors, including senior women practising in the private and public sector, at the bar or as senior in-house counsel, provides the Programme with greater choice when pairing mentees and mentors and thereby enabling the Programme to address the increasingly changing legal environment.

We are also seeing interest to be a mentor coming from practitioners who have transitioned from senior roles in law to senior executives, including chief executives and non-executive directors.

How does it work?

Supported through the Advocacy Team at The Law Society of Western Australia, the Programme utilises the services of an independent Coordinator, with a background in training, facilitation, mentoring and coaching. The Coordinator runs the annual introductory sessions for new mentors and mentees, takes time to get to know new participants and gauge interests for the Programme and works closely with the team to make suitable matches – mentee and mentor. The Coordinator keeps in touch with mentees throughout the Programme to ensure successful matches are sustained and provides regular reports to the Law Society through the relevant Committees and Council.

Monitoring of the Programme by contact with participants aims to encourage mentees to discuss concerns with the Programme – “I find it difficult to set aside time” or “I lack confidence” and provide a consistent point of contact for mentors from one year to the next.

The Coordinator speaks of the Programme as a truly rewarding experience, “The number of mentees and mentors who thank the Law Society for the privilege of being matched with their particular mentor/mentee is nothing short of astounding.”

* The Law Society also has a mentoring programme for law students which occurs at a separate time of the year.

The number of mentees is inclusive of law student mentees.

Recent mentee feedback has included:

“

“Joining the mentoring programme was one of the best career decisions I have made especially as a junior lawyer.”

“It's nice to be able to talk to someone objective from within the legal industry about 'general' career matters.”

“I signed up for the mentoring programme primarily so I could get an insight into life at the bar and advocacy work more generally. (My mentor) has provided me with very valuable insights into how he moved to the bar, what his practice involves, how he developed his advocacy skills and how the bar works more generally.” “(My mentor) helped me to clarify career aims/ objectives and helped me in breaking down some of the preconceptions I had about working in larger forms while also overcoming the trepidation I felt in looking for alternative jobs.”

Expressions of Interest must be received by the Law Society by 5.00pm on Friday, 19 July 2019.

Please visit lawsocietywa.asn. au/careers-in-law/mentoringprogramme/ to complete an Expression of Interest form.

39

The UWA Law School Class of 1993 Reunion

By Michael Lundberg Quinn Emanuel Urquhart & Sullivan

In the late 1980s, a group of teenagers and early twenty-somethings (together with some mature, wiser heads) embarked on the challenging adventure that is the study of law. When the adventure began, we were (largely) optimistic. The world was changing, the Berlin Wall came down in our first year of law school, and the future was so bright we had to wear shades. But Timbuk 3 was wrong. Very wrong. By the time we graduated in 1993, the world was a different place. The excesses of the ‘80s had been replaced by the bleak recession of the early ‘90s, and jobs for young lawyers were hard to find. Less than half of the graduating class of 1993 from UWA Law School obtained offers of employment in the first round of articles.

We had transcended from the era of the new romantics, to a world deep in grunge. The mining boom was still a decade away.

Twenty-five years later, a reunion of the Class of 1993 was well overdue. It was time to bring the alumni together, revisit old friendships, remember absent friends, and listen to some grunge classics. Happily, the Law School Dean (Natalie Skead) granted permission for the Law School’s courtyard to be used (without the prerequisite of the fountain being drained ahead of the event – more on that decision later).

So it was that over 100 members of the old class, and some dear friends from the Classes of 1992 and 1994, reunited at the Law School courtyard on a balmy Saturday evening in late February 2019.

The event brought back to Perth people from as far as London and the United States, and from almost every capital city 40 | BRIEF JUNE 2019

in Australia. The teenagers and twentysomethings had become mums, dads, judges, magistrates, coroners, registrars, barristers, CEOs, COOs, entrepreneurs, farmers, government lawyers, general counsel, in-house counsel, prosecutors, pro bono lawyers, partners, lawyers, local government councillors, diplomats, know-how lawyers, Solicitors-General and, in one case, a Chief Justice. The reunion was made all the more enjoyable with the attendance of some of those who had taught us all about this “law thing”, including Professors Robyn Carroll and Peter Handford.

from Matt Jones (the 1993 Blackstone Society President) and the Honourable Chief Justice Peter Quinlan. As they reminded us, the world had changed considerably since we left uni. Not only had music tastes and hairstyles changed over this period (in each case, not necessarily for the better), but important matters such as racial, gender and sexual diversity within the practice of law and the judiciary had significantly improved. Mental health issues within the profession were now recognised and less stigmatised. Of course, in both respects, there remains some way to go.

