Brief April 2023

VOLUME 50

NUMBER 2

APRIL 2023

Special Feature:

ALSO INSIDE

Artificial Intelligence and the Future of Law

The Unlawful Management of Banksia Hill and Unit 18, Casuarina Detention Centres The Proper Use of the Cost Discretion to Regulate Interlocutory Proceedings

The Extraordinary Powers of the Western Australia Police Force

Revolutionise your productivity Grow your revenue 30% through world class legal technology

Volume 51 | Number 1 | April 2023

CONTENTS

Artificial Intelligence (AI) and the Future of Law

25

FOLLOW US lawsocietywa.asn.au

Facial Recognition Technology

34

Copyright and generative artificial intelligence

@the_Law_Society_of_Western_Australia

41

ARTICLES 08

Interview: Law Society Council Member Tyler Greatrex

10 The Unlawful Management

of Banksia Hill andUnit 18, Casuarina Detention Centres

14 17

The Extraordinary Powers of the Western Australia Police Force The Proper Use of the Cost Discretion to Regulate Interlocutory Proceedings

20

Young Lawyers Committee Section: Social Justice Interview, Case Notes and Aunt Prudence Juris

25

Special Feature: Artificial Intelligence and the Future of Law

30

Lawyers’ Ethics and the Use of Artificial Intelligence in Legal Services

34

Facial Recognition Technology Used by Private Firms in Public Spaces: Privacy, Surveillance and Reform

38 41

Technology and the Law of War

48

COVID-19 and the Work Health and Safety Act 2020 Part 3

Copyright and Generative Artificial Intelligence

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 e 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: Rob Sutherland RRP $16.00 incl GST.

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Dianne Caruso, Lucy Clark, Tracy Cole, Megan Cramp, Patricia Femia, Jessica Henderson, Anlee Khuu, Roselina Kruize, The Hon John McKechnie QC, Grace Ritter, Dr Pat Saraceni, Robert Sceales, Eu-Min Teng, Johann Andreas von Altenstadt.

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

For details, contact brief@lawsocietywa.asn.au.

REGULARS 02 04 23 24 28 50

President’s Report Editor’s Opinion Member Privileges Quirky Cases Cartoon High Court Judgments

President: Ante Golem Senior Vice President: Paula Wilkinson

52 53 54 55 59 59

Federal Court Judgments Ethics Column Family Law Case Notes Law Council Update New Members

Junior Vice President & Treasurer: Gary Mack Immediate Past President: Rebecca Lee Ordinary Members: Ben Bullock, Thomas Camp, Dr Brett Davies, Angie Gimisis, June Kenny, Judy McLean, Kim Morrison, Terry Palmer SC, Kellie Woods Country Member: Michael Ryan Junior Members: Daniel Dyer-Smith, Tyler Greatrex, Robert Jamieson Chief Executive Officer: David Price

Classifieds

1

PRESIDENT'S REPORT

Ante Golem President, The Law Society of Western Australia

Welcome to the April edition of brief.

Thank you to our CPD speakers, Chairs and Attendees It was another extremely busy CPD year for the Law Society, with over 13,400 total attendances at our seminars across all platforms and I would like to take this opportunity to sincerely thank all our speakers and chairs for generously giving their time and expertise. It is the substantial contribution of our presenters and chairs that enables the Law Society to provide topical and high-quality seminars spanning across all areas of law to the Western Australian legal profession.

We look forward to continuing to provide the opportunity for practitioners to extend their knowledge and skills in the new 2023/2024 CPD Year.

Remember CPD Freedom is included in your membership and it gives you access to quality CPD seminars at no cost, when you renew each year by 31 July. Information on this year’s membership renewal process will be provided to all members beginning in May. *Terms, Conditions and Exclusions apply.

The Unlawful Detention of Juveniles in WA The Law Society has and continues to raise its concerns in relation to the manner in which the McGowan government and the Department of Justice are managing children and young people in detention centres at Banksia Hill and Unit 18, Casuarina by unlawfully: • i mplementing ‘rolling lockdowns’ when no confinement order exists, resulting in the solitary confinement of detainees in their cell for more than 20 hours a day across the whole or much of the centre(s); • m aking confinement orders because of staff shortages under the guise of the Young Offenders 2 | BRIEF APRIL 2023

Act 1994 and the Young Offenders Regulations 1995; and • using Behavioural Management policies, procedures and programs, that allow for the solitary confinement of detainees, and which circumvent and breach express provisions in the Act and Regulations on confinement.

In March, the Law Society wrote an open letter to the media and the leaders of the opposition parties in relation to these concerns, including an opinion piece (which was later published on Thursday, 3 April in The West Australian) and the article "The Unlawful Management of Banksia Hill and Unit 18, Casuarina Detention Centres" prepared by the Hon Denis Reynolds CitWA, former President of the Children's Court of Western Australia, which you can read on page 10.

Voice to Parliament Law Society members will be aware that the Prime Minister announced on 23 March 2023 the question and proposed Constitutional amendment to establish a Voice to Parliament that will be put to Australian voters at the referendum later this year.

The Law Council of Australia’s (LCA) 2017 position is one full and unqualified support for the recommendations of the Referendum Council for a referendum to be held, to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament, recognising the special status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. The LCA has not adopted a position on a “Yes” or “No” vote.

Their position was reaffirmed in a recent media release.

To assist the Law Societies, Bar Associations, staff and members, the LCA has prepared a Guide to the legal profession on the referendum for an Aboriginal and Torres Strait Islander Voice (the Guide) and relevant Appendix. The Guide is

intended to be a ‘working document’, which may require future amendment over time. It is intended that the Guide can be used to inform: • a common understanding of the historical context which led to the referendum and the legal issues arising from the referendum; and • a advocacy and public comment, which give effect to the Law Council’s established position in support of a Constitutionally enshrined Voice.

The Law Society provided the Guide and Appendix to its members in Friday Facts of 21 April 2023.

100faces100yearsWA Photography Campaign 2023 celebrates 100 years since women won legislative change, removing barriers to their right to be admitted and to practise law in Western Australia. The First 100 Years project started in England, to celebrate the 2019 centenary of women practising law in that jurisdiction.

In recognition of the broader passing of the one hundred year mark across Australia, and specifically for Western Australia in 2023, the Law Society of Western Australia and Women Lawyers of Western Australia are collaborating to promote the first 100 years and the importance of women’s contribution to the practice of law.

Our joint #100faces100yearsWA Photography Campaign aims to create an inclusive snapshot of the current faces of women in law in Western Australia and we are inviting all female lawyers to join the campaign by having their portrait image included. To be part of the special centenary celebrations, please email membership@lawsocietywa.asn.au to have your photo included in the #100faces100yearsyearsWA photo gallery. It will be presented on a special website page to celebrate this important milestone.

The campaign was launched on International Women’s Day (8 March

2023) on social media, and we will also be celebrating the 100 years milestone at the Long Table Lunch Live in Law Week at Frasers, Koorta Koomba (Kings Park) on Friday, 19 May. Book online here.

Law Week 2023 Every year Law Week brings an opportunity to connect the legal profession and the broader community to build a shared understanding of the law. This year’s programme again promises to be an exciting one, with events for both the profession and the community from Monday, 15 May to Friday, 19 May – mark your diaries!

Law Week showcases the important services provided by lawyers which benefit the wider community.

Throughout Western Australia you will find lawyers using their skills to help others in a wide range of ways, with many of these providing free education for the community during Law Week.

The Law Society is hosting a number of great events, including a Law Week Book Club Forum – How Many More Women? by Jennifer Robinson & Keina Yoshida on Monday, 15 May, the popular Law Access Walk for Justice will take place on Tuesday, 16 May and a special exhibition at the Old Court House Law Museum called Audrey Jacob: Trial by Public Perception. The Law Society’s Young Lawyers Committee is hosting a free panel event on Thursday, 18 May. Please visit lawsocietywa.asn.au/ law-week/#law-week-events for details of the major events taking place.

Country Lawyers CPD Day Country lawyers, more than most, understand the isolating impact of distance that make it difficult to get together as a profession, to share collegiality and support, and to learn from each other through tailored Continuing Professional Development initiatives.

I encourage country practitioners to save the date for our Law Week

Special CPD Day for Rural, Regional and Remote Legal Practitioners on Friday, 19 May 2023. Please click here for information. This CPD Day is FREE to Law Society Country Members with CPD Freedom and is heavily discounted for Country Members and Non-member Country Practitioners. (Conditions apply.)

Law Access Law Access Ltd provides a valuable service by matching applications for legal help from vulnerable and financially disadvantaged members of the community to lawyers and legal firms willing to provide their services free of charge.

Law Society members agreed at the Annual General Meeting to provide an additional $20,000 cash support to Law Access Ltd. This brings the total funds paid to Law Access Ltd by the Law Society on behalf of its members to $40,000 this financial year. This significant contribution is in addition to a range of services provided to Law Access at no cost by the Law Society.

As the demand for legal assistance for those experiencing financial difficulties continues to increase, long-term and substantive funding increases are important to ensure access to justice for the vulnerable and disadvantaged members of our community. Your valued membership allows the Law Society to provide this ongoing support to Law Access Ltd. Committee Update Our committees continue to contribute to and comment on many consultations and policy matters including making submissions to: • T he Law Council of Australia on a federal judicial commission; • T he West Australian Police Force on the statutory review of the Mandatory Testing (Infectious Diseases) Act 2014; and • T he Legal Costs Committee on the review of non-contentious business determinations.

In addition to the above: • T he Law Society has established a working group to prepare an advocacy strategy to lobby government on the solicitor remuneration rate for legal aid/ legal assistance work.

• T he 2023 Family Law Specialist Accreditation programme is underway with two information sessions having been completed, and mock file, written examination and simulated client interview taking place in June/July 2023.

Judicial Appointments The Law Society congratulates: • The Honourable Justice Debra Mortimer on her appointment as the new Chief Justice of the Federal Court of Australia. Justice Mortimer is the first female Chief Justice since the Federal Court was established in 1976.

• Fiona Seaward SC, who is a member of the Law Society, on her appointment as a Judge of the Supreme Court of Western Australia.

• Mark Ritter SC on his appointment as a Judge of the District Court of Western Australia.

• Melita Medcalf, who is Law Society member and former Country Member on the Law Society’s Council, on her appointment as a Magistrate of the Magistrates Court of Western Australia.

• Mr Steven Jones SC on his appointment as a judge of the Federal Circuit and Family Court of Australia (Division 1) and the Family Court of Western Australia.

LawCare WA Balancing work and life can be challenging, and I would like to remind you that your membership of the Law Society provides complimentary access to LawCare WA, a valuable, free, and confidential, support programme to assist you. See the back page of Brief or visit lawsocietywa.asn.au/ lawcarewa for more information and to access these resources.

3

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

Artificial Intelligence (AI) is currently dominating the news, academia, and social, political, and philosophical commentary, and so this edition’s special feature on AI and the future of the law is timely and topical.

There has been much publicity about Elon Musk’s recent open letter, co-signed by significant players in the industry, calling for a six month pause in any further development of advanced AI technology.1 It seems likely some were calling for an even longer, perhaps indefinite, pause such as Sarah Connor and her son John Connor of California, who have suffered through years of bad experiences and six movies because AI went seriously wrong. Hopefully many readers get this reference without the assistance of ChatGPT, though it would be interesting if AI, when asked, would admit it had given the Connors’ a very rough time (including causing, or being responsible for forcing, robots and people on various occasions to be sent back in time from an apocalyptic future to either kill them or protect them – it sometimes not being entirely clear which was the case- and, in one instance, impregnate one of them). 2 Our cover was, in a first for Brief, generated with AI via ChatGPT and our feature section showcases two articles on the law, one by a former lawyer and the other by ChatGPT – with a challenge to readers as to whether they can tell who wrote each item. It is accompanied at the end by Dr Jessica Henderson’s exposition upon the background to the segment.

We have other articles focusing on the uses and implications of AI for the legal profession, with insights from Professor Michael Legg on how ethical responsibilities both limit and require the use of AI, Professor Jeannie Marie Paterson on Facial Recognition Technology (‘FRT’), Professor EJ Wise on the extent to which the law of war apply to cyberspace, and David Wilson on why copyright law seems ill equipped to deal with AI technology. The YLC provides their take on whether AI will replace junior lawyers, with Aunt Prudence even weighing in on AI. The feature section also provides general insights into what AI is, its various forms and manifestations, what it can do and, just as importantly, what it cannot (at least for now) do.

Readers are encouraged to set fifteen minutes aside to get up to speed on how fast technology is moving – with the future already effectively and figuratively here (the future being literally here 4 | BRIEF APRIL 2023

something regularly bemoaned by the Connors).

Musk’s concerns are mainly expressed at a much higher and existential level than that which concerns the type of AI lawyers need be concerned with at this stage. While some note that Musk is calling for a pause in some AI activities, while barrelling ahead with electric vehicles that drive themselves and occasionally burst into flames, he is undoubtably on an epic roll at the moment, having purchased Twitter, disengaged AI algorithms seen as interfering with free speech, fairness and the dissemination of information, while also engaging in the most exquisite acts of fearless and hilarious trolling (and also recently changing, for a time, the Twitter logo from the iconic blue bird image to an image of Doge Dog).3 Musk did, earlier this week, during a TV interview refer to the potential, however small, for “civilisational destruction” from AI, though said that this wouldn’t happen like in The Terminator movies, because it would occur through the data centres, of which the robots are just end effectors. Which is a little disappointing because if one is going to be subjected to the destruction of civilisation, you might want to at least see first-hand the very cool T-1000 liquid metal Terminator from Terminator 2: Judgement Day (1991).

While Musk’s concerns might not be focused on the type of AI our special segment is directed to, some lawyers may well regard being replaced on jobs, and/or not being able to charge as much for them, as a form of civilizational destruction.

The concept of AI, and reservations about it, are not new. Jonathan Swift alluded, though not in a flattering way, to AI in his 1726 classic Gulliver’s Travels (1726) with “The Engine”, a fictional device developed by the fictional island of Lagado’s Academy of Projectors. Lagado was mainly occupied by educated elites, though was impoverished because the King invested heavily in the Academy of Projectors, who embarked upon useless experiments of little value or hope of success, such as extracting sunbeams out of cucumbers, teaching maths by writing equations on wafers and having students eat them, training spiders to spin coloured webs, and building houses from the roof down. Swift wrote as follows of the The Engine, which generated permutations of word sets: “Everyone knew how laborious the usual method of attaining to arts and sciences; whereas, by this contrivance, the most

ignorant person, at a reasonable charge and with a little bodily labour, may write books in philosophy, poetry, politics, law, mathematics and theology, without the least assistance from genius or study.”

This is certainly not a desirable outcome of AI in the legal, or any other, profession.

Also, readers are not invited to speculate or comment upon whether it seems this or any previous editorials have been contributed to by AI or indeed The Engine.

The point is often made that AI is already being used by most people and has been for some time. When using Siri, or, for instance, dictating messages with auto-spell-correct engaged, one is using AI technology, the problems with which would resonate with those who have ever dictated an SMS message to their spouse, “I will be home very late” and found out much later that it was sent as “I will be home well before 8.”

The articles in our special section, as well as all our other articles and items, demonstrate that the law and the practice of it is so multifaceted, with so many diverse and different areas and moving parts, that AI, while capable of enhancing and assisting with some and even significant aspects, cannot replace human intelligence, ingenuity and judgment in all respects.

AI will also give rise to work for the profession because (as is being proposed at the moment) it will need to be regulated and will also inevitably give rise to novel legal issues and disputes.

For instance, there was great excitement, followed by great disappointment, surrounding the much-touted prospect of the first robot lawyer to appear in a US courtroom, to defend a charge relating to a speeding ticket, through an App called “DoNotPay”. This never happened because the App’s owner, not being a licensed lawyer, received threats about its use in Court, and pulled out, saying that “I underestimated the persistence of greedy lawyers” and “I feel like they feel threatened by this experiment” (something one need only possess some intelligence, and not necessarily AI, to realise should never be underestimated).

One serious issue with AI, with uncertain legal implications, is that it can publish false and defamatory statements.

Australia is a potential ground-breaker here, as the Mayor of the Shire of Hepburn in Victoria, Brian Hood, could be the first person to bring a defamation action against an AI chatbot, after being defamed by it. 4

The explanation for why AI might say false and defamatory things revolves around it “hallucinating”. An interesting exercise is to ask ChatGPT itself about such flaws (and one gets an honest answer, something rarely obtained from asking a human the same thing). ChatGPT explains that because it: “has read so many different things sometimes it gets confused about what it should say. It’s kind of like when you are dreaming and things don’t always make sense – it is not real, but it is still in your head” and so it “might give an answer that is not completely true or make up a source that doesn’t actually exist. It’s kind of like when you’re telling a story and you mix up some of the details – you don’t mean to lie, but you just get a little bit confused.”

Such a type of hallucionary statement might be given by someone who had, for instance, sent a message saying they said that they would be home well before 8.00pm, upon getting home at 4.30am the next morning.

In celebrating technological and other achievements, we should not focus exclusively on AI, but should also mark

a wonderful anniversary: 100 years ago, Vegemite was created and marketed in Australia. Developed by food technologist, Cyril P Callister it, being in immediate competition with Sanatorium’s Marmite, struggled. So, the decision was made to rename it as “Parwill” and marketed under the slogan “If Marmite.... then Parwill” which was itself a failure and sounds like a marketing phrase developed by the most rudimentary AI, perhaps even The Engine. The original name of Vegimite was reverted to, and the product really took off in the early 50’s when the far more successful and endearing jingle, which probably only a human could come up with, “We’re Happy Little Vegemites”, aired.

This edition also contains some hardhitting articles such as on “The Unlawful Management of Banksia Hill and Unit 18, Casuarina Detention Centres” by The Hon Denis Reynolds Cit WA and Tom Penglis on “The Extraordinary Powers of the Western Australia Police Force”.

We have important information for the profession on “The proper use of the cost discretion to regulate interlocutory proceedings” by Dan Morris, David

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Huggins on The Australian Financial Complaints Authority, and the third and final part of Peter Lochore’s analysis of Employee duties and responsibilities concerning COVID-19 and the Work Health and Safety Act 2020.

Brief also thanks, as always, our regular contributors and note that, happily, we have a letter to the Editor in this edition, something which it is hoped will be a continuing trend.

Endnotes 1. “ Elon Musk calls to stop new AI for 6 months”, www. popularmechanics.com, 30/3/2023.

2. F or the sake of clarification, the latter (impregnation) was in respect to Sarah Connor, but nowadays and how things are going, and certainly having regard to the future, that may not be so obvious.

3. R eaders are encouraged to, if unaware, ask Chat GPT about what “Doge Dog (Shiba Inu)” is (actually the image is of significance because it is also known now as the Dogecoin Dog- see “Elon Musk put the Dogecoin dog as Twitter’s logo, it’s now up by $4b”, www.afr.com , Reuters, 5/4/23.

4. S Khatsenkova, N Huet and Reuters, “Why does ChatGPT makes things up? Australian Mayor prepares first defamation lawsuit over it”, www.euronews.com (2023/04/07).

Letter to the Editor

Dear Editor I wish to echo the sentiment of Dr Huntly, in his article "Demise of the Crown in Western Australia", that lawyers considering their career could do well to consider the option of opportunities in the public service sector.

The practice of law in all areas can be very challenging but we do also have the satisfaction of helping clients achieve objectives that they do not have the training or knowledge to be able to do themselves. As Dr Huntly commented, in the public service matters that we work on can have a broader effect. At the risk of being self-indulgent, I give two examples.

A recent article in The West Australian newspaper has brought to mind when I was working for the Crown Law Department, as it was then called, in the 1970s. My duties included being the Western Australian legal officer attached to the Standing Committee of Attorneys General of Australia and New Zealand (“Standing Committee”). One of the topics raised for consideration for uniform law was the interstate transfer of prisoners. I was a member of the subcommittee that prepared a position paper for the Standing Committee. It was a subject that had many issues. However, potential benefits being considered were promoting successful rehabilitation and reintegration into society of prisoners and also the practical aspect of better dealing with the situation where a prisoner in one State has various criminal charges against him or her in other States. To wait until the prison term expired and then arresting the prisoner on release and bring him or her to trial in another State posed many difficulties with the passage of time.

For the prisoner to be transferred to another State and have all outstanding charges dealt with and sentencing with knowledge of the existing sentence could bring some clarity and direction of the prisoner’s future and hopefully assist in rehabilitation.

6 | BRIEF APRIL 2023

After consideration and discussion, the Standing Committee was in favour of uniform legislation for interstate transfer of prisoners. By then I was on extended long service leave and also researching constitutional law at UWA. From my involvement and research on the position paper for the interstate transfer of prisoners, the Standing Committee asked if I would accept a brief to prepare the draft uniform legislation. I was happy to accept the assignment and in due course my draft was accepted as the pro forma for the uniform legislation.

Processing through to become law takes time and the relevant legislation in Western Australia is Prisoners (Interstate Transfer) Act 1983.

I had no involvement beyond that but with the concept or transfer of prisoners established in Australia it expanded into the international sphere.

