Brief June Edition by The Law Society of Western Australia

VOLUME 48

NUMBER 3

JUNE 2021

Special Feature:

Time to Try a “Nutha Way” The Voice of Indigenous Young People

Also inside ... Indigenous Incarceration

Perspective and the Law

Addressing the Upward Trend

The Hon John McKechnie QC Speaks

The Regulator and Sexual Harassment in the Legal Profession

How do you Interview the New Mafia of Rome?

End of Financial Year Tax Feature

A conversation about investigative interviewing

Power of Attorney Discretionary Trusts

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Volume 48 | Number 3 | June 2021

Wrap Up

CONTENTS

Law Week FOLLOW US

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30 ARTICLES 06

Indigenous Incarceration, Addressing an Upward Trend

Perspective and the Law – A Presentation by the Hon John McKechnie

Time to Try a “Nutha Way” – The Voice of Indigenous Young People

How do you Interview the New Mafia of Rome?

Expedited Procedures

Abuse or Misuse of Powers of Attorney

The Regulator and Sexual Harassment in the Legal Profession

Developing the Limits of Section 100A: when is a distribution to a discretionary beneficiary not a distribution?

Magistrate Wendy Hughes’ Challenge: Have you considered what actually makes a good leader?

LawSocietyWA @LawSocietyWA

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 bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Corporate Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Des McKenzie RRP $16.00 incl GST.

2021 Law Week Wrap Up Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dianne Caruso, Megan Cramp, Patricia Femia, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Teresa Szunejko, Eu-Min Teng

REGULARS

Proofreaders: Ingrid Briggs, Sonia Chee, Cassandre Hubert

President’s Report

New Members

Editor’s Opinion

Quirky Cases

Federal Court Judgments

Cartoon

High Court Judgments

Law Council Update

WA Case Notes

Professional Announcements

Ethics Column

Classifieds

Family Law Case Notes

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

President: Jocelyne Boujos Senior Vice President: Rebecca Lee Junior Vice President & Treasurer: Shayla Strapps Immediate Past President: Nicholas van Hattem Ordinary Members: Rebecca Bunney, Daniel Coster, Angie Gimisis, Ante Golem, Matthew Howard SC, June Kenny, Gary Mack, Judy McLean, Craig Slater, Brooke Sojan, Paula Wilkinson Junior Members: Thomas Camp, Selina Gates, Lea Hiltenkamp Country Member: Melita Medcalf Chief Executive Officer: David Price

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PRESIDENT'S REPORT Jocelyne Boujos President, The Law Society of Western Australia

Welcome to the June edition of Brief, as we mark the halfway point of 2021.

Renew Your Essential Membership Thank you for supporting the Law Society over the past 12 months – together we have worked through challenges and uncertainty. As your essential peak professional body, we see the whole person, professional and personal. This past year the Society was privileged to work hard for you to deliver the benefits you needed. 2020 presented all of us with many challenges and in rising to meet these challenges we as a profession proved strong, supportive and resilient in the face of disruption and uncertainty. I am excited about this next year ahead which sees us continuing to shape change, advocating for the profession, being relevant, timely and most importantly, always here for our members. For the 2021/22 membership year (commencing on 1 July 2021, I am very pleased to be able to announce the following benefits will be included in your membership package: • Membership fees for Ordinary and eligible Associate members will again include CPD for FREE*, if you join or renew by 31 July 2021 (*terms and conditions apply) • Flexible payment option with our monthly payment plan for individuals • Ability to cap your occupational liability through the Professional Standards Scheme

update; 5. Deaths in Custody and Incarceration of Aboriginal and Torres Strait Islander Peoples and timing of implementation of election commitments; 6. Complaints against Judiciary and election commitment to work with the Law Society to address this issue; and 7. Criminal Law Mentally Impaired Accused Bill.

Law Week Law Week 2021 (17 May to 21 May) brought the legal profession and public together with a focus on law and justice in the community. It was a great success, with over 30 events held across Western Australia, including around Perth and in regional areas. With a wide variety of events ranging from fundraisers to support access to justice to free clinics for the public, talks and educational initiatives, these activities provide a valuable opportunity to increase the visibility of the legal profession and showcase its ongoing commitment to the community. For a comprehensive review of Law Week, please see the Law Week Wrap Up on page 34. My thanks to everyone who contributed to another successful Law Week, including our valued supporters and sponsors, the Public Purposes Trust for the Law Week programme and Murdoch University as Community events sponsor and our award sponsors, HHG Legal Group and Glen McLeod Legal.

Central to the big picture, the Law Society is your trusted partner in providing professional and personal support, representing you at the local and national level and continually delivering high value benefits for your membership. To retain member benefits such as your subscription to Brief, please renew your membership of the Law Society, if you have not already done so. If you have queries relating to your membership, please email membership@ lawsocietywa.asn.au or call (08) 9324 8692.

A special thank you to everyone, for your continued support of Law Week and the Law Society, and thank you to the Law Society staff for their extraordinary efforts in facilitating an excellent Law Week programme for 2021 and ensuring that each event ran seamlessly. I was personally impressed at their dedication and professionalism - turning up every day often more than once, with smiles, best wishes and a “can do” attitude.

It has been an exciting year so far for the Law Society and the profession, with a large number of social and educational events taking place these past couple of months, making up for lost time following the easing of COVID-19 restrictions.

This year’s National Reconciliation Week theme, “More than a word. Reconciliation takes action”, challenges us to take more courageous action that will deliver real impact. As a nation, and as the legal profession, we need to move from ‘safe’ to ‘brave’ in order to advance reconciliation. As President, I am proud that the Law Society is taking real action to make a tangible difference.

Advocacy On 19 May, the Executive and I met with the Attorney General and discussed a number of important issues; 1. Urgent need for more Courts; 2. Taxation Administration Amendment Bill 2018 which amends s14 Administration Act - the Statutory Legacy; 3. Superannuation splitting for de facto couples: Proposed timing of enabling legislation changes; 4. Legal Profession Uniform Law and Regulation

National Reconciliation Week

The Nutha Way Project Nutha Way is an Indigenous youth leadership program from the Law Society, working to build better relationships between young people, their communities, the justice system and local police. Essentially, the Nutha Way program is about doing things another way – a new and different way that champions the voices of Indigenous young people across WA, and asks for their input on how to solve the big issues they face. You can read more about Nutha Way and its positive

impact on the community on page 10. The Law Society has noted the Media Statement by the Law Council of Australia: “Not just words, time for action” and supports the concept that culturally appropriate support services should be guided and led by Indigenous organisations. I commented in social media and said: “The increased government financial support to be provided to First Nations women and children (in the recent Federal Budget) is a significant step in the right direction and an example of impactful and substantive action, urged by the theme of National Reconciliation Week.”

Indigenous Incarceration For reconciliation to be effective, it must involve truth-telling, and actively address issues of inequality, systemic racism and instances where the rights of Aboriginal and Torres Strait Islander peoples are ignored, denied or reduced. This year is the 30th anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody. The disproportionate rate at which Aboriginal people are imprisoned has risen in that period rather than decreased. It has borne a significant relationship to the number of Aboriginal deaths in custody. We need more people speaking up and on page 6 Greg McIntyre SC, Chair of the Society’s Indigenous Legal Issues Committee, asks some hard questions regarding the upward trend in Indigenous incarceration as he advocates for a fully comprehensive Justice Reinvestment model to be applied in the State’s Justice and corrections systems. I also invite you to find out more about the Society’s “Closing the Gap” advocacy campaign here: https://www.lawsocietywa.asn.au/lawreform-and-advocacy/closing-the-gap/ The Law Access Walk for Justice which was held in Perth – with some dogs – as well as virtually, in Sydney and even Karajini in the Pilbara. It raised more than $117,000 to help Law Access, a wholly owned subsidiary of the Law Society, continue its important work in connecting those in need with pro bono legal services. We thank the McCusker Foundation for their generous support. The fundraiser is still open, so please consider making a contribution.

Contact the Law Society As always, we like to hear from our membership, and we invite engagement and input in a variety of ways including through the significant number of committees of the Law Society, regular surveys, and both informal and formal occasions when feedback can be provided to us. In addition, we encourage you to contact either me, any other member of the Executive or the Law Society’s Chief Executive Officer directly, to share with us your ideas and feedback.

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

As we approach half time in 2021, and look to break free from COVID-19’s domination of our thoughts and lives, it seems more important than ever for Brief to reflect the diverse range of issues for lawyers that cannot be sidelined because of the pandemic. This edition celebrates Reconciliation Week, whose theme was “More than a word. Reconciliation takes action”. We have items from Greg McIntyre SC on “Indigenous Incarceration: Addressing an Upward Trend”, Gwynette Govardhan on expedited procedures in the National Native Title Tribunal and, on a positive note involving the Law Society, an item about the very promising and inspiring “Nutha Way” Project. With EOFY approaching we are, as always, appreciative of contributions from the Society’s Tax Committee, being John Hockley and Dilani Peiris on the “Abuse or Misuse of Powers of Attorney” and John Fickling on distributions to discretionary trust beneficiaries. The Hon John McKechnie QC shares his wise and witty observations from his 16 years on the Bench on the rule of law and other topics. Christopher A. Bonnici on “How do you interview the New Mafia?” is not only fascinating in itself, but raises issues about examination processes in Australia and abroad. We also have Magistrate Wendy Hughes’ speech at the Lawyers Association Lunar New Year’s Dinner with challenging observations on what makes a good leader. In looking for significant anniversaries approaching half time 2021, and given part of the law and the lawyers’ dilemma is the pursuit of the “truth”, it is notable that in 1921, a century ago, John Augustus Larson, a medical student who had joined the police force, is credited with the invention of the “lie detector” as we know it. Of course, Larson had followed on from previous technological advances in this vexed area, and his invention was originally to be described as the Erlanger Sphygmomanometer, except that there were concerns that no-one could properly pronounce it (the Editor had a hazy recollection that Erlanger Sphygmomanometer was Germany’s 4 | BRIEF JUNE 2021

goalkeeper in the 1966 World Cup Final). There had of course been previous, albeit cruder and utterly unreliable, attempts at a lie detector. The name Tomás de Torquemada springs to mind, but then again, mainly due to some sketchy and equally unreliable recollection that he was Spain’s most reliable defender in the 2010 World Cup. Ancient Sparta had a form of lie detector process, in that prospective young warriors were put on the precipice of a cliff and asked if they were scared.1 The “correct” answer was of course “no” but if, from their voice or body language this was thought to be a lie, they were pushed off the cliff by the older warriors. This is not only reminiscent of a Monty Python skit, but somewhat unsound and unreliable. Clearly, the young warriors may well have been scared, not of the height of the cliff or the potential fall, but by the very real prospect that their leaders were certifiable sociopaths. There is some comparison here with the ritual endured by any young fledgling lawyer asked by their principal if they are scared of going down to Court for the first time. Whatever answer is given, they’re thrown off the cliff into the touted “no problems – it’ll be by consent – it’s all taken care of, and you should have no trouble at all” appearance which actually turns into the Courtroom equivalent of the Battle of Thermopylae, except with said young practitioner being exactly 299 short of still being seriously outnumbered. Coming back to Larson, an interesting quirk of history is that he married one Margaret Taylor, who had been the victim/ witness in a case, and the first person he ever interrogated with his lie detector.2 Anyone who has been or is married would appreciate the irony in this, as in most cases it becomes evident fairly quickly that one’s spouse is not only arguably the inventor of, but more accurately the living embodiment of, the lie detector (a principle that is only strengthened the more marriages one has). There is a further irony in the story of Larson’s lie detector, care of his boss at the time and Chief of Police for Berkley, California, the much admired August Vollmer, renowned for his innovative and

dynamic approach to policing. (Hmm, John Augustus Larson ... and August Vollmer – anyone thinking this Editorial should have been saved up for the August edition?). The high-profile Police Chief Vollmer embraced and popularised the lie detector as an essential instrument of criminal investigation and became identified with it. However, Vollmer was sued for breach of promise of marriage, a cause of action which no longer exists in that form in Australia, which is good news (as anyone who follows The Bachelor would know), for Nick “Honey Badger” Cummins who would have otherwise exposed himself a few years ago to, in effect, a class action. The dilemma for Vollmer was that (no doubt on excellently mischievous legal advice) the woman suing him for breach of promise of marriage, Ms Charlotte Lex, openly and publicly vowed that she would take a lie detector test – on Vollmer’s own machine.3 Vollmer at this point was obviously trying to avoid any further embarrassment, especially given that Ms Lex had given great detail in support of her case of his particular style: “He seized me in his arms and crushed kisses on my lips, telling me that at last he had found his great love.” In the way spouses do, in order to mitigate any further embarrassment to her husband, Mrs Vollmer helpfully and publicly responded: “I don’t believe it – August doesn’t make love that way at all.” In the August/Augustus edition of Brief, further details will hopefully be provided as to how Ms Lex’s breach of promise of marriage lawsuit, and the Vollmer’s marriage, turned out after all that. Endnotes 1 2 3

Lie Detector Invention History – History of the Polygraph Machine. Apr 24, 2017 (liedetectortest.uk) “Truth in the Machine”. Cal Alumni Association. 201003-16 “Will He Submit to His Own Lie Detector? Embarrassing Predicament of Noted Californian Criminologist”, The World’s News (Sydney, NSW on Trove, 17 January 1925

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

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Indigenous Incarceration, Addressing an Upward Trend By Greg McIntyre SC

Why are Aboriginal peoples still being imprisoned at disproportionate rates? This year is the 30th anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody. The disproportionate rate at which Aboriginal people are imprisoned has risen in that period rather than decreased. It has borne a significant relationship to the number of Aboriginal deaths in custody. The Royal Commission noted that Indigenous prisoners comprised 14% of the prison population in 1999. The rate of Aboriginal imprisonment has since doubled and made up 28 percent of the Australian prisoner population in 2019 and accounted for 18 percent of all deaths in prison custody, while in the most recent census, Aboriginal and Torres Strait Islander people accounted for no more than 3 percent of the Australian population.1 Since 2004, the number of Aboriginal people in custody has increased by 88% compared to a 28% increase for non-Aboriginal Australians. In 1992 one in seven prisoners was Aboriginal. By 2020 that ratio had risen to one in four.2

Royal Commission into Aboriginal Deaths in Custody (RCIADIC) The RCIADIC was established in 1987. It examined the cases of 88 men and 11 women who died in custody between January 1980 and May 1989. The youngest was aged 14.

There were 4107 unsentenced Indigenous prisoners in the June 2018 quarter, accounting for 34% of Indigenous prisoners, 29% of all unsentenced prisoners and nearly 10% of all prisoners in Australia.5 Aboriginal people are more likely to be refused bail or arrested for breach of bail than non-Indigenous defendants.6

Western Australia Western Australia imprisons Indigenous people at a much higher rate than any other jurisdiction in Australia, and uses community-based corrections less than most jurisdictions, as demonstrated by the charts below. Imprisonment rates have nearly doubled between 1990 and 2010.7

Aboriginal women in gaol Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO has highlighted the high rate of Aboriginal women in prison.8 The AHRC reported in 20089: Incarceration rates for women generally have increased more rapidly than for men and the increase in imprisonment of Indigenous women has been much greater over the period 10 compared with non-Indigenous women. The Indigenous female imprisonment rate has increased by 34 % between 2002 and 2006 while the imprisonment rate for Indigenous men has increased by 22%. 11 Indigenous women are also 23 times more likely to be imprisoned than non-Indigenous women while Indigenous men are 16 times more likely to be imprisoned than non-Indigenous men.12

It found the causes of death were “extremely varied” but that “their Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody”. The Royal Commission found that more Aboriginal people than others died in custody because they were “grossly over-represented in custody”. A “significant” factor contributing to this over-representation was found to be social, economic and cultural inequality.

A large proportion of Aboriginal women are in custody because they have been unable to obtain bail. Another huge group of them have been there in default of paying fines which they were never going to be able to afford.13

The Royal Commission made 339 recommendations for state and federal authorities, including 35 relating to the investigation and notification of deaths, 13 recommending diversion from police custody, 30 on imprisonment as a last resort, and 36 on custodial health and safety.

A study of incarcerated women revealed that 67% of all Aboriginal women in prison had been incarcerated previously, while almost half this number of non-Aboriginal women had a history of incarceration. The lack of housing and support women receive upon release contributes to the high levels of re-offending.14

A Deloitte review in 2018, found that 64 percent of the recommendations have been implemented in full, while 36 percent have been implemented partially or not at all.

Aboriginal youth in gaol

Senator Patrick Dodson, who was a Commissioner in the Royal Commission, said the past 30 years have not addressed the underlying issues that give rise to this “awful blight”. “For too long, nice words, good intentions but the lack of action and commitment have not seen a reduction to the custodies or the deaths in custody,” he said. “It diminishes us as a nation, because we are incapable of dealing with it.” Since the royal commission at least 455 Indigenous people have lost their lives in custody, according to the latest available statistics from the National Deaths in Custody Program.3

Unsentenced prisoners In recent years, there has been a shift in relation to the purpose and use of bail, from an emphasis on the presumption of innocence to a focus on risk and community safety, and bail increasingly being used as a crime prevention tool.4

Forty eight percent of the 10 to 17 year olds in gaols are Aboriginal.15 Aboriginal children constitute seven percent of the general Western Australian population yet over 70 percent of the prison population, making Aboriginal children in Western Australia the most imprisoned group of people on earth.16 Research indicates that time in a juvenile justice centre is the most significant factor in increasing the odds of recidivism.17

Mandatory sentencing In 1992, the WA Government passed the first mandatory sentencing legislation imposing imprisonment for car theft, followed by the “three strikes” laws in 1996 imposing mandatory imprisonment for home burglaries. Since then, it has also passed the Criminal Organisations Control Act 2012, and mandatory sentences for people who assault custodial officers. Mandatory sentencing laws have particularly failed WA’s Indigenous community, members of which have been incarcerated in even

greater numbers as a result of these laws. The laws have impacted disproportionately on young Indigenous offenders. Indigenous children in WA are now 52 times more likely than non-Indigenous young people to be in detention – twice the national rate of overrepresentation. Over 81% of the 119 individual juveniles sentenced under the legislation were Aboriginal. Moreover, 61% were from nonmetropolitan areas and of these 93% were Aboriginal.18 The laws have had no impact on rates of home burglary and run counter to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.19 The Law Council of Australia20 and Law Society of Western Australia21 have consistently opposed the use of mandatory sentencing regimes. The Law Society wrote to members of parliament expressing its serious concern with the proposed new mandatory sentencing under the Criminal Law Amendment (Home Burglary and other Offences) Bill 2014 (WA) and urged that the Bill be opposed.22 Notwithstanding the Society’s opposition, the Criminal Law Amendment (Home Burglary and other Offences) Act 2015 (WA) was passed. This Act imposes mandatory sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary, which include a minimum sentence of 75% of the statutory maximum term of imprisonment for adults and, where the maximum is life imprisonment, a minimum of 15 years applies and a minimum sentence of three years’ imprisonment for juvenile offenders. Western Australia is the only jurisdiction that still uses mandatory sentencing laws against children. The Northern Territory previously had similar three-strike laws but repealed them in 2001 after the suicide of a 15 year old boy who was mistakenly mandatorily detained.23 Mandatory minimum sentences upon conviction for criminal offences are opposed because they impose unacceptable restrictions on the exercise of judicial discretion and independence, which are essential to the application of the rule of law. They are inconsistent with Australia’s voluntarily assumed international human rights obligations, because of their arbitrariness and limitation on the right to a Aboriginal and Torres Strait Islander imprisonment rate(a), by states and territories, Dec 2019, Sep 2020 and Dec 2020

4,000

Minimum age of criminal responsibility In Australia, the age of criminal responsibility is just ten years old. This is seriously out of step with international standards. In 2019, the United Nations Committee on the Rights of the Child recommended 14 years as the minimum age of criminal responsibility. While the United Kingdom also has a minimum age of ten, most European nations have a minimum age of 14 years or higher. According to the Australian Institute of Health and Welfare, in 2018-19, 773 children under 14 were placed on court orders requiring supervision in the community by youth justice officers. More than 570 were placed in juvenile detention. Some 65% of these two groups were Aboriginal and Torres Strait Islander children. There are many well-founded and compelling reasons for increasing the minimum age of criminal responsibility in Australia to 14.25 These include:

The dramatic and devastating impact on Aboriginal and Torres Strait Islander children, given the high numbers of Indigenous children aged ten to 13 in the youth justice system. Child development evidence showing children under 14 lack impulse control and have a poorly developed capacity to plan and foresee consequences. The disproportionate number of children coming from the child protection system into youth justice. According to a 2017 Australian Institute of Health and Welfare report, three in five children aged ten at the time of their first youth justice supervision were also in child protection. Community-based corrections rate(a), By states and territories, Dec 2019, Sep 2020 and Dec 2020

600

3,000

rate

Mandatory sentencing regimes are also costly and ineffective in deterring crime.24

800

5,000

2,000

NSW

Vic

Qld

Dec Qtr 2019

Sep Qtr 2020

Tas

ACT

Aust

400

Dec Qtr 2020

a) Rate is the number of prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. Based on average daily number. Source: Australian Bureau of Statistics, Corrective Services, Australia December Quarter 2020.

8 | BRIEF JUNE 2021

The high numbers of children in the youth justice system with mental health issues and cognitive impairment. A 2018 study found nine out of ten young people in Western Australian youth detention were severely impaired in at least one area of brain function. This obviously affects whether they can understand rules and instructions. The evidence also showing the earlier a child enters the justice system, the greater the likelihood of lifelong interaction with the justice system. The fact that young children in the justice system have high rates of preexisting trauma and are “physically and neuro-developmentally vulnerable”. Unsurprisingly, criminalisation and imprisonment have a further negative impact on a child’s development. As the Royal Australasian College of Physicians notes: Young children with problematic behaviour, and their families, need appropriate healthcare and protection. Involvement in the youth justice system is not an appropriate response to problematic behaviour. Social Justice Reinvestment WA has released a report26 saying that raising the age of criminal responsibility from the current level of 10 years to 14 years is needed if the state is to avoid high levels of juvenile imprisonment, including 143 children aged 10 to 13 years in unsentenced detention in 2018-19. It would prevent the arrest and detention of children on minor offences, such as an 11-year-old Aboriginal boy who was caught stealing a $5 pen and $4 pencil, according to the report and in another case, a 10-year-old Aboriginal boy was charged with criminal damage after he and another case of a child who broke a window to gain entry to an abandoned house. The report says that in 2020, the Aboriginal Legal Service received 4753 notifications for Aboriginal children apprehended and detained in a police facility. SRWA co-chairs Glenda Kickett and Daniel Morrison said the majority of children were taken into police custody because of alleged offending behaviour. “Children who are detained by police are usually kept in a police cell until they are released or can be transported to court or to Banksia Hill Detention Centre; they are held in the same concrete cells used to detain adults.” In regional areas, an offending child detained by police may spend days in a police cell before the child can be transported to Banksia Hill, the state’s juvenile detention facility in Perth.