The headline band for the event (in fact, the only band), was led by Jason MacLaurin (Class of 1992) and Kevin Banks-Smith, together with His Honour Magistrate Robert Young (Class of 1992), Adrian Strk and Roger Blow, with a distinguished guest on drums later in the evening and a partner from a US law firm on vocals to finish the evening.

On behalf of the Class of 1993, sincere thanks to the Dean for the use of the courtyard, and to the current Blackstone Society members who provided support on the night. My only “regret” from the evening was the arrival of some unknown persons, late in the evening, who filled the fountain with detergent and danced the night away in the bubbles as though they were in their early 20s and it was 1993 all over again. Some things don’t change.

The significance of the evening, and the 25 year journey we had travelled, was the subject of eloquent speeches

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9

By Thomas Camp Solicitor, Mony De Kerloy Barristers and Solicitors

The High Court has recently decided on the validity of the Prasad direction in Australian Law in a unanimous judgment.

The decision was given in an appeal from the Court of Appeal of Victoria on a referral of a point of law. It is notable for two eccentricities; the first being the Victorian practice of allowing referrals to the Court of Appeal of questions on points of law, under s308 of the Criminal Procedure Act 2009 (Vic). The second was the subject of the appeal, the largely Eastern States phenomenon of the Prasad direction. The Court of Appeal had been asked to give its opinion on whether: "the direction commonly referred to as the 'Prasad direction' is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person".1 Prasad directions are so named from the obiter of King CJ in R v Prasad that: "It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right ..."2 The Direction has been considered appropriate in the few uncomplicated cases where a no case submission would fail, but the prosecution case was sufficiently weak to warrant the jury being asked whether they want to acquit without the need to complete the usual rigmarole (some would say essential procedure) of a criminal trial.

The Court of Appeal split 2-1 in finding that a Prasad direction was not contrary to law despite it having been heavily criticised in England.3 That decision was appealed, and in a result that is

unlikely to come as much of a surprise to Western Australian practitioners with interest in the area, the High Court in a joint judgment allowed the appeal and answered that such a direction is contrary to law and should not be administered to a jury.

The proceedings below were complicated by the fact that the DPP had conceded in the Court of Appeal that the Jury had a right to bring in a verdict of not guilty at any time after the close of the prosecution case. The DPP sought to resile from that concession (after realising there was no legal basis for making it) and the High Court ultimately allowed them to do so as the point of law for determination was “inextricably linked with the question of whether the common law of Australia recognised the right”.4 Indeed, the Court found although the practice had been adopted, there was no common law right allowing for the jury to return a verdict of not guilty at any time after the close of the prosecution case.

Instead, courts had been exercising a discretion of a trial judge to direct the finder of fact, after the close of the prosecution case, that they may acquit.

Having found that there was no such right available to the jury, the High Court then considered whether Prasad directions were an appropriate practice.

Firstly, the Court noted that King CJ’s obiter in Prasad did not cohere to Doney v The Queen [1990] HCA 51. In Doney the High Court held if there is evidence that is capable of supporting a verdict of guilty, the matter must be left to the jury.5 As was noted by Maxwell P in the Court of Appeal in giving a Prasad direction the judge would be inviting an acquittal by the Jury on the Judge’s own assessment of the strength of the case, notwithstanding they could not direct an acquittal.6 The Court then turned to whether the

practice should continue. The reasons for supporting the ability to give such a direction were said to be the reduction of both costs and any restriction of a person’s liberty. The Court did not find these to be compelling practical reasons for giving the direction. This was because Prasad directions are acknowledged to be unsuited to trials with multiple accused or any legal or factual complexity and accordingly savings of time and costs would be minimal.

Further, the Prasad direction risks the due administration of justice by asking a jury to make a decision in circumstances of potentially profound ignorance.7 This may be reflected in the fact juries who had been given a Prasad direction would occasionally refuse to acquit and ultimately find the accused guilty at the conclusion of the trial.