Now the International Transfer of Prisoners Act 1997 (Commonwealth) provides legal framework for the international transfer of prisoners scheme administered by the Commonwealth Attorney General’s Department. Under this, with various Treaties, Australia is now able to undertake transfers of prisoners with over 60 countries.

with the establishment of the Family Court. There may be differing views as to whether the solution that was adopted for balancing uniform laws with State rights within a Federation and preserving the status of the Judiciary. It seems overall to have been very successful. In any event to have had some involvement with the establishment of that Court through my employment has been rewarding.

At this stage, I am probably the last remaining person with a practice certificate to have had any involvement at that time.

I am not seeking to sell a career in the public service, in fact I have spent more time in private practice than with the public service. In both there are times that are rather mundane, times that are stressful and times that are rewarding.

As I said at the beginning, I just wish to echo Dr Huntly saying that in looking for a career do not overlook what may be offered in the public service.

Yours Faithfully Murray Smith Murray Smith Solicitors Mosman Park WA 6012

From time to time, news reports refer to Australians imprisoned overseas being transferred back to Australia to serve out their sentences, hopefully with a better prospect of successful rehabilitation than may otherwise have been the case.

No instant gratification here from the work I did in the 1970s but to have played a small role in such community issues has been a rewarding element of practice.

Another of the projects of the Standing Committee of around that era was the establishment of the Family Court throughout Australia and in particular the Family Court of Western Australia.

I had the privilege of working with the Solicitor General, Ron (later Sir Ronald) Wilson QC in researching and advising on Western Australia going its own way

Brief welcomes your thoughts and feedback.

Please end all letters (or any article submissions) to the Editor to brief@ lawsocietywa.asn.au.

Law Week 2023 Justice | Inclusion | Community

Law Week Book Club Forum – How Many More Women?

by Jennifer Robinson & Keina Yoshida Monday, 15 May 5.45pm – 8.00pm Herbert Smith Freehills, Level 11 1 The Esplanade Perth Find out more

YLC Law Week Panel - Multidimensional Discrimination in the Workplace: The question of intersectionality Thursday, 18 May 5:30 pm – 7:30 pm Bennett, Level 14 Westralia Square, 141 St Georges Terrace Perth Find out more

Law Week Long Table Lunch Live Friday, 19 May 1.00pm – 4.00pm Frasers, State Reception Centre 60 Frasers Avenue Kaarta Koomba (Kings Park) Find out more

Monday, 15 May – Friday, 19 May The Western Australian legal profession’s annual celebration of law and justice in the community.

Supported by

Interview: Law Society Council Member Tyler Greatrex Solicitor, Palisade Corporate

Why did you decide to run for the Law Society Council?

I have always considered that one aspect that makes a lawyer a good lawyer is their ability to be able to balance their time effectively and use their spare time to give back where they can. As a Junior Lawyer I considered it important to be able to join the Council in an effort to give back to an industry that has already provided me with boundless opportunities.

You are working in litigation.

What drew you to this area of practice?

Throughout my degree I worked for a busy Family Law firm and developed a love for litigation and being able to advocate for a client in court and achieve a successful outcome. I found myself in Commercial Litigation in April 2022 and haven’t looked back since.

Before the law, you were with the Australian Army. What was that experience like?

The Australian Army helped me develop a work ethic which has held me in good stead in law. Additionally, it forced me to grow up pretty quickly and view situations objectively, which as it turns out, is also another good trait to have for my career in law.

What motivated you to move into law after the Army?

My move into law following the Army was not immediate and initially I had attempted several times to join the Western Australian Police, DFES and the Department of Justice (Corrective Services). However, the injury that I sustained while in the Army made this difficult. At 26 I decided that I needed to make a plan and stick to it so that I could have a life I would be proud of and that would give me unlimited opportunities to give back to society and help those who are unable to help themselves. I 8 | BRIEF APRIL 2023

enrolled myself to begin my law degree and completed it full time while working full time in order to achieve a goal I had set for myself to be admitted before my 30th birthday. I was admitted 2 months before my 30th.

You are an advisory board member with Fortuna Foundation, what does this involve?

Fortuna Foundation is a new NFP which was born from an AFR Top 100 Accounting practice known as Fortuna Advisory Group. They initially started a philanthropic project called ‘Positive Spin’ that would allow the homeless in Perth to be able to access a special purpose van, custom fitted with washing machines and dryers, so that they could frequently wash their clothes. Following the success of the Positive Spin project, Fortuna Foundation was born to expand on their ability to give back to the Perth community. I sit on the board to help advise on matters of Strategy & Growth, Sustainability, and Corporate Governance.

Is there anything you wish you had known when you first entered the profession?

Nothing comes to mind. I’ve always approached everything I’ve done with a view that if I work hard, the opportunities I seek will become attainable. I always knew that the legal profession was either going to be a good experience or a bad experience depending on how hard I was prepared to work and on what I was prepared to give. I am happy to say that the last 4 years have been an amazing experience for me.

Is there anything you would like to change about the legal profession?

I think the legal profession has made leaps and bounds in how it has developed over the years to support

and encourage its junior lawyers. I would like to see that continue to develop and hopefully be a part of that in my time on Council.

Do you have a favourite part of Brief?

I do always enjoy reading the articles that are published in Brief as well as the Judgments. It serves as a quick overview (or recap) on what would ordinarily be some lengthier reading.

Lawyers are known to work long hours, how do you manage to balance your work and personal life?

What’s a personal life? I’m kidding.

Palisade Corporate is big on making sure that its lawyers have an appropriate balance between work and personal life because they know that a burnt out lawyer is no good to anyone. Personally, I must confess that sometimes I do find it hard to switch off but that’s where I am grateful of the support not only offered by my firm but by my partner (girlfriend – not law firm partner), Megan.

Do you have any wellbeing tips?

1.

Don’t be afraid to speak to someone if you are feeling overwhelmed;

2. There is no shame in seeking professional help so that you can be the best you on offer to your work colleagues and your clients and your family; 3. Always make time to do at least one thing you love each week; and 4. Remember to remain grateful for the little things and that tough times will always pass.

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The Unlawful Management of Banksia Hill and Unit 18, Casuarina Detention Centres Law Society Member, the Hon Denis Reynolds, was President of the Children’s Court of Western Australia from 2004-2018 and Judge of the District Court of Western Australia from 2004-2018 (including Senior Judge from 2016-2018). The Hon Judge Reynolds retired in 2018 after 34 years on the bench. He is the longest serving President of the Perth Children’s Court of Western Australia and one of Australia’s longest serving judicial officers.

By The Hon Denis Reynolds CitWA

Our democracy and structures of government are underpinned by the rule of law.

Fundamental to the rule of law is the concept that all persons and agencies within executive government are bound by and should comply with the laws enacted by the legislature to protect the rights of individuals in our society.

That is particularly so if the individuals are children and young people – even more so if they are in the care and control of the State.

It is therefore a very serious matter if the Department of Justice (the Department) has been and is unlawfully managing children and young people in detention centres at Banksia Hill (BH) and Unit 18, Casuarina (U18).

Regrettably, the Department is continuing to unlawfully: 1. Implement ‘rolling lockdowns’ when no confinement order exists, resulting in the solitary confinement of detainees in their cell for more than 20 hours a day across the whole or much of the centre(s); and 2. Make confinement orders because of staff shortages under the guise of the Young

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Offenders Act 1994 (the Act) and the Young Offenders Regulations 1995 (the Regulations); and 3. Use Behavioural Management policies, procedures and programs, that allow for the solitary confinement of detainees, and which circumvent and breach express provisions in the Act and Regulations on confinement.

Confinement Orders under the Act and Regulations Types of order Sections 173 (1) - (5), and 196 (2)(e) of the Act and Part 9 of Division 3 of the Regulations govern ‘confinement of a detainee’ to sleeping quarters or a designated room. There are two kinds of confinement orders. A Detention offence confinement order (Detention CO) and a Good government, good order or security confinement order (Good government CO).

A Detention CO is governed by s.173(2) (e) and Regs 73, and 74 – 77. A Detention

Offence can be heard by a visiting justice or the Superintendent at the election of the detainee. Detention offences include threatening or assaulting an officer, damage, or riotous behaviour. A Detention CO is clearly a punishment. A visiting justice may impose a maximum period of confinement of 48 hours, and the Superintendent, a maximum of 24 hours.

A Good government CO is governed by s.196(2)(e) and Regs 73, 74, and 78 – 80. Its purpose is to maintain the good government, good order or security of the centre. It can only be made by the Superintendent (or delegate) for a maximum of 24 hours.

Requirements for time out of cell Reg 73 relevantly defines “unlock hours” to mean “the period during which detainees who are not subject to confinement are able to leave their sleeping quarters.” No maximum or minimum time is fixed. So the amount of time out is dictated by the unlock hours decided by the centre’s management. BH operates on 11 hours 15 minutes unlock hours.

Pursuant to Reg 76(3), a detainee on a Detention CO “is entitled to fresh air, exercise and staff company for a period of at least 30 minutes every 3 hours during unlock hours.”

Pursuant to Reg 79(4), a detainee on a Good government CO “whose confinement is for 12 hours or longer is entitled to at least one hour of exercise each 6 hours during unlock hours.”

BH operates on 12-hour shifts. A night shift of 12 hours is a long time for a child. The obvious question, having regard to the objects and principles of the Act, is why isn’t the number of unlock hours in practice at least 12 hours?

That would significantly increase, albeit in a relative sense only, the entitlement for time out of cell for both kinds of confinement orders. It would add at least 30 minutes for a Detention CO, and one hour for a Good government CO. It should be noted that these statutory minimum entitlements breach those in international human rights conventions. If BH was managed in accordance with the objects and principles of the Act, applying a therapeutic model to pursue the rehabilitation of detainees, then unlock hours would be at least 12 hours.

Unfortunately, it is clear that the Department is not even complying with the inadequate minimum requirements of the Regulations.

1. The Practice of ‘rolling lockdowns’ because of staff shortages is unlawful In VYZ by his next friend XYZ v Chief Executive Officer of the Department of Justice (2022) WASC 274, per Tottle J. delivered 25 August 2022, His Honour made a declaratory order that confinement of VYZ in his sleeping quarters at BH on each of 26 days for more than 20 hours a day between January and June 2022 was unlawful.

VYZ was on remand. He turned 15 years old when in BH. He was not the subject of any confinement order. He was not locked down because of any breach of discipline. ‘Rolling lockdowns’ is the description used when the whole detention centre or whole units are placed in lockdown and each detainee is solitarily confined. Over the course of the day on a rolling basis, detainees are each rotated out of their cell for a relatively short period of time during which they can make a phone call.

Rolling lockdowns are caused by severe staff shortages. On any given day, only 50 percent of the required staff are on duty.

Because VYZ was not on a confinement order, His Honour’s finding on the amount of time in cell of more than 20 hours did not involve any interpretation of the provisions on the minimum entitlement for time out of cell for

confinement orders. VYZ’s case was focused on him being confined for long periods of time.

In His Honour’s view, any time over 20 hours a day was unacceptably long and unlawful.

The CEO did not appeal against the declaratory order. It is the law, the Department is bound by it, and detainees are entitled to it.

His Honour made strong and instructive statements in the course of his reasons. At para 71, he described solitary confinement of detainees as a “severe” and also an “extraordinary measure” which “should only be implemented in rare and exceptional circumstances”. He also referred to the “significant harm” that it can do to children “many of whom are already psychologically vulnerable”.

At para 87 he stated: “I do not accept the respondents’ contention that even if the court concluded that the confinement of the applicant to his sleeping quarters in the manner described in these reasons was not authorised by the Act the court should decline to grant declaratory relief because ‘locking detainees in their sleeping quarters is a regular occurrence’ and the practical problems that granting a declaratory order would create would be ‘disproportionate to the consequences of the unlawful decision’.

Read in one way the submission might be understood to suggest that even if the practice of locking detainees in their sleeping quarters was beyond the respondents’ statutory power, it is a practice that would continue unless a declaration was made. If that is the way in which it was intended to be understood it is to be deprecated in the strongest terms.”

Whatever the Department intended by that submission, worse still, since the declaratory order, it has continued to unlawfully lockdown vulnerable children for long hours, including in excess of 20 hours a day, because of staff shortages.

In his paper on “The Rule of Law in a Social Media Age” presented for the Sir Francis Burt Oration 2022, the Honourable Justice Peter Quinlan, Chief Justice of Western Australia, in the context of court orders being routinely treated as aspirational guidelines rather than binding obligations, stated as follows at pp 19 and 20: “It is most concerning, however, when it is seen in the actions or attitude of the executive government. The courts, after all, are unable to enforce their own orders; they are, in large part, dependent upon officers of the executive government to execute and enforce them. And when those orders are orders directed to the executive government, they are dependent upon officers of the executive government to implement and obey them. It

does not take much imagination to see that if executive governments take the view that decisions of courts are simply one point of view among many, or that the executive may take the view that a decision is wrong in law and need not be followed, the rule of law will not long survive.”

The Department’s conduct of continuing with rolling lockdowns since VYZ fits squarely into that statement. It is treating the decision of Tottle J. simply as one point of view among many rather than obeying it.

2. Good Government COs based on staff shortages are unlawful The Superintendent has recently started to make Good government COs to deal with practical problems in light of chronic staff shortages. The question is whether that is lawful.

While that question did not fall to be determined in VYZ, Tottle J.’s reasons assist in deciding it. The answer is a matter of statutory interpretation.

The provisions in the Act governing confinement refer to “a detainee”. In particular, s.196(2)(e) of the Act, which empowers the making of regulations conferring authority on the Superintendent to make Good government COs, expressly confers authority to order that “a detainee” be confined to “the detainee’s” sleeping quarters or to a designated room, for “a period” not exceeding 24 hours (my emphasis).

Clearly these provisions require consideration of the particular circumstances of a particular individual detainee. They do not permit a single net to be cast over the whole population, or any accommodation unit, or any group of detainees. Confinement orders are only justified based on the individual detainee’s circumstances.

The fact that the Superintendent’s power is a broad discretionary power, and not limited to the detainee’s behaviour, does not diminish the statutory requirement that a Good government CO must be based on something “in respect of the particular detainee” against whom it is made.

It follows, that for the relevant regulations on Good government COs to be within the power granted by s.196(2)(e) of the Act, they must be consistent with that interpretation of the Act as just outlined.

A perusal of the relevant regulations, namely Regs 74(2), and 78-80, which are expressly related back to s.196(2)(e), show that to be the case. Reg 78(2) provides that work time can be counted as confinement time. Reg 79(5) provides that confinement time can

11

be cut short and a detainee be returned to the appropriate program area. Clearly those regulations require a consideration “in respect of the particular detainee” the subject of the order.

Any practice of loudly announcing from some location in the centre or a unit, to all of the detainees in their cells that there is a lockdown for the day, hoping that they will all hear and understand it, and then making a separate record against each detainee, cannot and will not make the lockdown lawful.

In VYZ, the Department’s lawyers submitted that s.11D of the Act, was the source of power to implement rolling lockdowns. Tottle J. rejected that submission. He found that s.11D is about the use of personal restraints (e.g. handcuffs) and not about rolling lockdowns.

Section 11D refers to “a young offender” rather than “a detainee” because the power broadly covers every young offender whether outside or inside a detention centre. For present purposes, when inside a detention centre, “a young offender” can be read as “a detainee”.

While His Honour rejected the submission on s.11D, it is instructive to note that in para 83 he added: “There is no evidence to support a finding that either the chief executive officer or Mr Reid (the Superintendent at the time) formed an opinion in respect of the applicant that it was necessary for him to be restrained by confining him in his sleeping quarters for one of the reasons specified in s.11D.” It should be noted that my interpretation of s.196(2)(e) – as requiring a focus on the individual detainee - is entirely consistent with His Honour’s comments.

In short, staff shortages are not a matter ‘in respect of a detainee’. Therefore, they do not constitute a proper jurisdictional fact to enliven the statutory authority of the Superintendent to make a Good government CO against a detainee or detainees.

Tottle J. stated at para 72: “Framing the practice of locking detainees, who are children, in sleeping quarters for between 20 and 24 hours a day on a regular basis, by reference to an inability to provide ‘optimal services’ grossly distorts the perspective from which the practice should be assessed.”

In other words, staff shortages cannot be relied upon to implement rolling lockdowns.

At para 88 he stated: “Ultimately, the answer to the concern about practical problems is that the detention centre must be administered in accordance with the Act and the Regulations. The chief executive officer is under a statutory duty to administer

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the Act in accordance with its terms and is empowered to appoint such officers as are necessary for that purpose. It is simply not open to those who are responsible for the care and welfare of detainees to adopt practices which are not authorised by the Act.” By that statement, His Honour succinctly set out the bottom line – the Department needs to obey the law.

I should add that repeatedly making Good government COs on consecutive or any subsequent day(s) because of staff shortages, as is currently routine, is not only unlawful of itself for the reasons just given, but also because Good government COs are limited to a maximum of 24 hours.

3. Behavioural management practices circumvent the legislation and are unlawful.

3.1 Confinement by Custodial Officers.

Reports by the Inspector of Custodial Services in 2012, 2013, 2017, 2018 and 2022, have repeatedly recommended that the Department: • Review, repeal, and re-enact legislation to provide for regimes governing confinement which included adequate protections for detainees; and • Improve its record keeping on in and out of cell hours.

In 2018 the Department: • Accepted the recommendation for legislative change and committed to completing it by 31 December 2019 • Claimed it had already introduced an on-line recording process which clearly indicated time in and out of cell.

The Department has failed to deliver on both.

Instead, it has dealt with confinement by using administrative practices which circumvent the express confinement processes required by Parliament in the Act and Regulations. Since November 2020, no magistrate of the Children’s Court, as a visiting justice, has heard any charge of a detention offence.. And since November 2022, there has been no magistrate even appointed to hear one. Some magistrates have only recently been appointed as visiting justices with effect from 16 March 2023.

Recent cases in the Children’s Court show that the Superintendent has started to make Good government COs. The current ‘confinement’ procedures for BH are the Commissioners Operating Policies and Procedures (COPP) 6.1 Behavioural

Management (the COPP BM), and the COPP 6.10 Confinement (COPP C). Previous procedures, and the current procedures just mentioned, allowed/allow for ‘custodial officers’ to confine detainees in the Intensive Support Unit (ISU) at BH. Cells in the ISU are small and stark. A detainee is confined alone. The ISU was originally used for observation, crisis care, and monitoring detainees at risk of self-harm. However, its primary purpose for many years and now is discipline/punishment. The Department puts that under the guise of good government, good order or security, and rehabilitation.

The fact is that the name ISU belies the harshness of the conditions, and the lack of supports given to detainees confined in it.

The provision in COPP BM, para 8.5.2, that a Personal Support Program (PSP) is not to be considered disciplinary is a nonsense considered against the contents of the COPP BM as a whole and how it is used and breached in practice.

An example of a custodial officer using this authority to confine a detainee solitarily in the ISU, is when the officer decides that the detainee is not complying with behavioural requirements of a PSP and is unlikely to, or has done something serious enough in nature.

Under the COPP BM (unlike confinement orders under the Act), there is no time limitation for these confinements and nor are there any safeguard minimum requirements for time out of cell. As a result, detainees have been spending many days, including many consecutive days, in the ISU with very little time out of cell.

Section 11B(d) of the Act relevantly provides that a custodial officer “may issue to a detainee such orders as are necessary for the purposes of this Act, including the security, good order, or management of a facility or detention centre.”

In VYZ, Tottle J. considered the power of custodial officers to confine detainees . At para 84, specifically on s.11B(d), he stated: “However, for the reasons I have already touched on, (the extraordinary nature of the power to order confinement and the existence of express powers concerning confinement) the power to issue orders under s.11B(d) does not extend to ordering that a detainee be confined in the manner and for the periods that the applicant was confined on the days identified in the application.”

At para 86, under the heading “Good government, good order or security” he stated that in his view s.11B(d) provided custodial officers “with the power to order detainees to be confined in their sleeping quarters in the event of a disturbance or the existence of a

hazard from which the detainees need to be protected.” However, he added: “For the reasons given above, however, it does not extend to ordering that a detainee be locked in his or her sleeping quarters, in effect, resulting in the detainees being kept in a state of solitary confinement all day. The extraordinary nature of the power to confine a detainee for periods not exceeding 24 hours to maintain the ‘good government, good order or security’ of a detention centre is recognised by the fact that it is conferred on the Superintendent.”

For completeness, I refer to ss.181(1) and (2) of the Act. They provide that the chief executive officer may, with the approval of the Minister, make rules for the management, control, and security of detention centres generally or a specified detention centre, and that such rules may confer a discretionary authority on any person or class of persons.

However, it is trite law that such rules cannot be inconsistent with the express provisions of the Act and Regulations. In my view, the COPP BM provisions are inconsistent with the Act and Regulations as they purportedly give custodial officers the authority to confine detainees for behavioural management and for an indefinite amount of time. To that extent, they are unlawful.