200

1,000 0

fair trial, preventing penalties based on the unique circumstances of each offence and offender.

NSW

Vic

Qld

Dec Qtr 2019

Sep Qtr 2020

Tas

ACT

Aust

Dec Qtr 2020

a) Rate per 100,000 persons for the state/territory of interest. Source: Australian Bureau of Statistics, Corrective Services, Australia December Quarter 2020.

The SRWA report points out that raising the age of criminal responsibility to 14 would help meet a commitment in the new national agreement on Closing the Gap to reduce the

number of Indigenous juveniles in detention by 30 percent by 2039. A draft report commissioned by a meeting midlast year of Attorneys-General and led by WA Attorney-General John Quigley recommended that all governments raise the age of criminal responsibility from 10 to 14 years. The report offered an alternative in raising the age to 14 with exceptions for serious crimes. It also included an alternative that the age threshold be raised to 12 with the minimum age of detention fixed at 14. The Change the Record coalition (a national led justice coalition of Aboriginal peak bodies and non-indigenous allies, including the Law Council of Australia) and patrons of the Justice Reform Initiative, who include senior members of Australia’s and WA’s legal, medical and Indigenous affairs communities all support raising the age of criminal responsibility to 14 years. The Australian has reported that the Western Australian government is preferring to begin with 12 as the new limit to give the states time to establish the right alternatives to detention for the youngest offenders.27

Conclusion Unless and until a fully comprehensive Justice Reinvestment model is applied in the State’s Justice and corrections systems, consistent with the recommendations of the RCIADIC,

and decision makers at all levels move away from the populist approach of the first response being to fall back on incarceration as a panacea for avoiding any risk of community harm, then imprisonment rates of Indigenous people in this State will continue to spiral upwards and cost the community more and more, both socially and economically. Endnotes 1 2 3

4 5 6 7 8 9 10

13 14 15 16 17

https://www.smh.com.au/national/what-was-theroyal-commission-into-aboriginal-deaths-in-custody20210407-p57h5q.html https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates The Guardian’s Deaths in Custody Tracking Project; https://www.hrw.org/news/2021/04/14/australiaact-indigenous-deaths-custody#:~:text=The%20 Guardian’s%20Deaths%20in%20Custody,a%20 lack%20of%20prison%20support 14 April 2021 Bartels, Linda, https://www.indigenousjustice.gov.au/ wp-content/uploads/mp/files/publications/files/thegrowth-in-remand-13-08-2.pdf Australian Bureau of Statistics (2018). Weatherburn D and Ramsay S 2016. What’s causing the growth in Indigenous imprisonment in NSW? Bureau Brief 118. BOCSAR. https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates Imprisonment rates of Indigenous women a national shame (humanrights.gov.au) A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia: Social Justice Report 2008 | Australian Human Rights Commission M Cameron, ‘Women Prisoners and Correctional Programs’, AIC Trends and Issues in Crime and Criminal Justice, no 194, Australian Institute of Criminology (2001) p 1. Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity Commission (2007) p 128. Steering Committee for the Review of Government

18 19 20 21

22 23 24

Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity Commission (2007) p 129. https://www.smh.com.au/lifestyle/life-andrelationships/in-wa-unpaid-fines-are-keepingindigenous-mothers-in-jail-20190111-p50qta.html https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates https://www.als.org.au/supreme-court-findsmandatory-sentencing-laws-should-not-have-appliedto-12-year-old-aboriginal-boy/ 8 March 2019. Father Chris Riley, founder of Youth off the Streets, https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates Department of Justice, Review of Section 401 of the Criminal Code, November 2001, 24-25 Morgan, Blagg & Williams, Mandatory Sentencing in Western Australia & the Impact on Aboriginal Youth: Aboriginal Justice Council 2001. Policy position, Law Council of Australia, (May 2014). Law Society President, Matthew Keogh in 2015 said, “The government has no statistics or evidence to support that mandatory sentencing works to deter criminal behaviour, and no specific evidence to show WA’s three-strike laws have been working up until now.” (Media release: 30/02/2015). Letters 9 April 2014 and 16 February 2015. https://www.als.org.au/supreme-court-findsmandatory-sentencing-laws-should-not-have-appliedto-12-year-old-aboriginal-boy/ 8 March 2019 Human Rights and Equal Opportunity Commission, Social Justice Commissioner, 19 October 2001. “Commissioner Welcomes Repeal of Northern Territory Mandatory Sentencing Laws”; Media Positioning Statement; Law Society submission to the Attorney General of WA, February 2013. Chris Cuneen https://theconversation.com/ten-yearolds-do-not-belong-in-detention-why-australiamust-raise-the-age-of-criminal-responsibility-142483 23.07.2020 ‘A Pathway to a Brighter Future for Western Australia’s most at risk children’ ‘It’s absolutely scandalous’: calls for WA to raise the age of criminal responsibility | NITV (sbs.com.au/nitv/) Taylor & McKenna, “Major justice reform: push to lift age bar on crime”, The Australian 15 April 2021.

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Time to Try a “Nutha Way” The Voice of Indigenous Young People By The Nutha Way Team A joint initiative of the Law Society of WA, Millennium Kids and Media on Mars

Nutha Way is an Indigenous youth leadership initiative of the Law Society of Western Australia focused on building better relationships between young people, their communities, the justice system, local police and stakeholders.

they wave and call out to us. We can stop to have a chat and talk about the basketball program we’ve got going on. The fact that they call us by our first names in itself, is a sign of success.”

house for the Nutha Way team and the local community to use as the Nutha Way Youth Hub. This initiative has received a WA Police Community Grant to run an ‘On Country’ planning workshop with the young people and the local Police to co-design how the Nutha Youth Hub will work.

While we do not have all the answers to addressing the complex social issues with Indigenous young people in small regional towns, we can see this program making steps in the right direction. Partnering with young people and championing their solutions is a great way to create positive change with, and by, young Indigenous citizens. In consultation with their communities, the journey creates positive reinforcement for them and their long-term futures.

In partnership with Millennium Kids Inc. and Media on Mars, Nutha Way engages with young people in ways meaningful and relevant to them and garners their input to identify issues faced by them in their community. An important feature of Nutha Way is the 25+ year commitment and the ‘skills for life’ approach that aims to build capacity and empower youth led initiatives. The Law Society, Millennium Kids Inc. and Media on Mars believe in championing the voices of Indigenous youth and supporting them to pitch their ideas for solutions to the issues identified. This is critical if we are to help change outcomes for young Indigenous people and their communities. This approach also helps Indigenous youth build confidence, find and share their voice, develop community bonds and form partnerships to facilitate implementing solutions. An example of what building community bonds and partnerships looks like is Nutha Way in Coolgardie. Young Indigenous people in Coolgardie identified that they need somewhere to go when they need a break. The community realised that the empty house next to the police station would be an ideal location for this and could also function as a place to build a positive, culturally appropriate youth program. Over the last year, the Nutha Way team with the local youth, Elders and the Coolgardie Police have been working with us to secure that

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Another purposeful design element of the program has been connecting young people with Country. Being 'On Country' helps break through barriers, build relationships and creates a safe space to share stories. We take our young people on trips to the Great Western Woodland region along with Indigenous Elders to learn about their history, significant sites in the area, and the role of Woodland custodians. Quote from Brenden Ah - Kim - Nutha Way Indigenous Leader “There’s a lot of momentum with this program building positive relationships with the Police. The program breaks down barriers and is a great template for other communities wanting to build better relationships between young people and police.” Quote from Sergeant Gary Simpson – Officer in Charge, Coolgardie Police “We used to drive past kids and we’d either get nothing or possibly the bird, but now we drive past and

For the first two years in the Goldfields, the program has been funded by Lotterywest and the Department of Justice’s Criminal Property Grants Confiscation Program. It is being delivered by Millennium Kids Inc. and Media on Mars. Based on the success in Coolgardie the Law Society and Nutha Way partners have been invited to run Nutha Way in other regional locations. We are actively looking for ongoing funding and corporate support to maintain engagement in Coolgardie and the Goldfields whilst also potentially expanding to other regions. More information on Nutha Way in Coolgardie can be accessed via the Nutha Way 2020 Annual Story. For more information about Nutha Way please visit www.nuthaway.org.au or follow us on: FB: https://www.facebook.com/NuthaWay-104342954405582/

Professional Standards Scheme Overview The Professional Standards Scheme (PSS) is a statutory scheme operating under the Professional Standards Act 1997 (WA) (Act). The Scheme is approved by the Professional Standards Council. The Professional Standards Scheme (formerly Limitation of Liability Scheme) provides a significant benefit for Law Society members. The Scheme commenced on 1 July 2019 and does not apply to claims prior to that date or prior to a participant’s commencement with the Scheme. The Scheme creates a liability cap on damages that can be recovered by a plaintiff in a professional negligence action taken against a Participating Member of the Scheme. 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. Things to Note: The Scheme is not an insurance product and does not affect the practitioner’s existing requirements to obtain insurance through Law Mutual (WA), or otherwise as applicable. Compulsory professional indemnity insurance must cover the amount up to the liability of the cap. The liability cap under the PSS relates only to damages and does not include costs.

For a law practice to gain the full benefit of the Scheme and the limitation of liability, all legal practitioners (that is, any person who holds a current Australian practising certificate) within the law practice, and the law practice itself if it is an incorporated legal practice (ILP), would need to be members of the Society and the Scheme. The Scheme is available to Ordinary, Life and Incorporated Legal Practice members. This is an opt-out Scheme which, subject to the provisions of the Professional Standards Act 1997 (WA) applies to Law Society members. However, the Scheme provides for circumstances in which members may be exempt and can apply for exemption by completing the Application for Exemption form. The Law Society has discretionary authority, on application by a participating member, to specify a higher maximum amount of liability. Participating members need to disclose their limited liability status. Non-disclosure is an offence under the Professional Standards Act 1997 (WA). Further information regarding disclosure is available in the Professional Standards Scheme Guide, and on the Professional Standards Council website. For more information regarding the Scheme go to https:// www.lawsocietywa.asn.au/pss/, call (08) 9324 8624 or email pss@lawsocietywa.asn.au

Expedited Procedures:

Case example – Expedited procedures allowed by NNTT despite substantial objections raised by native title groups. By Gwynette Govardhan, Lawyer – Yamatji Marlpa Aboriginal Corporation

Introduction An expedited procedure is a fast-tracking process for the grant of tenements that are seen to have ‘minimal impact’ on native title. Typically, the Department of Mines, Industry Regulation and Safety (DMIRS) will state the expedited procedure applies on a notice, and any native title party will not have the right to negotiate. The native title party instead only has the right to lodge an objection to the expedited procedure, should they wish to stop exploration or other activity on land. In expedited procedure hearings, the three limbs of s.237 of the Native Title Act 1993 (NTA) are looked at carefully, specifically, whether there has been interference with the community or social activities1, whether there has been interference with areas or sites of particular significance2 and whether there has been major disturbance to any part of the licence area3. In recent expedited procedure hearings, the National Native Title Tribunal (NNTT) has been reluctant to disallow expedited procedure, despite serious concerns regarding threats to culture and heritage raised by native title groups, often due to purported evidential gaps.

The contentions of the Bunuba people – traditional hunting grounds and the no-go zone on a registered sacred site In the expedited procedure hearing involving Bunuba Dawangarri Aboriginal Corporation in relation to the Warrwa Determination made on 1 December 2020, there was a registered Aboriginal site within the area, however the majority of it was located outside the licence area. The registered sacred site also had within it a no-go area, and was even marked as an ‘Avoidance Area’ on the register. The Bunuba people identified this no-go area as being dangerous and of cultural significance, explaining they did not want to disturb the no-go area as there were possible consequences for a

As such, the NNTT was of the view there would not be a ‘direct interference’ with the Bunuba people’s community and social activities for the purposes of s.237(a) of the NTA.

Umida Unggarangi Djawi

Findings in relation to the registered sacred site

Warrwa Unggumi Derby Punuba Broome

Nyikina

The Warwa Traditional Lands and those of neighbouring Aboriginal tribes.

person entering the area without being smoked by a senior Bunuba person. In addition to contending the registered site and no-go zone were sites of particular significance, the Bunuba people asserted the grantee party’s use of the licence area without Bunuba’s knowledge (particularly in the cold season) is likely to disrupt the movement habits of wildlife and interfere with the willingness of members of Bunuba to access the area. Bunuba further contended they used a particular area as a meeting place for hunting, gathering and cooking and Traditional Owners provided affidavits which referred to hunting and fishing activities in the present tense, described the path they followed to catch fish and stated they did not want others to become aware of their hunting spots.

Findings in relation to hunting grounds The NNTT found the evidence brought by the Bunuba people did not support a finding the licence area is a site of particular significance in accordance with Bunuba people’s traditions, making a further finding that the use of the area for hunting, fishing and cooking did not necessarily make it a site of particular significance, as there was ‘no clear evidence’ of the extent to which visits to the hunting grounds occurred, although the affidavits of Traditional Owners mentioned the cold season was the best time to visit.

In relation to the no-go zone, Bunuba had referred to its cultural significance and mythological relevance, but this was not sufficient for the NNTT and they required an explanation as to why this no-go zone was of particular significance according to Bunuba tradition. The NNTT acknowledged the fact this nogo zone was registered ‘may be relevant’ however did not accept that the area being a no-go or dangerous zone made it an area of particular significance. Rather, they construed it to be the contrary, as the explanation given for the significance of the site was to keep people away from the artefacts.

Conclusion This matter illustrates the need for native title parties to provide substantial evidence and explanations in relation to claims around cultural and heritage concerns. The NNTT in this matter gave limited guidance as to what specific evidence is required from native title parties to quash an expedited procedure. Moreover, in relation to sacred sites and cultural practices, it seems the NNTT is after more comprehensive statements of what the cultural activities are, their frequency and accompanying explanations regarding how these practices (or sites) are of cultural and/ or spiritual significance. In these unique legal matters, the use of expert evidence from anthropologists and/ or archaeologists can be of utmost importance, however unfortunately many native title groups may not have adequate resources to access this type of expertise. Endnotes 1 2 3

s.237(a) Native Title Act 1993. s.237(b) Native Title Act 1993. s.237(c) Native Title Act 1993.

Abuse or Misuse of Powers of Attorney By Dilani Peiris* and John Hockley**

1. Introduction: The ABC News in Perth in the following quotation1 demonstrated that the use and abuse of Powers of Attorney are alive and operating in Australia2, Western Australia. The facts were described as follows:

“In early 2018, a man took advantage of an enduring power of attorney to sell his mother’s properties worth more than $2 million without her knowledge. The woman was a traditional housewife who had left the household money management up to her husband and when her husband passed away, she provided her children with authority to make financial decisions for her by signing an unrestricted enduring power of attorney. The woman in her 90s was admitted to hospital after suffering a fall and within weeks of her entering hospital one of her properties was placed on the market without her knowledge. It was the woman’s grandchild that discovered that one property was sold and another property was on the market after searching land title records. The grandchild questioned the woman assuming that the property was sold to pay for her aged care fees. The woman knew nothing about the property being sold and became agitated on hearing this information. The grandchild checked the woman’s bank accounts and discovered suspicious transactions had taken place over a fortnight. Hundreds of thousands of dollars were moved between the woman’s bank accounts and eventually transferred to the son’s bank account. The woman requested to see a lawyer. Witnessed by the bank manager and the woman’s lawyer she revoked the enduring power of attorney, removing her son as her enduring power of attorney. However, later the woman signed an enduring power of attorney giving her son authority witnessed by a justice of the peace. When the second enduring power of attorney was lodged at the bank the woman was questioned by the bank manager and

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stated “if you can’t trust your son, who can you trust.” The woman also signed a statutory declaration stating that the proceeds from the first property sale were a gift to her son. The grandchild alerted the Fraud Squad who were reluctant to intervene in a family argument. The other members of the family regarded the giving of the power of attorney similar to “giving the crooks the keys to the bank.” The woman was eventually successful in recovering the funds from her son due to her lawyer’s intervention in the matter.

2. The Royal Commission into Aged Care Quality and Safety The interim report of the Royal Commission into Aged Care Quality and Safety3 revealed that elderly citizens receiving aged care services in Australia were being subjected to neglect and substandard care and some to ‘elder abuse’. The aged care system in Australia fails to meet the needs of older vulnerable citizens. The Royal Commission has explained the neglected state of aged care services due to society undervaluing old people. This neglect was shown to be a weakness in the aged care provision by the COVID-19 Pandemic. We tend to discount the citizenship of very old people, because they don’t have the obvious utility to us that our society frequently values, and that is a really important issue. We have a – not a use-by date, but a best by date attitude to life, rather than assuming that life is something about growing through different stages and phases. The Royal Commission has highlighted the widespread problem of abuse inflicted on vulnerable elderly citizens who are the recipients of aged care services. However, elderly citizens can also be subject to abuse through the appointment of Enduring Powers of Attorney. As a result, we simply can’t neglect to protect older citizens from attorneys misusing and abusing powers of attorney. It is therefore, imperative that measures be put in place to curb abuse that is inflicted through the use of this tool. This article will leave the discussion of the Royal Commission in Aged Care Quality and Safety to others after they have the opportunity to study the final report in detail.

3. WA Parliamentary Inquiry The final report of the WA Parliamentary Select Committee into Elder Abuse4 states that elder abuse can include financial abuse. The Committee found that power of attorney documents are tools that can be used to perpetrate elder abuse on a vulnerable older person. Committee Findings: 1. The witnessing requirements in other states and territories were more stringent and provided stronger protections for the donor. The Committee recommends that the witnessing requirements in the Guardianship and Administration Act 1990 (WA) be improved to provide more robust protection for individuals creating a power of attorney. Another recommendation was that attorneys be required to sign an undertaking with respect to statutory responsibilities and obligations. 2. There was no statutory procedure in the Guardianship and Administration Act 1990 (WA) to revoke or update a power of attorney. First, the existence of multiple power of attorney documents for a single individual increases the risk of elder abuse by encouraging perpetrators to coerce or manipulate an older person to create a new power of attorney for their benefit. Secondly, the existence of multiple power of attorney documents encourages perpetrators to use an outdated document for their benefit after they have ceased acting as an attorney. 3. The Committee supports the creation of a national register for power of attorney documents as a means to discourage elder abuse and to insert greater checks and balances in the process of creating a power of attorney. 4. The Committee recommends the creation of a state register for Western Australia in the interim whilst a national register is being considered. 5. The Committee found there was no penalty for an attorney in the Guardianship and Administration Act 1990 (WA) where they have breached the duty to act with reasonable diligence to protect the interests of the donor.

* B Ec (Hons) (UWA), LLB (UWA); Student in Succession Law at UWA in 2013. ** Barrister, Francis Burt Chambers, 77 St Georges Terrace, Perth, WA, 6000; Lecturer in Succession Law at UWA. This article is based on an Assignment given to Succession Law Students in the JD Course at UWA in February 2020.

( i ) Currently there is only a penalty imposed on an attorney for failing to keep records. ( ii ) The Committee recommends legislative change to increase penalties on attorneys for breaching a power of attorney. ( iii ) The Committee recommends creation of an offence for a donee that breaches their obligations in section 107 of the Guardianship and Administration Act 1990 (WA). ( iv ) The Committee recommends granting the State Administrative Tribunal jurisdiction to hear claims for compensation for abuse or misuse of a power of attorney. 6. The Committee found there needed to be an improvement in the checks undertaken for land transfers completed in Western Australia relying on a power of attorney document. 7. Once a power of attorney document is filed with the land titles office it has effect until the document is revoked or extinguished and more than one power of attorney document can be filed for an individual. The Committee recommended a safeguard be in place to ensure that only one valid power of attorney document is held for an individual involved in the transfer.

4. A Uniform Power of Attorney or Enduring Power of Attorney in Australia The Australian Law Reform Commission (ALRC) undertook an inquiry into elder abuse in 2017 and in their final report5 the

ALRC recommended the development of a national model enduring document. The community must embrace the social change that will be upon us in coming decades. Older people are a social group like any other – accept that they come with the accumulation of experience and the insight of age. They must be accorded the universal right to live a meaningful life.6 The ALRC recommends that a single template be developed for enduring documents to be used across all States and Territories in Australia. In the period that has elapsed since the inquiry a national model Enduring Power of Attorney has not yet been developed. Obtaining a uniform approach is very difficult in Australia with different views held by different States and Territories. This was found by the ALRC in its reform of the succession laws in Australia in the early 2000’s. It may be easier to get similar but not uniform laws on powers of attorney rather than a single national template.

5. Duties of the holder of a Power of Attorney In Reilly v Reilly [2017] NSWSC 1419 at [114]-[117], Lindsay J set out the following General Law Principles applying to an attorney: 1. The primary object of a power of attorney is to enable the attorney to act in the management of his or her principal's affairs; an attorney cannot, in the absence of a clear power so to do, make presents to himself or herself or to others of his or her principal's property: Tobin v Broadbent (1947) 75 CLR 378 at 401 (quoting Reckitt v Barnett Pembroke and Slater Limited [1928] 2 KB 244 at 268, approved in the House of

Lords [1929] AC 176 at 183 and 195), recently applied by the Full Court of the Federal Court of Australia in Great Investments Limited v Warner (2016) 243 FCR 516 at 538 [85]. 2. Under the general law of agency, it is a breach of duty for an agent to exercise his or her authority for the purpose of conferring a benefit on himself or herself or upon some other person to the detriment of his or her principal. But, at the same time, if his or her act is otherwise within the scope of his or her authority it binds the principal in favour of third parties who deal with him or her bona fide and without notice of his or her fraud: Richard Brady Franks Limited v Price (1937) 58 CLR 112 at 142. 3. Where a fiduciary (such as an agent) exercises a power, which results in his or her obtaining some incidental benefit, there may be nothing per se improper with his or her having that benefit if the benefit itself is, in the circumstances, an inevitable consequence of his or her properly exercising the power which produces it. A beneficiary (principal) may be able to upset such an exercise of power only if he or she can show that the fiduciary (agent) exercised it with the dominant purpose in mind of obtaining that benefit irrespective of the interests of his beneficiary (principal): Paul Finn, Fiduciary Obligations (Federation Press, Sydney, 2016 reprint), paragraphs [103]-[104], citing, inter alia, Smith v Cock (1911) 12 CLR 30 at 36. At [124]-[125], Lindsay J qualified the attorney’s power to make a gift in favour of a third party in two respects: 1. It was qualified by the fiduciary obligation of loyalty owed by the 15

first defendant to the deceased as his attorney: Spina v Permanent Custodians Limited [2008] NSWSC 561; (2008) 13 BPR 25,463 at [113][121] and [153]; Ward v Ward (No. 2) [2011] NSWSC 1292 at [3]; Cohen v Cohen [2016] NSWSC 336 at [62][67]. 2. It was qualified by an obligation to exercise the power of attorney bona fide and not for an improper, foreign purpose (that is, an obligation not to commit a “fraud on the power”): GE Dal Pont, Powers of Attorney (Lexis Nexis Butterworths, Australia, 2nd ed, 2015), paragraphs [6.64]-[6.65]; PW Young, C Croft and ML Smith, On Equity (Law Book Co, Sydney, 2009), paragraphs [8.880]-[8.950]; G Thomas, Thomas on Powers (Oxford University Press, 2nd ed, 2012), Ch 9, especially paragraphs [9.01]-[9.05] and [9.90]-[9.91]; Vatcher v Paull [1915] AC 372 at 378.