Therefore the Court found that if the evidence, taken at its highest is capable of sustaining a conviction then that is a matter for the jury and they will not be in a position to make that decision until they have heard all the evidence, addresses of counsel and summing up of the judge.

While the decision is unlikely to lead to a change in how Western Australian criminal practitioners conduct trials given the paucity of practitioners in this state that would even consider asking for such a direction, it at least gives them the satisfaction of knowing they were right not to do so.

Endnotes 1 2 3 4

DPP Reference No 1 of 2017 [2018] VSCA 69.

R v Prasad (1979) 23 SASR 161 at 163.

See R v Collins [2007] EWCA Crim 854.

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 [15].

5 Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-215 per Deane, Dawson, Toohey, Gaudron and McHugh JJ. 6 DPP Reference No 1 of 2017 [2018] VSCA 69 [7] Maxwell P. This point was raised by McLure J as she then was in R v Tan [2002] WASC 42.

7 Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 [57].

41

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

Property – Granting of application for leave to proceed out of time filed after respondent’s death during case set aside for want of jurisdiction In Simonds (deceased) & Coyle [2019] FamCAFC 47 (26 March 2019) Ms Coyle instituted a de facto financial cause in May 2017. Two months later her partner (Mr Simonds) died after filing a Response in which he alleged that separation occurred in October 2013, such that the application was out of time. In May 2018 (10 months after her partner’s death) Ms Coyle filed an amended application for leave to proceed. Judge Egan found that separation did occur in October 2013 but under s 44(6) of the Family Law Act granted Ms Coyle leave to continue the proceedings against the respondent’s estate under s 90SM(8). The executors’ appeal to the Full Court (Strickland, Murphy & Kent JJ) was allowed unanimously and Ms Coyle’s property application was dismissed.

Strickland J said (from [25]): “… [H]is Honour did not have jurisdiction under s 39B(1) … to entertain the Amended Initiating Application filed by the de facto wife … because there was no financial de facto cause instituted. (…)

[27] His Honour … failed to deal at all with the question of whether he had jurisdiction. Without addressing that issue his Honour simply proceeded on the basis that despite the death of the de facto husband, he could grant leave to the de facto wife to institute proceedings for property settlement ( … ) [30] His Honour has also sought to grant leave ‘nunc pro tunc’. That is a rule of practice and procedure to regularise the records of the court, and it cannot create jurisdiction where there is none. In other words, if there was no jurisdiction to entertain the [amended] application filed on 25 May 2018, the court still did not have jurisdiction at the time his Honour made the orders.”

Property – Negative pool although husband was to retain business with annual turnover of $4m – Treatment of his director loans In Keating [2019] FamCAFC 46 (21 March 2019) the Full Court (Ainslie-Wallace, Ryan and Austin JJ) allowed the wife’s appeal against a property order made by Judge Baumann (as his Honour then was). Nonsuperannuation assets of $1,784,854 were

42 | BRIEF JUNE 2019

valued at a deficit of $804,805 net of the husband’s director loans relating to his failed tax venture. His business still traded, with an annual turnover of $4 million. At first instance, contributions to non-super were assessed at 70:30 favouring the husband due to his initial contribution of the business; contributions to superannuation ($710,824) being assessed as equal. No adjustment was made under s 75(2).

The pool being assessed at a negative value, it was ordered that the wife receive her possessions, a super split of $119,000 and half of any payment to the husband as the result of a pending class action relating to the venture. The wife appealed, arguing that the trial judge did not engage with her argument that the husband’s director loans were not matrimonial debt.

Ainslie-Wallace & Ryan JJ said ([23]-[24]): “ … [H]is Honour went no further than to say that the wife was ‘aware’ that the investment scheme was unsuccessful … Whether or not she was aware that the scheme had failed was irrelevant.

The issue was whether she knew of and supported the husband’s investment in the scheme to the extent that she should shoulder half of the resulting debt. In the result, his Honour’s decision to fix both parties with responsibility for the debt was made ‘ ... because [the debt] actually exists’ …

[24] His Honour’s finding that the wife was ‘aware’ that the investment scheme failed falls considerably short of engagement with the reasons why the wife said she ought not to be fixed with joint responsibility for the debt.