3.2 The Unit 18 Casuarina Multidisciplinary Team (the CMT).

In the State of WA v Z(J)M, Children’s Court of WA, per President Quail, heard on 10 February 2023, and transcript published on the Children’s Court website, reference was made to contents of a detention management report (DMR) filed by the Department. It set out that the CMT reviews all referrals for placement in U18. It also set out that the aim of the CMT is to provide oversight, transparency and good government to all young people referred for and placed in U18.

Z(J)M was allegedly involved in incidents on 31 December 2022 and 12 January 2023.

As noted earlier, there is currently no visiting justice appointed to hear detention offence charges. However, on 13 January 2023, the CTM recommended that Z(J)M be moved from BH to U18. The recommendation was approved by the Superintendent and Z(J)M was transferred that day.

Unlawful Management has serious direct and indirect consequences

The DMR also set out that “A move to U18 is not considered a consequence or a punishment for behaviour” and that “Z was moved to Unit 18 based on a determination of his on-going risk to the safety and good order of the Centre.”

3. It is exacerbating the behaviours of already vulnerable detainees;

In the week after he arrived at U18, based on the Department’s records, which may not necessarily be accurate, Z(J)M spent one day in his cell for just under 20 hours, one day for over 20 hours, 3 days for over 21 hours a day, then one day for over 22 hours, and then one day for over 23 hours. Over the next 19 days, his time out of cell varied but continued to be minimal.

The simple point is that however the Department dresses up the role of the CTM and the basis of its decisions to transfer detainees to U18, it is clearly a behavioural management procedure. As such, it falls outside of the legislative procedures and protections on confinement that Parliament has required.

The transfer of Z(J)M was clearly a punishment for his alleged misbehaviour.

Given his harsh and inhumane treatment from as soon as he arrived, it is dishonest and embarrassing to claim otherwise.

In no order of priority they are: 1.

BH and U18 are not fit for purpose;

2. The safety of detainees and staff is significantly compromised;

4. Increased risks of, and realisation of, selfharm and suicide; 5. Chronic staff dissatisfaction, attrition rates, and shortages; 6. Compromise of the work of the Children’s Court; 7. Compromise of the work of the legal profession by denial of proper access to, time with, and information on clients; 8. Family of detainees being denied access to and information on their children; 9. Compromise of educational, recreational, vocational and cultural programs; 10. Collateral trauma to people who work in the youth justice system; 11. The State being exposed to actions for compensation by children, to whom it owed a duty of care, for potentially large sums.

All of these systemic failures and their adverse consequences will only end when the executive government starts to obey the rule of law.

The creation of the CTM is not of itself unlawful. However, it is unlawful for it to make decisions based on the alleged behaviour of a detainee and knowing full well that the detainee will inevitably be held in solitary confinement at U18 for more than 20 hours a day, and on consecutive or subsequent days.

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The Extraordinary Powers of the Western Australia Police Force

By Tom Penglis, Law Society Member and Co-founder Western Australian Justice Association

We are living in an unprecedented period in Western Australian political history.

The State Government is enjoying the largest state parliamentary majority in history. The Government is taking advantage of this position to enact various extraordinary lawsaimed at addressing crime. This legislation is politically popular and creates the perception that the Government is effectively tackling crime in our communities. This is in large part thanks to the often friendly and sensationalised media reporting of these laws.

Whether such legislation is effective at addressing crime in our communities is not the focus of this article. Rather, this article is chiefly concerned with the draconian nature of these laws and the threat that they pose to the effective separation of powers and rule of law in Western Australia. This article briefly sets out some of the extraordinary new powers given to WA Police since the last State election, and the concerning manner in which some of the empowering laws were developed. In so doing, I will seek to demonstrate that the McGowan Government is: 1. e nacting legislation that confers extraordinary powers on WA Police at a concerning rate; 2. a s part of these laws, significantly eroding the judiciary’s role as a “check and balance” on the exercise of executive power; and 3. g iving WA Police an inappropriately intimate role in the genesis and development of these laws.

Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (CLUCPI Act) In December 2021, the Government passed the CLUCPI Act with the stated purpose of making WA as inhospitable as possible to outlaw motorcycle gang (OMCG) members.

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This Act relevantly empowers the Police to issue unlawful consorting notices to prevent relevant offenders from communicating with any number of people who have also been convicted of an indictable offence, for a period of three years. a relevant offender is anyone convicted of any indictable offence under State or Commonwealth law, a child sex offence, or of merely displaying OMCG insignia in a public place (among other things). The maximum penalty for breaching a consorting notice is five years’ imprisonment.

There is an extremely low bar to issuing unlawful consorting notices. The relevant offender must be an adult, must have consorted with another relevant offender, and the issuing senior Police Officer must merely “consider that it is appropriate” to issue the notice in order to "disrupt or restrict the capacity of relevant offenders to engage in conduct constituting an indictable offence" There is no requirement for this belief to be on reasonable grounds – it is an entirely subjective determination by the relevant Officer.

There is no judicial oversight of these extraordinary police powers. The Act is monitored by the Parliamentary Commissioner, but this is purely a reporting and recommendatory role. If a person wants to appeal a consorting notice, they must do so directly to the Commissioner of Police. So, a senior Police Officer can prohibit relevant offenders from communicating with each other for three years on a ‘hunch’, without any judicial oversight.

Liquor Control Amendment (Protected Entertainment Precincts) Act 2022 (WA) (PEP Act) The PEP Act (which passed through Parliament on 30 November 2022) relevantly gives WA Police the power to impose “short-term exclusion orders”. Short-term exclusion orders operate to ban people from all “protected entertainment precincts” (PEPs) – large swathes of Perth/Northbridge, Fremantle, Scarborough, Hillarys, and Mandurah – for up

to six months. Short-term exclusion orders can be imposed even if someone acts in no more than an anti-social, disorderly, indecent or offensive manner.

The PEP Act largely excludes review of short-term exclusion orders by the Courts.

Extraordinarily, appeals of short-term exclusion orders are made to the Liquor Commission.

The Commissioner of Police can apply to have short-term exclusion orders extended for up to five years – again not to a court, but to the Director of Liquor Licensing. The roles of the Director and the Liquor Commission in this regime are wholly inappropriate considering the draconian nature of exclusion orders, and the fact that exclusion orders can be imposed for reasons that are entirely unrelated to alcohol or licensed premises.

Accordingly, the Police have the power to cause people to be banned from all of these precincts for up to five years for acting in no more than an “offensive” manner (whatever that means), with no meaningful judicial oversight. These broad powers go much further than what is necessary to prevent violent and sexual offending from occurring in these precincts.

Numerous organisations, including the Law Society of Western Australia and the Aboriginal Legal Service of Western Australia, have (rightly, in my view) voiced concerns that these powers will disproportionately impact Aboriginal people, homeless people, and people with mental illnesses/disabilities, among others.

The PEP Act also requires the Commissioner of Police to create guidelines in relation to the types of behaviour that justify the imposition of short-term exclusion orders, and the circumstances and manner in which shortterm exclusion orders will be imposed. This empowers the Police to define the scope of their own powers, since the Commissioner of Police can essentially decide (for example) what behaviours are “offensive” and “disorderly”.

This is inappropriate given the draconian nature of short-term exclusion orders. The scope of

extraordinary executive powers should be determined by our lawmakers – not by the executive agency exercising those powers.

Concerningly, then-Racing and Gaming Minister, Tony Buti, stated in Parliament that these guidelines are an internal WA Police document that “will not be available for general public access or subject to application under freedom of information legislation”. Nor will the guidelines be subject to legislative review since they are not subsidiary legislation. Accordingly, the public will not know what behaviours justify the Police issuing short-term exclusion orders, nor how the power to impose shortterm exclusion orders will be exercised. Among other things, this means that the public will not be able to readily determine whether the Police are properly exercising these powers.

There is no simply good reason for this. As it stands, these guidelines are inconsistent with the separation of powers and the publicity of laws, both of which are fundamental to the rule of law in a democracy like ours.

Firearms Amendment Act 2022 (WA): Firearms Prohibition Orders (FPOs) The State Government’s recent amendments of the Firearms Act 1973 (WA) which introduce FPOs largely emulate the New South Wales FPO regime, which has been in place since 2013. A person subject to an FPO is prohibited from: • possessing or using firearms, firearm parts, firearm accessories, and ammunition; • being in the company of people in possession of such items; and • entering, remaining on, or residing at various places, such as shooting ranges, paintball clubs, and premises where firearms/ ammunition are stored.

FPOs last for a period of 10 years. These restrictions are arguably justifiable when dealing with highly dangerous or serial offenders. However, the search powers that accompany these restrictions are not. Police Officers can conduct a warrantless search of

any property or vehicle that a person subject to an FPO possesses or owns, and the person themself, if the search is “reasonably required” to determine whether the person has breached the FPO. This is an extremely low threshold; there is no requirement that the Officer suspects on reasonable grounds that the person has breached the FPO. It is difficult to imagine a situation where a search of the person and/or their property is not “reasonably required” to determine whether there is (for example) ammunition on that person and/or property, and hence whether the relevant FPO has been breached.

The criteria and procedure governing the imposition of FPOs is also troubling. Yet again, the Courts have no role whatsoever. Rather, the Commissioner of Police can impose an FPO on anyone he wants, so long as he is satisfied that either: 1. the person is not a fit and proper person to possess a firearm or ammunition; 2. the person possessing a firearm would likely result in undue danger to life or property; or 3. it is otherwise in the public interest to impose an FPO on the person.

The first and final criterion are highly subjective and would likely justify the imposition of FPOs for nebulous reasons. Accordingly, FPOs could theoretically be imposed on virtually anybody.

The subjective criteria and broad discretion given to the Commissioner of Police to impose FPOs means that it would be very difficult to successfully challenge such orders.

Police Minister, Paul Papalia, has stated: [FPOs were legislated] to specifically target outlaw motorcycle gang members, terrorists and serious domestic violence offenders.

Those are the three types of people who I have stated in my second reading speech that will be subject to the firearms prohibition orders that we are creating with this legislation.

If that is the Government’s genuine intention, then it should be enshrined in the relevant

legislation instead of giving extremely broad discretion to the Commissioner of Police to impose FPOs on virtually whoever he wishes.

In short, Police Officers can effectively search people subject to an FPO, without a warrant or any other form of prior judicial oversight, whenever they feel like it. The risk of the Police misusing these broad search powers, either willingly or unwillingly, is not fanciful. In relation to these powers, the Law Reform Commission of Western Australia has stated: The Commission has been provided no evidence to suggest that such broad powers are necessary in Western Australia and views the potential impact of the exercise of these powers on individuals as a serious concern.

The inappropriate role of WA Police in the legislative process A separate but related issue concerns WA Police’s involvement in the development of some of these laws. Specifically, many of these extraordinary police powers have been created at the request of WA Police, with the Police (at times) having an intimate involvement in the development and implementation of the relevant legislation.

WA Attorney-General, John Quigley, has stated that the CLUCPI Act “was brought about by a police request for legislation to suppress [OMCGs]” and was subsequently “designed by the police.” Mr Quigley also stated that WA Police Det-Insp. Peter Foley worked on developing the CLUCPI Act “for a couple of years”. Similarly, Parliamentary Secretary to the Attorney-General, Matthew Swinbourn, has stated that the CLUCPI Act was developed in “very close” and “intimate” consultation with WA Police after “the Police asked for” the powers in the legislation. In relation to the Firearms Amendment Act 2022 (WA), Minister Papalia has stated that the “Police sought this legislation to complement [the CLUCPI Act].”

The degree of influence that WA Police has had in the drafting and implementation of these laws is fundamentally inappropriate and

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The Extraordinary Powers of the Western Australia Police Force unduly infringes the separation of powers. In 1748, Montesquieu, the French Enlightenment political philosopher who first conceptualised the separation of powers doctrine between legislative, executive and judicial branches of government, wrote about the danger of unifying executive and legislative power: When the legislative and executive powers are united in the same person, or in the same [body], there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

It is one thing for the Police to be consulted in the development of criminal laws. Indeed, it would be remiss of Parliament not to do so. However, it is an entirely different notion for the Police to be requesting extraordinary powers and then being “intimately” involved in “designing” the laws that confer those powers. Moreover, as previously noted, the PEP Act guidelines permit the Commissioner of Police to effectively define the boundaries of WA Police’s power under that Act. Montesquieu’s words underpin why the blurring of executive and legislative power is inappropriate in any event. In this context, it is made all the more egregious by the draconian nature of the powers being created and exercised. Such practice cannot be accepted as the norm; there must be a clear demarcation between those tasked with law making and those tasked with law enforcement.

Criminal Organisations Control Act 2012 (WA) (COC Act) The statutory review of the COC Act elucidates a key reason for these laws. The COC Act was enacted with largely the same rationale as the above legislation, namely, preventing and disrupting serious and organised crime. It provides for a system whereby the Commissioner of Police or Corruption and Crime Commissioner may apply to an incumbent or former Supreme Court judge for a declaration that an organisation is a criminal organisation.

Notably, reasons must be given for why a declaration is or is not made, and these reasons must be made public.

Following a declaration, the Commissioner of Police may then apply to the Supreme Court to impose control orders on members of those organisations. Control orders can impose a range of restrictions on the impugned person’s liberty, including with respect to firearms, movement restrictions, and consorting.

The statutory review notes that “the powers conferred under the [COC] Act have not been exercised”; namely, no applications for criminal organisation declarations have ever been made.

Former Commissioner of Police, Chris Dawson AC APM, gave the following reasons for this: •

t he current application process to declare an organisation as criminal is difficult;

•

the preparation of an application is a lengthy

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and resource intensive process; •

i t could take months for a judge to make a finding; and

•

t he process is complicated by the fact that membership of criminal organisations is dynamic.

Accordingly, the procedure under the COC Act seems to be administratively unworkable. To address this, the State Government could have amended the COC Act to make the process less burdensome, whilst retaining a degree of substantive judicial oversight. For example, it could have retained the requirement for applications to be made to the Supreme Court to impose control orders but removed the need to apply to a judge for criminal organisation declarations.

Instead, the State Government introduced the laws discussed in this article. These laws largely, if not entirely, remove judicial oversight of these processes and instead give WA Police effectively unchecked power. This is a concerning overcorrection. The Police should need to jump through some substantive hoops – including persuading a judicial officer – before being able to significantly restrict a person’s civil liberties on the basis of the perceived future risk that that person poses to the community.

Conclusion I am not suggesting that the Police should not have effective powers at their disposal to tackle serious and organised crime. Nor am I suggesting that there should be unnecessary layers of bureaucracy frustrating the efforts of WA Police to prevent such crime. However, effective and efficient policing must not be achieved at the expense of fundamental democratic principles.

These powers are not being adequately scrutinised before they are becoming law. While they are Government initiatives, the Liberal and National parties have supported these laws almost unconditionally. Moreover, there is often little scrutiny in the media, in large part because articles regarding the rule of law and separation of powers are far less glamorous than front page articles about “bikie-busting” laws.

The minimisation of judicial checks and balances on the exercise of coercive executive power frustrates the separation of powers. As does WA Police having an excessive degree of influence in the drafting of criminal laws. We should not (and I would argue, the legal profession must not) sit idly by while any government erodes the fundamental principles on which our system of government is predicated.b y Tom Penglis

Endnotes 1 Government of Western Australia, “New laws give police powers to disrupt and dismantle criminal gangs”, Media Statement (13 October 2021) <https://www.mediastatements. wa.gov.au/Pages/McGowan/2021/10/New-laws-give-policepowers-to-disrupt-and-dismantle-criminal-gangs.aspx>.

2 See Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) pt 2 div 2 (CLUCPI Act).

3 CLUCPI Act s 17(1).

4 CLUCPI Act s 9(1).

5 See CLUCPI Act pt 4.

6 CLUCPI Act ss 15(1), 16(1).

7 The PEP Act also introduces harsh mandatory five-year bans from PEPs for people convicted of prescribed offences committed in a PEP. 8 See Liquor Control Amendment (Protected Entertainment Precincts) Act 2022 (WA) pt 2 div 2 (PEP Act).

9 PEP Act s 152ND(2)(a).

10 The Supreme Court only has jurisdiction to hear appeals on questions of law, and only in certain circumstances: see Liquor Control Act 1988 (WA) ss 28(1)-(3).

11 PEP Act s 152NH. 12 PEP Act s 152NJ. 13 See, for example, Law Society of Western Australia, “Law Society Raises Concerns on the Liquor Control Amendment (PEP) Bill 2022” (14 October 2022) <https://www. lawsocietywa.asn.au/news/law-society-raises-concernson-the-liquor-control-amendment-pep-bill-2022/>; Dechlan Brennan, “WA entertainment precinct laws will target Aboriginal people, legal experts warn”, National Indigenous Times (15 November 2022) <https://nit.com.au/15-112022/4306/wa-entertainment-precinct-laws-will-targetaboriginal-people-legal-experts-warn>.

14 PEP Act s 152NI. 15 Hansard, Legislative Assembly (16 November 2022) <https://www.parliament.wa.gov.au/Hansard/hansard. nsf/0/7BF40F0AC4C8601B48258901001BC037/$file/A41%20 S1%2020221116%20All.pdf> 5418.

16 PEP Act s 152NI(6).

17 | See Firearms and Criminal Groups Legislation Amendment Act 2013 (NSW).

18 Firearms Act 1973 (WA) ss 29J-29L (Firearms Act).

19 Firearms Act s 29G(2).

20 Firearms Act ss 26C(1)(a), 26D(1)(a).

21 Firearms Act s 29A(1).

22 See, eg, Hansard, Legislative Assembly (23 February 2022) <https://www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/4EE5CCAC86F826DD482587F4002AE30E/$file/ A41%20S1%2020220223%20All.pdf> 597. See also at 610, 612.

23 In contrast, the imposition of FPOs in South Australia is overseen by the judiciary: see Firearms Act 2015 (SA) pt 8.

24 Law Reform Commission of Western Australia, “Review of the Firearms Act 1973 (WA)” (October 2016) 137.

25 Hansard, Legislative Assembly (10 November 2021) <https://www.parliament.wa.gov.au/Hansard/Hansard.nsf/0/ F9B884C231F3F04F4825878B002C6959/$file/A41%20S1%20 20211110%20All.pdf> 5225.

26 Hansard, Legislative Assembly (9 November 2021) <https://www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/704A11E223E9FFCE482587B4000C5853/$file/A41%20 S1%2020211109%20All.pdf> 5163.

27 Hansard, Legislative Council (30 November 2021) <https://www.parliament.wa.gov.au/Hansard/Hansard.nsf/0/ AB0321B1E64E609F482587CE000802FF/$file/C41%20S1%20 20211130%20All.pdf> 6019.

28 Hansard, Legislative Assembly (23 February 2022) <https://www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/4EE5CCAC86F826DD482587F4002AE30E/$file/A41%20 S1%2020220223%20All.pdf> 611.

29 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, revised ed (New York, Colonial Press, 1899) Book 11, 151.

30 Government of Western Australia, “Statutory Review of the Criminal Organisations Control Act 2012” (4 October 2019) (COC Act Review).

31 See Criminal Organisations Control Act 2012 (WA) s 4(1)(a) (COC Act).

32 See COC Act pt 2.

33 See COC Act s 14.

34 See COC Act pt 3 div 2 sub-div 1, div 3 sub-div 1-2.

35 See COC Act s 58, pt 3 div 5.

36 COC Act Review, 8.

37 COC Act Review, 22.

38 This proposition has not been tested in WA since no application has been made under the COC Act. 39 The latter step being the burdensome hurdle facing WA Police and the Corruption and Crime Commission.

40 For the Attorney-General’s references to the deficiencies within the COC Act regime, see, for example: Hansard, Legislative Assembly (9 November 2021) <https:// www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/704A11E223E9FFCE482587B4000C5853/$file/ A41%20S1%2020211109%20All.pdf> 5163, 5165.

The Proper Use of the Cost Discretion to Regulate Interlocutory Proceedings

By Dan Morris, Principal, Dan Morris Legal

Introduction

Section 37 of the Supreme Court Act 1935 (WA) and the Rules of the Supreme Court 1971, Order 66, Rules 1 and 2 confer a broad discretion on Western Australian Courts in respect of orders as to costs.

Nothing in this paper should be read as in any way derogating from the breadth of that discretion.

However, as with all discretions, there are relevant considerations that are to be taken into account in order that the discretion should not miscarry. The relevant considerations are well settled in the authorities which are abundant and consensual.

An underlying objective may be discerned from the authorities, towards the efficient and disciplined conduct of Court proceedings.

Is there a “default position”?

It is in my view always dangerous to speak of default positions, when dealing with the exercise of a discretion, because of the very nature of discretionary decision-making.

In order to conceptualise the reasoning process, it may be considered more useful and accurate to speak in terms of a startingpoint and recognise that one does not depart from that starting-point, unless a particular proceeding has some unusual feature to justify the departure.

It is often stated that the starting-point is that costs should follow the event. This is certainly the case in the usual course of a final cost disposition following judgment after a trial.

However, according to the principal authorities around Australia and the United Kingdom, the cost discretion is to be exercised somewhat differently in interlocutory proceedings.

There is a reason for this, which a critical analysis of the relevant cases will reveal.

The use of costs to encourage the narrowing of issues and conferral between the parties and their legal representatives.