6. Case Examples ( a ) Problems that can arise when acting on instructions from an enduring attorney Some of the problems that can arise when acting on instructions from an enduring attorney are illustrated in the case known as McFee v Reilly7 that was heard by Lindsay J at first instance.8 On appeal the case was heard by Leeming JA (with whom McColl JA agreed); and Payne JA (who also agreed with Leeming JA but who wrote a separate judgment). Frank Riley and his wife, Peg, conducted a farming partnership on two properties

near Forbes in central New South Wales called “Malaya” and “Boronga”. Frank and Peg had four daughters: Margaret, Carmel, Genevieve, Patricia (known as Tish), and a son Joseph, all of whom were adults. In 2000 Frank had given an Enduring Power of Attorney exercisable jointly and severally by Peg and Joseph. In 2003 Frank engaged a solicitor (Mr Buckley) to prepare a Will. The Will gave all of his real and personal property, save for “Boronga” to his four daughters as joint tenants. A separate clause purported to devise “Boronga”, but failed to nominate a devisee. In about 2008 and certainly from 2009 onwards, Frank became mentally incapable of managing his own affairs. In 2009 acting pursuant to the power of attorney Peg caused “Boronga” to be transferred to the four daughters as joint tenants for a consideration of $1, though its value at the time was assessed at $815,000. The daughters obtained title by registration. Peg took this course with the involvement of a solicitor, Mr McCallum, who was engaged to represent the interests of Peg and her daughters. His retainer extended to estate planning and prior to effecting the transfer of “Boronga” he requested and read Frank’s 2003 will. Frank died in December 2012. In 2014, Joseph lodged caveats affecting “Boronga” and commenced proceedings against his mother, his sisters and Mr McCallum. Lindsay J made orders rectifying Frank’s will to make Joseph the devisee of “Boronga”, upholding Joseph’s claim that “Boronga” was held on trust for Frank’s estate. This required his sisters to transfer title to him and reserved for

The other members of the family regarded the giving of the power of attorney similar to “giving the crooks the keys to the bank.”

future determination the quantum of damages at common law that Joseph might be entitled for his successful claim in negligence against Mr McCallum. The sisters appealed, Joseph and Mr McCallum both cross-appealed. Peg entered a submitting appearance to the appeal. Court of Appeal Findings: 1. The Court of Appeal allowed the appeal in part and dismissed the cross-appeal. The Court of Appeal upheld the decision of Lindsay J in regard to: ( ii ) The rectification of Frank’s Will. The failure to nominate a devisee for “Boronga” was an obvious clerical error, and the facts amply supported the inference that Frank meant to leave “Boronga” to Joseph. ( iii ) There was no agreement between Frank and Peg that “Boronga” would be transferred to their daughters when Frank could no longer farm that land. ( iv ) Peg’s transfer of “Boronga” to her daughters was in breach of her fiduciary duty to Frank. Mr McCallum who acted for both Peg and her daughters on the transfer, had knowledge of Peg’s breach of duty, which knowledge was to be imputed to the daughters. 2. The Court of Appeal held that the primary judge erred in holding, in the absence of a finding of “actual fraud, moral turpitude”, the daughters’ indefeasible title was held on trust for Frank’s estate. However, the daughters were liable to account to Frank’s estate for the value of the property (“Boronga”) obtained in breach of fiduciary duty to their knowledge. 3. Mr McCallum, a solicitor, owed a common law duty to Joseph to take reasonable care to see that Frank’s testamentary wishes, as expressed in his 2003 will, were not frustrated by his attorney’s breach of fiduciary duty. Mr McCallum breached his duty of care owed to Joseph by failing to critically examine Frank’s testamentary intentions and their consistency with Peg’s instructions. This breach was causative of Joseph’s loss, being the transfer to his sisters of “Boronga”, which he otherwise would have received under Frank’s will. ( i ) In finding that the solicitor owed

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Joseph a duty of care, Payne JA stated that this case did not sit comfortably within the principles applicable to the imposition of a duty of care explained by the plurality (French CJ, Kiefel and Keane JJ) in Badenach9:

no possibility of conflict: the interests of the client and the interest of the beneficiary necessarily coincide completely. (Footnotes omitted) ( iii ) Payne JA stated at [195]-[196]:

[18] It must be conceded, as the appellants point out in the present proceedings, that the approaches taken by members of the majority to the question whether a duty existed differed in some respects. Nevertheless, it may be seen from most of the judgements that the duty found to be owed by the solicitors to Mrs Van Earp as the intended beneficiary had its source in the solicitor’s obligations arising from the retainer between the solicitor and her client. The solicitor was obliged to exercise care and skill in giving effect to her client’s testamentary intentions. The interest of the testatrix and the intended beneficiary in those intentions being carried into effect were relevantly the same. Recognising a duty to the intended beneficiary would not involve any conflict with the duties owed by the solicitor to her client, the testatrix.

The solicitor here was not the solicitor who drew Frank’s will, although he was aware of its terms. As Leeming JA explains, however the solicitor must have understood that Frank’s will left “Boronga” to somebody other than Peg’s daughters. So much is clear by the bequest of the residue to the daughters in the succeeding paragraph of the will. Not without hesitation, I have ultimately come to the conclusion, for the reasons given by Leeming JA that the remarks of the High Court in Badenach are not to be understood as applying to a case where the grantor of an enduring power of attorney has become incapable. In reaching this conclusion I am influenced by the close analogy between the duty owed to Mrs Van Erp and the duty owed to the incapable grantor of the power of attorney, Frank. I am also influenced by the fact that the imposition of a duty of care of the kind found here will be rare indeed. The duty is confined to a solicitor engaged to advise the holder of an enduring power of attorney about estate planning issues where the grantor of the power has become incapable. In advising the grantee of the power as part of the estate planning retainer about an inter vivos transfer of property, the solicitor is obliged to exercise care and skill in giving that advice, taking into account any separate testamentary intentions of his or her client, the incapable grantor. In this limited way the duties owed to Frank and to the beneficiaries under Frank’s will coincide completely.

[19] … The scope of the solicitor's duties will be set by the terms of the retainer with the client. The solicitor would be entitled to invoke that contract in defence of, or to limit, any claim by a disappointed beneficiary.” (Footnotes omitted) ( ii ) Payne JA stated that the judgment of Gageler J in Badenach also poses a challenge to the imposition of a duty of care here: [59] … Confined to taking reasonable care to benefit the intended beneficiary in the manner and to the extent identified in the testator’s instructions, the solicitor’s tortious duties to that beneficiary is coherent with the solicitor's contractual and tortious duties to the client, thereby allowing the two to co-exist. The duty is coherent because it admits

( b )

( c ) Liability of executors and administrators where misuse of a power of attorney has occurred In Bird v Bird [2013] NSWCA 262, McFarlane JA (with whom Beasley P and Ward JA agreed) decided an appeal in a case where there had been misuse of enduring powers of attorney10 which not only resulted in liability for the executors but also for the solicitor who drafted the power of attorney. In his 1991 will, Mr Percy Bird gave his wife Mona a legacy of $300,000 and two properties owned by him with the residue divided equally between his children Warwick, Rodney and Deborah. Also, in 1991 Percy executed a Power of Attorney in favour of Mona, Warwick and Rodney that was drafted by his solicitor, Mr Cannington who also prepared his will and a codicil in 1994. In the codicil Percy stated that if two of his properties had been sold by the date of his death Mona was to have a legacy of $700,000 that was reduced to $500,000 if she had “acquired another home”. Mr Cannington also prepared a second power of attorney in 1994 in the same terms as the first. In 1991 Percy became ill and up until that time Mona received a weekly allowance from him and possessed only a bank account in her own name and a property that she had inherited from her parents. In 1993 Percy was admitted to hospital and thereafter to convalescent and nursing homes where he remained until his death. At about the time of his admission into hospital the bank accounts operated by Percy were transferred to accounts in the joint names of himself and Mona. In 1993 and 1994 with the assistance of Warwick and Rodney and acting under the Powers of Attorney, Mona sold four properties belonging to Percy and deposited the funds into an account in her own name. In late 1994 Mona purchased a property upon which she built a home for herself to live in. The total expenditure on this property was $228,328.05. After Percy’s death on 2 September 1996, probate of his will was granted to Warwick, Rodney and Mr Cannington. Partial payments of Mona’s legacy of $500,000 commenced on 28 November 1996. In total she was paid $445,586.07 of the legacy. In 2005 Deborah commenced proceedings to which Mona was later joined but no claim for relief was made against her. Deborah claimed that Warwick and

Rodney received from Mona part of the sale proceeds with knowledge that they were obtained by her without Percy’s authority and that they were liable under the first limb of the principles in Barnes v Addy (1874) LR 9 Ch App 244, to indemnify the estate in respect of Percy’s loss of that part of the proceeds. Deborah claimed that the executors breached their duties by not attempting to recoup the sale proceeds from Mona (that is, they allowed the estate to ‘waste’) and seeking orders that they committed a devastavit11 and that they indemnify Percy’s estate for the loss it suffered. At first instance Rein J rejected the Barnes v Addy claim on the basis that Warwick and Rodney were not proved to have known that their receipts were of funds Mona obtained by acting without Percy’s authority and the devastavit claim was rejected on grounds that Deborah had suffered no loss and the claim was in any event statute barred.

Court of Appeal Findings: 1. Deborah’s appeal in relation to her Barnes v Addy claim was rejected. 2. Deborah succeeded in relation to her devastavit claim. The Court of Appeal held that the executors’ cause of action against Mona only became statute barred in 1999 after the expiration of six years from Mona’s first misappropriation. Deborah’s proceedings were commenced within time because they were commenced within six years of the relevant date in 1999. 3. In the course of implementing its decision the Court of Appeal reduced by 50 per cent Deborah’s entitlement against Warwick and Rodney to her costs of the appeal to reflect her lack of success on her severable, Barnes v Addy claim against them. She was given the whole of her appeal costs from Mr Cannington as she was successful on her only claim against him. The respondents were ordered to pay the whole of Deborah’s costs at first instance as failure at first instance on one of multiple claims does not ordinarily result in a plaintiff being deprived of his or her costs. ( c ) Breach of power of attorney Grant v Grant12 is a case where there was a misuse of a power of attorney and the attorney acted outside the authority conferred by the power of attorney. Nerez held a power of attorney from her father, Dr Grant and depleted

18 | BRIEF JUNE 2021

his estate of over $4 million between 2011 and 2017. In 2017 Nerez caused the transfer of Dr Grant’s last remaining property to her daughter for nominal consideration. The estate contends that this transfer was for $900,000 and that Nerez and her daughter never intended to pay that amount. The property has been leased to Nerez for life. In October 2017 Nerez transferred $160,000 from Dr Grant’s accounts using the power of attorney and applied the funds for her and her daughter’s benefit. In accordance with the orders of Kunc J the granddaughter repaid $60,000. As a result, $100,000 remains unaccounted for and outstanding. The estate contends that the power of attorney did not confer on Nerez power to make gifts to herself or other family members and that Nerez’s actions were a breach of the power of attorney. The estate seeks to have the transfer of property set aside and to recover the funds transferred from Dr Grant’s accounts.

NSW Supreme Court Findings: 1. Slattery J ordered that the second defendant transfer the property to the plaintiff for no consideration. The Court concluded that Nerez did not take the trouble to read the Power of Attorney at the time or to seek advice about it before going ahead with the transfer of the Killcare property to Kashaya. Because of the substantial nature of this transaction, relative to Dr Grant’s assets at the time and because she was gaining a substantial benefit as a result, an honest person in her position would have checked the powers conferred on her under the Power of Attorney and obtained advice as to whether she was authorised to use the Power of Attorney in these circumstances. The Court found that the transfer of the property was not in accordance with Dr Grant’s wishes and instructions as contended by the defendants and that a letter tendered by the defendants as evidence of Dr Grant’s wishes and instructions was fabricated. 2. Slattery J ordered that the first defendant pay compensation to Dr Grant’s estate for the money transfers of $100,000 and $34,700 that she authorised. The defendants contended that the cash withdrawals made from Dr Grant’s bank accounts were consistent with his wishes. The Court found that the large number of withdrawals made over the period

were well beyond anything that could possibly be related to Dr Grant’s care and is so great that it depleted his estate to the point of placing him in penury. The Court found that the total nursing home fees paid by Dr Grant during this period were only $119,823.47, being less than 3% of the $4 million withdrawn from the accounts and Dr Grant was left with a total of $20,769 in his two accounts. He was unable to pay his ongoing nursing home fees from his remaining resources and had no prospect of paying a deposit at the nursing home. The Court found that the power of attorney did not empower Nerez to make gifts to herself or to others by use of the instrument. The estate is entitled to interest on these sums to be assessed in accordance with the principles applicable to dishonest breaches of fiduciary duty: Hagen v Waterhouse (No. 2) (1992) 34 NSWLR 400.

7. Forms of Relief ( a ) Devastavit A devastavit is an old tort remedy available where loss is suffered by an estate. Definition13: He (or she) has wasted. The personal representative of a deceased estate is under a duty to properly preserve, protect and administer estate assets. Breach of the duty renders the personal representative personally liable for any loss to the estate: Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69; 72; [1941] 3 All ER 458; Dalrymple v Melville (1932) 32 SR (NSW) 596; 49 WN (NSW) 206; Re Diplock; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318. A devastavit occurs where loss is suffered by an estate due to a breach of duty by the personal representative of a deceased estate to properly preserve, protect and administer estate assets. The personal representative is liable for losses to the estate arising from the breach. ( b ) Advantages and Disadvantages (or when not to use) ( iii ) Advantages: The advantages of bringing a devastavit claim is that it can be brought alongside other administrative actions against a personal representative of a deceased estate. For example, bringing a devastavit claim together with a claim under the first limb of Barnes v Addy14 similar to the

appellant in Bird v Bird.15 A devastavit claim can be made where an estate has suffered loss due to the personal representative of the estate misappropriating the assets of the estate, but also where the estate suffers loss due to the negligence of the personal representative or the misadministration of estate assets by the personal representative. In both these situations the personal representative of the estate is liable for any loss that is suffered by the estate. In Bird v Bird16 the appellant brought a devastavit claim against the executors of the estate on the basis that they should have known that the power of attorney had misappropriated the proceeds from the sale of estate assets. The executors had breached their duty to call in and collect the assets of the estate.17 ( iv ) Disadvantages: The disadvantages of bringing a devastavit claim are that any payments received by the claimant from the estate will offset the amount of the claim. In Bird v Bird18 the claimant’s entitlement from the estate was reduced by an amount to reflect the payments they had received from the estate. If it can be proved that the claimant acquiesced to the devastavit then the claim will be rejected. In Holder v Holder19 the plaintiff was found to have acquiesced to the sale of two farms that formed part of the deceased estate to his brother when the plaintiff accepted his share of the sale proceeds. The plaintiff objected to the sale of the property to his brother because his brother was a personal representative of the estate and should be disentitled from purchasing the property.20 Where a devastavit claim is brought, a court may relieve a personal representative, either wholly or partly, from personal liability arising from a breach of duty where they have acted honestly and reasonably and ought fairly to be excused for the breach and for failing to obtain the directions of the court in the matter in which the breach was committed.21 ( c ) Seeking approval from the State Administrative Tribunal A personal representative is able to seek the approval of the State Administrative Tribunal for a transaction where they are concerned that giving effect to the transaction would result in them breaching their duty to preserve, protect and administer the assets of the estate.22

In Reilly v Reilly23 a power of attorney transferred a farm to her four daughters for nominal consideration and Justice Lindsay held that she could have sought the authorisation of the State Administrative Tribunal for the transaction before effecting the transaction to avoid breaching her obligations. Section 109(2) (a) Guardianship and Administration Act 1990 (WA) allows the attorney to apply to the State Administrative Tribunal to seek an order to revoke or vary the terms of an enduring power of attorney. Section 109(2)(b) Guardianship and Administration Act 1990 (WA) allows an attorney to seek directions from the state administrative tribunal in relation to matters connected with the exercise of the power of attorney or the interpretation of the terms of a power of attorney. ( d ) Other Forms of Relief A beneficiary is able to bring a claim under the first or second limb of Barnes v Addy.24 Justice Lindsay in Reilly v Reilly25 explained the two limbs as follows and held that the first limb does apply to fiduciaries in general: The rule in Barnes v Addy is conventionally treated as involving two forms of liability, respectively described as the “first limb” (involving a “knowing receipt” of trust property) and the “second limb” (involving “knowing assistance” in a dishonest and fraudulent design on the part of a trustee). Although the High Court of Australia, in Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89 at 141 [113], left open the question whether the first limb of Barnes v Addy applies generally to persons dealing with some type of fiduciary other than a trustee, the Court of Appeal has accepted that it applies to fiduciaries (Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [86]-[92]) and, that being so, I am bound in these proceedings to do likewise.

the Guardianship Act. The result may be a need for a Powers of Attorney Act in Western Australia similar to that in other Australian States and Territories. The ALRC recommendations are based on an Australia wide view. The problem has been recognised nationally in Australia. The need to reform Powers of Attorney is now widely recognised. Efforts have been made to attempt to co-ordinate the laws of the States and Territories as attaining uniformity is extremely difficult. The States will have to update and clarify their laws on Powers of Attorney. The recent Report by the South Australian Law Reform Institute26 will be a valuable guide along the course ahead. In the interim, it is hoped that this article gives practitioners some guidance in navigating the increasingly turbulent waters of Powers of Attorney. Endnotes 1

3 4

5 6 7 8 9 10

Conclusions This article has highlighted some of the problems that can arise from the misuse of Powers of Attorney and in particular, Enduring Powers of Attorney. Regrettably, abuse of Powers of Attorney is becoming more frequent. This trend is likely to increase with an ageing population. The WA Parliamentary Select Committee has made practical suggestions for the reform of Powers of Attorney and to the Guardianship and Administration Act 1990. These suggestions could be considered with the statutory review of

12 13 14 15 16 17 18 19 20 21 22 23 24 25

Rebecca Turner, ‘How enduring power of attorney documents enable children to rip off the elderly’, ABC News (Web Page, 16 December 2018) <https://www. abc.net.au/news/2018-12-16/unrestricted-enduringpower-of-attorney-ripping-off-elderly/10621388>. Cited in “Dodging the Hazards of Enduring Powers of Attorney, With a particular focus on conflict transactions.” In a presentation by Ines Kallweit, Principal Solicitor, KHQ Lawyers, Level 15, 440 Collins Street, Melbourne, Victoria 3000 in 2020. Royal Commission into Aged Care Quality and Safety (Interim Report, October 2019) vol 1. Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust Is Broken, (Final Report, September 2018). Australian Law Reform Commission, Elder Abuse- A National Legal Response (Final Report No 131, May 2017). Royal Commission into Aged Care Quality and Safety (Interim Report, October 2019) vol 1. McFee v Reilly [2008] NSWCA 322. The case at first instance was reported as: Reilly v Reilly [2017] NSWSC 1419. Badenach v Calvert (2016) 257 CLR 440; (2016) HCA 18. The powers of attorney were made under the Conveyancing Act 1919 (NSW), in which a line was drawn through a clause in the following terms: “In the exercise of the authority conferred on him/them by Section 163B of the Conveyancing Act 1919, my attorney/ies is/are authorised to execute an assurance or other document or do any other act whereby a benefit is conferred on him/them.” In both powers of attorney, the word “NIL” appeared under a heading “Conditions and Limitations”. The personal representative of a deceased estate is under a duty to properly preserve, protect and administer the estate assets. Breach of the duty renders the personal representative personally liable for any loss to the estate. A devastavit is “…a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duties duty imposed on them, for which executors or administrators must answer out of their own pockets, as far as they had, or might have had, assets of the deceased”. (Bac. Abr., I, 1. Re Stevens [1898] 1 Ch. 162 at 177; and see: Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] 1 Ch 69, 72; Dalrymple v Melville (1932) 32 SR (NSW) 596; 49 WN (NSW) 206; Re Diplock; Diplock v Wintle [1948] Ch 465). Grant v Grant (No. 2) [2020] NSWSC 1288. LexisNexis Concise Australian Legal Dictionary, Fifth edition, 2015 at 185. Barnes v Addy (1874) LR 9 Ch App 244. Bird v Bird [2013] NSWCA 262. Ibid. Ibid. Ibid. Holder v Holder [1968] 1 Ch 353. Ibid. Trustees Act 1962 (WA), s 75. Section 109 of the State Administration Act (WA); see: Reilly v Reilly [2017] NSWSC 1419, [112]. Reilly v Reilly [2017] NSWSC 1419, [112]. Barnes v Addy (1874) LR 9 Ch App 244. Reilly v Reilly [2017] NSWSC 1419, [143]-[144].