The same applies to the finding that the debt ‘actually exists’. Although parties would ordinarily be expected to take the good with the bad, there was no active engagement by the primary judge with the wife’s case that the husband should bear sole responsibility for the debt and why.”

Children – Father’s contravention application was met by mother’s application for variation of parenting order – Which should be heard first In Maddax & Danner [2019] FamCAFC 38 (5 March 2019) a parenting order was made in 2016 in respect of a child, now aged 9.

Subsequent to that order the father appealed, filed a parenting application which was summarily dismissed and withheld the child in Germany after a holiday causing the mother to apply for a return order under the Hague Child Abduction Convention. After the return

of mother and child the father returned too 13 months later and filed an application alleging 100 contraventions by the mother who applied for variation of the order.

Judge Turner adjourned the contravention application for 16 weeks, sought a family report and suspended the father’s time with the child (the child not having seen her father for 19 months). The father appealed, arguing that the Court erred in not dealing with his contravention application before suspending his time and adjourning the case.

In dismissing the appeal, Murphy J said (from [21]): “… An … adjournment is a procedural order and … discretionary. …

[22] … [T]he father’s argument seems to suggest that adjourning his contravention application involved an error of principle … that her Honour was bound to deal with his … application on that day and, it seems, in priority to any other application. (…)

[48] It will be observed [from s 70NBA(1) of the Family Law Act] that an inquiry into the variation of parenting orders can take place irrespective of whether a contravention is established or not.

That is in my view important. It places the best interests of children as central not only to parenting orders but also to a consideration of how asserted or established contraventions might be dealt with. ( … ) [52] The powers given to the Court in applying [the] principles [enunciated in s 69ZN(6) and (7) as to ‘principles for conducting child-related proceedings’] are referenced as mandatory duties contained in s 69ZQ. In particular the Court must ‘decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily’ and ‘decide the order in which the issues are to be decided’ …

[53] The assertion by the father that her Honour erred, as a matter of principle, by adjourning his contravention application must be rejected.

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

The Tale of the Herbalist

By John McKechnie QC

Mr Jayasinga was many things – herbalist, phrenologist, palmist, masseur and confectioner.

One thing Mr Jayasinga was not – a medical practitioner.

So he was skating on thin ice when he examined the hands of a man who had a certain disease and told him he had a bad sickness. Fortunately for the man, Mr Jayasinga held a cure – herbal pills and liquids with occasional vapour baths and massages. All for £25.

The authorities came to hear of the treatment – perhaps the patient thought it was unsuccessful – and Mr Jayasinga found himself before the Fremantle Magistrate.

Here he got a lucky break. The Magistrate acquitted him, reading certain words in brackets in the Medical Act as, well, in brackets.

Wrong! Said the full court quoting Lord Esher. "It is perfectly clear that in an Act of Parliament there are no such things as brackets any more than there are such things as stops."

Yes, I had trouble with that as well.

Justice Burnside, the second judge agreed with McMillan ACJ although in doing so, he uttered a cri de coeur that would not be out of place in the judgment of a modern Justice of Appeal: In the limited time at my disposal for considering matters which occupy the attention of this Court, I have come to the conclusion that the Magistrate erred in the opinion at which he arrived on the facts of this case.

So, Mr Jayasinga was sent back to the Magistrate's Court which was under a direction to convict.

It is possible that Mr Jayasinga forsook his many occupations or perhaps added another because four years later, he was prosecuted again in Fremantle, this time for pretending to tell fortunes.

History does not record whether he predicted this fate.

(Adapted from Stephens v Jayasinga (1913) 15 WALR 55)

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

Your Dog recently decided it would be the right time to meet the Pup in a foreign location, namely, the Kruger National Park (KNP) in South Africa, to experience the majesty of the wildlife of Southern Africa.

The recent death of a poacher who took a crack at an elephant and was trampled, then to be devoured by a pride of lions, accentuated the fragility of what one takes for granted in so many facets of life.

Before the arrival of colonialists at the Cape of Good Hope, all the species of wildlife endemic to Southern Africa existed across the country. The advent of colonialism in its various forms resulted in the extinction of at least the Cape Lion, as occurred in North Africa with the Barbary Lion, and the Kwagga, a member of the zebra family, ‘kwagga’ being the San name for the species.