It is often the case, entirely without blame to either party, that to achieve a proper,

narrow focus and discipline by the time of a trial, some initial robustness and messiness is required. This was certainly the case in Laing O’Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87 (S) at [14].

That decision concerned an application for either summary judgment or the striking-out of pleadings.

At first instance, the Registrar awarded costs to the party resisting the application.

Deciding the appeal after a de novo hearing, Martin CJ.: (a).did not disturb the Registrar’s decision to dismiss the substantive application; but (b).critically, overturning the Registrar’s order as to costs at first instance, ordered both those first-instance costs, and on appeal, to be in the cause.

The facts of Laing O’Rourke are summarised

by Martin CJ (at [8]): “(a).the defendant extensively objected to the pleadings in the Statement of Claim; (b).the plaintiff “voluntarily resiled” from the Statement of Claim in light of the defendant’s objections and accepted the defendant’s proposed amendments to the Statement of Claim; (c).the amended Statement of Claim was appropriate and the defendant’s objections, had they been heeded before filing of the Statement of Claim, would have avoided the objecting defendant incurring unnecessary costs of the amendments.”

After reading this, one might have expected that the costs of the proceedings both at first instance and on appeal had been awarded to the defendant, having been observed by his Honour to have incurred “unnecessary costs”. However, that was not the case.

Notwithstanding the plaintiff’s late decision to “voluntarily resile” from its Statement of Claim, as a result of the defendant’s proactive steps to point out the deficiencies in its pleadings, and the plaintiff’s acknowledgement that its own appeal lacked merit, his Honour still: (a).reversed the Registrar’s award of costs to the defendant at first instance; and (b).substituted an order that the costs of both the application and of the appeal be in the

cause.

In justifying the order for costs in the cause, his Honour had this to say (at [14]): “The view that I take in relation to the proceedings both before the Registrar and on appeal, is that each party has had some measure of success and each party has had some measure of failure. It seems, to me, that in those circumstances, the proper exercise of my discretion is to regard the costs that the parties have incurred as an unfortunate aspect of the way in which this litigation has been conducted. Therefore, the proper exercise of my discretion is to direct that those costs should be borne by the party who is ultimately held responsible for the costs of the litigation generally. I propose, therefore, to order that the costs of the application to the Registrar and the costs of the appeal to me be in the cause.”

Consistently, the WA Court of Appeal in Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [No.3] relevantly held (with my emphasis): “It is the usual practice to order that the costs of an application for an interlocutory injunction be costs in the cause – that is to say, borne by the ultimate loser of the substantive proceedings. That is because the determination of the application does not involve the determination of substantive rights or obligations, but [involves] only the assessment of whether there is an arguable case for the relief sought, and where the balance of convenience lies.

An application brought reasonably for the preservation of the status quo pending the final determination of the proceedings can usually be regarded as an incidental cost of those proceedings properly borne by the ultimate loser. However, different considerations apply if the application is brought or opposed unreasonably, or in a manner which unreasonably inflates the costs of the application to the parties.”

Consider the Court’s focus in the emphasised passages on the following factors: (a).the question for the Court being whether an arguable case existed for the relief sought; (b).the reasonableness of the application being brought and opposed; and

17

(c).the unreasonable inflation of costs.

Each such consideration may be read as constraining the exercise of the cost discretion.

More recently and consistently with the WA authorities (but without citing them), in Wright Prospecting v Hamersley Iron, McDougall J. declared: “In my view, it is inappropriate to attempt to dissect the relevant degrees of success and failure and to reflect that in some costs order.

This is a case where the discretion as to costs should be exercised in a broad-brush way, which recognises mixed success and failure.

The appropriate way to do that is to make the costs of the application costs in the cause.”

More generally, in Crown in the right of State of New South Wales v Gevaux, Ward J. stated at [12] – [13]: “In relation to the costs of interlocutory applications, it is common place for costs to be ordered to be “costs in the cause”….

“The rationale for such an order was explained

by Beazley, Giles and Hodgson JJA in Petar v Macedonian Orthodox Community Church St. Petka Inc. (No.2) [2007] NSWCA 142”.

Turning to the findings in Petar relied on in the quoted passages (with emphasis added): “[19] In Stratford v Lindley, Lord Denning observed that the House of Lords had made an order on an interlocutory application that costs be “costs in the cause”. His Lordship observed that the case was “finely balanced” and that, on final hearing, a slight turn in the evidence might have made all the difference to the outcome. He considered (at 1554) that in those circumstances, the House “thought it right to make the costs of the interlocutory proceedings depend on who won or lost in the main action.”…. “[27]Applications for interlocutory injunctions are commonplace. If there is nothing to distinguish an application from the typical case that comes before the Court, then the underlying jurisprudence relating to the exercise of the discretion may warrant the making of what is zreferred to in the legal vernacular as the “usual order”, whether that be costs in the cause or the plaintiff’s costs in the cause.”

“The making of such an order does not displace the exercise of the Court’s discretion.

Rather, it is a shorthand form of giving effect to the principles that govern the Court’s discretion in circumstances where there are no countervailing or different circumstances to warrant the exercise of the discretion in a different manner.”

Why should an unsuccessful party to interlocutory proceedings not be made to pay the costs of those proceedings?

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The answer to this question in my view lies in the common thread that runs through the cited authorities, in each of which, costs were ordered to be in the cause.

That common feature is that in each instance, the application itself may be seen to have advanced the interests of justice and the proper and efficient conduct of any trial (failing prior settlement), irrespective of the outcome of the application itself. This may be done in a variety of ways: (a).by triggering appropriate conferral between the parties’ legal representatives; (b).by causing both parties to condescend to the particulars of their respective cases, on affidavit evidence, thereby exposing any superfluity or weakness in either party’s pleadings or narrowing the focus of the controversy generally; (c).exposing deficiencies in the pleadings, thereby restoring discipline and clarity to the identification of material issues for determination on the evidence; and/or (d).triggering settlement negotiations, thereby improving the prospects of compromise, without the need to burden either the parties or the tax-paying public with the costs of an unnecessary trial.

When, then, will it be appropriate to make an adverse costs order in interlocutory proceedings?

In answering this question, a useful

starting point is the judicial observations justifying awards of indemnity costs (being mindful that where an adverse costs order is made, it is usually made on a party/party basis). Let us start with Justice Wheeler’s observations in the WA Court of Appeal case of Quancorp Pty Ltd v McDonald 4: “On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in many areas of law, and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as “hopeless” so as to justify an award of indemnity costs to the unsuccessful party. However, where a party has by its conduct unnecessarily increased the costs of litigation, it is appropriate that the party so acting should bear that increased cost.

Persisting in a case which can only be characterised as “hopeless” is an example of the type of conduct which may lead the Court to a view that the party whose conduct gave rise to the costs should bear them in full”.

Compare the Court’s observations in Gold Valley Iron and Manganese Pty Ltd v Albarran [2020] WASC 297 at [18], per Curthoys J, enumerating the following relevant factors (amongst others) : (a).that the Court’s discretion as to the making

of an indemnity costs order must be exercised judicially; (b).that competing principles need to be balanced in assessing the making of a potential award of indemnity costs; and (c).that an indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party’s legal advisers.

These observations originated in findings made by Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (emphasis added): “Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs [i.e. indemnity costs] can properly be awarded in appropriate cases where “there is some special or unusual feature in the case to justify the court exercising its discretion in that way”.

Synthesising the authorities respectively justifying awards of costs in the cause and indemnity costs, it may be seen that the Courts have been usings their costs discretion to maintain proper rigour and discipline in the conduct of Court proceedings, whilst avoiding making deterrent costs orders which would have a chilling effect on prospective applicants contemplating applications with a view to introducing similar precision and rigour to a case that might otherwise be vaguely articulated, poorly particularised or otherwise conducted in an inefficient and wasteful manner.

With these observations in mind, it remains to consider some of the factors that ought to be weighed in the balance, in determining the appropriate costs disposition, in interlocutory proceedings.

Factors relevant to the exercise of the costs discretion in interlocutory proceedings.

Were genuine and reasonable, good

faith efforts made by the party’s legal representatives to confer on the subject matter of the interlocutory application, both before it was commenced and pending its determination?

Did the making of the application, either by the Court’s determination of it or by the solicitors’ conferral that was triggered by it, result in: (a).narrowing of the legal or factual issues in controversy; (b).clarification of poorly or vaguely defined material facts, issues or legal contentions; (c).identification of a material issue of fact or law that had not previously been recognised; (d).material admissions, agreement as to the proper scope or method of providing discovery, agreement as to the approach to

be taken to the disposition or determination of a particular matter of fact or law or some other improvement to the efficient conduct of the proceedings?

Which, if either, side conducted itself in a way that necessitated the interlocutory proceeding?

Did either side conduct itself in a manner that unreasonably prolonged or complicated the interlocutory proceeding?

Was there another, more practical way to deal with the issue concerned in the interlocutory proceeding that might have obviated its need or simplified its conduct?

If the interlocutory proceeding involved a pleading issue, were the pleadings concerned clear, precise, properly particularised and sufficient to identify every material fact of each cause of action alleged, with no internal inconsistencies?

If the interlocutory application sought a summary disposition, did both parties properly and adequately condescend to the particulars of their respective cases, by way of affidavit evidence?

Did either or both parties’ counsel accurately identify the authorities relevant to each issue in contention in the interlocutory proceeding and correctly articulate the effect of those authorities (including any countervailing authority, with appropriate submissions as to why adverse authorities ought to be distinguished in the circumstances)?

If the Court’s discretion in the interlocutory application was constrained by a prescribed rule or test, was each element of the applicable test identified in submissions and did the affidavit evidence properly address each such element, sufficiently to enable the quick and efficient determination of the competing arguments for and against the granting of the application?

Did either or both of the parties’ solicitors make reasonable and continuing efforts to assist the Court, through proper conferral and by minuting proposed orders, to facilitate the proper and efficient case management of that application, or, on the other hand, was case management unreasonably protracted or complicated by the conduct of either or both of the parties?

Conclusion

It may be seen from a critical analysis of the Australian authorities on the proper disposition of costs in interlocutory proceedings that albeit an exercise in discretionary decision making, the discretion is constrained by the need to have regard to relevant considerations. This is not surprising given the nature of costs disposition as the exercise of discretionary, decision-making power by a judicial officer which, like the exercise of any discretion, is subject to the principles stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40. These include: (a).taking all relevant considerations into account; (b).taking no irrelevant considerations into account; (c).avoiding and being seen to avoid bias; (d).Wednesbury reasonableness; (e).affording natural justice/procedural fairness; (f).giving adequate reasons for decision; and (g).correctly applying the law, which may include the objects and purposes of the legislation empowering the decision-maker to make the decision in question.

(a).principles of positive case flow management as enshrined, in WA, in Order 1 rules 4A and 4B of the Rules of the Supreme Court WA 1971; and (b).more fundamentally, protecting the Court from abuses of its process .

It may readily be seen that these principles conflict with the idea of some mechanical application of a default rule or principle in dealing with costs in interlocutory proceedings. That is not necessarily to say that it would find disfavour with applicable principle or authority to take, as a starting point in the consideration of costs disposition, that, all else being equal, it would be appropriate to order that costs be in the cause. Generally speaking, where no unusual feature or circumstances exists, this costs disposition may be seen to strike the most appropriate balance between: (a).on the one hand, protecting the proceedings of the Court from abuse or, perhaps falling short of abuse, unnecessary distraction away from the objectives of either compromise or final disposition after trial; and (b).on the other hand, incentivising the parties to continue to assist the Court in maintaining rigour, discipline and focus in the conduct of Court proceedings, by encouraging appropriate interlocutory applications in appropriate circumstances or at the very least, avoiding unnecessarily deterrent costs orders that have the effect of discouraging the parties from seeking proper and necessary curial intervention.

With respect to the exercise of the costs discretion in interlocutory proceedings, the objects and purposes that according to the authorities are to be served are:

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Welcome... to the YLC section of Brief where we explore the minds, lives and careers of young lawyers in WA

Working with Legal Tech Natasha Blycha Interviewed

by Katherine Swann Natasha Blycha, leader in tech law, sits down to talk about AI, digital law and how to stay on top of it all, with questions from Katherine Swann, committee member of the Young Lawyer’s Committee.

Hi Natasha, can you introduce yourself and your current work?

I’m Natasha Blycha, I run my own emerging tech law firm that I founded in Australia, Stirling & Rose. We are also in the process of expanding to the UK and Singapore.

Before founding Stirling & Rose, I was running HSF’s global digital law group across fifteen offices. Through this, I realised that I really loved emerging technologies, which includes everything from regulatory law around AI, crypto currencies, blockchain, and quantum computing. Over time, it became apparent that this work requires a significant amount of time for reading and thought-leadership, to make sure you can advise properly on this area “at the edge”. By “the edge”, I don’t mean the legal, ethical edge, but I mean “the edge” in terms of emerging technologies, where there isn’t necessarily settled law.

Working as an emerging technologies lawyer is probably one of the most creative legal areas to work in, particularly in terms of writing submissions including to regulators, government departments and law councils.

You are able to help craft where the law should go, and are often advising either

20 | BRIEF APRIL 2023

Natasha Blycha, leader in tech law

founders, large institutional corporates or governments about innovative practices and creating new methodologies through the law.

It’s a great place to be. I suppose that’s why I got together with other like-minded experts in emerging tech and started a law firm to do that.

Have you used artificial intelligence and other digital technologies in your current practice?

One hundred percent, yes. We’ve been using pre-iterations of ChatGPT for years, and AI models every day.

To take one example, I have used large language models in the same way you might do a Google search (and in the not too distant future will do a google search). As it stands, I would never rely on ChatGPT to give legal advice, but I do use it in conjunction with other tools, for example with my own LexisNexis searches. Of course, you are never going to put client information in these models. But in our area of law – where there often is no law – you have to have the broadest search capacities possible, and that often involves putting disparate ideas and AI practices together.

We have also used AI to generate our designs, marketing and our communications materials – for example, AI-created images on our website. We are very conscious of the balance required between the right use of technologies, and providing disclaimers allowing people to tell us immediately if they suspect an IP infringement, so we can rectify it.

Katherine Swann Young Lawyers Committee Member

At these early stages, it is difficult to know if there has been an IP breach that is sufficient to stop us from using the technology. To resolve this in a technical way, we have used our expertise in smart legal contracts and are designing a new tool that can reward artists where their work is recognised (by AI) in an AI-generated image. For instance, an artist could register their art, and if say 5% of that art was recognised in an AI-generated image, the smart legal contract tool can make an automatic micro-payment back to the original generator. We see this as introducing a market-mechanism to ensure we can use these AI tools without disadvantaging anyone.

Have you been involved in submissions on this type of fair-use practice?

We definitely are involved in this space. One of the topics we focused on recently was on Decentralised Autonomous Organisations, in a submission to the Law Commission of England and Wales. These are organisations run by algorithms or machines, rather than by people. At this moment in time, they certainly exist, but they are a bit of a fiction insofar as there are often people involved in them.

In our submissions, we advocate for legal recognition of “autonomous organisations”, which is to create a new category of legal personhood that recognises the changes that we’re seeing with AI. We are currently seeing a change similar to that of our legal duties around 15 years ago, when you used to see a room full of people doing discovery. Since this time, our courts

have confirmed it is not appropriate to use people in discovery when you can achieve a better and more efficient result using technology-assisted review. What we are now seeing are changes, and a regulatory gap, in respect of algorithms having responsibility. We haven’t yet found a way to make a machine responsible, and we call that the “responsible machine problem”.

been times in my career where I have taken my children on planes with me to work events, and I haven’t regretted that for a second. It’s only been a boon to all of us. I just have a desire to tell younger people that you don’t actually have to do everything all at the same time, including with respect to balancing work and family.

Is there something that you’d like people to take away from this issue?

What can legal professionals do to stay abreast of legal technological developments?

Overall in my career, I’ve never regretted where I’ve prioritised my family. There have

There’s this saying about “doing what’s important”, and I think that applies here.

The people who play with the tools are the people who will understand how to best give advice in these emerging areas. For example, there are lots of people who talk about cryptocurrencies who have never been on a crypto exchange. Whether it be in mining, banking – or any other industry that is digitising, I think it’s important as a lawyer to have a basic understanding of what technologies are being used in the industries we advise.

YLC Mixed Beach Volleyball Competition It was another great social event for the YLC on Friday, 17 March at the annual YLC Mixed Beach Volleyball Competition that brought 11 eager teams together on the sand to battle it out for a winning place on our brand new trophy. After four fast-paced rounds and a cool breeze keeping players on their toes, Corrs Chambers Westgarth and Allen & Overy faced off in the exciting grand final.

Corrs Chambers Westgarth emerged victorious to take home the important win. Special mention to Bennett and MinterEllison who also made it to the semi-finals. Thank you to all teams who joined us to create a fun sporting atmosphere and congratulations once again to this year’s winners. Our next sporting competition, the YLC Mixed Netball Competition will be held in November.

Law Student Mentoring Programme: It was an exciting evening on Wednesday, 29 March 2023 when our young law students finally had the opportunity to meet their new mentors as part of the Young Lawyers Committee's student mentoring programme launch.

With 74 pairings this year and a record number of students applying to the programme, the evening kicked off with great energy. Both our mentors and mentees were very fortunate to glean the wisdom of both the YLC Chair, Demi Swain, and the 2022 Emerging Young Lawyer of the Year, Monica Vu. Demi and Monica elaborated on

what the mentoring program offers students and urged students to make the most of the opportunity by having access to pick a young lawyer’s brain. Following formal presentation, mentors and mentees had the chance to talk for the very first time and get that connection rolling over some drinks and light canapés.

A huge thank you to legalsuper being the principal sponsors of the 2023 programme and thank you to the College of Law for hosting the event, making it possible for our mentors and mentees to connect before the year gets moving in earnest.

21

Will AI replace junior lawyers?

The use of artificial intelligence (AI) technology is rapidly changing the way many businesses operate.

This has sparked debate about the impact that AI will have on the legal profession, and in particular, whether it will eliminate the role of lawyers altogether.

One example of AI in action is ChatGPT, a language model with the ability to answer questions with human-like written answers.

When asked “will you replace lawyers?”

ChatGPT replied: “As an AI language model, I’m designed to provide information and answer questions to the best of my abilities based on the input provided. However, I don’t have the ability to practice law, represent clients in court, or provide legal advice.

Lawyers are highly trained professionals who have undergone years of education and experience to become experts in their field. They also have the ability to understand complex legal concepts and apply them to specific cases, which is something that AI language models are not yet capable of doing at the same level of expertise.

That being said, AI technology is already being used in the legal industry to assist lawyers in various tasks such as document review,

legal research and data analysis. However, it is unlikely that AI technology will completely replace lawyers in the foreseeable future, as the legal profession involves complex human interactions and decision-making processes that require human expertise and judgment.”

As identified above, there are certain timeconsuming and repetitive tasks (often imposed on junior lawyers) that can be completed more efficiently and effectively by machine learning programs. Examples include the use of technology assisted review programs in the discovery process and ChatGPT’s ability to draft a basic contractual clause in a matter of seconds. However, these processes still require an element of human involvement – for example, before the discovery process can commence, a human lawyer is required to identify the documents to be reviewed and teach the software by coding documents in a seed set. AI is also limited by its lack of human judgment, empathy and ability to ask questions and provide advice beyond the specific question asked. For those reasons, AI technology is more likely to complement a junior lawyer’s role, rather than replace it in its entirety.

On one view, the use of AI technology is beneficial for junior lawyers as it will increase the time available to engage in more substantial work at earlier stages of their careers. However, this should be balanced with the training received from doing (and

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receiving feedback on) those repetitive and time-consuming tasks that turn junior lawyers into legal thinkers over time. It is also important for junior lawyers to consider the impact of using AI technology on their professional and ethical duties which require lawyers to (among other things) deliver legal services competently, act in their client’s best interests, maintain confidential information and exercise independent professional judgment. These duties can be compromised – for example, over-reliance on AI technology such as ChatGPT may be considered a failure to apply independent judgment. In that context, while the use of AI may be used as a substitute for legal tasks, it does not replace human judgment and a lawyer’s overarching duties to their clients and the court.

End Notes 1 See for example, Artificial Intelligence and the Future of Legal Practice by Gary E Marchant 2017 SciTech Lawyer, page 20.

2 Artificial Intelligence and the Legal Profession: Becoming The AI-Enhanced Lawyer by Michael Legg and Felicity Bell (2019) 38(2) University of Tasmania Law Review, 34-59 [2020] UNSWLRS 63, page 56.

3 Artificial Intelligence: Application Today and Implications Tomorrow by Sean Semmler and Zeeve Rose (2017) 16 Duke Law & Technology Review, page 90.

4 Rule 4 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Conduct Rules).

5 Rule 4 of the Solicitors’ Conduct Rules.

6 Rule 9 of the Solicitors’ Conduct Rules.

7 Rule 4.1.4 of the Solicitors’ Conduct Rules.

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We are expanding- Senior Lawyer permanent appointment available in our Legal Services branch based in our East Perth office.