Developing the limits of section 100A:

when is a distribution to a discretionary beneficiary not a distribution? By John W Fickling, John Toohey Chambers Perth and Ground Floor Wentworth Chambers Sydney

Introduction Discretionary trusts are a common structure, often recommended and implemented by accountants and lawyers and adopted by families for business and investment interests. As is reasonably well known, prior to or on 30 June of every year, the trustee of a discretionary trust (or in the case of a corporate trustee, the directors of the corporate trustee) must make a resolution to distribute the net income of the trust to beneficiaries. Broadly stated, when not all of the net income of the trust is distributed, the amount not distributed is assessable to the trustee, generally at the highest marginal income tax rate, presently 45% prior to the application of the Medicare Levy of 2%. Accordingly, there is, broadly stated, an incentive to distribute all income to beneficiaries of the discretionary trust. As is reasonably well known, resident individuals may have marginal tax rates which range between 0% and 45% before the application of the Medicare Levy. Corporations, broadly stated may have a tax rate of 27.5% or 30%. However, s. 100A of the Income Tax Assessment Act 1936 (Cth) (ITAA36)1 may operate to cause a distribution to a beneficiary to be disregarded, so that the particular trust income distributed to the beneficiary will instead be assessed to the trustee. As mentioned, when income is assessed to the trustee as a result of it not being distributed to beneficiaries, this is likely to result in that income being taxed at the highest marginal tax rate. Section 100A broadly provides that where a beneficiary is made presently 20 | BRIEF JUNE 2021

entitled who is party to a reimbursement agreement such that he, she or it does not obtain full benefit from that distribution, s. 100A may apply. This article explores the potential scope of s. 100A and some of the key issues likely to arise. Section 100A, inserted into the tax law in the late 1970s has been the subject of precious few cases. The leading decision is that of the Full Court in Commissioner of Taxation v Prestige Motors (1998) 82 FCR 195 (Prestige Motors) as decided by Beaumont, Hill and Sackville JJ in New South Wales, over 20 years ago and Idlecroft v FCT [2005] FCAFC 1412 (Idlecroft), over 15 years ago, as decided by Ryan, Tamberlin and Kiefel JJ (as the Chief Justice of the Commonwealth then was). In more recent times there was a single interlocutory hearing which touched on the section in Nelson v Commissioner of Taxation [2017] FCA 8193 (Nelson), over three years ago, before the late Gilmour J in Western Australia, in which the author appeared as counsel. There was another matter filed in the Western Australian registry which was later discontinued which involved s. 100A. Additionally, in tax practice where practitioners advising clients are highly reliant on the Commissioner’s formal public advice, which may provide a safe harbour when followed, there has for several years been foreshadowed the release of a s. 100A ruling from the Commissioner of Taxation (the Commissioner). Current Australian Taxation Office (ATO) website material posted in November 2019 indicates there is a draft s. 100A ruling on the scope of the ordinary family and commercial dealing exceptions to s. 100A undergoing private consultation before public consultation is due to occur in April 2021.4 However, elsewhere on the ATO website, there is notification that such a ruling was being worked on as early as October 2018, but that the earlier version covered whether the requisite purpose was met.5 At present, on the basis of the aforementioned, there seems little likelihood of a formal ruling being finalised prior to the end of the 30 June 2021 financial year. That leaves, in the case of the Commissioner who administers the law through audits and assurance activity, the Commissioner’s guidance on his website as indicative of his practice, last modified on 12 May 2016.6

That said, despite the case law, and despite the foreshadowed guidance, the general understanding amongst tax advisors is that the Commissioner’s auditors in the field are regularly considering the application of s. 100A.

Section 100A A broad explanation of s. 100A, from the perspective of the ATO is provided on the ATO’s website in his guidance provided therein;7 in this respect, a reimbursement agreement, at its simplest, is described as follows: “A reimbursement agreement generally involves making someone presently entitled to trust income in circumstances where both: • someone other than the presently entitled beneficiary actually benefits from that income, and • at least one party enters into the agreement for purposes that include getting a tax benefit.”

Turning to the legislation, as a summarised version of the legislation of s. 100A, it can be broadly said the following four elements are required before s. 100 may be enlivened: 1. There must be a reimbursement agreement as generally explained by subsection (7) of s. 100A that involves the “payment of money or the transfer of property, or the provision of services or other benefits” to someone other than the beneficiary; this, inter-alia, as sub-section (12) expands to mean, includes the forgiveness of debt; agreement is given its “widest definition” in subsection (13) (Prestige Motors; Idlecroft) to include broadly any arrangement; and as noted by the late Hill J in East Finchley v FCoT (1989) 90 ALR 457, cited with approval in Idlecroft, “the question who are parties or necessary parties to an arrangement must depend upon the circumstances of each particular case and the legislative context under consideration”; 2. There must be purpose as generally explained by sub-section (8) of s. 100A, where the purpose of the reimbursement agreement must be to secure an exemption or a lowering of income tax; s. 100 subsection (9) provides, that purpose may be the purpose of any party; as Prestige Motors noted, unlike Part IVA, any question of subjective purpose is not excluded;

... there is, broadly stated, an incentive to distribute all income to beneficiaries of the discretionary trust.

3. The arrangement must not pertain to an “ordinary family or commercial dealing” as generally set out by sub-section (13) of s. 100A; and 4. Where the particular beneficiary is already a beneficiary of a trust (for example, has been receiving distributions from the trust in previous years), then only that amount which is capable of being identified as exceeding the amount which “would have been, or could reasonable expected to have been” distributed, as generally provided for by sub-section (5). As was recorded in Idlecroft and broadly accepted, “The commissioner submit[ted] that the determination of this question requires each appellant to prove that the identified beneficiaries would probably have received, or could reasonably be expected to have received, the trust income in the event that there was no reimbursement agreement”; that ss. (5) is a ““but for” test”. This sub-section may be particularly relevant, say in the case of family trusts where the Commissioner asserts a particular beneficiary has been distributed more than he or she would have otherwise received in any given year (for example, an adult child of the controller). In some cases, the position (where supported by evidence) may be that the beneficiary was going to get that amount regardless, so there would be no “additional amount”. Although it is not part of the legislation, in terms of understanding the potential application of the legislation, at the time

it was introduced, it noted that there has been significant reference in the case law to the 11 June 1978 Treasurer’s statement, that of Treasurer Howard, as he then was explaining what s. 100A was proposed to address: “A feature of several of the schemes is a very wide power given to the trustee under the terms of the trust instrument as to the distribution or application of trust income. … In some cases, the nominal beneficiary selected is a taxexempt body, such as a charitable institution or sporting association. In other cases, it is a company, set up for the purpose by the promoters of the scheme, that by one means or another escapes payment of tax on the income. … The essential element common to the schemes is that, while the income concerned is effectively freed from tax in the hands of the nominal beneficiary, the terms of the underlying arrangement ensure that the beneficiary does not enjoy anything like the full use or benefit of the income. …” Much of the mischief capable in the late 1970s has now been closed out by other provisions – for example non-resident beneficiaries no longer enjoy a tax-free threshold – but s. 100A remains; and as Prestige Motors noted, “the examples given [in extrinsic materials] were intended to be illustrative, and not an exhaustive statement of the transactions that were to be subject to the legislation”.

Two extremes – a clear cut case example and a literal reading of the Commissioner’s website guidance Clear cut case example As a clear-cut example, I outline the following situation: 1. Beatrice controls the Beatrice Family Trust. 2. The Beatrice Family Trust has derived $300,000 of income during the current income year (30 June 2021) which must be distributed on or prior to 30 June 2021 so as to ensure the trustee is not subjected to income tax at the top marginal rate. 3. Beatrice and her partner have two children at Hightown Private School. The annual fees amount to $60,000 and are now due and payable on 30 June 2021. That is, Beatrice owes Hightown Private School $60,000. 4. Beatrice is an acquaintance of the Hightown Private School bursar, Ms Quiñones. They agree that Beatrice will not need to pay the fees if $60,000 is distributed to the Hightown Private School on 30 June 2021. 5. The trust distribution is made as foreshadowed, and Beatrice receives an updated account statement from Hightown Private School showing she no longer owes the fees. 6. Hightown Private School, being an educational institution, pays no income tax. 21

The ATO computer systems, one would imagine, would red-flag that a tax-exempt entity has received a significant discretionary trust distribution.

Audit risk here, need it be stated, may be high as the Beatrice Family Trust, when it files its tax return, is going to report the entities who have received the trust income. The ATO computer systems, one would imagine, would red-flag that a taxexempt entity has received a significant discretionary trust distribution. This is a clear-cut case of s. 100A applying and being applied by the Commissioner during audit: 1. There is a reimbursement agreement between Beatrice and Hightown Private School. 2. The purpose is for the $60,000 of the Beatrice Family Trust income to be taxed at $nil. 3. There is nothing ordinary in family or commercial terms about the dealing. 4. It cannot be said that the Hightown Private School would have received any part of the distribution without the agreement. On the basis of the above, s. 100A would clearly be applicable. This example has assumed that the Hightown Private School would already be in the class of beneficiaries of the Beatrice Family Trust; if the trust deed was as part of the arrangement amended to add the Hightown Private School as a beneficiary, that would tend to make the application of s. 100A more compelling from an evidential perspective. As was stated by Prestige Motors, in the facts of that case, “that agreement or arrangement involved [a company] as a party, since in each case the trust deed was amended, with [the company]’s consent to alter its entitlements to distribution of income.” A literal reading of the Commissioner’s website guidance? 22 | BRIEF JUNE 2021

Taken from the Commissioner’s guidance is arguably a less black and white situation, which might apply where, for example a literal reading might involve a trustee making her adult children presently entitled to some trust income (where those adult children have a lower marginal tax rate because they study full time at university) but not pay them the distribution and instead loans most the money to herself8: “Example 1: Trust estate The trustee of a trust estate makes a beneficiary entitled to trust income. Instead of paying the amount of trust income to the beneficiary, the trustee gives, or lends on interest-free terms, the money to another person. The other person benefits from the trust income, but is not assessed on any part of it. The arrangement does not constitute ordinary commercial or family dealing. This arrangement would generally constitute a reimbursement agreement if it was intended that the beneficiary who was made presently entitled to the trust income pays a lower amount of tax than would have been payable by the person who actually enjoyed the economic benefits of that income. In this example, the presently entitled beneficiary may pay less (or no) tax because it: … is otherwise subject to a lower rate of tax.” Taken literally, if say Duke had a family trust, made his 18 year old adult son presently entitled to $20,000 of income but did not pay the distribution and then Duke borrowed $19,000 from the trust on interest free terms (without a repayment

date), one might be left thinking that the Commissioner might seek to apply s. 100A. The Commissioner’s foreshadowed guidance when provided will no doubt provide much needed clarity to this literal reading and comfort to accountants across Australia. In the meantime, it is worth discussing issues that potentially arise should a matter become part of a tax controversy as between taxpayer and the Commissioner. Issue: Natural beneficiary who is made presently entitled to a large sum but later gifts the distribution to his parent – is there an arrangement, and is there an “increased amount”? In this type of situation, the natural beneficiary is the adult son (Archibald) of the trustee of a discretionary trust, his father (Duke). Several years after Archibald is made presently entitled to an amount, it is paid to him by the trust and Archibald then gifts it to Duke in Duke’s own capacity. Here, first, there is an open question whether there is any agreement in existence at all. If there is no agreement, then s. 100A does not apply. Of course, broadly stated, given the Commissioner can assert there to be one in his assessment and it is then up to the taxpayer to satisfy a court otherwise, evidential issues may arise. But where Archibald and Duke are available to give evidence, this evidential issue may be overcome. Unlike other income tax charging provisions, the Commissioner, at least theoretically, has no time limit when he might render such an assessment against the trust for s. 100A. Of course, if the pattern was repeated, whereby the adult son over several years

was made presently entitled and then he always gifted the distribution two years later, then that may result in a Court looking at the evidence differently. Second, there will be an open issue whether the son has received an “increased” amount? There may be evidence that the amount would have been distributed to the son regardless. It may well be that in the intervening period the son has obtained a well-paid job and feels he no longer needs or wants the trust’s money. Third, an issue may arise whether the arrangement pertains to an ordinary family dealing. I look at this below. Issue: Natural beneficiary who is made presently entitled to a large sum but later gifts the distribution to his parent – ordinary family dealing? In the same example postulated, when will the gift be an ordinary family dealing? What if the son is the only child and the father is a widower in his late 70s? That may indicate that the son’s gift to his father, may well be, bluntly stated, all things equal, only temporary as sometime in the future he may receive a testamentary gift back. But then there may be other attributes which indicate a different flavour. For example, what if the father with his preoccupation with the possibility that his son’s marriage may collapse has separately loaned money to his son but made him sign an agreement that it is repayable with interest in the event of marriage breakdown or father-son relationship breakdown? Such a situation (where the father has a degree of financial control over the son) may indicate the existence of the necessary reimbursement arrangement and it may also indicate away from an ordinary family dealing. It may also be the case that a case is less likely to be an ordinary family dealing

where there are sons-in-law or daughtersin-law who are made presently entitled to trust income. Such more distant relatives are less likely to be part of a close family economic unit. It also is worth noting, from the audit risk angle, need it be said, that the Commissioner may be given a compelling evidential advantage should such a marriage collapse, evidence as to what happened being put before a family court, and the Commissioner ultimately obtaining access to the family court file. Generally speaking, the law reports contain many, many tax cases where the taxpayer involved has been the subject of earlier civil or criminal litigation. Ordinary family or commercial dealing in the case law There has been consideration of the meaning of ordinary family or commercial dealing, particularly in Prestige Motors. Broadly, first it is noted from Prestige Motors that what is ordinary family or commercial dealing is to be viewed by reference to the overall arrangement, not a transaction “viewed in isolation, could be seen as an ordinary commercial dealing”. Second, whilst the words were taken from Lord Denning as used in Newton v CoT (1958) 98 CLR 1 at 8 in the Privy Council pertaining to s. 260 ITAA36, they do not necessarily operate the same. Prestige Motors leaves unanswered the question of ordinary dealing and its interaction with purpose: “[In s. 260] a transaction was either stamped as one entered into to avoid tax or as one about which it could be predicted that it was entered into in the course of ordinary family or commercial dealing. In the former case the transaction was caught by s 260; in the latter case it was outside the section. We do not need to decide in the present case whether s 100A imports a similar dichotomy. In particular we do not need to decide

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whether if an agreement is shown to have been "entered into the course of an ordinary commercial dealing", the operation of s 100A is spent, regardless of whether the commercial purpose was subsidiary to the purpose of tax avoidance. In our view, none of the transactions was entered into in the course of ordinary commercial dealing.”

Conclusion For those that fall within the cross hairs of the Commissioner under s. 100A, their defence to assertions made in the context of an assessment against a trustee, as indicated herein will turn on their ability to marshal admissible evidence to counter such assertions, a process which should begin at the earliest possibility. The more “out there” – or incredulous – or repetitive – or artificial – the arrangements, the more difficult it will be for a trustee to satisfy a Court that one or more of the necessary elements of s. 100A has not been met so that s. 100 does not operate. The reality is that the Commissioner’s audit activity will allow him, consciously or subconsciously to develop his view of a bell curve, and it is those cases in the extreme which he will be likely to raise assessments against and then resist settlement on his view that he will be successful in litigation. Endnotes 1 2 3 4

http://classic.austlii.edu.au/au/legis/cth/consol_act/ itaa1936240/s100a.html http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/ cth/FCAFC/2005/141.html http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/ cth/FCA/2017/819.html See https://www.ato.gov.au/General/Consultation/Indetail/Matters/Matters-under-consultation/?anchor=BK _201935#BK_201935 See https://www.ato.gov.au/General/ATO-advice-andguidance/Advice-under-development-program/Adviceunder-development---trust-specific-issues/. See https://www.ato.gov.au/General/Trusts/In-detail/ Distributions/Trust-taxation---reimbursementagreement/. See https://www.ato.gov.au/General/Trusts/In-detail/ Distributions/Trust-taxation---reimbursementagreement/. See https://www.ato.gov.au/General/Trusts/In-detail/ Distributions/Trust-taxation---reimbursementagreement/.

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companion cat we will rehome it in a similar home as to the one it has come from via our Cat Custodians Program. All we ask is they remember us in their estate after providing for family and friends. For further information please go to our website www.cathaven.com.au or call CEO 9442 3600 for a brochure.

Perspective and the Law A presentation by the Hon John McKechnie QC Presented to the Piddington Society - Perth Town Hall, 19 March 2021

Why do I dare to stand before you today and presume to lecture you about the rule of law and a judicial perspective? There are 2 answers to that. First, I was admitted to practice in December 1974 before many of you were born. So I have longevity if not wisdom on my side. Secondly, I do not propose to lecture you at all. My dear friend Justice Kenneth Martin refers to himself as a law school survivor. He like me endured 4 years of talking head mind numbing lectures, leavened all to rarely by a scintillating lecture on a subject of interest. As someone forced to absorb Crossley Vanes on personal property, I wonder how we learned much at all. Of course, our soon to be employers when we became articled clerks, accepted that we really didn’t know very much law anyway. As an aside, in the 60’s and 70’s many 24 | BRIEF JUNE 2021

textbooks were English texts, sometimes adapted by Australian academics for local law. Even today, Cross on evidence remains a go to text, though edited and written by Dyson Heydon. So although I do have some pearls to cast, I am much more intent on harnessing the wisdom of the room. Conferences like this are a good opportunity to stand apart from the day to day pressures of practice, family, relationships, job insecurity, zoom meetings, and spend a bit of time on reflection. Why did I become a lawyer? Do I still enjoy being one? Am I trapped? Did I choose my speciality or did circumstances choose it for me? These are deeply personal questions and it is not my intention to run a therapy session – wrong generation.

Rather, we will engage in a more general round table discussion about the rule of law and some perspectives. And along the way I will share some of my observations gained over a lifetime in the law.

A judicial perspective. I spent 16 years as a judge. In addition to the work of a primary judge, until the establishment of the Court of Appeal I also served from time to time on the Full Court/CCA. I describe the establishment of the Court of Appeal as the day I got my life back. To some, the work is interesting and it is true that occasional cases do indeed raise novel and difficult questions. The majority of the work however is tantamount to marking other people’s homework. Where a primary judge’s role is to search for a solution, it often seems that an appellate judge’s role is to search for error – necessary but stultifying. Besides, as Crown Counsel and later as DPP I had argued enough cases in

inheritance – and others – on legal fees rather than let their relative have a red cent. There is a perception that commercial cases are all about money. This is a false perception. Behind most commercial cases, there is often an undercurrent of bitterness and vengeance, fuelled by a feeling of betrayal. Or a commercial case may present as a dry legal argument on the construction of a statute or a building contract when in reality the subtext is about power and domination. Lawyers have a special role in such cases to act for the legitimate aims of the client but to resist the collateral damage that the client might seek to inflict on a weaker or more vulnerable opponent. I once tried a case about rocks and Atterberg limits. One of the most interesting things about being a lawyer or judge is what you learn along the way. You become a temporary expert in a perhaps narrow field of speciality. Personal injuries lawyers may be minor experts on the physiology of a back but know nothing about the appendix. On its face, the case was as dry as the dust of the rocks – actually a bad analogy because the soil was too wet in fact. A liquidator was suing a head contractor for work done. Hardly John Grisham material. But in reality the case breathed human drama. Reputations were at stake. A sense of betrayal as to the suitability of the rocks for the work at hand – to provide a base course for a power station - was palpable. People felt let down and their reputations under threat. the Full Court or the High Court to last a lifetime. Trying to get 3, or 5 or 7 to see your very reasonable point of view can be tricky on occasion. So most of a primary judge’s work in civil matters is problem solving and arbitration. Bear in mind that these days, cases do not get to trial until mediation has been attempted and of course most cases settle with mediation. But sometimes it is necessary for an independent umpire to say “you win and you lose”.

Land resumption cases are another group where raw human emotion is overlooked, apart from a modest – usually 10% solatium paid to soothe the person whose property has been compulsorily acquired. A forced business relocation might destroy the business even if new premises appear suitable. A childhood home may be paid for by the state but nothing can reimburse the memories of a lifetime.

I found this particularly to be true in inheritance cases over wills and family provisions. As Kirby P once remarked, the law is interested only in dollars and cents, not in hurt feelings.

Judges swear to do right to all manner of people according to law. Note that the oath does not bind a judge to do justice. Justice is an abstract concept that may change according to the circumstances. Law at least is certain. What when law and justice diverge?

Very few of the cases I tried in that area were really about money – they were about family dynamics. Very often the best efforts of good lawyers to talk sense to their clients were unavailing. Some people would prefer to squander their

Sometimes judicial officers will craft remedies that allow justice and law to coexist. Years ago, problems arose with the breakdown of de facto relationships and the need to distribute property. A de jure relationship – marriage – was

well catered for under family law. Until constitutional and other hurdles were overcome, the law extended concepts of resulting and other trusts and equity to allow fair distribution of assets. It wasn’t a perfect solution and involved considerable straining of the purity of a trust but until Parliaments legislated for de facto arrangements, the law delivered some form of justice. This I would argue is an example of the rule of law in action. Generally, law and justice do coincide but not always. Many years ago I had a case where a mother and sister had advanced money to a drug dealer whose property was subsequently confiscated. They tried to claim the money back. Justice suggested they should succeed. I tried to write a judgment with that outcome, only to fail each time. Finally, I let it write the way it should and the legal result, which I had been fighting, was that they lost. Although my perception of justice wished for a different outcome, by faithfully following the rule of law, the result was clear, notwithstanding personal opinions. The lesson which all judicial officers learn is that the discipline of writing and justifying your decision is all important in following the rule of law. I doubt that a judicial officer gets up each morning and thinks – “How will I advance the rule of law today?” But it is certainly there in the subconscious. Of course, judicial officers, like the rest of the world, have good days and bad days. In a landmark study 10 years ago, judges’ decisions on parole in Israel were examined. A person was far more likely to get parole if one of the first in the morning or one of the first after lunch. The chances of getting parole diminished as the day wore on. What a judge has for breakfast does seem to matter. Perhaps before a difficult hearing you should tempt the judicial palate with a muffin. Judicial officers generally contain themselves and I have a plea to be a bit generous when a normally placid judicial officer is a bit abrupt or rude. I am not here talking about bullies. They are incorrigible. But a magistrate with a pleas list of 80 might be forgiven in keeping counsel to the point. Lawyers are privileged to play a part in other people’s stories. Whether offering advice and counsel, representing a person at a meeting or tribunal we enter someone’s narrative, perform our part, and then quietly leave to take part in someone else’s story. It is an honour to be allowed to act in this way. If we are motivated solely by the fees the contact may generate, we diminish ourselves as human beings. If we view our clients 25

solely on the basis of billable hours, we run the risk of missing out on the great tapestry of human experience and ignoring the drama that is around us. My friend, noted author and good judge, Nick Hasluck used to say that the best thing about being a judge is witnessing the whole panoply of the human condition. As judge Peter Williams often remarked, a judge has the best seat in the house. I am getting to the end of my legal career – perhaps not quite the end just yet. I started as a young articled clerk, doing title and company office searches. I joined crown law to advance a career in advocacy as it was obvious to everyone including the long-suffering partners of Jackson McDonald that the world could probably do without another conveyancer of my calibre. The Crown was a great place to work because the range of cases was wide – administrative law, constitutional law, insurance and personal injury law, workers compensation and of course, crime in all its forms. I remember vividly shortly after becoming Chief Crown Prosecutor that a problem came across my desk and for the first time, I knew the answer. Up to that point, every issue was new and required research. My 16 years as a judge flew past. Being a judge is personally satisfying so long as you have one indispensable quality – the ability to make a decision. I expect we have all come across otherwise admirable judges who were bedevilled by an inability to decide. They are difficult for counsel, but their own lives are full of stress. While it is good of course to make the right decision, often even a wrong decision will do good

and settle a quarrel. Probably the most important judicial skill is decisiveness. As a judge, you have no control over the type of case you are allocated or the counsel who will argue it. When I joined the bench the late David Ipp – there was a decisive judge – gave me some advice. He said that as a silk I was used to being opposed by first class advocates of similar ability. At the court, we got all types and have to do justice sometimes despite the quality of the advocate. While I did have some shockers appear before me, on the whole I had pleasant and rewarding experiences with counsel. If I was trying a criminal case and I had confidence in counsel, life was easy. They would not lead me astray. And this was generally the case. Allowances have to be made by judicial officers for advocates who are new or less experienced. As long as their client is properly represented judicial officers sometimes just have to sit patiently. This does not apply to the Court of Appeal. That Court is quite entitled to insist on high standards from those who appear before it. It is not a learning environment but the highest state court with a large workload and those appearing before it should be competent and experienced. Even counsel with a fearsome reputation in practice often proved less difficult than their reputation. Colin Lovitt, who passed away in January this year was one such. On him I practiced a trick I had perfected as counsel before Justice Terry Franklin. As they got grumpy, I just started smiling. For some reason this disarmed them. There was only one occasion when I feared counsel. As a new judge I was dealing with a chamber summons about interrogatories. It was a simple issue and

the answer was pretty clear. Normally I would have ruled on the spot but counsel was so belligerent to his opponent and to me, that I exercised discretion and announced that I would reserve my decision. When I delivered it a week later, counsel had calmed down. As I say, I was a new judge. That did not happen again. David Ipp to whom I confided, told me in no uncertain terms that I was a wimp. The takeaway from this brief meander into my past is that obedience to the rule of law becomes engrained from an early age. We do not often speak of it because, like gravity, it is just there. As counsel then as a judge, I unconsciously modelled the rule of law in everything I did. I was not alone. I think every judicial officer is the same and the vast majority of practising lawyers, whatever your field. We are now so used to the rule of law in Australia that certain features have become unremarkable. No one now questions that courts and tribunals should be independent. No one questions the principle of equality under the law even though in many areas, particularly with our indigenous citizens, there is a great gap between principle and reality. The notion of law administered in public is so entrenched that when a court sits in private, it often becomes a matter of comment. In 1770 the great Irish lawyer and advocate John Philpot Curran said “The condition upon which God hath given liberty to man is eternal vigilance”. It behoves every lawyer, indeed every citizen, to ensure that Australia remains a country with an unswerving belief in the rule of law.