Elephants and rhino were slaughtered indiscriminately for their tusks and rhino horn, the latter said to have aphrodisiac qualities.

The tusks of the African elephant are a softer ivory than that of Asian elephant, and more easily carved. Hence their popularity.

Your Dog saw drawings of ivory caravans, columns of men carrying tusks to Delagoa Bay, for shipment to Europe. A memorial cross was carved in a tree in the KNP around 1850 by a Portuguese hunter. He reportedly travelled with a caravan of 200 men plus 24 elephant hunters. Think of the havoc they have wreaked.

Small wonder that President Kruger, concerned by decimation of wildlife, declared and set aside a reserve to preserve wildlife, which has grown to what it now is, the size of Belgium, 380 km long and 65 km wide. An unrivalled collection of flora and fauna, including 336 tree species, 49 fish species, 34 amphibian, 114 reptile, 507 bird and 147 mammal species. Declared in the late 1890s, Kruger showed a degree of foresight uncommon at the time.

Tragically, man’s obsession with rhino horn results in more and more of the animals being killed in sub-Saharan countries. About 600 were killed in South Africa in 2018. A couple were killed in a French zoo!

In Zimbabwe, poachers have resorted to cyanide poisoning, the chemical having been added to water sources and salt licks in some game reserves. Cyanide is used in processing gold and so available to those who reckon it to be the weapon (poison) of choice.

A kilogram of ivory reportedly fetches US$1,500 on the Asian black market. An elephant tusk of 1.5 to 2 m weighing 45kg will reportedly fetch US$34,500 to US$67,500.

Rather frightening to think that at the present rate of slaughter the black and the white rhino could be extinct within 25 years or so.

Perhaps elephant will have a longer time simply because there are more of them.

Even though anti-poaching units have been established and patrol the boundaries, poachers enter the KNP. If caught and arrested the delays and postponement of prosecutions mean it could be 18 to 24 months to secure a conviction. While the maximum sentences are severe, in practice the offender will be fined or gaoled for a relatively short time, and may well be arrested on a second or third occasion.

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Your Dog spent some time cogitating on a likely defence on charges of being in the KNP after dark, in possession of a rifle and axe, in possession of rhino horn and of killing or wounding a Park ranger: “Your Honour. I had been visiting some friends who live away from Maputo near the border between South Africa and Mozambique. It is an area known for lions and crocodiles, so I took my .303 rifle fitted with scope and silencer, and an axe in case I had to cut my way through the bush to get to the celebrations”.

“We had a few drinks, and I left around 9.30 pm. I walked out but was confused in the dark as to my direction. I stumbled into a fence which I did not recall, but I thought it best to climb over it. I carried on. Around dawn I found myself in a clearing in the bush surrounded by a large group of massive rhinos. I thought my life was in danger so I shot the bull, and ran to his still moving carcass where I chopped off his horn. I waved it at the others, so they would not attack me, and they backed off. At that stage a man in uniform appeared from the bush and called on me to drop my gun. I thought he was a para-military Frelimo terrorist who would kill me, so I shot him in self-defence”.

“And that, your Honour, is why I am here today. I ask that the charges be dismissed”.

Chinese records establish rhinos were plentiful in that part of the world until about 1900. They have ceased to exist as a species.

The Javanese rhino became extinct in 2011: the last known female died that year. The situation in the Congo and Zambia is little different. Sad to think that rhino horn is the same substance as human fingernails – some aphrodisiac!

There is a strange disconnect between the willingness of people to undertake to contribute large amounts to restore Notre Dame de Paris, compared with the paltry amounts contributed to assist those people affected by Cyclone Idai, and amounts to assist in conservation of a variety of animal species.

As to the purpose of the trip, nothing adequately describes the thrill of coming across a leopard walking on a path, or the lithe easiness of a wild dog running after prey. One cannot describe adequately the tremor of fear as a bull elephant fronts one’s car, two or three metres away, ears flapping and trunk raised. The roar of a lion at night when it has killed its prey. The consummate ease of a male kudu with twisted horns a metre long, as it lays them back and flies almost soundlessly through the bush. The haunting cry of the African fish eagle, able to spot and catch a sardine sized fish from 100 m in the air. A martial eagle diving to attack a meerkat in a family of 25 or so, and their screams of abuse at the attacker! The extraordinary light and sound effects of an electrical thunderstorm in the bushveld, and the smell of wet grass.