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22 | BRIEF APRIL 2023

Prudence Juris Dear Aunt Prudence, my news feed has been flooded with articles about ChatGPT, the AI bot disrupting industries from programming to law. With all the buzz, my graduate cohort is asking: will AI replace us?

- iRobot Dear iRobot I know it may feel like the beginning of the end, but fear not – ChatGPT is not coming for your job (for now)!

ChatGPT is an AI-powered chatbot that responds to open-ended text queries with paragraphs of text-written answers.

It was trained through reinforcement learning from human feedback. During this process, human AI trainers would converse as a user and an AI assistant, then rank chatbot responses to teach the chatbot how to respond appropriately.

I know what you may be thinking – ChatGPT sounds exactly like a Law Graduate bumbling through their first rotation and receiving ongoing and unrelenting feedback from their Supervising Partner until they improve.

Why does your law firm need you when a chatbot is able to provide a similar (more efficient) service without the (graduate salary) price tag?

Well, dear reader, you may find comfort in the fact that, while ChatGPT is able to provide unique and surprisingly-accurate answers to questions, the chatbot is facing some additional hurdles in the legal sphere.

For one, this technology is still in development. And, as eerily accurate as its responses may be, ChatGPT is not a human lawyer. Nor is it always accurate – users have reported receiving incorrect information from the chatbot-in-training.

Lacking the nuance necessary to create consistently-accurate responses, let alone complex legal arguments, it’s safe to say that, at this stage, at least, ChatGPT is not in a position to replace lawyers (even clueless junior lawyers, like yourself).

Additionally, a lawyer’s ethical obligations will always take precedence over convenience. Not only are there ethical considerations in using AI to argue your cases for you, but issues of security, client privacy, and privilege can also arise through the transmission of data between your firm and ChatGPT. Ever the optimist, I think the question we should be asking is: how can ChatGPT help lawyers?

Until the next technological advance threatens your utility, - Aunt Prudence

Do you have a question for your Aunt Prudence? Send all inquiries to younglawyers@lawsocietywa.asn.au and look out for your Aunt’s response in the next edition of Brief.

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23

The Tale of the short-changed surveyor

By The Hon John McKechnie KC One morning long ago, someone woke up with a bright idea. The British army in India needed horses but there were difficulties in breeding them there. Australia had plenty of land.

Why not breed horses in Australia and ship them to India?

On the 23 April 1842 the directors responded to Clifton’s letter of 5 August 1841, noting that Austin’s behaviour had been highly reprehensible, and that Clifton had shown greater forbearance than he deserved.

And so, the Western Australia Land Company was formed in Britain. Subscribers included Sir James Stirling, a former Governor, and Elizabeth Fry, prison reformer. Where would the new venture be established? The new convict free settlement based on the Swan River. What to call it? Seems obvious really. The combination of the names of the two countries – Australind.

But events had moved on. Mr Austin had issued a writ against Clifton claiming 6 months wages, 200 pounds, for wrongful dismissal.

The venture proceeded apace. Subscriptions were sought for would be settlers. Plans were displayed showing a thriving township with churches, gardens, stores. These plans were premature to say the least because there was nothing surveyed, yet alone built.

In January 1841, Rev John Smithies described the venture as ‘one of the greatest puffs there has been for some time”. He urged fellow Methodists not to join.

To build a town, first you need a surveyor. And here our story begins.

James Gardner Austin, an architect and engineer, was engaged by the Company as surveyor at 400 pounds per annum. With his wife and 2 sons, Robert and James, accompanied by other members of the surveying party, he arrived in Western Australia on the schooner Island Lady in December 1840.

They soon set about mapping the 103,000 acres of land the company had acquired. Work was long and hard, but his team were loyal.In March 1841, the first group of settlers arrived. The appointed leader or Chief Commissioner was Marshall Waller Clifton.

Mr Austin was already busy with his party of surveyors, including Robert.

His men would later give evidence of his hard work and competence.

However, relations between Austin and Clifton soon soured. On 3 August 1841, Mr Austin was fired.After pointing out that he had wanted the directors to remove Mr Austin for a while, Mr Clifton came to the point: …You have conducted yourself in a disobedient and disrespectful manner to me, your superior and on this day acted in a most disrespectful insulting manner to me in the presence of several of the workmen and labourers.”.

He was terminated with immediate effect and directed to return all unused rations and equipment.

Mr Clifton reported immediately to the directors in London and received a prompt response. Well prompt is perhaps relative.

Mail was carried by sailing ship to and from England. Email was some distance in the future. Seamail was the go.

24 | BRIEF APRIL 2023

The action was heard before Civil Commissioner Mackie in the Civil court on 7 December 1841 (a propitious date 100 years later). The Defendant took a technical point first. There was no evidence that the signature on the letter of appointment was that of Mr Buckton a company official. After some argument and evidence, the Commissioner accepted the evidence of the appointment.

The only other point raised was that the defendant should be the company, not Mr Clifton personally.

The Commissioner intimated a ruling at law that the Defendant was liable, whereupon Mr Scholes for Clifton indicated that no defence would be offered on the merits.

Judgment was duly entered for Mr Austin so, in time honoured fashion, Mr Scholes asserted he would appeal to the Governor in Council and Mr Nash, for Mr Austin responded that his client was being harassed by that threat, and if Mr Clifton did appeal, Mr Austin would appeal to the Privy Council in London.

Mr Clifton does not appear to be the forgiving kind. A few weeks after the judgment he wrote: The increase of population in this neighbourhood, and with it the occasion and inclination to go to law frequently, seem to me to call for some means of trying civil causes in the district.

Alas, despite best efforts by everyone, the project failed. The Company ran out of funds, as its increasingly despairing letters in response to Clifton’s requests, attest. By 1843, most of the settlers had taken up other land in the colony more conducive to farming and horse breeding.

The township so carefully surveyed, was never built.

What happened to the participants? Mr Clifton stayed in the colony, prospered and went into politics.

In 1851, Mr Austin was appointed Superintendent of Works for the colony resigning in 1853 to return to England. He was succeeded by Richard Roach Jewell.

Robert Austin became a surveyor, and mapped the Murchison Gascoyne district, he and his party nearly dying of thirst in the process.

And Australind? One hundred and fifty years on, it has become a thriving settlement as an outlier to its one-time rival Bunbury.

The next time you drive down the Forrest Highway, turn off at the scenic drive which will lead you to the Leschenault Estuary.

By its banks you will find a memorial with an etched diagram of the town that might have been.

Adapted from Austin v Clifton [1841] WASupC 29.

Artificial Intelligence and the Future of Law New technology, such as artificial intelligence (AI), is driving change in society and business. AI’s rapid advancement impacts on legal practice, and it is arguably no longer a question about whether lawyers should use technology but rather exactly what technology they should choose and the degree of knowledge they should have.

In a first for Brief, the cover was generated with AI via ChatGPT and this special feature section showcases two articles on the law, one by a former lawyer and the other

by ChatGPT – with a challenge to readers as to whether they can tell who wrote each item. It is accompanied by Dr Jessica Henderson’s exposition upon the background to the segment.

The feature further explores the uses and implications of AI for the legal profession, with Professor Michael Legg’s insightful discussion on how ethical responsibilities both limit and require the use of AI; Professor Jeannie Marie Paterson on Facial Recognition Technology; Professor EJ Wise on the extent to which the law of war apply to cyberspace; and David Wilson on why copyright law seems ill equipped to deal with AI technology.

No-one knows how technology will develop in the future.

The one certainty is that data-driven “AI” technologies are only going to become more prevalent, meaning that just as lawyers need to keep up with changes in the law, lawyers need to keep up with changes in technology.

Importantly, a good understanding of the human rights and ethical concerns raised by the proposed use of the technology will be necessary to give sound advice to clients or governments about their use, as well as ensuring responsible and effective regulation of them.

Feature Contents 26

Artificial Intelligence (AI) and the Future of Law

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Behind the Articles by Jessica Henderson

30

Lawyers’ Ethics and the Use of Artificial Intelligence in Legal Services

by Michael Legg

34

Facial Recognition Technology Used by Private Firms in Public Spaces: Privacy, Surveillance and Reform

by Jeannie Marie Paterson

38

Technology and the Law of War

by EJ Wise

41

Copyright and Generative Artificial Intelligence by David Wilson

Artificial Intelligence (AI) and the Future of Law AI can perform complex tasks that once required human input. One part of this article was written by a lawyer and the other part generated by ChatGPT. Can you tell the difference?

Will artificial intelligence (AI) engines eventually supplant the hard-working solicitor?

Will AI draft submissions for court, prepare merger and acquisition contracts better than a commercial partner in a national law firm? Can a chatbot replace a human judge? Are these questions already too late?

AI technology has been with us for a while, but easily accessible public-facing platforms like ChatGPT are a potential game-changer for the legal profession and other industries.

We hear news stories about universities expressing concerns regarding the capabilities of AI and the impact on education, as lecturers struggle to differentiate an essay written by a

26 | BRIEF APRIL 2023

student and an essay generated by an AI like ChatGPT. To investigate further, and as an interesting exercise on AI, Brief asked a prominent lawyer to write an article on the topic, “A Short Explanation of Law”, and then utilised ChatGPT to generate a second article on the same topic.

Brief now invites you to step into this brave new world. Read both versions and see if you can tell which one was written by a human being.

The answer can be found at the end of this article, with further insights on the writing process and the future of AI in the legal profession in “Behind the Articles”.

A Short Explanation of Law – Version 1 There is an air of mystery about law that many lawyers do little to dispel. Perhaps they still

think of themselves as monks guarding the sacred spirit of the common law. In fact, law is nothing more than a tool.

Unfortunately, as will become clear, knowledge of all aspects of law is beyond any one human being. In days when Latin was widely used in law, there was a maxim Ignorantia juris non excusat – ignorance of the law is no excuse. This rule applies today in criminal law. A driver caught doing 70 km/h in a school zone will get short thrift if they attempt to argue lack of knowledge that such behaviour was an offence. An ordinary citizen is presumed to know every aspect of law, breach of which might lead to punishment.

Law has always been complex. The application and interpretation rests on members of society who have devoted themselves to study and achieved recognition of knowledge through exams. They become part of one of the three “Learned” professions: Law, Theology and Medicine.

They have been given various names at different times depending on the area of law

Artificial Intelligence and the Future of Law chosen by them: Barrister, solicitor, proctor, attorney, notary, advocate, counsellor, Sergeant at law, King’s (or Queen’s Counsel), Senior counsel, legal practitioner. The generic name is ‘lawyer’.

Every society has a set of laws, values, or conventions to govern interaction between human beings. If you live alone on a desert island, you have no need of laws. The moment another person arrives on your island, you must modify your behaviour to take account of their needs and desires so that the two of you may live amicably.

Law is pervasive, like the air we breathe. It governs our everyday life, our relationships, grants permission to undertake certain tasks without penalty. Parliaments of the Commonwealth and States are empowered to make laws for “peace, order (welfare) and good government”.

What are the sources of law in Australia?

This is intended to be a brief guide, not a thesis so the sources are limited to two – the common law, sometimes called case law, and statutory law.

Common law When Australia was colonised by the British, common law was imported and remains an important source of law in Australia and other former colonies such as the USA and Canada.

Common law is judge made law. Two parties are in dispute. A judge applies the law to the particular facts and announces a result. The law the judge applies might stretch from past centuries. The development of common law is like playing with Lego. Piece by piece a structure emerges. After perhaps ten similar cases all decided the same way, a principle may emerge.

A famous example is the snail in the bottle case in the UK where the highest court of the time, The House of Lords laid down a principle of duty of care in negligence that still is followed today in Australia. The law of negligence which we take for granted was still then in development. The principles of duty of care and standards of care were not completely settled. This illustrated by the judgments. Although 3 Law Lords found in favour of the Plaintiff Ms Stevenson, 2 eminent Law Lords dissented and would have dismissed her claim. Were they wrong, or was it simply that they applied a different principle?

The case-by-case approach of the common law allows development in many directions.

By contrast, statutory law, if clear, permits no divergence.

Statutory law The second source of law is parliamentary

made law, known as statutes or acts – the terms are interchangeable. When a document known as a bill is agreed to by a majority of members of both houses of parliament, and subsequently assented to by the King’s representative, the Governor, the bill becomes law and is known as an Act of Parliament.

This is now the main source of law. Whereas a judge’s task in a common law case is to find facts and apply a principle developed over the ages by other judges; in a statutory law case, the judge will find facts, if necessary, interpret the statute to see what it means, and then apply the words of the statute to the facts to resolve the dispute.

With the rise of representative democracy, parliaments pass laws on any subject. These may be to regulate a developing issue, to amend the criminal law to deal with a specific threat, to enact promises made at elections.

There is sometimes a tendency to think of legislation – another word meaning statute law – as the solution to any problem. Of course, it is not. Parliaments who attempt to legislate for every situation tend to get into strife. It is courts that must resolve disputes in particular factual situations. As a judge said many years ago, parliament enacts the outlines of the picture leaving courts to colour in the detail.

Civil law and criminal law.

Finally, a word about the difference between civil law and criminal law.

Civil law is the vindication of rights and may be based on the common law, statute law or both.

In civil law, a person comes to court to seek vindication of a right. It might be a right under contract, a claim of a breach of duty of care, a complaint that a government department has acted unlawfully.

Most civil cases are settled either by the parties directly or through mediation. With disputes that proceed to trial, the judge will decide on the balance of probabilities which side’s facts resolve the legal issue.

A side note. Many parties will choose to resolve their dispute privately without a judge. Instead they will submit their dispute to an arbitrator appointed by them. This may be useful if the dispute involves complex technical evidence such as a breach of patent or an engineering dispute. An arbitrator does not have to be a lawyer though many are.

Criminal law is different to civil law. The purpose of criminal law is not primarily to resolve disputes but to determine if it is proved beyond reasonable doubt that the conduct of a person has breached a statutory law such as a section of the Criminal Code. If so, the person is to be punished in a manner the

statute permits. The State takes over what might otherwise be a private dispute between offender and victim to keep the peace, prevent retribution and revenge and impose a common range of penalties to inform and deter others.

Criminal law in Western Australia, Queensland, Tasmania, Northern Territory, and the ACT is entirely statutory in the form of a criminal code. In New South Wales, Victoria, and South Australia, while most criminal law is now the subject of statutes, there remains some operation of the common law.

Criminal or regulatory states such as the Work Health and Safety Act prescribe maximum penalties – length of imprisonment or amount of fine, leaving a judge to fix a just penalty within the range the statute allows. The most severe punishment legislated in Australia is loss of liberty or imprisonment.

In an imaginary perfect community citizens would know all the law, rather than the State imposing an artificial and unrealistic presumption of knowledge.

Until we reach that enlightened Shangri La, we will continue to need pilots to navigate us through the complexities of law in the modern age.

Lawyers will always be with us.

Or will they?

Perhaps machine learning will send lawyers the way of the dodo.

A Short Explanation of Law – Version 2 Law is an integral part of any human society, no matter where it is in the world.

In Australia, law is what keeps order in the world, protecting our rights and freedoms, resolving disputes, and solving problems.

But what exactly is law, and how does it work in Australia?

At its core, law is simply a set of rules that govern how individuals and organisations interact with each other, as well as with governments and authorities. Every country has its own system of laws, and in Australia our legal system is based on the English common law system, meaning it is comprised of common law, statutes, regulations and other various sources.

In other words, laws are made with three branches of government – legislature, judiciary and executive – operating together.

The legislature – made up of elected representatives and the Senate – is responsible for creating laws. This includes

27

enacting acts, setting up a trial process, and creating an appellate system.

The judiciary – made up of the High Court of Australia, state and territory courts – enforces those laws using due legal process.

The executive – represented by the Queen and other ministers – is responsible for carrying out the laws through federal and state governments.

When it comes to day-to-day living, Australian citizens and residents are subject to criminal laws and civil laws.

Criminal law is the branch of law that applies to offences committed against society as a whole. This can include anything from speeding to murder and is usually (though not always) severely punished. Civil law is the branch of law that applies to disputes between private persons or organisations. This can range from family disputes to contract disputes or debt recovery.

In the event of a dispute, both parties can bring the issue before an independent court or tribunal. There, an independent judge or arbitrator can listen to both sides’ arguments and ruling based on the facts and evidence before them, as well as Australian law.

The laws and legal system in Australia exist to protect its citizens and residents, promote justice and ensure freedom. Our laws can be complex but, at its core, it’s really all about keeping the peace and treating each other fairly.

Dr. Jessica Henderson

Which version was written by a human?

The correct answer is Version 1.

The first version was written anonymously by a former lawyer.

The second version was provided by Jessica Henderson, a barrister and university lecturer, who utilised ChatGPT to generate the content.

“Behind the Articles” below explores the writing process using ChatGPT, and offers further insights and understanding about the future of AI in the legal profession.

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Behind the Articles

By Dr Jessica Henderson ChatGPT was entirely off my radar until Christmas Day 2022, when my brother drew it to the attention of my family during Christmas lunch. I presumed it was an attempt to tease me. I have prided myself on my command of language from a very early age (not without cause, as my teachers annually assured me).

My brother’s suggestion that an artificial intelligence could reproduce what I do, only indicated how little he understood about my expertise and what I do for a living.

He was insistent that it was the future of drafting, however, and that it would save me hours of time. He was so touchingly earnest that I gave in and tried it. Not without my tongue in my cheek, at least at first.

“Will AI replace human draftsmen”, I asked.

The answer was short, sharp and right to the point.

“AI does have the potential to replace human draftsmen in certain aspects of the job. AIdriven software is capable of creating diagrams and blueprints…”

Diagrams and blueprints. Because if you look at the internet, that’s what “draftsmen” means.

“Drafting” is not recognised as a literary art by your average internet blogger.

I was reassured that I was still superior to a machine. As if there was any doubt.

After some reflection, however, I reconsidered whether what I do is, in fact, best described as ‘drafting’. Unable to immediately think of another description, and conscious of the ticking clock of my lunch break, I asked ChatGPT instead “should I use a lawyer or AI to write to the Court?” After all, what I do is in two parts. I advise, and I persuade. My drafting is made up of both legal knowledge and the under-sung art of rhetoric.

Magazine that we run a little competition.

We would set topics for two expert human authors and then ask ChatGPT to write us a corresponding article. See what happened.

The truth is, I am intimidated by the possibilities of AI. Consistent with my life-long determination against unnecessary intimidation (arachnophobia is not unnecessary), I volunteered to learn how to use the AI software myself and set myself the task of producing the best possible articles that I could with it.

My brother gave me a quick lesson, and I set about my task.

On the assumption that most people would try the free options first, I started with TinyWow’s ‘essay writer’. Tiny Wow was the first option that came up on a search of ‘free AI essay generators’. I started with its Essay Generator and was asked what I wanted to write.

“A short explanation of law” resulted in a paper that was too generic.

“A short explanation of law in Australia” did not offer any introduction from a global or civilisation perspective. It dove right into the details of the Australian legal system.

“A short explanation of law in Australia with an introduction about the importance of law to civilisations” was too long for Tiny Wow to work with.

I tried “what is law, and how does it work in Australia”. It produced a textbook answer, utterly devoid of any personality. Whilst reasonably accurate, it was in the old Encyclopaedia Britannica style and there wasn’t going to be any doubt in the reader’s mind that it was the AI generated article.

So I tried Tiny Wow’s Article Writer (arguably this would have been the better starting point, in retrospect). Instead of asking me for a topic, it asked me for a title. I used “A short explanation of law”. It generated heading ideas, which gave me detailed options for the content of the article.

I was advised that “[i]t really depends on your specific situation. If you are dealing with a complex legal issue, it would be best to use a lawyer. AI technology is not yet capable of providing the same level of service as a legal professional. If you are dealing with a relatively minor issue and you are comfortable researching and writing your own legal documents, then you can use an AI service.”

Still no options for style, and the article ended up pretty sanitised.

A reassuring and indeed an intelligent answer.

I was particularly struck by the power of that little “yet”. I am a proponent myself of the micro-insertion that can operate so powerfully on the unconscious mind of the reader.

ChatGPT was clearly a more formidable opponent than I had given it credit for.

I asked for “an article for the general public about what law is, with specific reference to the Australian context”. On a scale where 0 is logical and 1 is creative I asked for a 0.6. I selected the davinci 003 generator, without any idea what it did. The result was better, but still lacked the tone of a human author.

Thus was born my suggestion to Brief

I tried the 0.8 setting using “Davinci”.

I gave in and paid for the 14 day trial of AI-Pro ChatGPT. A little exploration took me to the AI-PRO generator page, which gave me the broader range of options that I had been promised AI chat generators would have.

Artificial Intelligence and the Future of Law “The output for your prompt is too long for us to process. Please reduce your prompt and try again.”

I went back to the “davinci 003” and tried “witty article about law in Australia”.

At this point ChatGPT advised me that “[w] riting articles requires research and a certain depth of knowledge, which is why it is best left to experts.” I was mildly impressed at the display of humility.

It did, however, offer me “a basic overview of law in Australia”. It was not sufficient for my needs.

much fun…”

I had that friend. If she’s reading this article, she’ll know who she is. Again, I was mildly impressed. It wasn’t what I was looking for, however.

I tried asking for “a witty essay on what is law”.