John Philpot Curran, by unknown artist

In 1770 the great Irish lawyer and advocate John Philpot Curran said “The condition upon which God hath given liberty to man is eternal vigilance”.

26 | BRIEF JUNE 2021

Italian Magistrate Mario Palazzi

How do you Interview the New Mafia of Rome? By Christopher A. Bonnici - Deputy Public Interest Monitor

A conversation about investigative interviewing with Italian Magistrate Mario Palazzi. Most people have heard of the traditional mafia organisations in Italy.1 However, there are other Italian criminal groups operating in a similar way that can be declared by the courts to be mafia type organisations under Italy’s Criminal Code. I recently spoke to Judge Mario Palazzi, who successfully investigated and prosecuted the Spada clan as a mafia type organisation under the Criminal Code, to find out what he thought were important principles of investigative interviewing. This is one of a series of conversations I have had with experienced anti-mafia magistrates who have successfully conducted interviews during investigations into organised crime and related corruption.2 Unsurprisingly, he, like the other magistrates, thought that good preparation, building trust with interviewees, a flexible approach to questioning and keeping an open mind were fundamental for effective investigative interviews. Judge Palazzi particularly emphasised the importance of maintaining flexibility during the interview process and adapting his interviews to his interviewees and the needs of the investigation. I suggest that

these principles are equally important for effective coercive examinations in Australia. Judge Palazzi, an experienced investigative interviewer, is currently attached to the Antimafia District Directorate (DDA) in Rome. Whilst at the DDA, he has specialised in investigating and prosecuting organised crime in the Roman seaside town of Ostia3 where the Spada Clan had been based. As an Australian, there is something very familiar about Ostia. Its 1970’s style apartment blocks; a commercial strip close to the beach; a broad beachside promenade and a seasonally fluctuating population are reminiscent of the older parts of the Gold Coast and other large seaside towns in Australia. Like many such towns, Ostia has its criminal opportunities not the least of which is the exploitation of its lucrative beachside infrastructure. Mafia type organisations are typically associated with southern Italy rather than Rome. It may be useful to briefly describe the recent history of how the Spada clan came to control criminal activity in Ostia and what makes it a mafia

type organisation. Initially the Neapolitan Camorra and the Sicilian Cosa Nostra from Catania (Sicily) had conducted criminal activity in that area. They didn’t control the territory but imported drugs for distribution by local criminals and conducted other criminal activity such as ‘loan sharking’. There was then a succession of three criminal groups who exercised greater territorial control over Ostia culminating in the Spada clan. The first was the Triassi group from Catania. The media has suggested that this group was affiliated with the Caruana-Cuntrera Cosa Nostra clan based in Siculiana (Sicily). Its leaders were arrested, charged and convicted so the group lost territorial control in Ostia. The second was the Fasciani clan who were also arrested, prosecuted, convicted and lost territorial control. They were, apparently, one of the first non-traditional groups to be declared by a court to be a mafia type organisation under the Italian Criminal Code. The Spada clan then took over control in Ostia. They had been an Italian ethnic Romani (Gypsy) sub-group of the Fasciani clan who announced their takeover with the murder of two drug dealers from an opposing criminal group in the main square of Ostia in broad daylight.4 They controlled criminal activity including drug 27

The Roman seaside town of Ostia where the Spada Clan had been based.

trafficking, extortion and ‘loan sharking’ until its leaders were arrested, convicted and the clan was declared a mafia type organisation as a result of the Spada trial (il Processo Spada). Why was the Spada clan a Mafia type organisation? Article 416 of the Italian Criminal Code defines a mafia type organisation as one that uses intimidation and subjugation resulting in omertà (silence).5 Judge Palazzi described it as a criminal organisation that operates within a specific territory or sector and behaves like a traditional mafia. That is, unlike an ordinary criminal group, which simply pursues a criminal strategy, a mafia type organisation relies on the power of its association to instill fear and subjugation in the affected population. Everyone knows who they are (and what they can do) even if they don’t say it. The result is reluctance to speak about the group. The fact that society is subject to their power, according to the Judge, is what makes a mafia type organisation more dangerous than an ordinary criminal group. Judge Palazzi also described the difference between the traditional and new mafias. The former, he said, have roots in a particular territory and have spread worldwide whereas the latter have less tradition, are not linked to traditional mafias and operate in limited areas. The latter don’t really define themselves according to their territory of operation but rather their ethnic group. They still, of course, interact with the traditional mafia. 28 | BRIEF JUNE 2021

For example, in the Lazio region (where Rome is located), the traditional mafias import the drugs, make investments and have representatives there to monitor activity but they are not directly involved in selling drugs on the streets.

He would routinely alter his plans in response to investigative developments and to the person he was interviewing. His flexible approach to planning carried over into his interaction with interviewees and his approach to their questioning.

How then did he prepare and conduct his interviews during the investigation into the Spada clan?

Building and Maintaining Trust

Preparation Judge Palazzi emphasised the fundamental importance of having a good knowledge and understanding of the group under investigation. His knowledge of the Spada clan allowed him to understand the significance of what interviewees were saying, what they were leaving out and to pick up on the ‘signals’ (subtle clues/signs) given by interviewees. In addition, it gave him a solid basis on which to assess whether interviewees were telling him the truth. He also gathered as much information as he could about his interviewees prior to their interviews because it informed his interview approach and strategy. The police conducted investigations and spoke to interviewees before they were referred to the Judge so he had the opportunity to get that information from the police, including interviewee’s ‘emotional reactions’ (as relevant information included more than just what was ‘in the papers’). Judge Palazzi planned his interviews based on that information but he stressed the importance of maintaining flexibility.

Interviewee co-operation, he said, was built on trust. This, in turn, was based on empathy/making a connection with interviewees. The authority of the judge was a secondary element. In order to make that connection and manage his interviews he would tailor his interaction to each particular interviewee. For instance, if he assessed that people were reluctant to provide information because they were scared, he would lower his authority and ease them into the interview so as to make them feel more confortable. If, on the other hand, he assessed people were not willing to provide information because they were looking after their own interests, he was more authoritative in his approach. Another way he made that connection was to let interviewees know he was familiar with their background. For example, if an interviewee said they were in a particular city at a particular time he would respond by telling him/her what business they were in at that time. This would, he said, reassure cooperative interviewees and unsettle resistant ones (who were then unsure how much was known about them) thereby mitigating the risk they would mislead the Judge.

A Flexible Approach to Questioning The type of questioning the Judge used during interviews depended on the stage of the investigation and on the person he was interviewing. He would generally ask open questions6 early in an investigation because they allowed him to gather more information and get an understanding of what was going on. Towards the end of an investigation, on the other hand, he would usually ask closed questions7 as more specific information was likely to then be required. The type of questioning, though, mostly depended on the person he was interviewing. You had to, he said, "read the person who is sitting in front of you" and adjust your questioning accordingly. He would resort to more open questions to calm an interviewee down and make them feel more relaxed. He would do so to lead an interviewee to give the information he was actually looking for without having to ask the questions directly. The narrative responses to open questions allowed him to better assess the person sitting in front of him and to inform his interview strategy. For example, he would ask an interviewee about his/her job or professional career and the nature and extent of their answer gave him a better understanding of the interviewee, how willing they were to provide information and where they were likely to take him.8 Judge Palazzi used open questions and their narrative responses for tactical purposes. He gave the example of an interviewee who had been recorded during telephone conversations bragging about the fact he had promised to pay off a public official. Knowing the interviewee had a big ego, and anticipating what the interviewee would say to justify these conversations (always an important thing for an interviewer to do), he just let the interviewee speak about how important he was, how many important people he knew and how competent/reliable he was. When confronted with the recorded conversations, the interviewee predictably responded that he was just bragging. That explanation, however, lacked credibility because it was inconsistent with his previous narrative of self-importance. In other words, the Judge let the interviewee ‘hang himself’ with his narrative response. The Judge’s general approach to questioning also depended on the person ‘sitting in front of him’. Some interviewees

wanted to get straight to the point, some had to be taken slowly to where the Judge wanted to go and yet others had to be reined in by the Judge so that they focused on relevant information. His investigative questioning differed from his questioning in court (even in an inquisitorial system). His court questioning was narrower because it is focused on proving a charge and relied on information already known to the Judge. Whereas his investigative questioning was broader because it is attempting to find out what happened. This reinforces the notion that relatively narrow court style questioning with its greater emphasis on closed questions will not always be appropriate as investigative questioning.

Keeping an Open Mind Judge Palazzi stressed the importance of keeping an open mind during interviews. It is natural, he said, to make assumptions and deductions from known information to fill in gaps. However, you have to allow for the fact that your assumptions and deductions may be wrong when confronted with apparently credible new information.

Applicability to Coercive Examinations in Australia The Judge’s observations mainly relate to voluntary interviews rather than to coercive examinations.9 However, in my experience, they are also applicable to the latter as coercive examinations have a significant voluntary component. There is a difference, for example, between interviewees who do no more than answer the questions they are compelled to answer and those who go further and provide full information in answer to those questions. That difference can depend on the way interviewees are treated and the way they are questioned. In my experience, interviewing lawyers/ investigators in Australia too readily default to an ‘adversarial’ approach in coercive examinations, particularly where they encounter resistance from interviewees. That approach is variously characterised by taking a partisan position; using narrow questioning techniques in an inflexible manner; aloof detachment; resorting to being unnecessarily authoritarian, accusatory and confrontational (by word or attitude); and being prepared to condemn an interviewee as a liar based on an untested case theory.10 That approach limits the effectiveness of coercive examinations because it does not create

an environment that is conducive to providing information.

Conclusion Judge Palazzi’s experience has taught him that good preparation, building a relationship of trust with interviewees, using appropriate questioning techniques, keeping an open mind and applying all of these principles in ways that adapted to his interviewees and the needs of the investigation were effective for investigative interviews into serious organised crime. I have argued that these principles are equally applicable to coercive examinations in Australia because, despite their compulsion, their effectiveness also relies on interviewers/ examiners creating an environment that is conducive to providing information. Chris Bonnici is a Deputy Public Interest Monitor for Victoria. He has previously conducted over 1300 counterterrorism and organised crime coercive examinations as counsel assisting the Australian Criminal Intelligence Commission. He has also been trained in the PEACE model of investigative interviewing in Australia and the United Kingdom to interview adviser level and has taught that model to the staff of a number of government agencies. Endnotes 1

3 4

The term ‘Mafia’ is an exonym originally used to describe the Sicilian Cosa Nostra. It has later also been used to describe the Campanian Camorra, the Calabrian N’drangheta and the Apulian Sacra Corona Unita (United Sacred Crown). Chris Bonnici, ‘How do you Interview the Mafia? A conversation about investigative interviewing with an anti-mafia magistrate: Judge Antonino Di Matteo’ (2018) 40(4) Bulletin (Law Society of South Australia) 26 and Chris Bonnici, ‘Come si Intervista la Camorra? (How do you interview the Camorra?) A conversation about investigative interviewing with anti-mafia Magistrate Cesare Sirignano’ (December 2020) 40 QLS Proctor. Ostia is a district (Municipio X) within the municipal area of Rome. An example of their violence can be seen on Youtube where Roberto Spada head butted and then struck a reporter completely unconcerned about being filmed by a TV camera right in front of him. The consequences of a declaration are that it is likely to result in longer prison sentences and a stricter prison regime; it makes the confiscation of the proceeds of crime easier; and it opens up the offence of mafia association. There are also a number of additional investigative tools. Open questions are those with limited parameters that invite an extended or narrative response, for example, what happened? Closed questions are those that invite a yes/no or short narrowly confined answer, for example, what time did it happen? Interestingly, Hong Kong ICAC investigators told me they do the same thing when I previously spoke to them about investigative interviewing. Witnesses were required to answer his questions but suspects were not. The Judge commented that some interviewees did not clearly fall into either of these categories and were difficult to manage because different legal rules applied to their questioning and what use could be made of their information. As I pointed out in the second article referred to in endnote 2.

The Regulator and Sexual Harassment in the Legal Profession By Libby Fulham Executive Director Legal Practice Board There is no doubt there are a number of participants when it comes to addressing sexual harassment in the legal profession. As the regulator of the legal profession in Western Australia the part the Board has to play is more than simply being reactive to individual complaints, and there are clear steps the Board can take when it comes to proactive engagement with a view to long term behavioural change. The Board’s purpose is to protect the public and advance the administration of justice by regulating the competence and behaviour of legal practitioners and importantly by promoting the integrity of the Board and its Committees.

It seems fairly obvious to say that sexual harassment by a legal practitioner is a breach of professional obligations and may impact on fitness to practice, and can also amount to professional misconduct or unsatisfactory professional conduct. Though the message is somewhat worn, particularly when there are further reports of the embedded norms regarding this type of unwanted and unwelcome behaviour in the legal profession1 and little traction in eradicating it. New, or more, rules are not, on their own, going to change attitudes or be the catalyst for systemic cultural change, nor will they help substantiate a complaint.

Sexual harassment in the profession is behaviour not to be tolerated. If a matter of this kind comes before the Board it will be considered and addressed, and where appropriate investigated by the Legal Profession Complaints Committee.

Some attitudes towards sexual harassment in the profession require a significant shift. While various recommendations being implemented in relation to our laws and behaviours in our courts and tribunals will contribute, these should not be the only tools in our

30 | BRIEF JUNE 2021

armoury to compel change. As a regulator all too often our role starts too late and finishes too early and does not offer satisfaction. When we do receive complaints, of which there are very few, they have been dealt with on an individual basis. In other words we are left to consider the alleged conduct on a case-by-case basis that is all too often either inconclusive or so anonymous or not-attributable as to cripple any possibility of a finding. This system relies on punishment for individuals so few in number some may ask if the game is worth the candle. In relation to an issue considered rife in our profession why don’t we as the regulator receive more complaints of sexual harassment? For a number of well-known reasons, that include: •

The complainant fears retribution or persecution, becoming a victim all over again, and the prospect of

the universal problem one that the wider profession can own and be instrumental in the solution. For the Board’s part it is being proactive in:

Legal Profession Complaints Committee have started the processes set out above, in particular through: •

The establishment of a dedicated hub with an email address harassmentreport@lpbwa.com accessible through our website so harassment reports can be made, anonymously or otherwise, and showing we are ‘open for business’ and can provide guidance through the complaint process.

•

A collaboration with the Law Society of WA and the College of Law to develop a dedicated CPD activity using the platform of experiential learning, to be delivered in August 2021.

•

Training our staff to take information about, address and where appropriate investigate this conduct, and to be active in the education and promotion of cultural change.

1. Calling out sexual harassment as an embedded issue in our profession, and not an individual’s problem. 2. Improving awareness of sexual harassment – what it is, how it can be identified, and the action to take when it is identified. 3. Promoting the utmost ethical and professional responsibilities of members of the profession. 4. Providing resources to practitioners to understand the issues surrounding sexual harassment and other inequality behaviours. 5. Promoting best practice policy and procedure to support the prevention, identification, reporting, and resolution of sexual harassment complaints.

facing other legal consequences, all for no outcome if the complaint is not upheld. •

The complainant is embarrassed and fears being ultimately disadvantaged.

•

The complainant considers there will be a high evidentiary burden.

•

There has been an agreement of ‘silence’ after a workplace investigation has taken place.

•

The complainant fears a risk of reputational damage.

What we can do is to take the onus from the individual as a complainant and make

6. Promoting cultural excellence in stamping out sexual harassment in our profession. Calling perpetrators out goes a long way to ensuring that as a profession we are united in upholding our professional obligations. 7. Promoting our credibility as a regulator so the profession is confident in our capability to equip them with an appropriate response to this issue and with the means to bring about effective change. 8. Working with other regulators in this jurisdiction and nationally to challenge accepted bad behaviours in the legal profession. So where are we at? There is still a long way to go, but together the Board and

The Uniform Law will also assist by allowing the Board to consider the management of a law practice and issue management system directives, which not only require remedial action but include regular review and education to reinforce positive culture. The ongoing focus will be on long term behavioural change and strengthening the profession by promoting excellence in standards and expectations on equality. Endnotes 1

See the report from the South Australian Equal Opportunity Commission ‘Review of Harassment in the South Australian Legal Profession’ April 2021, and the report and recommendations of the Review of Sexual Harassment in Victorian Courts and VCAT March 2021 by Dr Helen Szoke AO.

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Magistrate Wendy Hughes’s challenge, have you considered what actually makes a good leader?

Magistrate Wendy Hughes delivered a powerful speech at the Asian Australian Lawyers Association Lunar New Year 2021 Dinner, which was held at The Melbourne Hotel in Perth on Friday, 12 March 2021. Her Honour has kindly given permission to Brief to publish it. I would like to begin by acknowledging the Whadjuk people of the Noongar nation on whose land we meet tonight, and pay deep respect to elders past, present and emerging. I will take you back to August 2019. I decided to apply to be a Magistrate in the Children’s Court. I was 37 at the time. There hadn’t been an appointment in the Children’s Court for 13 years. I was confident I could do the job. I work hard and most importantly I genuinely like kids and teenagers in particular. But would they want me? Am I too young? Am I too different? There are not a lot of people who look like me. Fast forward to the interview three months later. I was in the middle of prosecuting one of the worst sex trials I had ever prepared. I was distracted. I had to close to the jury the same morning as my interview. Before the interview I had anticipated the worry 32 | BRIEF JUNE 2021

in the room would be if we appoint you now, how will you be in 5, 10, 30 years? That’s a lot of busy lists, trials and selfrepresented litigants. And, as I anticipated the question came to me during my interview. Truth time. Do I share who I am as person? Or do I take the safe route and list my rigorous self-care routine. This is the law after all. We don’t share personal things about ourselves. It’s all business. There are people I know who proudly worked through the death of a family member without anyone in the office knowing. In that split second I decided to share. At least if I didn’t get the job I would know why. So I said “because I am adopted it means I am always grateful and expect nothing. It’s just not in my nature to become unhappy”. I then went on to explain that in all my time prosecuting and defending, having come across many big dogs in trials, I have never once come close to losing my temper. It’s just not who I am as a person. The panel seemed to accept my answer. You see I am adopted. I was adopted from South Korea as an 8 month old baby. My birth mother was 37 when she gave me up for adoption and my birth father is unknown. I have never searched for my birth mother because I don’t want

to shame or embarrass her. Because my mother was 37 when she gave me up, I feel like there may be a story there. I may be the product of rape, abuse or an affair. South Korea remains a deeply conservative country and there may be many reasons why she may not want me to turn up on her doorstep. Fortunately for me my life in Australia has been ace. I grew up in white middle class Australia. I have a sister who is my parents’ biological daughter and is 10 months younger than me and has blonde hair and blue eyes. Notwithstanding always feeling different, feeling different in my own family, amongst my friends and at school I had an idyllic childhood. Being a child of the 90’s life was great. We never had to drink plain water and were always allowed green cordial whenever we wanted. And the snacks were awesome. But as I reflect on my childhood as an adult I realise there were a series of small micro experiences that have shaped me. Like when my sister and I were toddlers and my Mum had us both in the shopping trolley and a man commented, “I’d like to know how that happened”. Or the first day of year 1 when the teacher remarked I was “very confident” because she thought I had attended the first day of school without a parent. Mum was actually in the back of the classroom with the other parents. Doctors always asking me for my family medical history. A university lecturer accusing me of cheating because my surname is Hughes and not an Asian surname. Then in the 1990’s during the Pauline Hansen era, which I appreciate was an unsettling time for many Asian Australians, I had people reassuring me that Ms Hansen was not referring to Asian people like me. There were even times when my adoption was a

joke for some people. I had an insensitive Uncle who came to visit when I was 8 who kept calling me my sister’s name and vice versa. When my sister and I challenged him he said “I am sorry, it’s just you are both so alike I can’t tell you apart”. So as an adult today the effect of all that is I am actually a pretty resilient person. I don’t take myself too seriously. I have a pretty good sense of humour. I am not an angry person. I always try to give people the benefit of the doubt. Because as a child, I couldn’t get angry every time someone said something that was wrong or insensitive. Put me in a leadership position and I am naturally calm, empathetic and fair. Even at times of high stress I have never shouted at anyone or thrown a video record of interview at anyone’s head. All good attributes that make an effective leader in my view. My adoption has humbled me. You see what my life story is an example of is how you can’t make a judgement about what kind of a leader a person will be without getting to know them first and understand their strengths and weaknesses. Organisations all over the world are starting to see that there is a whole body of research that tells us if we want to get the best out of people who work for us we need to understand what connects us and motivates us. For example Eric Mosley who wrote the book Making Work Human1 argues the importance of bringing humanity and connection to the workplace in order to increase performance. My hope is, gone are the days when you experience the loss of a parent or family member and you simply power through without anyone in the office knowing or acknowledging your grief. I now wish to consider the ‘bamboo ceiling’.2 Asian people make up 12 percent of our total population but hold only around 3 percent of senior leadership positions in our public institutions and ASX 200 companies.3 The law is no different. The Race Discrimination Commissioner Chin Tan, the first Chinese Australian Barrister to be admitted to the NSW bar, said at an Asian Australian Lawyers event in Sydney in June 2019 there is a gross under representation of Asian Australians in the legal system. “Asian Australians account for 9.6 percent of the Australian population, but only 3.1 percent of partners in law firms, 1.6 percent of barristers and 0.8 percent of the judiciary.4 And this is despite Asian students dominating high school and university results.