Despite all the negative press, your Dog reckons 10 days in the KNP, barbecues each evening on barbecued loin ribs, paid for at an exchange rate of roughly SAR10 = A$1 was a remarkable experience, and one worth repeating. Forget the glitter and focus on the substance!

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Law Council Update

Law Council welcomes new ministry, looks to relationship of trust, honesty and collaboration The Law Council has welcomed the announcement of the Federal Government’s new ministry and looks forward to a collaborative, consultative relationship with new and returning Ministers.

Law Council President, Arthur Moses SC, congratulated re-appointed Attorney-General Christian Porter, who also adds Industrial Relations and Leader of the House to his portfolio.

Mr Moses also congratulated the new Minister for Indigenous Australians, Ken Wyatt, the first Aboriginal Australian appointed to the portfolio.

“We look forward to working with the Government and the 46th Parliament in an honest and productive relationship for the benefit of all Australians and the rule of law,” Mr Moses said.

“The role of First Law Officer is an important portfolio. It is critical that Attorneys-General enjoy a respectful and robust relationship with the national legal profession that is built on trust and transparency. I congratulate Mr Porter on his re-appointment and look forward to continuing to work with him to promote the rule of law and administration of justice.

“Access to justice through increased legal assistance funding, securing adequate resources for our courts and establishing a Commonwealth Integrity Commission, Federal Judicial Commission and transparent judicial appointments process are our key policy concerns. The Law Council will continue to advocate to the Attorney-General for their prompt implementation.”

Mr Moses described Mr Wyatt’s appointment to the Indigenous Australians portfolio as a defining moment in Australian politics.

“For the first time in the history of our federation, a person of Aboriginal or Torres Strait Islander descent been

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appointed as Minister for Indigenous Australians – this is a pivotal decision by the Prime Minister and one that will undoubtedly benefit all First Nations Australians,” Mr Moses said.

“Establishing an Indigenous Voice to Parliament is a priority for the Law Council and we look forward to working with Mr Wyatt to ensure the future vision captured by the Uluru Statement of the Heart becomes a reality. The Law Council will seek a meeting with Prime Minister Morrison and Minister Wyatt at their earliest convenience to advance this significant issue.

“Improved justice outcomes for Aboriginal and Torres Strait Islander peoples is vital. We offer our expertise in this area to help formulate legislation to support Indigenous-led policy solutions.”

Mr Moses also reiterated the Law Council’s commitment to assisting and consulting with government, the opposition and cross-bench in relation to the formulation of effective legislation.

“Working with government to ensure laws passed through our Federal Parliament best serve the Australian people is at the core of our mission and of the utmost importance. We will continue to hold the government to account without fear or favour.

“We offer our assistance to the new parliament in the formulation of legislation that benefits all Australians and strengthens our democracy and the rule of law,” Mr Moses said.

Bipartisanship, consultation needed to develop effective national integrity commission model The Law Council of Australia wholly supports the establishment of a national integrity commission but believes consultation, collaboration and bipartisanship is needed for a functional and effective model to come to fruition.

Law Council President, Arthur Moses SC, said while there is a difference of opinion between the Coalition and ALP as to what the appropriate model of a national integrity commission should look like, careful consideration will be needed to develop and implement an appropriate model. This process must include input from key stakeholders, legal experts and the community, and the Law Council looks forward to working towards an effective bipartisan solution.

“While the Law Council steadfastly opposes the inclusion of judicial oversight by a national integrity commission, the focus must be to ensure any federal body has the correct balance of powers to investigate corruption, but also protects the rights of individuals,” Mr Moses said.

“When you get the balance wrong, it may result in the abuse of power and reputations being unfairly damaged with lives destroyed.

“There are difficulties with both models that are being proposed by the Coalition and the ALP, which we will work through after the Federal election.

“I hope and expect any further debate on this important step to combat corruption will be conducted respectfully with the rule of law at the front of the mind, leaving rhetoric aside.