This time I got a roller coaster analogy.

After several more false starts, I hit upon searching “a witty article on what is law in Australia?” The result was better, but just a paragraph.

I went back to my original question:

Finally I set the generator to 0.8 and asked it to “write an article on what is law and how does it work in Australia?”

“What is law?”

Success. The result is that which is published.

It went back to its original answer:

Perhaps others may find this software more intuitive than I did. I clearly struggled to find the right questions, and I sense that I am only just tapping into the surface of what the software can do. I am also very pressed for time, so I asked ChatGPT to write me an intellectual concluding paragraph to an essay about the future of AI in the legal profession.

“Law is a system of rules created and enforced through social or governmental institutions to regulate behaviour.”

I tried asking for “a witty explanation of law” and got: “Law is like that wild, party-hard friend who always seems to get away with having too

“The future of AI in the legal profession

promises to be an exciting one; its potential to improve efficiency and productivity is immense.

However, it is important to maintain an ethical and responsible attitude towards its use – AI should be used as a supplement to, not a replacement of, the reasoning that is unique to human lawyers. As technology advances, it is essential that AI is regulated appropriately to maintain respect for the law and the rights of those affected by it. With careful consideration, AI can be an invaluable tool in the legal industry, opening up a world of improved access to justice.”

I agree with that assessment. The future of our profession is interwoven with the development of AI in many important ways. Fearing and hating it will accomplish nothing. Working diligently to ensure that we are equipped with the knowledge needed to navigate the AI legal issues will be far more productive. The AI legal landscape will be intricate, and unprecedented in important respects. Lawyers with mastery of the legal issues will be necessary in the litigation that will inevitably arise.

For lawyers, this is not the beginning of the end. It is the beginning of an exciting opportunity.

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Lawyers’ Ethics and the Use of Artificial Intelligence in Legal Services

By Michael Legg, Professor, UNSW Faculty of Law & Justice, Sydney

New technology, such as artificial intelligence (AI), is driving change in society and business. AI’s advancement also impacts on legal practice, not just through efficiencies and profitability, but also through the ethical duties of lawyers. Ethical responsibilities both limit and require the use of AI. Lawyers need to be able to use AI tools to be able to discharge their duties of competence and acting in the best interest of clients.

AI tools may also facilitate access to justice. AI also creates risks when it comes to maintaining confidentiality, legal professional privilege, and independence.

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What is Artificial Intelligence?

AI, as a term or field of computer science, is employed where processes are

used to carry out tasks which, if performed by a human, would be seen as evidence of intelligence ‒ i.e. the processes mimic, imitate or simulate intelligence. AI is also an umbrella term. There are different branches of AI as shown by figure 1. This article focuses on the branches of AI relevant to legal practice, namely expert systems, machine learning and Natural Language Processing (NLP).1

In brief, expert systems, the oldest and most simple form of AI, are pre-programed systems which can guide users through a sequence or

series of steps, similar to a decision tree. The system involves obtaining and deconstructing human expert knowledge into a computable form that can then be accessed more cheaply and widely. Machine learning refers to data-driven programs which use pattern recognition in data and statistics to produce their outputs. There are three types of machine learning. In supervised learning, the data is already labelled (for example, a picture is labelled as a dog or a cat), and the program is trained on that data to identify associations between the data and the labelled outcome, or classification. The program can then classify new data. Unsupervised learning involves no labelling, instead the software

Lawyers’ Ethics and the use of Artificial intelligence searches for patterns in the data it is provided.

Instead of telling the software which are pictures of cats and which are not, until it learns the difference, it is given enough pictures to discern the pattern itself.

Deep learning or neural networks are designed to replicate the architecture of the human brain. Neuroscience hypothesises that the brain functions via electrochemical activity in networks of brain cells called neurons. Neural networks consist of millions of hidden layers of nodes and connections. A node receives information from a number of other nodes, and depending on the weighting given to that information, transmits further information to another node. Neural nets can also ‘learn’ – for example by using backpropagation, a method by which, when told its outputs are erroneous, a system can work back through the layers, adjusting the weights, until a better answer is reached.

NLP is usually a form of neural network that uses statistics to work out the probability of words appearing next to one another. It allows computer programs to obtain knowledge from large collections of unstructured text – such as found on the internet – and produce answers to questions.

Figure 1 – Types of Artificial Intelligence

characterised by requirements of loyalty, partisanship and acting in the client’s best interests. The lawyer is required to put the client’s interests before their own, although the lawyer is permitted to charge a fee for the services they provide.

AI may improve the quality and/or efficiency of the lawyer’s work. This can mean a better result for the client. AI can assist the lawyer in promoting the client’s interests by bringing about the outcome the client seeks – resolving a dispute or bringing a transaction to successful completion.

A long-standing use of AI in legal practice is technology assisted review (TAR), which is a form of machine learning, employed in discovery or due diligence. Just as a machine learning program can eventually successfully label a not-previously seen picture of a cat as a cat, TAR, once trained by a lawyer as to what is a relevant document, can also identify which documents in the discovery or due diligence are relevant. 2 Research studies have found TAR to be more accurate and less expensive than human review for large scale discovery.3 If TAR aids in finding the key documents in litigation or as part of a due diligence, then acting in the client’s best interests may require the use of the AI tool. AI can also save significant time so that lawyers may be found to be acting in an unethical manner where they bill for doing these tasks manually or using (for example)

categories of documents from an electronic database containing approximately 29,000 documents, observed: “it would be unrealistic to think that the discovery process in a case such as this will be conducted by way of a manual examination, by the client and its solicitor, of each and every document unaided by technology. The reality is that the discovery process in this case will involve a combination of solicitor, client and algorithm.” 4

Competence Rule 4 in Solicitors’ Conduct Rules also provides that a solicitor must “deliver legal services competently, diligently and as promptly as reasonably possible”.

Competence may be defined as having knowledge of the law and being able to use the law (both substance and procedure) with skill to solve problems. It refers to technical proficiency. It also involves effectiveness and efficiency – the rule refers to diligence and promptness – which includes achieving an outcome in a timely and cost effective manner.

The impact of technology on the functioning of law and the legal profession was highlighted by the American Bar Association (“ABA”) when it approved changes to its Model Rules of Professional Conduct. A comment was added to rule 1.1 (Competence) to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. A majority of US States have adopted the comment (Comment 8) which provides: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Source: Michael Mills, ‘Artificial Intelligence in Law: The State of Play’ (Thomson Reuters, 2016) 3.

Duty to the Client Rule 4 in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“Solicitors’ Conduct Rules”) requires that a solicitor “act in the best interests of a client in any matter in which the solicitor represents the client”. The duty to the client is typically

inferior technology. Failure to use technology may result in overcharging.

Put in the converse – it is not in the client’s interest to conduct representation in a way that is incomplete or takes more time and cost because the lawyer cannot use readily available technologies.

By way of further illustration, Chief Justice Quinlan, in addressing the discovery of

In jurisdictions outside the US where there is no specific rule or commentary addressing technology, such as Western Australia, the general requirement of competence may nonetheless be viewed as including competence with technology. Just as lawyers need to keep up with changes in the law, lawyers need to keep up with changes in technology. This argument can be made on the basis that it is not possible to carry out competent legal representation without being able to use relevant technology.

A straightforward example is legal research before and after the rise of electronic

31

databases, the internet and various forms of search – keywords, connectors (i.e.

AND, OR) and natural language. The way a lawyer finds the law has changed and with it the way a lawyer must think about finding the law. The lawyer who relies only on the textbooks, legislation and case law (including citators) physically in their office cannot be as comprehensive as the lawyer with access to online databases. However, the effectiveness of using those online databases requires knowledge of how to search.

Another example is TAR. TAR is a highly technical exercise. It involves an array of methodological choices, such as seed set selection strategies, choices among “learning protocols” and evaluation of performance metrics. The use of TAR in discovery is addressed by the Supreme Court of Victoria’s Practice Note SC Gen 5 Technology in Civil Litigation. The Practice Note states that “the use of common technologies is a core skill for lawyers and a basic component of all legal practice”. 5 Equally, the use of AI is not “set and forget”. The AI is not autonomous. The lawyer has important roles in supervising and interrogating the outputs from TAR. As Chief Justice Quinlan observed: “Even with the use of text search programs, it is necessary that solicitors and clients be actively involved in order to satisfy themselves that appropriate searches and inquiries have been conducted.” 6 A more recent use of AI is generative AI, exemplified by Chat-GPT, which uses a neural network trained on a huge corpus of text written by humans, the internet, with

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feedback from humans and adjustments to the weights in the network to minimise error. 7 Put simply, generative AI does not just perceive and classify a photo of a cat, but can create an image or text description of a cat on demand. Generative AI can be used for legal work as shown by Allen & Overy’s law-focused tool “Harvey” which can be used to generate answers to questions about the law, draft documents and messages to clients.

A concern with current generative AI is its tendency to confidently make things up-or “hallucinate.” Consequently Allen & Overy has a risk management program around the use of Harvey. Users who log in to Allen & Overy’s Harvey portal receive a list of rules for using the tool, including validating outputs. Harvey can generate great efficiencies, but a lawyer still needs to check the output to make sure it is accurate. 8 Competence may also be required so as to allow a lawyer to challenge or interrogate AI tools. A particular concern for civil liberties and the administration of justice is the use of algorithmic risk assessments in the criminal justice system in relation to bail applications or sentencing, and in being able to challenge incorrect administrative uses of AI, which may be illustrated by Robodebt.

What does competence mean in relation to technology? It is the lawyer being able to: •

choose technology that is fit for purpose;

•

use the technology correctly, including understanding its outputs;

•

understand the risks associated with technology;

•

challenge or interrogate technology.

Importantly – lawyers can get help. They can retain experts, such as third party providers of TAR, to assist them in using relevant technology to provide representation. They can undertake training, including as part of continuing professional development, to learn how technology functions as well as its limitations.

Confidentiality and Legal Professional Privilege Rule 9 of the Solicitors’ Conduct Rules states that a solicitor must not disclose a client’s confidential information acquired by the solicitor during the client’s engagement, subject to specified exceptions.

Relatedly, legal professional privilege protects from disclosure confidential communications between a client and his or her lawyer, made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

The issue of technology and confidentiality has been considered in a number of contexts, namely the use of mobile phones, email, wireless technologies (such as public wifi) and data storage in the ‘cloud’. It also arises in relation to AI. The issue in relation to AI, notably machine learning, is that it needs data to be able to function. Client (or law firm) communications, including electronic versions of documents, may need to analysed by the program as part of its training.

Lawyers’ Ethics and the use of Artificial intelligence Machine learning applications generally require a high volume of data in order to be trained, so the status of this data must be clarified in order to maintain its confidentiality.

For example, an AI product can be used to cite check a memorandum of law or court submissions to ensure that cases have not been over-ruled or questioned, and to suggest additional cases. The draft advice or submissions are confidential and privileged. However, for the AI product to perform its function the draft and confidential memo/submission must be accessed by the program.

Another example would be the use of natural language processing in relation to speech. The AI product will need to be given the recorded speech to convert it to written text. This then raises a number of questions: Are the recordings being saved? If so, who owns them or has access to them? Are the recordings being used for AI improvement? What security measures are in place? If the recording contains confidential or privileged information the lawyer needs to obtain assurances that the recording will remain confidential and not be disseminated. Indeed, it would be prudent to go further and require that the recording be deleted after it has been converted to text.

A lawyer may be tempted to try and avoid technology because of confidentiality concerns. However, this has to be weighed with the duty of competence and the duty to the client.

Independence Independence is the ability to act and to

exercise judgment free from external pressure.

Professional independence is typically discussed in relation to different pressures upon lawyers – commercial interests, pressure from more senior colleagues or employers, and from clients. Independence can mean independence from a client seeking to influence advice, i.e. maintaining a detached or objective state of mind. At other times it can mean independence from the pressures and influences of others who might compromise lawyers’ loyalty to clients.

The Uniform Law rule 4.1.4 specifies that solicitors must ‘avoid any compromise to their integrity and professional independence’.

Moreover in relation to advocacy, rule 17.1 states that the lawyer “must not act as the mere mouthpiece of the client”.

A challenge for lawyers’ use of artificial intelligence is whether it amounts to ‘outsourcing’, even if on a small scale, and could compromise a lawyer’s independent judgement. Arguably, if lawyers are overly reliant on an AI program – for example, to tell them about precedent cases, to search for relevant documents in discovery, or even to

predict the outcome of litigation – they are not exercising independent professional judgment.

The concern is ‘automation bias’ - the tendency for humans to trust that processes which are automated are also more reliable.

In response it is suggested that lawyers should supervise AI systems as they would their junior legal staff. Indeed this is the approach in the US in relation to complying with the competence requirement discussed above. Yet this is complicated by the fact that lawyers may not be able to independently evaluate the functioning of the software due to their own lack of technical knowledge, which is quite different to supervising a junior lawyer. There is also the lack of transparency in a system’s functioning, or the fact that no one (even its developers) may fully understand how its outputs were generated. For example, Chat-GPT has about 400 (core) layers, with millions of neurons and 175 billion connections.

9 It may be difficult or even impossible for lawyers to understand how the technology is functioning. However, not all AI is unable to be tested. For generative AI this means verifying the output as accurate. The supervised machine learning used in TAR is able to be tested using statistical sampling.

AI is an assisting tool for lawyers not a replacement for the lawyer or their judgment.

Access to Justice A lawyer has an ethical duty to facilitate access to justice. As the main possessors of legal knowledge and skills, and with a monopoly on exercising these, lawyers have a key role to play in ensuring access to the justice system, commonly through pro bono representation. The Solicitors’ Conduct Rules do not address access to justice expressly, but it is nonetheless recognised as an ethical duty. The former Chief Justice of the Australian High Court, AM Gleeson, has explained that: The legal profession is a profession and not only a business; that its members have a duty to temper their pursuit of individual self-interest; and that they have a collective obligation to do their best to make legal services available to needy people.

Collectively, this is a matter of duty, not generosity. 10 The duty to facilitate access to justice may be met through AI. At the individual lawyer level and at the profession level there is scope for AI systems to be used to assist those that cannot afford legal services to obtain advice, the drafting of documents and dispute resolution services. An AI product once created can be used repeatedly without additional cost or effort. Expert systems and chatbots have been deployed to provide basic legal information and to assist those

with disputes to commence proceedings and attempt some form of alternative dispute resolution.

However, it is also likely that lawyers will still have a role to play in supporting the person during or after the use of the AI-provided service or product, depending on the complexity of the problem or what is at stake.

Products might also help lawyers to work more efficiently and reduce their fees.

Conclusion It is arguably no longer a question about whether lawyers should use technology but rather exactly what technology they should choose and the degree of knowledge they should have. Lawyers do not need to be experts in AI but adherence to the Solicitors’ Conduct Rules requires them to at least know what they do not know and take steps to address a lack of knowledge.

Michael Legg is a Professor at the University of New South Wales, Faculty of Law. He specialises in civil procedure, regulatory litigation, class actions and innovation in the legal profession.

Michael’s main research interests are the civil justice system, class actions, litigation funding, the public and private enforcement of securities laws and the interaction between technology, innovation and the legal profession. His research has been cited in Australian and overseas court judgments and law reform reports.

He has written extensively on litigation and dispute resolution and is the author of Case Management and Complex Civil Litigation (2nd ed 2022) and Public and Private Enforcement of Securities Laws (2022).

Endnotes 1 For a more detailed description of the various forms of artificial intelligence see Legg M and Bell F, Artificial Intelligence and the Legal Profession (Hart, 2020) and Bell F, Bennett Moses L, Legg M, Silove J and Zalnieriute M, AI Decision-Making and the Courts (AIJA, 2022).

2 Legg M, Case Management and Complex Civil Litigation (Federation Press, 2nd ed 2022) 118-124.

3 See Grossman M and Cormack G, ‘Technology-Assisted Review in E-Discovery Can be More Effective and More Efficient than Exhaustive Manual Review’ (2011) 17 Richmond Journal of Law & Technology 1.

4 MAEK Pty Ltd v Ibrahim [2022] WASC 285 at [22].

5 Supreme Court of Victoria, Practice Note SC Gen 5 Technology in Civil Litigation, 29 June 2018, [4.3].

6 MAEK Pty Ltd v Ibrahim [2022] WASC 285 at [22] citing Bolitho v Banksia Securities Ltd (No 18) [2021] VSC 666 [1380] 7 Wolfram S, “What is ChatGPT doing … and Why does it work?”, Writings, 14 February 2023.

8 “A&O announces exclusive launch partnership with Harvey”, Allen & Overy, 15 February 2023 and StokelWalker C, “Generative AI Is Coming For the Lawyers”, Wired, 21 February 2023.

9 Refer note 7 (nothing except the overall architecture is “explicitly engineered”; everything is just “learned” from training data.)

10 Gleeson A, ‘Opening Speech’, National Access to Justice and Pro Bono Conference, Melbourne, 11 August 2006, 5.

33

Facial Recognition Technology Used by Private Firms in Public Spaces: Privacy, Surveillance and Reform

By Jeannie Marie Paterson

Professor Jeannie Marie Paterson Professor of Law (Consumer Protection and Emerging Technologies) Co-Director: Centre for AI and Digital Ethics (CAIDE) – Co-leader: Digital Equity and Access Research Program, Melbourne Social Equity Institute (MSEI), The University of Melbourne

INTRODUCTION

security, it also raises profound concerns about human rights and civil liberties.

These concerns have led to investigations by the Office of the Australian Information Commissioner (OAIC), and proposals for urgent law reform.

Facial Recognition Technology (‘FRT’) has moved from science fiction to reality. FRT is being used at ePassport gates, to track missing children, and by police to identify suspects in a crowd. In 2022, Choice revealed that retailers were using FRT at the store front, and some clubs, pubs and casinos have indicated they will be using FRT to identify problem gamblers. Supermarkets are using some version of computer-vision, the technology underlying FRT, to monitor customers using self-checkouts. The rising use of FRT has been controversial because, while the technology appears to offer opportunities for more effective policing and

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Understanding FRT The term ‘FRT’ may be used to cover different processes:1 •O ne to one facial matching (verification) involves matching an image of a face against verified image of the identity being claimed, as in ePassport gates, phones, and some workplace entrance security systems.2

• Object recognition involves using computer vision to identify a given object not verify identity, for example monitoring poachers,3 feral animals,4 and unlawful mobile phone use while driving.5 • Emotion detection represents an attempt to identify emotion, character, or illness from biometric data such as face prints, gait or iris scans.6 It is controversial and inaccurate.

Former Human Rights Commissioner, Ed Santow, describes this use of FRT as ‘junk science’.7 One to many facial matching (identification) involves identifying a person from a crowd. It is the form of FRT used for crime prevention

Facial Recognition Technology and security purposes. The remainder of this article discusses one to many FRT. One-to-many FRT relies on neural networks trained on large data sets to distinguish different individuals’ faces. It identifies the unique geometry of an individual’s face and compares that ‘faceprint’ against a dataset of faceprints to make a match.8 In theory, this allows a user of the FRT to identify a particular person in a crowd. For example, FRT might be used in ‘real time’ to scan a crowd at a sporting match for people identified in a police database as having been convicted or suspected of crimes.

FRT can also be used ‘after the fact’ to identify a person from an otherwise anonymous image, for example to identify a shoplifter caught on CCTV cameras. This use of FRT has brought the company Clearview AI to prominence.9 Clearview AI’s app allows law enforcement and security companies to upload an image of a ‘person of interest’ and have it compared against the Clearview database for the purpose of identification. The images used in the app come from photos scraped from social media and websites. The OAIC states that Clearview AI has provided ‘trials of the facial recognition tool to some Australian police forces’.10 Concerns about FRT The technology behind FRT will no doubt continue to improve, but currently there are concerns about its accuracy, fairness and effect on privacy.11 FRT is less effective in ‘noisy’ conditions, namely when it is used to identify an individual in a crowd of faces, where people are moving so the image is unclear, and in low light.12 Inaccurate, incomplete or unrepresentative data used to train the FRT will taint the outputs of the system potentially leading to unlawful discrimination.13 For example, If the training data sets include different numbers of people from different demographics, for example, features predominantly white male faces, then the model trained on this data will be less accurate for women and people of colour.14 Less accuracy means more misidentifications and potentially more people being wrongly treated as suspects in a crime or excluded from public venues. Of course, it may be responded that people are also biased and poor at remembering faces. However, embedding this bias in automated systems such as FRT carries the risk of magnifying already existing discrimination on a colossal scale.

Even if the system is accurate, there are still concerns about privacy and surveillance raised by FRT.15 Sometimes people say they are not worried about facial recognition and other surveillance technologies because they

have ‘nothing to hide’. But privacy is essential to human flourishing, allowing us to take risks, be creative, and experiment with our identity.

If we perceive ourselves as being watched, that may have a chilling effect. Widespread surveillance gives significant power to the state and may act to curtail freedoms of speech, assembly, and expression.