It is important for us to explore the reasons preventing Asian people from entering into leadership positions. Some argue it can be attributed to outright racism. Such examples include the reported anxiety about having too many Asian students being accepted into academically selective schools,5 or the suggestion that medical schools changed their admission process to accepting post graduate students, seeking “more rounded applicants” rather than high scoring Asian students straight from high school.6 I personally have not formed a firm view on this argument either way. However, I believe a more likely scenario may be a general stereotyping of Asian people. Stereotypes such as Asian people being viewed as model migrants who are reluctant to challenge authority, desirous of harmonious relationships, being well suited for hard labour but not decision making.7 In other words, introverted, meek, not assertive, nerdy, no gravitas. So what is the answer? Do we encourage Asian people to be more like the stereotypical leader? Confident, charismatic, has swagger, commands others, stands out. Which is a very male model. It is a very seductive model. Just look at some of the world leaders we currently have or have had. Or do we start to challenge ourselves on what actually makes a good leader. And the interesting thing is we already know what makes a good leader. If you think about it from your own perspective, there are people in our professional careers, both men and women, who were or are incredible leaders. What qualities did that person have that made it a joy to work with them? Professor Tomas ChamorroPremuzic who wrote the book Why do so many incompetent men become leaders (and how to fix it)8 argues what makes a good leader are people who are competent, rational, curious – i.e. they know what they don’t know, humble, empathetic, altruistic, ethical and honest. I pause to note that Professor ChamorroPremuzic is clear in his book that his argument equally applies to both women and men who don’t fit a stereotypical male model of a leader. It follows, if we know what makes a good leader why is it that we as a society continue to seek the same type of leaders? Because same is safe and different is dangerous. So if we want to see innovation and get the best from our teams, then we must challenge ourselves to look for diversity in our leaders. To find those leaders who are competent, humble and consider the needs of others. So in conclusion, I firstly encourage everyone not to make any assumptions

So what is the answer? Do we encourage Asian people to be more like the stereotypical leader? Confident, charismatic, has swagger, commands others, stands out. Which is a very male model. It is a very seductive model. Just look at some of the world leaders we currently have or have had.9 about a person and to get to know them first. To try to understand what motivates them and what connects them to their work. Secondly, I challenge everyone to consider what actually makes a good leader. To look for those new and emerging leaders who are competent, rational, curious, humble, empathetic, altruistic, ethical and honest. And finally, encourage all the Asian lawyers in the room to see their Asian culture and experience of being from a migrant family as an incredible strength that provides a great foundation to be a successful leader in the law, now and in the future. Endnotes 1

6 7 8

Mosley E, 2020, Making Work Human-How HumanCentred Companies are Changing the Future of Work and the World, published by McGraw-Hill Education, United States of America. “The “bamboo ceiling” refers to a multitude of cultural factors impeding the rise of Asian Australians to the upper levels of the professional world”. Xiao, B and Handley E, 2019, How Asian-Australians are struggling to break through the ‘bamboo ceiling’, ABC, 2 November 2019, available at https://www.abc.net. au/news/2019-11-02/asian-australians-struggling-tobreak-bamboo-ceiling/11665288. Evans G, 2019, Opinion-the ‘bamboo ceiling’ in Australia is real, Sydney Morning Herald, 12 September 2019, available at https://www.smh.com.au/national/ the-bamboo-ceiling-in-australia-is-real-20190912p52qp8.html. Asian Australian Lawyers Association Cultural Diversity Report 2014, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015, available at http://www.aala.org.au/cultural-diversityreport-2015. Ahmed T, 2019, Opinion - The bamboo ceiling and the meaning of meritocracy, Financial Review, 24 September 2019, available at https://www.afr.com/ politics/federal/the-bamboo-ceiling-and-the-meaningof-meritocracy-20190923-p52u04. Ibid. Ibid. Chamorro-Premuzic, T, 1 March 2019, Why do so many incompetent men become leaders (and how to fix it), published by Harvard Business Review Press. Ibid.

LawWeek

Wrap Up2021 A focus on law and justice in the community

Law Week 2021 Reaches a New High Reflecting on national Law Week 2021, and the profession we serve, the Law Society is privileged to work the wider legal profession to create a festival of events and online advocacy that celebrates lawyers making a difference, those working with diverse communities and those working and living in the regions. Law week provides an excellent opportunity to shed a spotlight on access to justice and to acknowledge those working in this area. A big thank you to those organisations 1. Oral McGuire, Dr Adam Tomison, Department of Justice, Gary Mack, Abacus Legal and Mediation, Greg McIntyre SC, Michael Kirby Chambers, Hon John Quigley MLA, Attorney General for Western Australia, Jocelyne Boujos, President, The Law Society of Western Australia, Dr Jacoba Brasch QC, President, Law Council of Australia, Rebecca Lee, Francis Burt Chambers, Catherine Fletcher, The Information Commissioner of Western Australia

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and individuals who took part in Law Week in providing free information or services for members of the public. We were pleased to have over 30 events this year with people participating in higher numbers and with great enthusiasm given Law Week in 2020 was a virtual affair.

Law Week has a long history, going back to the first ‘Law Day’ organised by the Law Society in 1983. Over the decades it has gone from strength to strength, evolving into a weeklong celebration. The Week has always been about connecting the legal profession with the community, demystifying our justice system, and keeping people informed about their rights and responsibilities before the law. 2. Hon John Quigley MLA, Attorney General for Western Australia, Recipients of the Attorney General’s Community Service Law Award: Miranda Cecich, Pilbara Community Legal Service, Lee Rossetto, MinterEllison, Jon Redman, Tindall Gask Bentley Lawyers 3. Law Week Breakfast 4. YLC Screening of In My Blood It Runs

5. Glen McLeod Legal team: Lea Hiltenkamp, Glen McLeod, Chelsea White, Gary, the therapy dog, and Emiko Watanabe 6. Law Week Cocktail Party 7. Dr Jacoba Brasch QC, President, Law Council of Australia, presenting at the Law Week Breakfast

Highlights: The Law Society team were up bright and early to join the legal profession for the walk along Perth’s picturesque Riverside Drive to support a vision for equal access to justice for everyone in Western Australia. This great event certainly got people talking with their feet and with their furry canines for the Law Access Walk for Justice. A ground swell of 424 participants, some fully kitted with Firm T-shirts, energetically took part in the walk from the Bell Tower along the foreshore. Congratulations to Law Access on their most successful fundraising year yet with a significant $118,960 raised to date to ensure they can continue to provide this critical service. This annual date has taken a firm place on the calendar each year to celebrate national pro-bono day with the photos telling the story of individual, firm and community all supporting this important cause. The explosion of social media posts and photographs were testimony to people’s delight at being able to come together safely with the uniting purpose of raising funds for pro-bono legal services via Law Access, a wholly-owned subsidiary of the Law Society of Western Australia. On Wednesday, the Law Society hosted its biggest Law Breakfast yet – with over 180 legal professionals enjoying an energising morning at the Perth Convention and Exhibition Centre to acknowledge the importance of access to justice for all and to celebrate lawyers making a difference in the community. We were delighted to host the President of the Law Council of Australia, Dr Jacoba Brasch QC, who travelled to Perth specially to deliver the keynote address, “The Call for Change – Law, Culture, Diversity, Voice”. With the theme of change, the Law Society was pleased to announce its new cultural change framework which is in development and which aims to provide tools to help address sexual 8. Conrad Liveris, In Her Seat, Cecilia Brooke, Scoroptomist International South Perth, Sandy Anghie, Deputy Lord Mayor, City of Perth 9. Law Access Walk for Justice

harassment and bullying in the workplace. This programme, called “Change the Culture”, will be launched in the near future. You can read Dr Brasch’s keynote address, “The Call for Change – Law, Culture, Diversity, Voice” here. Once again, the Society was delighted to host the Attorney General’s Community Service Law Awards at the Law Week Breakfast event, celebrating outstanding lawyers making a difference to community. The Hon John Quigley MLA, Attorney General, presented the following three winners with their awards: Veteran family lawyer Jon Redman won the Individual Award in honour of a long history of pro bono work dating back to 1982, when he helped establish the Sussex Street Community Law Service. The Not-For-Profit Award went to the Pilbara Community Legal Service, which assists people across the region from the main population centres to remote communities. Minter Ellison received the Legal Firm Award for its work with a range of community service providers and not-for-profit organisations, contributing thousands of pro bono hours. In line with celebrations on the centenary of Edith Cowan as the first woman in Parliament in Western Australia, the Old Court House Law Museum created two special events for Law Week. Firstly, its exhibition The Women Should have a Voice – Edith Cowan’s Legacy of Social justice in Western Australia. A fantastic exhibition of objects and documents from Edith Cowan can be viewed until the end of 2021.

10. Rhonda Griffiths, Bowen Buchbinder Vilensky, Jocelyne Boujos, President, The Law Society of Western Australia, Arfa Shoukat, Bowen Buchbinder Vilensky , Alana Shaddick, Bowen Buchbinder Vilensky, Kori O’Meehan, Bowen Buchbinder Vilensky, Miranda Stephens, Bowen Buchbinder Vilensky 11. Members of Law Society Team at The Law Access Walk for Justice - Thomas Moorhead, Elizabeth Collins, Lakshmi Jones, Amy Johnston

Following from the exhibition, a dynamic panel came to life to discuss elements raised by the exhibition and appropriately entitled The Women Should Have a Voice - The Future of Women’s Social Justice in WA. Presented by the Law Society in association with the Karrakatta Club and inspired by Cowan’s service and continuing legacy of social justice advocacy in Western Australia, this panel looked at the work still to be done. Cowan’s legacy of social justice advocacy is vast, but incomplete. While Cowan vowed to represent the interests of women and children during her time in Parliament and her community work from the 1890s reflects her advocacy for the protection of mothers and children, in 2021 the panel will reflect on the silences of history and give voice to those who were not protected. As the groundswell of the modern women’s movement rises again, it is a timely reflection of Cowan as a woman of her time, what she achieved, who were excluded and how much is yet to be addressed and achieved today. Facilitated by Deputy Lord Mayor, City of Perth, Sandy Anghie, the panel represented the voices of leading advocates working in the social justice arena advocating for change, law reform and equality for all women. The post panel conversations were feisty and inspired. Thank you to Dr Christine Cunningham, Higher Degrees by Research Coordinator for the School of Education, Edith Cowan University, Ms Krista Dunstan, WA Investment and Trade Commissioner for ASEAN, Emeritus Professor Carmen Lawrence, Senior Honorary Research Fellow, School of Psychological Science, UWA,

Mr Conrad Liveris, Director, In Her Seat, Dr Carolyn Tan, In-House Legal Counsel, Yamatji Marlpa Aboriginal Corporation, Ms Toni Church, Curator, Old Court House Law Museum. Law Week finished on a social high with the Law Week Awards night. Over 180 Law Society members, members of the judiciary and friends came together at The Westin to celebrate the Lawyer of the Year Awards with style and toast to the end of a successful Law Week. The event saw Kendra Turner accept the 2021 Lawyer of the Year Award (less than five years’ experience) and Peter Le received the 2021 Layer of the Year Award (more than five years’ experience. Congratulations to this year’s winners and our 2020 recipients Heidi Gan and Hamish Glenister (less than five years’ experience award) and Lucy Dickens (more than five years’ experience award) who were also celebrated on the night. The event also included recognition of practitioners who have held a practicing certificate for 50 and 60 years and celebrated our newest Law Society Life Members: Mr John Ley SC and Mr Denis William McLeod But Law Week is not just about events, it’s about promoting the narrative of access to justice and equal access to justice and advocating on issues that matter. The Law Society was very active on social media and a series of articles were published in Business News: 14

13.

Lea Hiltenkamp, Glen McLeod Legal

14 & 15. Old Court House Law Museum exhibition The Women Should have a Voice – Edith Cowan’s Legacy of Social justice in Western Australia 16.

Practitioners recognised by the Legal Practice Board for holding a practising certificate for 50 and 60 years

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Access to Justice might never be equal, but can it be fair? By Shayla Strapps, Junior Vice President & Treasurer of the Law Society of Western and Australia, CEO and Director Ruah Legal Services and Mental Health Law Centre Our vision is equal access to justice for everyone in Western Australia – Here we explain what the legal profession is doing to help achieve our vision. By Dominique Hansen, CEO and Company Secretary at Law Access The legal profession must lead change to eliminate its workplace sexual harassment. By Christopher Burch and Anlee Khuu, The Law Society’s Young Lawyers Committee “The Women Should Have a Voice”: Edith Cowan’s legacy of social justice in Western Australia. By Toni Church, Museum Curator, The Old Court House Law Museum. If a society values its children, it must cherish their parents. By Debbie Henderson, Chief Executive Officer, Family Inclusion Network of WA Inc. Thank you to all who got involved in the years’ Law Week and thank you to our sponsors Public Purposes Trust, The Department of Justice Western Australia, Glen McLeod Legal, HHG Legal Group and Murdoch University.

Law Week 2021 17 18

17. Law Week Panel - The Women Should Have a Voice - Toni Church, The Law Society of WA, Dr Carolyn Tan, Yamatji Marlpa Aboriginal Corporation Conrad Liveris, In Her Seat, Emeritus Professor Carmen Lawrence, Senior Honorary Research Fellow, School of Psychological Science, UWA, Ms Krista Dunstan, WA Investment and Trade Commissioner for ASEAN, Dr Christine Cunningham, School of Education, Edith Cowan University Sandy Anghie, Deputy Lord Mayor, City of Perth

18. YLC Screening - Anthony Dique, Hammond Legal, Chris Burch, Corrs Chambers Westgarth, Anlee Khuu, Momentum Legal

21. Peter Le, City of Rockingham – Recipient of the Lawyer of the Year Award more than five years practising

19. Musical performance at the Law Week Cocktail Party

22. Selina Gates, Hammond Legal, Tom Camp, Butcher Paull & Calder, Ante Golem, Herbert Smith Freehills

20. Hon John Quigley MLA, Attorney General of Western Australia, Tonya McCusker AM, The Hon Malcom McCusker AV CVO QC

Special thanks to Law Week supporters and sponsors

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Lawyer of the Year Award Sponsor (less than 5 years’ experience)

Lawyer of the Year Award Sponsor (more than 5 years’ experience)

Community Events Sponsor

Law Week 2021

Lawyer of the Year The Winners of this year’s Lawyer of the Year awards took a moment to answer a few questions and reflect on their journey.

Kendra Turner Winner - less than 5yrs experience Why did you choose to study law? I think, like a lot of people, I didn’t know what I wanted to pursue after high school. I considered various other degrees in psychology, sport and architecture, but ultimately chose law because I saw knowledge of our legal systems as essential in affecting social change. This is something I was, and am still quite passionate about.

What are your words of encouragement for other junior lawyers? The legal profession draws high achievers, so I would encourage all junior lawyers to be kind to yourself. You can only do your best, and regardless of the situation, you should be proud of yourself for having done so. If you had a message for more senior members of the profession what would that be?

Kendra Turner, Law Society President Jocelyne Boujos and Peter Le

Funnily enough though, I never saw myself as becoming a lawyer. I was accepted into the University of Notre Dame in 2014 to complete a double degree in Law and Behavioural Science. Throughout my studies I had planned to pursue a career in the social sciences. It wasn’t until my penultimate year that I considered pursuing a career in law. I think this came down to peer pressure in applying for clerkships, but none the less, I’m happy to have made the decision I did to become a lawyer!

I would encourage senior members of the profession to reach out to junior lawyers and law students, to offer their support and mentorship. I really do think our belief in someone can be the catalyst for their success – whatever ‘success’ means to them. I’m grateful for the support and guidance I have received over my career, and credit my professional development to the senior lawyers that have taken me under their wing.

What has your career path been like so far?

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

I have had a varied career path. During university I undertook several volunteer placements with community legal centres, notfor-profit organisations, and a small litigation firm in Fremantle. In these roles I had the opportunity to deliver essential services and promote access to justice within the local community. I also worked in both hospitality and retail for most of my university years, and later in my studies, conducted workshops with high school students, that aimed to create safe spaces to discuss topics related to diversity and inclusion. In early 2018, I applied to work as paralegal with Corrs Chambers Westgarth (Corrs) on a big litigation matter, and have worked with them ever since. I celebrated my admission as a lawyer in December 2020, and am currently completing my third practice group rotation at Corrs. In September, I hope to settle in my chosen practice group and officially kick start my career!

I have had the honour of receiving this award, as well as the WLWA 2021 Junior Woman Lawyer of the Year award, both of which I am incredibly grateful for. For me though, my proudest achievement has been staying true to my values, and getting to combine my passion for promoting diversity and inclusion both within business and communities. What motivates you to work in the area you do? As mentioned before, I am passionate about promoting diversity and inclusion within business and communities. I often think a reason I initially disregarded a career in law was because I never saw myself represented in the Western Australian legal (and business) community. It really is hard to see yourself as being something you can’t see. Now a practicing lawyer, I love

Peter Le Winner - more than 5yrs experience Why did you choose to study law? I wanted to help people, and so I thought being a lawyer and having knowledge of the law could help me to do that. What has your career path been like so far? From local firm (Gibson & Gibson Lawyers, now Slater & Gordon), to national firms (Gadens & Minter Ellison), to international firm (Dentons), to in house (Hyatt Hotel & Centre) and now at local government (City of Rockingham). If you had a message for junior members of the profession what would that be? As Justice Michael Kirby always say, “the law is not for show ponies”, it is hard work but it is the most rewarding work that one can do. What has been the proudest achievement of your legal career to date? I think all 3 of these rank equally – Being the inaugural president of the Asian Australian Lawyers Association (WA Branch) and promoting cultural diversity and inclusion in the legal profession; Winning the State’s Volunteer of the Year for Multicultural Communities 2019, for my work in helping various multicultural organisations achieve their social service objectives through the provision of legal, governance, risk and compliance advice; and of course Winning the Law Society of WA’s Lawyer of the Year Award 2021! No greater honour than to be recognised by your peers. What is a great challenge you have had to overcome that helps you to be a better person and help you approach your work? I came to Australia at the age of 4 as a little refugee boy after the end of the Vietnam War. Being a refugee in Australia has had a profound impact on my life in three ways. Firstly, it has

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made me appreciate all the opportunities that this country has given me. Secondly, it’s helped me to be resilient and to handle the pressures and demands of being a lawyer. And thirdly, it has encouraged me to consciously give back whenever I can. What motivates you to work in the area you do? I guess being a child refugee, it has always been in my DNA to work for a community based organisation and the City of Rockingham is very much a community focused organisation. It’s one of the largest local governments in Western Australia, it’s a very progressive and innovative local government and I believe the first local government in WA to have in house legal counsels. Do you have a positive story of your role as a lawyer and how it has made a positive difference to the public/ community? Using my local government knowledge and skills to advocate for new clubroom facilities, after 30 years without any decent facilities, for a grass roots soccer club in the northern suburbs called Westnam United, a club that I have been playing soccer for since my childhood, which has a focus on the diaspora communities and disadvantaged youths around the low social economic suburbs of Mirrabooka, Balga, Girrawheen, Koondoola, Marangaroo. From humble beginnings, the Club has grown from 1 senior team to 5 senior teams and 4 junior teams. I am pleased to say, no more cold showers for the players! What are the challenges of being a lawyers that the public doesn’t necessarily see? At times, the practice of law can be very demanding, relentless and never ending and always unforgiving, but I wouldn’t do anything else!

the challenging nature of my work, and for me, seeing greater representation of diverse women in positions of power and influence motivates me to continue doing what I’m doing. Do you have a positive story of your role as a lawyer and how it has made a positive difference to the public/ community? I am a Management Committee Member of the Society of African Australian Lawyers Inc. (SAALI). We officially launched in November 2020, and aim to promote more diversity and inclusion in the Western Australian legal profession, particularly among people of African heritage. I think the establishment of SAALI has, and will create a positive difference in the Western Australian legal and wider communities. When graduating university in 2019, I thought I would be the first lawyer of African heritage I knew. Now being a SAALI member, I have an extensive network of legal professionals I can turn to for support and guidance. I get excited every time I see a law student attend one of our events or follow our LinkedIn page. This is because I know these students will graduate university with the support of SAALI, and can look up to the many successful legal professionals that look just like them.

Law Week 2021 important messages for both Law Week and the upcoming National Reconciliation Week.