“Nobody, including retired judges or politicians, should throw allegations around in order to impugn the motives of those who disagree with their model.

“If we work together and not attack each other, we will come up with the best model that will fight corruption, but also not trample on the rights of individuals.”

Mr Moses also reiterated calls for the establishment of separate a federal judicial commission to oversee complaints against judges.

Professional Announcements Career moves and changes in the profession

Pragma Lawyers

HBA Legal

Pragma Lawyers are pleased to announce the appointment of Jason O’Meara. Jason is an experienced dispute resolution lawyer.

Insurance law specialist Deirdre Pennock will join HBA Legal, based in our Perth office, as Senior Associate, on Monday 6 May. Deirdre will report to award-winning litigator Ruth Slater.

He graduated from Murdoch University with a Bachelor of Laws and began his career in 2007 servicing major banking and finance clients such as Macquarie Bank, GE Money and Wizard Home Loans.

Jason O’Meara Since then he has gone on to act for various local government and commercial clients relating to the imposition and recovery of local government rates and service charges, strata levies & charges, commercial disputes, debt recovery, insolvency, property law and guardianship and administration matters.

Jason is admired for his down to earth and no-nonsense approach.

Vale Stan Elwyn Kawalsky The members of the Law Society’s Costs Committee were deeply saddened to learn of the passing of one of the Costs Committee’s long standing members, Stan Kawalsky. Stan was a member of the Costs Committee for as long as we can remember, at least as far back as 2003. He rarely missed a meeting, and quietly dedicated his time to assist the profession with the integrity and compassion for which he was known.

Mr Gavin Ryan Gavin Ryan Legal Pty Ltd Ms Melanie Teh Department of Home Affairs

Restricted Practitioner Mr Simon Rimmelzwaan DLA Piper Australia

Associate Membership Mr Zan Bosman The University of Western Australia Law Faculty Mr Tony Coates Coates Migration Advice

Deirdre is an expert across motor vehicle injury, public liability, and property claims and recoveries.

25 March 1946 to 11 April 2018

Stanley Elwyn Kawalsky, husband to Hilary, father to Allan, Caren and Zanne, passed away after a battle with cancer on 11 April 2018, aged 72.

Stan commenced his legal career in Cape Town, South Africa. For a period of about 15 years, shortly after being admitted, Stan represented Nelson Mandela, and has always maintained that his representation of Mr Mandela to correct social injustices was the highlight of his legal career. He first represented Nelson Mandela shortly after Mr Mandela had been sentenced to life imprisonment at Robben Island in the famous Rivonia Trial. Stan successfully represented Nelson Mandela in his court applications to challenge the prison regulations, and in particular the censorship laws that were imposed upon him whilst he was in jail.

The political environment in South Africa became very unstable in the late 1980s and as a result Stan made the decision to emigrate to Perth with his family, so that his children could have a more secure future in Australia. For at least 20 years Stan operated the sole practice of Kawalsky Lawyers, specialising mainly in the areas of family and commercial law. In addition to being a member of the Law Society of WA, and the Law Society’s Costs Committee, he was also a member of Rotary Australia, and gave up his time to coach the Carmel School Mock trials team.

Stan will be greatly missed, and fondly remembered.

New Members Ordinary Membership

Deirdre will come to us after 10 years with Sparke Helmore.

New members joining the Law Society (May 2019) Mr William Cusack University of Notre Dame Australia

Ms Courtney Parker Deakin University

Dr Anthony Donovan Murdoch University - School of Law

Associate Dean Krishna Prasad Edith Cowan University

Miss Kamakshi Khetia Murdoch University - School of Law

Mr Christopher Sheehy The Australian National University

Miss Cora Lappel The University of Western Australia Law Faculty

Mr Tristan Taylor The University of Western Australia - Law Faculty

Ms Lynne Lyon The Law Library - Department of Justice

Ms Kim Wilson Edith Cowan University - Business & Law

Mr Mathew Matheson University of Notre Dame Australia

Mr William Wong Allens

Miss Whitchill Mungrah Murdoch University - School of Law Miss Andrea Onamade Murdoch University - School of Law

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Classifieds

Missing Will

Missing Will

Would any person holding a Will and Testament of UNIECE THELMA WINTER (DOB 08/07/1929) formally of Rossmoyne WA, wife of Robert Maloja Warner Daly Winter (Dec’d) or knowing the whereabouts of such Will and Testament please contact Daly Winter by phone 0458699923 or by email daly.winter2@boyupbrook.wa.gov.au. To our knowledge, the will was written up by solicitor Christopher Carr and was held by the firm that he worked for at the time. However, we do not know the name of the firm that Christopher was associated with.