The Law of FRT Human Rights Concerns have repeatedly been raised that the use of FRT risks breaching human rights law.16 In R (Bridges) v Chief Constable of South Wales Police,17 the UK Court of Appeal unanimously reached a decision that a facerecognition system used by the South Wales Police force was unlawful. The court identified problems arising from: •a lack of guidance as to when the force could use the FRT, which meant the discretion was too broad having regard to Article 8 of the European Convention on Human Rights;18 •n o reasonable steps to make enquiries about whether the software had bias on racial or sex grounds contrary to the Public Sector Equality Duty in s 149 of the Equality Act 2010 (UK).19 We do not have the same comprehensive human rights regime in Australia, but we do have protections against discrimination.20 The use of FRT by private firms will be additionally subject to the requirements of privacy legislation applying throughout Australia.

Privacy law Privacy laws in Australia apply to limit the collection and use of personal data. The Privacy Act 1988 (Cth) applies to ‘Australian government agencies; private entities … with an annual turnover greater than $3 million; and some other entities in limited circumstances’.21 The Privacy Act applies to protect an individual’s ‘personal information’.22 The OAIC considers that ‘personal information’ includes the data used in FRT and other biometric identification systems.23 The OAIC has stated that ‘voice print and facial recognition biometrics are personal information because they collect characteristics that make an individual’s voice or face unique’.24 FRTs collect unique biometric information about an individual for the purpose of using the faceprints collected to identify a specific individual.25 The Privacy Act rests on thirteen Australian Privacy Principles (APPs).26 Under the APPs a regulated entity: •m ay only collect personal information that is reasonably necessary for one or more of its

functions or activities (APP 3.1 and 3.2); •m ay only collect sensitive information if the individual consents to the sensitive information being collected, unless an exception applies (APP 3.3); • t hat collects personal information about an individual must take reasonable steps to provide notice (APP 5).

‘Sensitive information’ under the Privacy Act covers categories of highly personal information, including biometric information and templates.27 The Information Commissioner has held that an image of a face, and the faceprints used for FRT, will be sensitive information.28 This means that, in most instances, consent will be required to use a person’s face for FRT, a level of protection that is itself controversial.

Consent under the Privacy Act may be ‘express or implied’.29 The Act does not set out requirements for how consent is obtained.30 It is often unclear whether notice or consent processes used to justify data collection gives rise to a contract.31 Notably, in contract law, signature is enough to signal consent to the terms of a signed contract, whereas notice is needed to show consent to incorporated terms in unsigned agreements.32 These are formal rather than substantive requirements, ie it is not necessary to show a party read or understood the terms to be bound, although where reliance is placed on notice, proportionately more must be done to bring attention to unusual terms. By contrast, the Consumer Data Right imposes a robust standard for consent, requiring consent to be ‘voluntary, express, informed, specific as to purpose, time limited and easily withdrawn.’33 A similar standard of consent is required by the EU’s GDPR.34 The Australian Information Commissioner has indicated this robust approach to consent represents best practice under the Privacy Act.35 Findings by the OAIC The Information Commissioner has considered the use of FRT by firms on several occasions. In applying the requirements of the Privacy Act, key questions concern (1) the justifications that will qualify as reasonably necessary for the firms’ activities; and (2) the steps that will satisfy the requirements of consent.

Clearview AI Clearview AI provides its FRT service by using images scraped from the internet and social media. In a joint investigation with the UK Privacy Commissioner,36 the Australian Information Commissioner held that Clearview AI had contravened the Privacy Act.37 Clearview AI failed to comply with the Privacy Act, including by collecting and using

35

images without consent (APP 3.3) 38 or notice (APP 5).39 Consent could not be inferred from individuals making the images available on the web, the publication of a privacy policy, or the presence of an option to opt out in circumstances where the onus was on the individual to find out about the practices of the entity who was collecting the information.40 7-Eleven 7-Eleven used FRT to collect demographic information about consumers who entered an in-store competition using a tablet and also to determine if a consumer was entering multiple times.41 The possibility of biometric and photographic information being collected was referred to in the 7-Eleven Privacy Policy.42 The stores also displayed a notice at entry: Site is under constant video surveillance. By entering the store you consent to facial recognition cameras capturing and storing your image.43 The Information Commissioner held 7-Eleven’s conduct contravened the Privacy Act 1988. The use of FRT was not necessary for 7-Eleven’s business – understanding and improving customers’ experience – as feedback could be obtained in other ways (APP 3.2).44 The conduct collected individuals’ sensitive information without consent (APP 3.3).45 Consent could not be inferred merely from the notice at the entry to the store46 or the use of a privacy policy.47

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These sources of information did not provide an adequate explanation of the use of biometric information.48 The information was not displayed in the vicinity of the tablets.49 Nor was the use of FRT in using the tablets addressed.50 Kmart, Bunnings and the Good Guys The information Commissioner is currently investigating the use of FRT by Kmart, Bunnings and the Good Guys. The firms have said they are using FRT to protect their staff by identifying previously abusive customers, who are banned from entering the store, and will not retain any images collected of consumers.51 Whether the conduct is reasonably necessary for the conduct of their business (APP 3.2) is likely to depend on factors such as the severity of the problem being addressed, the availability of less privacy-intrusive methods of responding to the problem and, as seen in the South Wales Police case discussed above, the protections against bias and governance mechanisms placed around the usage of the FRT. The case also puts to the test the question of whether consent (APP 3.3) can be inferred from consumers entering the store in circumstances where there is a notice about the use of FRT at the entrance. In contract law more fulsome notice (e.g. ‘… printed in red ink with a red hand pointing to [the

unusual term] …’) must be provided where terms are unusual.52 A small discretely placed notice may not satisfy this requirement.53 The 7-Eleven decision suggests a close nexus between the notice and the conduct from which consent is inferred will be required, as well as clear, relevant information about the information being collected and the uses made of it.

Reform Uncertainties in the law applying to FRT and concern about its scope have led to suggestions for reform.

The Commonwealth Attorney General’s Department recently released the Privacy Act Review Report. The Report recommends that the ‘quality of privacy collection notices and consents obtained from individuals should be improved’.54 It recommends that the definition of consent should be amended to specify it must be ‘voluntary, informed, current, specific, and unambiguous’.55 Some argue that even robust consent standards are insufficient to deal with risks from technologies such as FRT. People simply don’t have the time or expertise to read privacy notices, and when they do they still may not understand the risks of consenting to biometric surveillance.56 The Review proposes a new ‘fair and reasonable’ test for entities when handling personal information.57

Facial Recognition Technology Is this enough? Some argue that there should be specifically directed rules, or even a ban, on uses of data that are highly invasive of personal privacy.58 The draft EU AI Act contains a ban on real time biometric surveillance in public places.59 The Human Technology Institute at the University of Technology Sydney have proposed a model law on FRT, which uses a risk-based human rights approach.60 High-risk uses of FRT would be banned except for law enforcement or national security, academic research, or when the regulator provides authorisation.61 Conclusion We don’t know how technology will develop in the future. The one certainty is that data-driven ‘AI’ technologies are only going to become more prevalent, meaning that a good understanding of the human rights and ethical concerns raised by the proposed use of the technology will be necessary to give sound advice to clients or governments about their use, as well as ensuring responsible and effective regulation of them.

Jeannie Marie Paterson specialises in the areas of contracts and consumer protection, along with the law and regulation of emerging technologies.

Jeannie is the co-director of the Centre for AI and Digital Ethics, a collaborative, interdisciplinary research, teaching and policy centre at the University of Melbourne involving the faculties of Computing and Information Systems, Law, Arts and Science and Co-leader of the Digital Ethics research stream at the Melbourne Social Equity Institute, an interdisciplinary research institute focused on social equity and community led research.

Jeannie holds a current legal practising certificate and regularly consults to government and not-for-profit organisations, as well as speaking regularly on issues around AI, ethics and consumer protection.

Endnotes 1 ‘Delhi Police Tells High Court It Requires More Information from Centre on Missing Children’, Firstpost (23 April 2018).

2 ‘Facial Recognition’, NSW Police Force (Web Page).

3 Jarni Blakkarly, ‘Kmart, Bunnings and The Good Guys using facial recognition technology in stores’, Choice

(12 July 2022).

4 Cam Wilson, ‘Pubs are buying facial recognition technology to track and record you’, Crikey (10 August 2022).

5 Josh Taylor, ‘Woolworths Expands Self-Checkout AI’, Guardian (19 February 2023).

6 OAIC opens investigations into Bunnings and Kmart’, Office of the Australian Information Commissioner (Media Release, 13 July 2022).

7 Human Technology Institute (UTS), Facial recognition technology: Towards a model law (Report, September 2022) 15-16.

8 Ibid 15-16.

9 Henry Kronk, ‘Facial Recognition Technology in the Workplace’, Corporate Compliance Insights (3 March 2021). Also Sarah Basford, ‘Australian Schools Have Been Trialling Facial Recognition Technology, Despite Serious Concerns About Children’s Data’, Gizmodo (10 March 2020).

10 Meilan Solly, ‘New AI Camera Helps Conservationists Spot Elephant Poachers’, Smithsonian (7 January 2019).

11 Joanna Prendergast and Lucinda Rose, ‘Cameras, tracking collars, facial-recognition technology help identify feral pigs, wild dogs’, ABC Rural (29 July 2021).

12 ‘Mobile Phone Detection Cameras’, Transport for NSW - Centre for Road Safety.

13 See Jake Goldenfein, ‘The Profiling Potential of Computer Vision and the Challenge of Computational Empiricism’ [2019] FAT* ’19: Proceedings of the Conference on Fairness, Accountability, and Transparency 110.

14 Ed Santow, ‘Can artificial intelligence be trusted with our human rights?’ (2020) 91 Australian Quarterly 10, 17.

15 See R(Bridges) v The Chief Constable of South Wales Police [2020] EWCA Civ 1058, [9].

16 ‘Clearview AI’, Clearview AI (Web Page) <https:// www.clearview.ai/>.

17 ‘Clearview AI Breached Australians’ Privacy’, Office of the Australian Information Commissioner (Media Release, 3 November 2021) <https://www.oaic.gov. au/updates/news-and-media/clearview-ai-breachedaustralians-privacy> 18 Towards a model law (n 9) 28.

19 Ian Sample, ‘What is facial recognition and how sinister is it?’, The Guardian (29 July 2019).

20 Australian Human Rights Commission, Human Rights and Technology (Final Report, 1 March 2021) 111.

21 South Wales Police (n 17) [193].

22 ‘Clearview AI breached Australians’ Privacy’ (n 18).

23 Syed Taha Anzar, ‘Cambridge report finds UK police used of facial recognition technology may breach ethical and legal obligations’, Jurist (online, 29 October 2022).

24 South Wales Police (n 16).

25 South Wales Police (n 16) [91].

26 Ibid [201].

27 Towards a Model Law (n 9) 37.

28 Office of the Australian Information Commissioner <https://www.oaic.gov.au/privacy/the-privacy-act>.

29 Privacy Act 1988 (Cth) s 6(1) (‘Privacy Act’).

30 Commissioner initiated investigation into Clearview AI Inc [2021] AICmr 54, [141].

31 ‘What is Personal Information?’, Office of the Australian Information Commissioner.

32 Commissioner initiated investigation into 7-Eleven Stores Pty Ltd [2021] AICmr 50, [28]. [38].

33 Ibid.

34 Privacy Act (n 31) s 6(1).

35 See further: ‘Australian Privacy Principles quick reference’, Office of the Australian Information Commissioner.. Also 7-Eleven Stores (Privacy) (n 34) [47], [82]; South Wales Police (n 16) [22].

36 Privacy Act (n 31) s 6(1).

37 Damian Clifford and Jeannie Paterson, ‘Consumer Privacy and Consent: Reform in the Light of Contract and Consumer Protection Law’ (2020) 94 Australian Law Journal 741.

38 Damian Clifford and Jeannie Paterson, ‘Data Rights and Contract Law: Formation, Incorporation and Vitiating Factors’ in Data Rights and Private Law (Hart Publishing, 2023) (forthcoming).

39 Andrew Robertson and Jeannie Paterson, Principles of Contract Law (Thomson Reuters, 6th ed, 2020) ch 3, 85 [3.115].

40 Competition and Consumer (Consumer Data Right) Rules 2020 (Cth) rr 4.10, 4.11.

41 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119/1, art 4(11).

42 ‘Chapter B: Key Concepts’, Office of the Australian Information Commissioner (22 July 2019).

43 ‘OAIC and ICO conclude joint investigation into Clearview AI’, Office of the Australian Information Commissioner (Media Release, 3 November 2021).

44 Clearview AI Inc (n 32).

45 Ibid [157].

46 Ibid [190].

47 Ibid [151] - [157].

48 7-Eleven Stores (n 34) [6].

49 Ibid [91].

50 Ibid [90].

51 Ibid [103].

52 Ibid.

53 Ibid [93].

54 Ibid [94].

55 Ibid [93].

56 Ibid.

57 Ibid.

58 Josh Taylor, ‘Bunnings and Kmart halt use of facial recognition technology’, The Guardian (25 July 2022).

59 J Spurling Ltd v Bradshaw [1956] EWCA Civ 3; Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2, [1971] 2 QB 163.

60 Cf eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768; (2006) 170 FCR 450 61 Attorney-General’s Department, Privacy Act Review Report (2022) 3.

62 Ibid.

63 Ibid.

64 Ibid, proposal 11.1.

65 Ibid 43.

66 Proposal For A Regulation Of The European Parliament And Of The Council Laying Down Harmonised Rules On Artificial Intelligence (Artificial Intelligence Act) And Amending Certain Union Legislative Acts COM(2021) 206.

67 Towards a Model Law (n 9).

68 Phillip Catania and Claire Allen, ‘Australia: Facial recognition technology: a model law’, Mondaq (Blog Post, 6 October 2022)

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37

Technology and the Law of War

by Professor EJ Wise, Professor EJ Wise is the founder and principal of Wise Law. She is a specialist in cyber law, cyber security law, technology law and military law, and is a veteran.

ABSTRACT To what extent does the law of war apply to cyberspace? It is a question that legal experts, governments, and military commanders have been asking for some time. There are various treaties, charters, and conventions that address the question. This however has not ended the uncertainty about the legal and ethical limits of online activities that can have disastrous consequences on state infrastructure and can even be seen as a direct “attack”. [The widespread use of the word attack outside the meaning given it by the UN Charter is another article in and of itself!]

This article considers a new issue that has recently developed. It comes in the form of individuals participating in cyber-attacks against one state on behalf of, or at the request of, another state when these two states are at war. These unpaid, anonymous, cyber-mercenaries can play active roles in the theatre of war, whether in offence or defence.

And the consequences of such activities pose serious questions; particularly in relation to state vs individual liability for those acts.

Introduction “[Cyber]Warfare doesn’t exist in a legal vacuum”1. Like any weapon used in armed conflict, cyber weapons (or offensive cyber

38 | BRIEF APRIL 2023

operations), are subject to the laws of armed conflict. Outside of armed conflict cybercrime exists. There is a grey area and it is where persons who are not combatants use cyber offensive tools or operations as a weapon.

This article examines the structure of the law of war in the context of cyber and uses the Russian-Ukraine conflict as a case study.

Case Study On 24 Feb 2022 Russia commenced armed aggression, termed an international armed conflict or ‘war’ against Ukraine. It followed on from 8 years of disputes between the two nations and arguably it has involved use of non-kinetic weapons including cyber and information operations for most if not all of that period of time. “Without question, an international armed conflict is underway between Russia and Ukraine based on Russia’s occupation of Ukrainian territory.”2 It is beyond the scope of this article to discuss the disparity between the West and the East as regards use of the media (in its broadest sense, to include social media and associated platforms) however when we talk about information and influence operations/war it is critical to understand that the English based platforms are not the sole domain and in all probability may not even be the relevant domain when talking about

an armed conflict such as this where both parties are non-English speaking countries.

Accordingly having one side or the other claim dominance in the ‘information war’ is unhelpful without a proper mechanism to compare the newspapers, social media sites and general internet propaganda of languages other than English (Baltic languages, Russian, Ukrainian, Indian and so forth): “It has become commonplace for commentators on Russia’s war in Ukraine to assert that Ukraine is winning the information war…However, Carl Miller, research director of the Centre for the Analysis of Social Media at UK think tank Demos, cautions that while this might be true for Western and Englishlanguage information spaces, it’s probably not true outside the West. Miller says that the wall-to-wall pro-Ukraine sympathy that Western audiences are seeing on social media shouldn’t engender complacency.

‘In fact, it might be blinding us to where the information war is really happening. It could mean that the West is not the battleground over which the information war is currently being fought.’” 3 The nature of the cyber actions taken against Russia and the effect of these actions are areas that bear further examination for this case study.

Technology and the Law of War Cyber hacktivism against Russia by proUkraine supporters external to Ukraine According to the West there were ‘hacktivists’ from across the world, including the group identifying themselves as ‘Anonymous’4 who applied themselves to the task of weakening aspects of Russia’s government, military, and other targets. Reporting at the time indicated that these hacktivists were answering a call over the social media platform Twitter by Ukraine for assistance.5 What law applies For the present purposes we accept that Russia’s actions against the Ukraine constituted a use of force which rose to the level of an armed attack and that the laws of war apply 6.

Collective self defence In a situation where one state calls for assistance from another state or states for the use of force in self-defence it is called collective self-defence. That is to say Ukraine calls on other nation states to assist it. The tweet sent out above was sent indiscriminately to individuals and state bodies7. Arguably any resulting actions taken by other states meets the definition of collective self-defence (though there are additional requirements) but when it comes to the action of individuals (who are not combatants) the questions to consider are whether a state can adopt the actions of an individual or group as being those of the state and if not whether the failure of any given state to prevent the hacktivist individual or group cyber ‘crimes’ means that state has waived its right to claim neutrality. The cyber events/operations which are the result of individual hacktivists or ‘vigilantes’ – persons or groups operating without any state endorsement are criminal or terrorist acts (where there is no alternative mandate eg UN endorsed measures).

We know from the 2021 report of the UN Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security that international law and specifically the Charter of the United Nations are both applicable and essential in cyberspace8.

Article 2(4) of the UN Charter sets out that states are to refrain from the threat or use of force against the territorial integrity or political independence of any state.9 And in Article 51 States are given the ability to respond to an armed attack with individual or collective self-defence.

This means Ukraine, as a state, may respond with reasonable measures to the attack(s)

by Russia: “the proper law of self-defense

[sic] question would be whether a Ukrainian response that otherwise would be unlawful is “necessary” and “proportionate” when considered in the context of its overall right of self-defense against the ongoing Russian armed attack (on those criteria, see Tallinn Manual 2.0, Rule 72)”10. Such measures are not limited to either kinetic or non-kinetic and may properly involve both.

The laws of armed conflict or laws of war (part of that body of international law termed international humanitarian law comprising the Geneva Conventions11, Additional Protocols12 and related case law13) set out how actions may be made or reacted to by Ukraine and Russia during a state of armed conflict. While the means and methods of warfare are not unlimited, cyber operations14 taken by either state are lawful provided they are reasonable, proportionate, distinct (aimed at combatants) and do not cause unnecessary suffering.

Do the people who make up the ‘IT army’ Ukraine’s Minister of Digital Transformation was attempting to raise 15 meet the definition of combatants, and if they do not what status do they have at law. More generally we might ask what is a cyber combatant? Do they wear uniform and have all the standard indicia of ‘kinetic’ combatants? “Combat, Clausewitz says, ‘is not a contest between individuals’ but between soldiers who are ‘recruited, clothed, armed and trained’ to be able to ‘fight at the right place and the right time’.” 16 Effects of cyber operations The nature of cyber weapons, for example a constructed computer virus, are such that they have the propensity to replicate and spread beyond the theatre of war and beyond the intended target(s) thereby contravening requirements such as distinction and prevention of unnecessary suffering which apply during armed conflict under IHL. This is not novel in the sense that chemical biological weapons (viruses) can also escape and cause harm beyond that intended: which is why they were banned after WWI17. Indeed not just the effects of weapons but warfare is in and of itself unpredictable: “The unforeseen consequences are usually more long-term than the intended outcomes and work in ways that counteract the original reasons for going to war.”18 The novelty with cyber weapons and cyberwar lies in the multitude of ways in which civil population(s) are now dependent upon technology and the therefore immediately disproportionate harm that may be brought to them by the use and then escape or distortion of cyber weapons (eg NotPetya19).

Direct participation in hostilities by civilians “Under International Humanitarian Law [“IHL”], the concept of direct participation in

hostilities refers to conduct which, if carried out by civilians, suspends their protection against the dangers arising from military operations. Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked as if they were combatants.”20 If not war then crime: the crime of hactivism The international legal landscape specific to policing cyber activities which do not meet the level of participation in an armed conflict range from internal state criminal laws (enacted by each country unilaterally and can be enforceable internationally with assistance from other states/interpol) to those which are unlawful based upon other applicable international agreements.

As already discussed, the United Nations Charter applies to cyber as do the laws of war. For international agreements relating to cybercrime a state which is a party to the agreement that fails to internally enforce the law against actors accused of cybercrime may be subject to prosecution themselves at the International Criminal Court or the International Court of Justice – however those jurisdictions are voluntary and the case will need to prove that the cybercriminal is under the jurisdiction of that state and/or that the alleged cybercrime originated from the state in question. Which leads to the question of attribution.