A review of the Special Law Week Screening of ‘In My Blood it Runs’

By Anlee Khuu, Momentum Legal Member, The Law Society’s Young Lawyers Committee On 17 May, the Young Lawyer’s Committee held a special Law Week screening of In My Blood it Runs hosted by Corrs Chambers Westgarth, a documentary that follows 10-year-old Dujuan, an Aboriginal boy of the Arrernte people, growing up in Alice Springs. Dujuan has trouble with the law and is suspended from school, but there is no doubt that he is a well-meaning and funloving child who loves his family and his family love him. Betty Garlett, member of the Baladong Clan and respected Noongar Elder provided a special Welcome to Country and thanked lawyers for continuing to do good work. Lexi Lachal, Lawyer, Civil Law and Human Rights Unit of the Aboriginal Legal Service, then spoke about the Aboriginal Legal Service’s important work in providing access to justice and encouraged those who would like to contribute to reach out to the Aboriginal Legal Service. These are

CPD DAY FOR COUNTRY PRACTITIONERS 2021 By Amelia Englert, Solicitor, McAuliffe Legal I joined the Law Society’s Country Practitioners Committee in 2017 and the Committee has worked with the Law Society to develop the CPD Day for Country Practitioners. The CPD Day was first held in 2018 and has been held annually ever since. I attended the first two events in person and enjoyed this experience thoroughly. Due to COVID-19, the Law Society held the 2020 event via a live webinar which was also an option for this year’s event. Although I had all intentions of attending in Perth this year, my work and family commitments prevented me from doing so (I recognise that all lawyers are generally time-poor but country lawyers are especially so due to less support). The speakers at this year’s event were all highquality speakers presenting relevant material on topics covering different CPD areas. The first speakers presented in the area of risk - screening and identifying clients. I took away some helpful information on implementing procedures to assist in managing these conflicts. Given the tight knit communities in the country, screening is highly important. Country lawyers regularly make ethical decisions about representing

In My Blood it Runs emphasised the lack of support to Dujuan and his family. Dujuan is skipping school and starting to have trouble with the law and breaking into cars. His family members, his teachers and the police warn him that he could go to juvenile detention if he continues. However, a young child can’t understand the consequences of his actions, and the authorities do not provide any solutions that could actually assist Dujuan’s well-being. Dujuan’s family and the Aboriginal elders try to find ways to help Dujuan. In particular, I really felt for Dujuan’s mother and grandmother who only want the best for him and have tried everything to discourage Dujuan from truancy and breaking the law. When they receive a letter from the government regarding child welfare, they become anxious and fearful due to memories of the Stolen Generation. While the letter may only be a pro forma letter and not actually lead to Dujuan being taken away, the documentary shows how it is triggering to Dujuan’s mother and grandmother and unjustifiably punishing Dujuan’s family when they are already trying everything possible to raise Dujuan. While there are many sad moments in the film, it is also celebrates Dujuan’s bright personality. He is a delight on screen. He enjoys the company of his siblings and playing with other children. Dujuan does not intentionally cause anyone

or opposing people they know including friends and family, which raises personal interest conflict issues. It was interesting to hear the material regarding the “accidental client” relevant to unrepresented parties, an area of high risk in country practice. I was reminded to be especially careful in corresponding with unrepresented parties and to communicate clearly (in writing) to them that “you are not my client”. A presentation regarding legal complaints rounded out the area of risk and highlighted that effective client communication is crucial, particularly regarding costs expectations. Addressing costs at the initial consultation, although awkward, is highly important and likely to avoid a future complaint. The substantive topics presented by the other speakers covered drafting trusts, strata law changes, family provision claims and tax implications (in family law and wills & probate). For me, the most helpful points (I could definitely add more but for the sake of brevity have kept it to one from each speaker) were: (a) pay particular attention to drafting power of amendment clauses in trust deeds; (b) keep an eye on the commencement of the Community Titles Act 2018 (WA) (there are already similar developments in my region);

grief. When his aunt is taken to hospital, Dujuan is upset and visits her in hospital to use his healing powers he learned from the Aboriginal elders on her leg wound. While the authorities may see him as a delinquent, Dujuan is a friendly, well-meaning child who is beloved by his family and proud of his cultural heritage. It is interesting to see that, while Dujuan is forced to move schools twice and does not get good grades, he is a keen learner when he is encouraged, especially when it comes to his culture. Unfortunately, Dujuan’s interest in his culture is not supported in the first two schools that he attends and the teachers impose a onesize-fits-all approach. For example, Dujuan’s family lament the lack of education on the Arrernte language and they try to teach him at home. When Dujuan goes to live with his father, he regrets not knowing very much about the Arrernte language himself and hopes Dujuan will be able to learn his culture. The documentary ends on a good note. The Aboriginal elders decide that Dujuan is better off living with his father to learn his culture and it appears that Dujuan starts to thrive when living on Country, and he is starting to learn the Arrernte language at his new school as well as at home. However, it would be naïve to think that there is a simple conclusion. In My Blood it Runs is part of a continuing campaign for change. It is not a film that starts and ends neatly in under two hours, because that is not the reality.

(d) consider Division 7A of the Income Tax Assessment Act 1936 (Cth) in family law matters. The highlight of the CPD Day for me was the panel discussion with His Honour Judge John Staude, Magistrate Dianne Scaddan, Carmel McKenzie and His Honour Kevin Sleight as Chair. They provided their perspectives on the changes to court processes in their relevant jurisdictions due to the impacts of COVID-19. Some processes were already in place prior to COVID-19 (such as attending court by audio/ videolink and online filing) which I expect will become more efficient and streamlined as they are now more important than ever. I take note of the advice of the panel regarding such appearances and I will definitely not say “Hi” when appearing by audio/videolink. It was a pleasant surprise to hear that His Honour Kevin Sleight and Carmel McKenzie were longstanding members of the Country Practitioners Committee. With this in mind, I end this article with an invitation to country practitioners to join the Law Society’s Country Practitioners Committee as we are always in need of new committee members and it is a way of getting more support to country practitioners and working with other country lawyers on important policy and advocacy work.

FEDERAL COURT JUDGMENTS Dan Star QC Owen Dixon Chambers West, Melbourne

Courts and judicial system Apprehended bias – trial judge does not recuse himself – Full Court held hypothetical observer might reasonably apprehend that the trial judge might be influenced subconsciously by extraneous information In GetSwift Limited v Webb [2021] FCAFC 26 (5 March 2021) the ultimate issue in the appeal was whether the primary judge should have disqualified himself from hearing the trial in a class action proceeding (Webb proceeding). The primary judge decided not to disqualify himself. The Full Court allowed the appeal. Relevantly, the appeal raised questions concerning the knowledge to be attributed to the hypothetical observer (the fair-minded lay observer) and the extent to which extraneous information in the mind of a fact finding judge which is to be discarded might still have a subconscious effect on the decision to be made by that judge. The issue arose in circumstances where the primary judge was intending to hear a regulatory civil penalty proceeding and a representative proceeding under Pt IVA of the Federal Court Act 1976 (Cth) consecutively. In the Webb proceeding, Mr Webb made allegations against GetSwift Limited (GetSwift) of continuous disclosure contraventions under s674(2) of the Corporations Act 2001 (Cth) (Corporations Act), and of false or misleading statements and misleading or deceptive conduct in contravention of ss1041E and 1041H of the Corporations Act, s12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s18 of Sch 2 to the Competition and Consumer Act 2010 (Cth). There were also allegations against a director of GetSwift, Mr MacDonald, by reason of knowing involvement in GetSwift’s contraventions. Civil penalty proceedings were also brought by ASIC against GetSwift and (among others) Mr Macdonald for alleged contraventions of the Corporations Act and the ASIC Act (ASIC proceeding). The allegations raised by ASIC and by Mr Webb were largely 40 | BRIEF JUNE 2021

the same and the primary judge accepted that he would be dealing with largely the same course of events in the class action as in the ASIC proceeding. The ASIC proceeding had been heard and judgment was reserved. The primary judge was due to commence hearing the Webb proceeding. The primary judge intended that judgment in each proceeding would be based on (and only based on) the evidence adduced in, and argument advanced in, each proceeding (that is, without regard to the evidence adduced in, and argument advanced in, the other proceeding). In both cases, it was highly likely that the factual issues would be determined by reference to the documentary evidence that was common to both the Webb and ASIC proceeding and inferences drawn from it. Therefore, the primary judge would have already formed some views about the documentary evidence adduced in the ASIC proceedings if he heard the Webb proceeding (at [10]). GetSwift submitted that the primary judge erred in failing to conclude that a fairminded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the Webb proceeding by reason of his having heard evidence and argument in the ASIC proceeding (at [13]). Middleton, McKerracher and Jagot JJ summarised the principles applicable to apprehended bias (at [26][45]). GetSwift succeeded on the ground that a fair-minded lay observer might reasonably apprehend that the primary judge, consciously or subconsciously, might be influenced by extraneous information from the ASIC proceeding (extraneous information ground) (at [46]-[62]). However, the Full Court did not accept the ground that a fairminded lay observer might reasonably apprehend that, in hearing, considering, and forming views about the material in the ASIC proceeding, the primary judge might have prejudged the resolution of issues common to both proceedings (prejudgment ground) (at [63]-[69]).

Consumer law Unconscionable conduct – whether Kobelt, precedent or statutory interpretation requires that exploitation or taking advantage of some pre-existing vulnerability, disadvantage or disability is a necessary element of statutory unconscionability In Australian Competition and Consumer Law v Quantum Housing Group Pty Ltd [2021] FCAFC 40 (19 March 2021) the Full Court determined an important issue as to the meaning and application of statutory provisions that call for a standard of business conduct in Australia that is not, in all the circumstances, unconscionable, in this case s21 of the Australian Consumer Law (ACL) being Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACCC brought proceedings against Quantum Housing Group Pty Ltd and its sole director and secretary, alleging conduct that involved misleading representations in contravention of ss18(1), 29(1)(l) and 29(1)(m) of the ACL and that was unconscionable in contravention of s21 of the ACL. The respondents admitted the contraventions including unconscionable conduct under s21 of the ACL. The primary judge made orders including declarations for the contraventions of ss18(1) and 29(1) of the ACL and ordered penalties. However, the primary judge refused to conclude and to declare that the conduct was unconscionable. The ACCC appealed the failure of the primary judge to make a declaration as to unconscionable conduct. The key issue in the appeal was whether, for conduct to be unconscionable under s21 of the ACL or cognate provisions such as s12CB of the ASIC Act, there is required to be present vulnerability or disadvantage in the person or persons to whom the conduct can be seen as directed and that such was exploited or taken advantage of. Allsop CJ and Besanko and McKerracher JJ held “[w] hilst some form of exploitation of or predation upon some vulnerability or

disadvantage of people will often be a feature of conduct which satisfies the characterisation of unconscionable conduct under s21, such is not a necessary feature of the conception or a necessary essence in the embodied meaning of the statutory phrase” (at [4]; see also [78]-[93]). The Full Court’s judgment involved a deep analysis of the different reasons for judgment of the members of the High Court in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 (at [37]-[79]). Having done so, the Full Court held that the primary judge erred in his understanding and application of Kobelt. Allsop CJ and Besanko and McKerracher JJ “rejected the proposition that ratio or seriously considered obiter dicta of a majority of the High Court, indeed, of any justice of the Court in Kobelt (other than Keane J) requires in any case that for conduct to be unconscionable by reference to ss12CB and 12CC of the ASIC Act (or ss21 and 22 of the ACL) there must be found some form of pre-existing disability, vulnerability or disadvantage of which advantage was taken” (at [79]). The Full Court allowed the ACCC’s appeal and made a declaration of unconscionable conduct under s21 of the ACL.

Costs Public interest litigation – whether depart from usual orders as to costs In Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20 (26 February 2021) the Full Court considered costs following the hearing of a separate question resulting in unsuccessful public interest litigation. The Full Court examined and applied the principles in Oshlack v Richmond River Council (1998) 193 CLR 72. Having regard to particular facts and circumstances of the proceeding, the Full Court departed from the usual order as to costs and held there should be no order as to costs.

Consumer law and civil penalties Appeal from primary judge rejecting agreed penalty and imposing substantially higher penalty Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49 (9 April 2021) concerned the pecuniary penalty

imposed on Volkswagen for its admitted contraventions of s29(1)(a) of the ACL in relation to its deception of the Australian government and Australian consumers about the exhaust emissions of certain Volkswagen-branded motor vehicles which were imported into Australia for sale for about five years from January 2011 to October 2015. Volkswagen and the ACCC jointly submitted to the Court that a penalty of $75 million was an appropriate penalty for the contraventions. The primary judge found that the proposed penalty was manifestly inadequate and instead imposed a penalty of $125 million. The central issue raised by the appeal was whether the primary judge erred in rejecting the jointly proposed penalty and imposing instead the significantly higher penalty. The Full Court made observations about the nature of the primary judge’s decision (at [119]-[133]). Wigney, Beach and O’Bryan JJ rejected the ACCC’s submission that the primary judge’s decision was not discretionary and concluded (at [131]): “. . . The Court’s task in such cases is not limited to simply determining whether the jointly proposed penalty is within the permissible range, though that might be expected to be a highly relevant and perhaps determinative consideration. Nor is the Court necessarily compelled to accept and impose the proposed penalty if it is found to be within the acceptable range, though the public policy consideration of predictability of outcome would generally provide a compelling reason for the Court to accept the proposed penalty in those circumstances. The overriding statutory directive is for the Court to impose a penalty which is determined to be appropriate having regard to all relevant matters. The fact that the regulator and the contravener have agreed and jointly proposed a penalty is plainly a relevant and important matter which the Court must have regard to in determining an appropriate penalty. It does not follow, however, that the determination is not discretionary in nature”. However, the Full Court rejected Volkswagen’s various appeal grounds which in the main were supported by the ACCC. •

The Full Court accepted that the primary judge erred in adopting an overly narrow interpretation of s224(2)(c) of the ACL and in not considering whether the absence of prior contraventions on the part of Volkswagen was capable of constituting a mitigating circumstance (at [137]). However, in the circumstances of this case

this could not have had any material effect on the ultimate penalty imposed (at [138]-[146]). •

There was no error by the primary judge in finding that the agreed penalty of $75 million was not sufficient to achieve deterrence (at [147]-[167]). In determining this ground, the Full Court examined the circumstances where there may be a relationship between the penalty imposed and the profit derived from the contravening conduct (at [148][149]).

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It did not follow that, in not accepting that the agreed penalty was an appropriate penalty and instead fixing a significantly higher penalty, the primary judge gave no or insufficient weight, to the agreement or settlement that had been reached between Volkswagen and the ACCC, or to the important public policy consideration concerning the promotion of the predictability of outcome in civil penalty proceedings (at [168]-[173]).

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There was no error in the way that the primary judge dealt with the penalties imposed on Volkswagen in overseas jurisdictions (at [174]-[184]).

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The findings that were made by the primary judge in relation to harm to consumers were findings based on inferences that were open to be drawn, irrespective of the joint submission of the parties (at [185][192]).

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Nor was there error in relation to certain matters that Volkswagen contended that the primary judge had regard but were extraneous or irrelevant matters (at [193]-[201]).

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The penalty of $125 million imposed by the primary judge was not manifestly excessive (at [202]-[213]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Constitutional law Section 92 In Palmer v Western Australia [2021] HCA 5 (24 February 2021) the High Court was required to consider whether the Quarantine (Closing the Border) Directions (WA) (Directions), which effectively closed the West Australian border from 5 April 2020, infringed s92 of the Constitution. The Police Commissioner for Western Australia issued the Directions under s67 of the Emergency Management Act 2005 (WA) (the Act). Section 67 allows an authorised officer to (among other things) “direct or, by direction, prohibit, the movement of persons . . . into, out of or around an emergency area or any part of the emergency area” during a state of emergency for the purpose of “emergency management”. A Minister may declare a state of emergency under s56 of the Act provided that the conditions enumerated under s56(2) are met. The Minister declared a state of emergency under the Act on 15 March 2020 (after the World Health Organisation declared COVID-19 a pandemic). The challenge to the Directions was brought by Clive Palmer (Palmer) and Mineralogy Pty Ltd, a company of which 42 | BRIEF JUNE 2021

Palmer is chairman and managing director (the plaintiffs). Palmer regularly travelled between WA and his home in Queensland for business purposes. Palmer applied for, and was denied, an exemption under the Directions. The plaintiffs subsequently brought proceedings in the original jurisdiction of the High Court, in May 2020, seeking a declaration that “either the authorising Act and/or the Directions are invalid, either wholly or in part . . . by reason of s92 of the Constitution”. Section 92 of the Constitution provides, relevantly, “trade, commerce and intercourse among the States . . . shall be absolutely free”. The plaintiffs argued that the Directions imposed a burden on the freedom of intercourse among the Australian people by prohibiting crossborder movement of people. Alternatively, the plaintiffs argued that the freedom of trade and commerce guaranteed by s92 is contravened because the Directions imposed an effectively discriminatory burden with protectionist effect. The defendants (the State of Western Australia and the Police Commissioner) denied that either the Act or the Directions contravened s92 because, they argued, neither had the purpose of economically protecting Western Australia rather they had the legitimate purpose of (and were reasonably necessary to achieve) the

protection of the population of Western Australia against risks arising from emergency situations. No agreement could be reached between the parties on the facts necessary to determine the plaintiffs’ claim by the High Court. Accordingly, the High Court remitted the issue to the Federal Court of Australia for hearing and determination pursuant to s44 of the Judiciary Act 1903 (Cth). On 25 August 2020, Rangiah J of the Federal Court found that the facts pleaded by the defendants, in support of their argument that the Directions did not infringe s92, had been proved. Importantly, Rangiah J held that the risk to the health of the Western Australian population was a function of two factors: the probability that COVID-19 would be imported into the population and the seriousness of the consequences if it was imported. Rangiah J concluded that, given the uncertainties about importation of the disease into Western Australia and the potentially serious consequences of the disease, “a precautionary approach should be taken to decision-making about the measures required for the protection of the community” (see [23]). The High Court unanimously (but in separate reasons) rejected the plaintiffs challenge to the Directions. As Gageler

observed at [83], “The riddle ‘riddle of s92’ lies in the question begged by the constitutional text: ‘absolutely free from what?’” Citing Cole v Whitfield (1988) 165 CLR 360 at 394 and 398, Gageler J noted at [85] that it has been authoritatively determined that trade and commerce among the states is guaranteed by s92 to be absolutely free from “discriminatory burdens of a protectionist kind”. As to what amounts to discrimination, in joint reasons, Keifel CJ and Keane J explained at [31], “Discrimination in a legal sense involves a comparison of relative equals by which one is treated unequally, or of unequals treated equally”. The High Court was unanimous in finding that the Directions were discriminatory but did not infringe s92 because it was justified to protect the population of Western Australia from COVID-19. But where their Honours parted company was the test adopted to determine this justification. Kiefel CJ and Keane J and, in a separate judgment Edelman J, held that the proper test was the “structured proportionality test” – a rigid test involving three distinct steps (see [269]-[276]). Conversely, Gageler and Gordon JJ, in separate judgments, considered that the proper test for justification was “reasonable necessity”. The test involves an evaluative judgment as to the suitability and necessity of the legislation imposing the burden.

Class actions Competing class actions In Wigmans v AMP Limited & Ors [2021] HCA 7 (10 March 2021) the High Court was required to consider whether the Supreme Court of New South Wales had the power to choose between competing group proceedings as to which to allow to proceed on any basis other than on a “first-in-time” basis. In April 2018, AMP executives gave testimony to the Financial Services Royal Commission to the effect that AMP had deliberately charged some of its clients fees for no service and that it had misled ASIC as to the extent of its conduct. Following this testimony, the value of AMP shares on the Australian Stock Exchange dropped sharply. Subsequently, and in quick succession, five separate open class representative proceedings were commenced on behalf of AMP shareholders who had invested in AMP during the periods of time in which they allege the company should have disclosed the information, revealed at the Royal Commission, to ASIC. The first of these representative proceedings was

brought by the applicant (Wigmans). The last two group proceedings commenced were brought by the second respondent (Kolotex) and the third respondent (Fernbrook). Kolotex and Fernbrook later consolidated their proceedings (the Kolotex/Fernbrook proceeding). The head plaintiffs for each group proceeding brought an application to permanently stay the other group proceedings. The primary judge ordered that all of the group proceedings, save for the Kolotex/Fernbrook proceeding, be permanently stayed. Ostensibly, the primary judge made this order pursuant to ss67 and 183 of the Civil Procedure Act 2005 (NSW) (CPA) (which respectively empowers the court to stay proceedings and empowers the court to make any order the court thinks necessary to ensure that justice is done) and the inherent power of the Supreme Court (which encompasses both powers). The primary judge approached the determination of the stay applications by an assessment of the potential benefits expected to flow to group members in each representative proceeding. The trial judge proceeded by reference to the case management principles contained in the “overriding purpose” provided in s56 of the CPA and adopted a “multi-factorial analysis” of the kind endorsed by the Full Federal Court in Perera v GetSwift Ltd (2018) 263 FCR 92 at [195]. The eight factors, identified by the primary judge, as relevant to the determination of the stay applications included: the net hypothetical return to group members; the proposal for security for AMP’s costs; the nature and scope of the causes of action advanced; the size of the respective classes; the extent of any bookbuild (that is the process of joining a sufficient number of members with a sufficient claim value to make the funding of the group proceeding commercially viable); the experience of the legal practitioners and funders and the availability of resources; the state of progress of the proceedings; and the conduct of the representative plaintiffs to date. Applying these factors, the trial judge favoured the Kolotex/Fernbrook proceeding because of its superior proposal with respect to the provision of security for AMP’s costs and the proceeding was to be funded by the lawyers themselves on a “no win, no fee basis”. Wigmans appealed unsuccessfully to the Court of Appeal of New South Wales. The Court of Appeal found no error in the primary judge’s reasons, although the Court considered that the determination of the stay applications ultimately turned on whether the ends of justice

required such a remedy rather than case management principles. Wigmans then appealed to the High Court. In a narrow 3:2 split Wigmans’ appeal failed. Kiefel CJ and Keane J (in the minority) did not consider that either the CPA or the Supreme Court’s inherent power to prevent abuse of its processes authorised the Supreme Court to choose between group proceedings. Their Honours also expressed the view at [15] that the Court’s “fundamental function as the independent arbiter of the merits of the group members’ claims as between them and the defendant sits awkwardly with the assumption, without legislative direction, of a role whereby the Court makes a reputational investment in the choice of sponsor”. Their Honours stated at [43] that the courts below should have determined the stay applications by reference to the principle that it is prima facie vexatious to commence an action if an action is already pending in respect of the same controversy in which the same relief is available. And, on that basis, given that the Wigmans proceeding was first in time, the Kolotex/Fernbrook proceeding should have been stayed. The majority (Gageler, Gordon and Edelman JJ) reached a very different conclusion. The majority considered at [73] that s67 of the CPA was a broad power, unconstrained by any particular criteria, other than having regard to the overriding purpose set out in s56. Similarly, the majority concluded at [94] that the common law does not support a first-in-time rule or presumption. Instead, the majority observed, multiple suits remain to be resolved by the exercise of the Court’s discretion informed by all the relevant circumstances and referred to the approach adopted in equity as illustrated in cases such as McHenry v Lewis (1822) 22 Ch D 397. Accordingly, the majority held at [118] that there was no error in the primary judge’s approach but noted that this was not the only manner in which a court might have resolved the issue. It is convenient to note here that the majority, also expressed the view at [86] and [97] that the “first-in-time”, for which Wigams contended, would be “unworkable” and would lead to “an ‘ugly rush’ to the court door”.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. 43

WA Case Notes By Dianne Caruso Senior Associate, HHG Legal Group

Fabrizi and Grasso (Deceased) [2020] FCWA 164 In this decision, her Honour Justice Duncanson dismissed property settlement proceedings in circumstances where the parties had been in a de facto relationship which continued after the initiating application was filed and ended upon the death of the Respondent. Her Honour dismissed the proceedings on the basis that the Applicant had failed to establish that, had the Respondent not died, it would have been just and equitable for the Court to make an Order with respect to property. Her Honour noted that although she had previously found an application could be made for property settlement in circumstances where parties had not separated, it did not follow that the Court would make an Order for property settlement. The Applicant, Ms Fabrizi filed an initiating application seeking property settlement orders under section 205ZG of the Family Court Act 1997 (WA) (the Act) on 19 February 2018. The named Respondent in the application was Mr Grasso. At the time the application was filed the Applicant and Mr Grasso were in a de facto relationship with one another. In early 2018, Mr Grasso died. Subsequently, an Order was made that the deceased be substituted by his son, who was his legal personal representative. Earlier in the proceedings, her Honour Justice Duncanson had handed down reasons for decision determining that there was no requirement in the Act for a de facto relationship to have ended before a party could commence proceedings for alteration of property interests. In the Respondent’s application, he sought Orders that the proceedings be dismissed on the basis that the Court would not have made an Order with respect to property in favour of the Applicant if the deceased had not died and therefore, the Court could not make an order with respect to property under section 205ZG(8) (b)(i) of the Act. Section 205ZG(8)(b) provides: 8.