Any person holding or knowing the whereabouts of the last Will and Testament of the late BOZIN MUSKAROVSKY AKA BOB MUSKAROVSKY of 145 Leach Highway, Willagee, WA 6156 who died on 18 January 2019, please contact FourLion Legal at Ground Floor, 12 St Georges Tce, PERTH WA 6000 on (08) 9335 6643 or lstrydom@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 191080.

LAW FIRM FOR SALE Perth City Legal Workers Compensation Specialists This established reputable legal practice began 12 years ago and is located in West Perth.

The practice has 2 part-time law clerks, a full-time senior paralegal and a part-time solicitor.

The firm practices in the area of workers’ compensation.

Lawyers – Albany

Missing Will

We are a boutique practice providing legal services in commercial, family law, estate planning, litigation and dispute resolution.

You will be responsible for managing your own matters, whilst working amongst a supportive, dedicated team. To be successful, you must have at least 3 years’ PAE (5+ preferred), excellent communication and advocacy skills and the ability to build relationships and work within a team. Email your covering letter, resume and academic record to recruitment@latrolawyers.com.au.

Applications close 1 July 2019.

ERIC SCHWIND late of 29 Puncheon Street, Langford, WA, 6147, DOD 15/04/2019. Please advise if you hold a current Will for the late ERIC SCHWIND. Contact Joanne Ready, O’Rourke & Kelly, Solicitors of 20 Rooke Street, Devonport, Tasmania on telephone: 03 6424 4633 or email: joanne@orourkekelly.com.au

Graduate Lawyer Admitted lawyer, eligible to obtain a practising certificate, seeks a Graduate opportunity. Interested in all areas of law including commercial, criminal, civil, wills and estates, property and conveyancing.

Mature age and available on a full-time, part-time or voluntary basis and keen to begin their legal career. Can re-locate to regional and rural WA. Interstate opportunities are also welcome. Please contact Graeme Jantke on 0422 456 920 or by email: graemej61@hotmail.com

FOR LEASE

PARTITIONED OFFICES 5th Floor Equus 580 Hay Street Perth • Up to 5 offices • Shared reception & Boardroom • From $1,400 p/m per office including Outgoings and GST Taylah: equusofficelease@gmail.com

The sole Principal/Director of this firm is now looking to take on a new role.

The Principal and staff are available to work during a period of transition.

Website enquiries per month between 40 and 50.

New files opened per month between 15 and 20 subject to capacity.

Professional fees between $1,300,000 and $1,500,000 per annum.

Contact Denise Chesworth on 9486 8088 or email denise@perthcitylegal.com.au.

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

and Admissions  Licensing Applications  Bank Opinions  Purchaser and Vendor Opinions Contact:

HEART OF LEGAL PRECINCT – READY TO OCCUPY CBD Location – 6 offices available (sizes ranging from 8m2 to 18m2) Ideally located on Level 4 of the prestigious Irwin Chambers building on the corner of Hay Street and Irwin Street.

The serviced offices are directly across the road from the Perth District Court and within walking distance to the centre of the Perth CBD. Enquiries to Lee on 9221 8337 or email lee@nightstyle.com.au

48 | BRIEF JUNE 2019

BRIEF

Graham O’Hehir MBA

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

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

www.buyabusiness.com.au

Events Calendar

With thanks to our CPD partner

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

JUNE 2019 CPD Seminars Thursday, 6 June Quality Practice Standard Accreditation Workshop 2 Friday, 21 June Essentials of Advocacy & Negotiation Membership Events Thursday, 27 June YLC Small Firms Network Drinks

JULY 2019 Membership Events Friday, 26 July YLC Golden Gavel

AUGUST 2019 CPD Seminars

Membership Events

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

Thursday, 22 August 2019 Sole Practitioner and Small Firm Forum

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

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