Where, before proceedings with respect to the property of de facto partners, or either of them are completed, either party to the proceedings dies — … (b) if the court is of the opinion — (i) that it would have made an order with respect to property if the deceased party had not died; and (ii) that it is still appropriate to make an order with respect to property, the court may make such order as it considers appropriate with respect to any of the property of the de facto partners, or either of them…

The key issue for determination by the Court therefore was whether the Court would have made an Order with respect to property if the deceased had not died and if so, if it was still appropriate to do so. The relevant facts included:

The parties met in 1996 and commenced a de facto relationship in 1997 which endured until the death of Mr Grasso in early 2018.

On 14 February 2018 the Trustee of Family Trust A, the deceased, the Applicant, the Respondent and his brother executed a Deed whereby the Applicant was given a life interest in Properties A and B, with the remainder in both properties to the Respondent and his brother as tenants in common in equal shares.

In a separate Will, the deceased left the Applicant a life interest in a property in Country A.

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The Applicant learned of the contents of the deceased’s Will and was disappointed by the provision made for her therein, but she still loved the deceased and they remained in a relationship until the death of the deceased.

The Applicant filed an initiating application in the Family Court on 19 February 2018 which was not served on the deceased.

The Applicant estimated her property to have a value of $734,412. She had a liability of $2,647 and superannuation of $716,514. She estimated the property held by the estate of the deceased and other entities to have a total value of $63,927,916.

The Respondent deposed that at the time of the deceased’s death he had a net asset pool of approximately $40million in Australia with a property in Country A worth around $1.3million.

At the time of the hearing, the Applicant had also made a claim against the deceased’s estate under the Family Provision Act in proceedings in the Supreme Court of Western Australia.

Her Honour cited paragraph 24 of the High Court decision of Stanford v Stanford (2012) 247 CLR 108 where the plurality considered the equivalent provision to section 205ZG(8)(b) of the Act, namely section 79(8) of the Family Law Act 1975 (Cth), as follows: “Section 79(8)(b) thus requires a court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with respect to property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an order. Both of those inquiries require consideration of s 79(2) and its direction that the court not make an order unless “satisfied that, in all the circumstances, it is just and equitable” to do so. It follows that, in cases where s 79(8) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order.” Her Honour went on to state at paragraph 53 that the plurality in Stanford (supra) said three fundamental propositions must not be obscured. She quoted from paragraphs 37 to 44 inclusive of Stanford (supra) including the following paragraphs with respect to the three fundamental propositions: 37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. 38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for

maintenance and property settlement orders in R v Watson; Ex parte Armstrong: “The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”. 39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. 40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. Her Honour found that during the parties’ relationship the parties conducted their financial arrangements in such a way that significant assets were retained in the deceased’s name but he looked after the Applicant and if she wanted something she could buy it. The reason the Applicant brought her application was her concern that when the deceased passed, she may not receive appropriate financial provision. The Applicant had now made an application pursuant to the Family Provision Act in the Supreme Court of Western Australia. Her Honour held at paragraphs 68 to 70 inclusive: 68. Had the deceased not died the Court would not have had a principled reason to interfere with their chosen arrangements. It would not have been just and equitable to make an order with respect to their property. 69. I consider that the Court would not have made an order with respect to property if the deceased had not died and consequently after his death it could not be found to still be appropriate to make an order. 70. With reference to my reasons ([2019] FCWA 176) I found that an application could be made for property settlement even though the parties had not separated. It does not however follow that the Court would make an order for property settlement. The requirements of s 205ZG(1), (2), (8) and (9) must be satisfied. In the circumstances of these parties they are not. Her Honour dismissed the proceedings.

‘Tweeting’ perils Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

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Society’s espousal of greater sensitivity to ‘difference’ has temporally coincided with avenues to easily express opinions to the world at large.

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here is scope for tension between these two T trajectories.

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Lawyers should accordingly take especial care when ‘tweeting’ opinions.

There seems little doubt that modern Australian society has, over the passage of time, in significant ways espoused greater sensitivity to what some may describe as ‘difference’. In part as a result of statutory enactments, we have become more attuned, many would say, to the ills of discrimination, harassment or vilification on the basis of race, gender, religion, sexual orientation, etc. The foregoing has coincided temporally with burgeoning avenues for the dissemination of a breadth of views and opinions. Prime amongst these, of course, is the Internet. With little more than a tap on a keyboard, a person can propagate his or her opinions to the world at large. Increasingly fractured global societies have spawned a wide variety of opinions, not always either supported by compelling evidence or devoid of illegitimate discrimination, harassment or vilification. This ‘democratisation’ to the disseminating of opinion has witnessed some of its greatest impact via the medium of Twitter and its progeny. As members of society, lawyers are hardly immune from the above trends. As to the former, it is unsurprising to find professional rules that explicitly target the professional inappropriateness of a lawyer engaging in discrimination and sexual harassment in the course of practice.1 In line with this, the last decade or so has witnessed an increasing number of lawyers being the subject of professional discipline for, inter alia, behaviour involving sexual harassment2 and racial slurs.3 Beyond revolutionising access to legal materials and providing an avenue for marketing legal services, the Internet has proven a vehicle for lawyers (just like other members of society) to express opinions. One would hope that those opinions are well grounded in the facts, especially bearing in mind that many in society will place greater credence in an opinion expressed by a lawyer (especially where it aligns with their existing views or prejudices). Nor it is surprising that lawyers should pursue the practice of issuing Twitter (or the like) messages. It might be borne in mind that the brevity characterising Twitter posts, which satisfies many persons’ desire

for information in bite-size chunks, can at the same time nourish an ignorance of the bigger picture / issue. Moreover, the very ease and informality of ‘tweeting’ can sometimes characterise its content as reactionary and not well considered or measured. (The same can be said of email communications but these do not risk immediate dissemination to the world at large). Lawyers who exercise their freedom of speech via ‘tweeting’ secure no immunity from the professional (or legal) consequences of, say, sexist or racist comments. This remains so even if the ‘tweet’ is made in a personal capacity; after all, by reason of the status of their author, illegitimately offensive comments may cast a shadow over the profession as a whole. From a disciplinary standpoint, this recently came home to roost for an English barrister as a result of his sexist and racist response, via Twitter, to another person’s ‘tweet’.4 The original ‘tweet’ came from a young black female student at Cambridge University as an open letter to the English Faculty, where she called for the faculty to, inter alia, ‘decolonize its reading lists and incorporate postcolonial thought alongside its existing curriculum’. Included was a suggestion for a ‘zero tolerance policy on the dismissal of race as a subject worthy of discussion/enquiry in essays’. The barrister, a strong believer in the Canon of Western literature and culture, was upset by the open letter. This prompted him to ‘tweet’ a response in the following terms:5 ‘Read it. Now; refuse to perform [a specified sexual act] on shrill [racist descriptor] who will destroy an academic reputation it has taken aeons to build’. The Bar Standards Board alleged that the ‘tweet’ amounted to professional misconduct. The Disciplinary Panel agreed, ordering that the barrister be reprimanded and fined £1,000. On the barrister’s appeal, Warby J declined to interfere with the Panel’s determination. His Lordship accepted that the barrister’s language would lower the profession in the public eye in departing from the standards expected of the profession: the promotion of equality and diversity, and the avoidance of language that is ‘racially charged and derogatory to women’.6 The lesson for lawyers: ‘think before you tweet’. NOTES: 1 2 3 4 5 6

Legal Profession Conduct Rules 2010 (WA) r 17(5). See, for example, PLP v McGarvie [2014] VSCA 253. See, for example, Legal Profession Complaints Committee v in de Braekt (2012) 80 SR (WA) 134 Diggins v Bar Standards Board [2020] EWHC 467 (Admin). The offending language has been excised from this quote; interested readers should consult the case for the full quote. Diggins v Bar Standards Board [2020] EWHC 467 (Admin) at [89].

FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book

Financial agreements – That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9 In Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence. The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor. The Full Court said (from [31]):

“It is the husband’s contention that … in circumstances where the wife’s solicitor advised her against signing the BFA …, the wife acted on her own free will. ( … ) [35] ( … ) Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages 46 | BRIEF JUNE 2021

and disadvantages of signing the BFA. [36] ( … ) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] ( … ) [64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests ( … )”

Costs – No error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live in carer had sought a declaration as to the existence of a de facto relationship and property orders. The Court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100,000. The Full Court said (from [14]):

“The initiating application … was signed by [the applicant] …. At line 27, a

cross indicated that a date of final separation was ‘[n]ot applicable’ ( … ) [27] In her affidavit … [the applicant] … said: ... I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home ( ... ) ... [The deceased] did not voluntarily leave me but was forced to... [28] … [D]ifficulties emerge from this evidence. [29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship ( … ) [30] The second is identifying the date of the breakdown of the … relationship … [31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.( … ) [79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.”

Children – Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert In Behrendt & Cadenet (No. 2) [2021] FamCA 19 (29 January 2021) Harper J dismissed a father’s interim application in a parenting case for the appointment of a new family report writer in respect of a 10 year old child, where the family report writer, Dr B, referred in an interim report to the mother’s allegation that she had in her possession a large amount of pornography downloaded by the father which, when appraised, might become a finding of paraphilia on the father’s part ([3]). A USB stick of “about 500 professionally shot stack static images of young attractive women” and “pornographic digital movies” was provided to Dr B who recommended that reports be obtained from an IT expert (as to viewing patterns) and a paraphilia expert ([5]-[6]).

New Members

The Court said (from [16]):

“The father … argued that the USB materials have negligible probative value. … [17] … [T]he father contended that the material Dr B had … seen may have contaminated his opinion … he may … have prejudged factual issues such as the ownership of the pornographic material and the nature of the father’s viewing patterns ( … ) [20] I reject the argument based on the assertion that the USB materials have negligible probative value. … [I]t is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. ( … ) [21] … Although the father disavowed any reliance upon apprehended bias, it seems to me that is … what lies behind his assertions of loss of confidence in Dr B. …

[22] … The … fact that [Dr B] … considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father’s habit of viewing material ( … ) [26] I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. ( … )”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson, co-editor. They are accredited (in Qld and Vic respectively) as specialists in family law. The Family Law Book is a one-volume, loose-leaf and online subscription service: thefamilylawbook.com.au.

New members joining the Law Society (May 2021)

Associate Membership

Mr Michael Lo Conte Edith Cowan University

Ordinary Membership

Ms Arianna Aragona The University of Western Australia - Law Faculty

Mr Ben Manifold Tattarang

Mr Christopher Paul Aboriginal Legal Service of Western Australia

Ms Kate Mincherton University of Notre Dame Australia

Mr Bachoo Singh BMS Law

Ms Becky Palmer Murdoch University - School of Law

Mr Jay Singh BMS Law

Ms Paige Pittorino Allens

Mr Russell Sumner Paterson & Dowding - Perth

Mr Lewis Pope Allens

Mrs Lynn Wolfe Hotchkin Hanly Lawyers

Mr Judd Behr Curtin University Mr Joshua Brania The University of Western Australia - Law Faculty Ms Aditi Chaturvedi The University of Western Australia - Law Faculty Ms Jenna Cowie Deakin University

Miss Marwat Sallehi The University of Western Australia - Business & Law UWA Library

Mr Michael Daw

Ms Olivia Seymour Allens

Mr Alex Forster Allens Mrs Leah Fuller Central Queensland University

Mr Charles Smith Allens Mr Stephan Steyn

Mr Oliver Hoare The University of Western Australia - Law Faculty

Mr Nicholas Todd Allens

Miss Amanda Jarvey South West Community Legal Centre

Ms Jenna Varcoe Dawn Tan Legal

Mr Clive King Murdoch University - School of Law

Miss Anne Williams Edith Cowan University

Mr Benjamin Koh Edith Cowan University - Business & Law

Mr Weitao Zhao The University of Western Australia - Law Faculty

The Tale of The Tardy Coroner By John McKechnie QC

In 1903, on his retirement as a police magistrate and coroner after 43 years, William Caswell was described as ‘courteous in manner, merciful to the deserving and hater of all sham’. The many admiring speeches did not mention ‘punctual’. He had served across New South Wales. For 25 years he had been the magistrate and coroner in Moruya, a picturesque little town on the coast south of Bateman’s Bay. His time in Moruya was not uniformly happy and at one stage he found himself having to answer charges that seemed to stem from a religious disagreement. Perhaps his stress from the unfortunate proceedings coloured his judgment in what was to come. Whatever it was, his tardiness contributed to what a judge later described as a very unwise proceeding. In 1877 it was the practice of the coroner to sit with a jury. Mr Collier, who lived some distance from Moruya was summonsed for jury service at 9 am. This time arrived and passed. No coroner. Mr Collier became more irritated. Finally, at 10 o’clock, the coroner arrived. Mr Collier was not amused. He spoke to his fellow jurors loudly enough for Mr Caswell to hear. “It is hard to be summoned for 9 o’clock. Caswell could not attend because he had not his cows milked and had to supply the stores with butter before he could attend to his business.” To emphasize the point, Mr Collier repeated those words several times and concluded by saying “I am not a toady and get no favours.” Poor Mr Caswell. Mr Collier had not finished with him. At the conclusion of the proceedings, while Mr Caswell was making his way back to his buggy, Mr Collier, from the deck of a boat bearing him home, screeched “I defy you”.

48 | BRIEF JUNE 2021

That did it. Mr Caswell caused Mr Collier to be charged under the Vagrancy Act with unlawfully using insulting behaviour towards Mr Caswell whereby a breach of the peace might have been occasioned. Mr Collier was fined three pounds or one month in gaol. But were the words insulting? That was the question for the full court. No said 3 judges. Justice Hargrave thought that the toady reference might bring Mr Caswell up to heat, but more was needed. While hooting might be insulting, screeching was not. Justice Fawcett was pretty scathing about the coroner. Mr Collier in his opinion was justified in making the observation that he did. No doubt Mr Caswell was irritated at being found at fault with the discharge of his duty but the words were amply justified by his conduct. Justice Manning, who had called the proceedings very unwise also thought Mr Caswell was in the wrong having kept the jury waiting for an hour. Mr Caswell moved shortly thereafter to Goulburn where he served faithfully to general acclaim for the next quarter century. In due course the person who had caused him so much grief with the charges (which were dismissed) welcomed him back to Moruya as a friend. Finally, a point to note. If a magistrate or coroner unreasonably keeps you waiting don’t, whatever you do, hoot. Screech instead. (Adapted from Ex p. Collier (1877) NSW Knox R 513)

Law Council Update Legal profession leading change on domestic and family violence Domestic violence experts from across the country, recently came together to take part in the LCA’s National Roundtable on Family Violence: Awareness, Education and Training, to start a new discussion on how the legal profession may re-think our responses to and understanding of Domestic and Family Violence. Participants included experts from the legal profession, the legal assistance sector including Women’s Legal Centres and Family Violence Prevention and Legal Services, and from family violence prevention and victim support organisations, all of whom agreed that there needed to be greater emphasis on identifying and responding to family violence across the whole of the legal profession.

of domestic and family violence between jurisdictions should be further considered, as well as having wider discussions on the benefits of family violence training across the entire legal profession. It’s naive to think family violence is only relevant to family lawyers.” “The Law Council has an important role to play in leading the debate and working with our state and territory counterparts and stakeholders in developing and advocating for potential legislative reforms regarding definitions of domestic and family violence that include agreed core principles, as well as ensuring the legal profession is equipped to deal with issues of family violence,” Dr Brasch QC said.

Funding boost welcome for legal services supporting women and those experiencing mental health issues

President of the Law Council, Dr Jacoba Brasch QC, said the Law Council convened the roundtable following the findings of several recent inquiries, that called for the legal system to be better equipped to respond to family violence and protect vulnerable individuals.

The Law Council of Australia is pleased that the Australian Government has announced additional funding for Australia’s legal assistance sector, with a focus on improving access to justice for women and those experiencing mental health issues.

“This roundtable shows that lawyers are invested in leading the way and changing the thinking around domestic and family violence in our communities,” Dr Brasch QC said.

Key funding measures in the 2021-22 Budget will provide a range of further legal assistance resourcing under the National Legal Assistance Partnership, including:

“Clearly, the plague that is domestic and family violence is not diminishing, nor does it does discriminate. It could be any client, any file. Or any person in any workplace.”

• $129 million over four years for women’s legal services to increase their capacity to women, including those experiencing, or at risk of, family violence;

“There is a very real benefit to the wider community if we, as legal professionals show further leadership in this space and ensure we have the additional skills needed to protect and assist vulnerable clients,” Dr Brasch QC said.

• $17.1 million over four years to Domestic Violence Units and Health Justice Partnerships, to deliver additional mental health specific services for women who have experienced family and domestic violence; and

“While resourcing of legal assistance services and the justice system remains perhaps the most critical issue and an instrumental part of any response to addressing family violence, there are other factors that the various reports into domestic and family violence and the family law system point to as needing reform,” Dr Brasch QC said. “Participants agreed that problems caused by the differing definitions

justice for some our most vulnerable communities,” said President of the Law Council, Dr Jacoba Brasch QC. “Women’s legal services in particular have faced a significant increase in demand over the last 12 months, with the COVID-19 pandemic pushing these already resource-poor centres to breaking point.” Frontline legal services within the legal assistance sector – Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, and Family Violence Prevention and Legal Services – are fundamentally important to improving the lives of marginalised and vulnerable communities. “The downstream savings created by proper investment in the legal sector are clear. It’s time government recognizes that a failure to adequately invest in these services has broader implications to health, housing, social services and welfare, child protection, families, corrections, policing and justice portfolios,” said Dr Brasch QC. While we want to see significant increases in funding across all parts of the legal assistance sector, particularly for specialised and culturally appropriate legal services for Aboriginal and Torres Strait Islander people, we are hopeful that this Budget indicates a recognition by government that resourcing this sector is a fundamental component to responding to challenging social and economic problems.”

Indigenous justice announcements welcome, but funding for multi-faceted response needed

• $60 million over four years for the legal assistance sector to provide support to people experiencing mental health conditions.

Fresh announcements by the Government and the Opposition aimed at addressing the systemic disadvantage experienced by Aboriginal and Torres Strait Islander people in the justice system have been welcomed by the Law Council of Australia on the thirtieth anniversary of the Royal Commission into Aboriginal Deaths in Custody.

“The legal assistance sector has been chronically underfunded over many years, and this Budget is a step in the right direction towards a greater recognition of the critical role these services play in providing access to

The Government has announced it will spend $2.4 million to set up a new custody notification service in South Australia, while the Opposition has today announced a proposed $92.5 million package for justice reinvestment and

legal services. Law Council President, Dr Jacoba Brasch QC, said the government now had an opportunity to use the federal Budget process to lead the way in addressing the national tragedy of over-representation of Indigenous people in the justice system. “While these fresh announcements are certainly welcome, what the nation urgently requires is a comprehensive national response to address the vastly disproportionate imprisonment of Aboriginal and Torres Strait Islander peoples,” Dr Brasch said. “We need a multi-faceted government response supported by adequate funding. The ALRC’s Pathways to Justice Report provides such a framework. Until there is fulsome, considered, coordinated, and an appropriately resourced response to that report we cannot say we’ve seen the commitment required to change the current trajectory.

Classifieds

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late JOHN JAMES LEWIS of 14/2 Goodrich Street, East Perth, Western Australia who died on 21 February 2021, please contact BRB Law (ref: 434165) of 50 Bair Street, Leongatha, Victoria on (03) 5662 2275 or email probate@brblaw.com.au within 21 days of the publication of this advertisement.

Missing Will

“It is a national shame that 30 years on from the Royal Commission into Aboriginal Deaths in Custody the problem of disproportionate imprisonment has grown far worse. The Law Council has long called for a focus on justice reinvestment, increased legal assistance funding, adoption of effective Closing the Gap targets, early intervention and prevention strategies and the adoption of community-led culturally appropriate services for Indigenous people. We need new investment in new programs to divert young people and children from custody.

Would any solicitor, firm or person holding or knowing the whereabouts of a Will or other testamentary document of SONYA PAMELA RODGERS of 33 Lamrock Avenue, Bondi Beach, New South Wales, who died between 28 December 2020 and 31 December 2020, please contact Robert Sceales at: Sceales Lawyers, PO Box Z5305, Perth, WA 6831. Tel: (08) 9322 8479 Email: rsceales@sceales.com

“An effective crime preventative approach must be driven by policy frameworks that address the underlying reasons for why Indigenous people come into contact with the criminal justice system. This includes increasing access to services focused on mental health, housing, family support, youth engagement, and disability. Justice reinvestment approaches which bring these services together in key locations should be prioritised.”

Would any person holding or knowing the whereabouts of the last Will and Testament of the late Mr Robert Cunningham Lake, of 7 Taylor Street, Mira Mar (Albany) formerly 1/3 Dover Court, Mosman Park, please contact Springdale Legal, by phone on 0459 467 796 or by email at adam@springdalelegal.com.au.

This week the Government announced that it would spend $2.4 million to set up a new custody notification service in South Australia, which provides health and welfare checks and offers basic legal advice to Indigenous people. The Australian Labor Party’s proposed a $92.5 million package, announced today, includes commitments of $79m to provide funding for justice reinvestment initiatives and $13.5 m for Aboriginal and Torres Strait Islander legal services.

Professional Announcements

Missing Will

Michael Baldwin

HLS Legal HLS Legal is delighted to welcome Michael Baldwin to HLS Legal in the role of Special Counsel. Michael brings over 20 years of legal experience in the areas of employment law, industrial relations and occupational health and safety. Michael has worked on some of Australia’s major projects in the oil and gas, construction and mining industries. Michael’s experience and insights will be invaluable to our clients and the team at HLS Legal.

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Brief June Edition

Articles inside

Abuse or Misuse of Powers of Attorney

Perspective and the Law A presentation by the Hon John McKechnie

Developing the limits of section 100A: when is a distribution to a discretionary beneficiary not a distribution?

Time to Try a “Nutha Way” The Voice of Indigenous Young People

Expedited Procedures

Indigenous Incarceration Addressing an Upward Trend

Editor’s Opinion