Attribution No discussion of cyber operations, be they war like or criminal, can be had without reference to the challenges of attribution in today’s cyber environment. In armed conflict and in general attribution is the act of determining by whom an action was made. In the kinetic world a missile or bomb may be traced. In the cyber world it is a bit more convoluted and the speed required in military operations may preclude absolute certainty in the art of attribution21. Adversaries and criminals may hide their location, may engineer their Internet Protocol addresses and use a variety of tools that keep their identity, location, and even tools hidden.

When a state is relying upon the UN Charter for the legal authority in order to ‘respond with reasonable measures’ it is critical to be able to point to who was responsible before responding. It is nonsense to contend that measures were reasonable if they were in fact misdirected (ie proportionately aimed at entirely the wrong state/person). In cyber warfare the importance of accurate and timely attribution cannot be understated: a mistake may increase the type, breadth and severity of hostilities.

A further complication of attribution (or mis-

39

Technology and the Law of War attribution) is where the individual/non-state actor/criminal/terrorist actions are mistaken for those of a state and has the unintended effect of escalating the conflict because the targeted state ascribes the cyber operations as being by, or sanctioned by, the state.

14 above and beyond ‘spying’ which falls outside the laws of armed conflict.

information-war-outside-the-west/ [accessed on 15 May 2022]

15 Supra 5

Conclusion

18 Bickerton, I & Hagan, K, 2008, “The US and the unintended consequences of war: I want you for U.S. Army nearest recruiting station”, History Today Ltd, https://www. thefreelibrary.com/The+US+and+the+unintended+conseq uences+of+war%3a+I+want+you+for+U.S....-a0173229240 [accessd on 6 June 2022]

Kelton, M, Troath, F, & Rogers, Z. 2019, “Cyber threats go beyond hackers and scams but to democracy itself: As awareness of digital vulnerabilities grows, fostering resilience against exploitation across open societies is key.” The Interpreter, The Lowy Institue, 23 July 2019, https://www. lowyinstitute.org/the-interpreter/cyber-threats-go-beyondhackers-and-scams-democracy-itself [accessed on 6 June 2022]

Civilians or non-combatants must think deeply about the political, legal and operational consequences before taking up arms during armed conflict. Even where the cause is just.

Even where the arms are a keyboard. The outcome of their individual involvement may be to make their own country (state) a party to the conflict. It may mean their own country (state) prosecutes them under domestic law for cybercrime. Attribution is fuzzy but not fuzzy enough to assume safety in the cloak of cyber.

A state under attack may invite the individuals of other states to participate in hostilities (remotely or in person) but must do so alive to the consequent application of international humanitarian law to those individuals and their home.

Endnotes 1 Lovett, E. 2015, “The Law of Armed Conflict as it applies to CyberSpace”, Cyberpoint Speaker Series, Baltimore Maryland, 26 August 2015, https://youtu.be/sAaIIk7VecI [accessed on 6 June 2022] 2 Schmidt, M. 2022, “Russian cyber operations and Ukraine: the legal framework”, , Articles of War, Lieber Institute, West Point, 16 January 2022, https://lieber.westpoint.edu/russiancyber-operations-ukraine-legal-framework/ [accessed on 5 June 2022] 3 Kapetas, A. 2022, “Russia may be winning the Ukraine information war outside the West”, The Strategist, Australian Strategic Policy Institute, 8 April 2022, https://www. aspistrategist.org.au/russia-may-be-winning-the-ukraineinformation-war-outside-the-west/ [accessed on 15 May 2022] 4 Wikipedia contributors, 2022, “Anonymous (hacker group),”Wikipedia, The Free Encyclopedia, https:// en.wikipedia.org/w/index.php?title=Anonymous_(hacker_ group)&oldid=1091501907 [accessed 6 June 2022] 5 We are creating an IT army. We need digital talents.

All operational tasks will be given here: https://t.me/ itarmyofurraine. There will be tasks for everyone. We continue to fight on the cyber front. The first task is on the channel for cyber specialists.” Per Ukraine’s Minister of Digital Transformation, Mykhailo Fedorov as quoted in Väljataga, A, ‘Cyber vigilantism in support of Ukraine: a legal analysis’, CCDOE, March 2022, https://ccdcoe.org/uploads/2022/04/ Cyber-vigilantism-in-support-of-Ukraine-pub.pdf [accessed on 5 June 2022] 6 Supra 2 7 Supra 5 8 United Nations General Assembly, 2021, Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, 14 July 2021, Chapter IV, p17 https://documentsdds-ny.un.org/doc/UNDOC/GEN/N21/075/86/PDF/N2107586. pdf?OpenElement [accessed on 23 May 22] 9 United Nations Charter, 24 October 1945, https://www. un.org/en/about-us/un-charter/full-text [accessed on 6 June 2022] 10 Supra 2 11 International Committee of the Red Cross, Geneva Conventions and their Commentaries, https://www.icrc.org/ en/war-and-law/treaties-customary-law/geneva-conventions [accessed on 6 June 2022] 12 International Committee of the Red Cross, Additional Protocols I & II https://www.icrc.org/en/doc/resources/ documents/misc/additional-protocols-1977.htm [accessed on 6 June 2022] 13 National Case Law, International Committee of the Red Cross https://casebook.icrc.org/glossary/national-case-law [accessed on 6 June 2022]

16 Smith, H, 2022, “Clausewitz’s definition of war and its limits’, Military Strategy Magazine, Volume 8 Issue 1.

17 International Committee of the Red Cross, Chemical and Biological Weapons, https://www.icrc.org/en/war-and-law/ weapons/chemical-biological-weapons [accessed on 6 June 2022]

19 Wikipedia contributors, 2022, ‘Petya and NotPetya’, Wikipedia, The Free Encyclopedia, 27 May 2022, 00:16 UTC, https://en.wikipedia.org/w/index.php?title=Petya_ and_NotPetya&oldid=1090033619 [accessed 6 June 2022] 20 Melzer, N, 2009, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, 0990/002, May 2009, https://www.icrc.org/en/doc/assets/ files/other/icrc-002-0990.pdf [accessed on 6 June 2022] see also Singer, T, 2022, “Scenario 18: Legal status of cyber operators during armed conflict”, CCDOE Wiki, 15 February 2022, https://cyberlaw.ccdcoe.org/wiki/Scenario_18:_Legal_ status_of_cyber_operators_during_armed_conflict [accessed on 6 June 2022] 21 For further discussion on attribution in a cyber context see Hill, A, 2019 “The Ultimate Challenge: Attribution for Cyber Operations”, Wright Flyer Paper No. 70, Air University Press, Muir S. Fairchild Research Information Center, Maxwell Air Force Base, Alabama, December 2019, https:// www.airuniversity.af.edu/Portals/10/AUPress/Papers/ WF_70_HILL_THE_ULTIMATE_CHALLENGE_ATTRIBUTION_ FOR_CYBER_OPERATIONS.PDF [accessed on 6 June 22] or Carter, R and Enoizi, J 2021, “Mapping a path to cyber attribution consensus” The Geneva Association, IFTRIP March 2021, https://www.genevaassociation.org/sites/default/files/ research-topics-document-type/pdf_public/cyber-attribution_ web_final.pdf [accessed on 6 June 22] REFERENCES Bickerton, I & Hagan, K, 2008, “The US and the unintended consequences of war: I want you for U.S. Army nearest recruiting station”, History Today Ltd, https://www. thefreelibrary.com/The+US+and+the+unintended+conseq uences+of+war%3a+I+want+you+for+U.S....-a0173229240 [accessd on 6 June 2022] Carter, R and Enoizi, J 2021, “Mapping a path to cyber attribution consensus” The Geneva Association, IFTRIP March 2021, https://www.genevaassociation.org/sites/default/files/ research-topics-document-type/pdf_public/cyber-attribution_ web_final.pdf [accessed on 6 June 22] Dutton, P & Payne, M, 2022, “Attribution to Russia of malicious cyber activity against Ukraine”, Joint Media Release, Department of Foreign Affairs and Trade, Australian Government, 21 February 2022, https://www. internationalcybertech.gov.au/Attribution-to-Russia-ofmalicious-cyber-activity-against-Ukraine [accessd on 6 June 2022] European Commission, 2022 “Declaration for the Future of Internet”, 28 April 2022, https://digital-strategy.ec.europa. eu/en/library/declaration-future-internet [accessd on 6 June 2022] Greenberg, A, 2018 “The Untold Story of NotPetya, the Most Devastating Cyberattack in History: Crippled ports. Paralyzed corporations. Frozen government agencies. How a single piece of code crashed the world.” 22 August 2018, https:// www.wired.com/story/notpetya-cyberattack-ukraine-russiacode-crashed-the-world/ [accessed on 6 June 22] Hill, A, 2019 “The Ultimate Challenge: Attribution for Cyber Operations”, Wright Flyer Paper No. 70, Air University Press, Muir S. Fairchild Research Information Center, Maxwell Air Force Base, Alabama, December 2019, https://www. airuniversity.af.edu/Portals/10/AUPress/Papers/WF_70_HILL_ THE_ULTIMATE_CHALLENGE_ATTRIBUTION_FOR_CYBER_ OPERATIONS.PDF [accessed on 6 June 22]

Lehm, A. 2013, “Cyber-attacks in the context of international humanitarian law”, University of Oslow, 25 November 2013, https://core.ac.uk/download/pdf/30902682.pdf [accessed on 6 June 2022] Ling, J. 2022, “Ukraine’s Digital Battle With Russia Isn’t Going as Expected Even the head of the country’s online offensive is surprised by the successes—although they’re not without controversy.”

Wired, 29 April 2022, https://www.wired.com/story/ukrainerussia-digital-battle/ [accessed on 4 June 2022] Lovett, E. 2015, “The Law of Armed Conflict as it applies to CyberSpace”, Cyberpoint Speaker Series, Baltimore Maryland, 26 August 2015, https://youtu.be/sAaIIk7VecI [accessed on 6 June 2022] National Case Law, International Committee of the Red Cross https://casebook.icrc.org/glossary/national-case-law [accessed on 6 June 2022] Melzer, N, 2009, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, 0990/002, May 2009, https://www.icrc.org/en/doc/assets/files/other/ icrc-002-0990.pdf [accessed on 6 June 2022] Schmidt, M. 2022, “Russian cyber operations and Ukraine: the legal framework”, , Articles of War, Lieber Institute, West Point, 16 January 2022, https://lieber.westpoint.edu/russiancyber-operations-ukraine-legal-framework/ [accessed on 5 June 2022] Seebeck, L. 2022, “Ukraine: This isn’t the information war you were looking for: But watch a change in tempo for cyber operations as the on-the-ground military situation trends towards stalemate”, The Interpreter, The Lowy Institute, 1 April 2022, https://www.lowyinstitute.org/the-interpreter/ ukraine-isn-t-information-war-you-were-looking [accessed on 5 June 2022] Shackelforda, S. 2010, “State responsibility for cyber attacks: competing standards for a growing problem”, Conference on Cyber Conflict Proceedings 2010 C. Czosseck and K. Podins (Eds.) CCD COE Publications, 2010, Tallinn, Estonia, https://ccdcoe.org/uploads/2018/10/Shackelford-StateResponsibility-for-Cyber-Attacks-Competing-Standards-fora-Growing-Problem.pdf [accessed on 6 June 2022] Singer, T, 2022, “Scenario 18: Legal status of cyber operators during armed conflict”, CCDOE Wiki, 15 February 2022, https://cyberlaw.ccdcoe.org/wiki/Scenario_18:_Legal_status_ of_cyber_operators_during_armed_conflict [accessed on 6 June 2022] Smith, H, 2022, “Clausewitz’s definition of war and its limits’, Military Strategy Magazine, Volume 8 Issue 1.

United Nations Ad Hoc Committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communications Technologies for Criminal Purposes, https://www.unodc.org/unodc/en/ cybercrime/ad_hoc_committee/home [accessed on 6 June 22] United Nations Charter, 24 October 1945, https://www.un.org/ en/about-us/un-charter/full-text [accessed on 6 June 2022] United Nations General Assembly, 2021, Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, 14 July 2021, Chapter IV, p17 https://documentsdds-ny.un.org/doc/UNDOC/GEN/N21/075/86/PDF/N2107586. pdf?OpenElement [accessed on 23 May 22] United Nations, 2001, “Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, Yearbook of the International Law Commission, 2001, vol. II, Part Two, https://legal.un.org/ ilc/texts/instruments/english/commentaries/9_6_2001.pdf [accessed on 23 May 22]

International Committee of the Red Cross, Chemical and Biological Weapons, https://www.icrc.org/en/war-and-law/ weapons/chemical-biological-weapons [accessed on 6 June 2022]

Väljataga, A, ‘Cyber vigilantism in support of Ukraine: a legal analysis’, CCDOE, March 2022, https://ccdcoe.org/ uploads/2022/04/Cyber-vigilantism-in-support-of-Ukrainepub.pdf [accessed on 5 June 2022]

International Committee of the Red Cross, Geneva Conventions and their Commentaries, https://www.icrc.org/ en/war-and-law/treaties-customary-law/geneva-conventions [accessed on 6 June 2022]

Wikipedia contributors, 2022, “Anonymous (hacker group),”Wikipedia, The Free Encyclopedia, 4 June 2022, https://en.wikipedia.org/w/index.php?title=Anonymous_ (hacker_group)&oldid=1091501907 [accessed 6 June 2022]

International Committee of the Red Cross, Additional Protocols I & II https://www.icrc.org/en/doc/resources/ documents/misc/additional-protocols-1977.htm [accessed on 6 June 2022]

Wikipedia contributors, 2022, ‘Petya and NotPetya’, Wikipedia, The Free Encyclopedia, 27 May 2022, https://en.wikipedia.org/w/index.php?title=Petya_and_ NotPetya&oldid=1090033619 [accessed 6 June 2022]

Kapetas, A. 2022, “Russia may be winning the Ukraine information war outside the West”, The Strategist, Australian Strategic Policy Institute, 8 April 2022, https://www. aspistrategist.org.au/russia-may-be-winning-the-ukraine-

Wikipedia contributors, 2022, ‘Russo-Ukrainian War’, Wikipedia, The Free Encyclopedia, 1 June 2022, https:// en.wikipedia.org/w/index.php?title=Russo-Ukrainian_ War&oldid=1091026877 [accessed 6 June 2022]

This article was originally published in the Law Institute Journal August 2022 and is republished with permission.

40 | BRIEF APRIL 2023

Copyright and generative artificial intelligence

By David Wilson, Principal, Stratocumulus Legal David Wilson is the founder and principal of Stratocumulus Legal, a legal consultancy with a particular focus on intellectual property, technology and related fields.

41

Copyright and generative artificial intelligence Introduction Generative artificial intelligence has captured the public imagination recently, particularly since the release of OpenAI’s ChatGPT in November 2022. Its capability to seemingly interact in natural language has been lauded, but it has also induced fears of disruptively displacing humans from a wide range of activities. AI systems have also reached the capability of being able to produce quite advanced images generated from descriptive text-based inputs from users.

claim against pirates of the photograph, Brett MR lamented the statutory use of the term "author" in the context of photography: But now we have the "author" of a photograph. I should like to know whether the person who drew this Act of Parliament was clear in his mind as to who can be the author of a photograph.4 To assess authorship, Brett MR noted that using the cameras of the day, the person taking the photograph: … had to arrange the group, to put them in the right position and the right focus. But he does not do it all; because I suppose there is another man who gets the plate ready; and there is another man who, when the thing is ready, takes the cap off. It is difficult to say who is the author of the photograph. Neither of them [the proprietors] made the picture because, after all, that is done by the sun.5

At first glance, copyright law seems ill equipped to deal with AI technology. The Copyright Act 1968 (Cth) was conceived in an analogue world, and only over more recent times it has been retrofitted by bolting on new provisions to address digital technology.

Existing copyright law, usually lagging behind new technologies, has not developed with AI in mind.

Although it may seem unintuitive, current Australian copyright law results in perhaps nobody being the owner of content generated by an AI system due to lack of an identifiable human author, and moreover, using copyright content to train a machine learning system without the consent of copyright owners risks infringement. Without reform, this could greatly stifle the development of AI technology, although this status quo does retain a measure of protection for human creators concerned about the pendulum swinging too far in favour of robots.

After all, copyright law has always been about balancing the interests of creators and users, while still being vexed by new technologies.

Where the balance should rest in the case of generative AI is something policymakers need to determine. Should anyone own a robot’s creation? If so, who?

Historical context – the cricket team portrait Photography was also, at first, a disruptive technology, and its initial protection by copyright in the Fine Arts Copyright Act 1862 (UK) caused controversy given its mechanical and scientific nature of production compared to traditional art forms.1 Photography even started to replace the artist’s manual labour.2 These themes no doubt sound familiar in the context of contemporary emerging generative AI. In June 1882, an Australian cricket team visiting England posed for a photograph at Kennington Oval. In Nottage v Jackson, the two proprietors of the photographic studio claimed to be authors of the resulting photograph, and registered their copyright under that Act accordingly.3 They had not been personally present, rather leaving the actual taking of the photograph to their employees. In rejecting their infringement

42 | BRIEF APRIL 2023

Instead, the author was the person who “superintended the arrangement”, who was the “effective cause of the picture”, and not the employee who came up with the idea for the photograph.6 Indeed, the “great photographers of London” ought to “superintend the work themselves”, or given that the duration of copyright was for the life of the author, when choosing an artist, “consider not only his skill but his state of health”!7 Misstating the author in the photograph’s registration rendered the copyright unenforceable, an early example demonstrating how authorship has always been the touchstone for copyright ownership.

8

Back to the 21st century – copyright in generative AI output The Copyright Act provides that copyright subsists in an original literary, dramatic, musical or artistic work of which the author was a “qualified person”, being an Australian citizen or resident.9 At face value, this requires that an author must be human.

More substantively, originality requires that the work in question have originated with the author, and that the creation of the work required some independent intellectual effort.10 Although literary or artistic merit are not required, this requires a qualitative assessment of what the author did to bring the work into being, more than just being industrious. Authorship and originality are thereby correlative.

Just as Brett MR, with disdain, grappled with the word ‘author’ being used in respect of a photograph, who might be the ‘author’ of material generated by a computer?

Computerisation of our daily lives has

brought increasing automation of tasks that were once undertaken manually. It seems uncontroversial that a person using a computer as a tool (for example, using word processing software to write this article) still constitutes authorship of the work, but other situations require more analysis. In Telstra v Phone Directories11, Perram J explained that: "Software comes in a variety of forms and the tasks performed by it range from the trivial to the substantial. So long as the person controlling the program can be seen as directing or fashioning the material form of the work there is no particular danger in viewing that person as the work’s author. But there will be cases where the person operating a program is not controlling the nature of the material form produced by it and in those cases that person will not contribute sufficient independent intellectual effort or sufficient effort of a literary nature to the creation of that form to constitute that person as its author.12" Telstra v Phone Directories examined whether copyright subsisted in White Pages and Yellow Pages telephone directories as databases or compilations (types of literary work).

The directories were listings of telephone subscribers, and the evidence did not show any particular authors who had compiled them, but rather that such work had been undertaken by a computer program. Human contribution might have existed in individual data entries, but this did not amount to the making of the overall directories as compilations. Therefore, copyright did not subsist.

Acohs v Ucorp13 determined that a process contained in source code to automatically generate documents (being material safety data sheets for hazardous substances), compiled from a central database when users inputted relevant information, did not make the authors of the source code the authors of the generated material safety data sheets. 14 Their work was antecedent, and there was no human author of the automatically generated output.

This is perhaps where the analogy to the above photography example diverges from AI creations. It is not the programmer who has coded the AI system who owns copyright in its individual outputs, if that output is the automated result of code being executed. Nor does the user necessarily contribute authorially to the output. It seems likely in many instances that nobody will be considered an author.

By contrast, a different approach is found in the United Kingdom, where the author of a “computer-generated work”15 is “taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.16 The only time this provision has

Behind the Articles

been considered was in litigation concerning a computer game.17 The software developer was deemed to be the author of an onscreen work generated by the program that he coded, on the basis that his programming constituted the arrangements necessary for the creation of the work.18 By contrast, the input of a person playing the game was “not artistic in nature” and “contributed no skill or labour of an artistic kind”,19 therefore did not meet the requirement.

For AI-generated works, this analysis may differ considerably, depending on how the specific system operates. For example, AI algorithms operate differently to the coded instructions of traditional software, and software developers therefore have less control over how a work is generated by an AI system. Further, in addition to the software developer, there may also be others who may arguably undertake arrangements, such as data providers.20 Identifying the deemed author of AI generated works may not be straightforward.

Australia could also have gone down this path, with the Copyright Law Reform Committee recommending in 1995 the protection of “computer generated material” for a period of 25 years, again the author deemed to be the person by whom arrangements necessary for the creation of the material are undertaken.21 This was never enacted.

This leads to the inevitable policy question whether AI-generated material should be protected. Arguments flow in opposing

directions. In very broad terms, in favour are arguments for incentivising the development of AI and investment in emerging technologies22, while against are arguments that only actual human intellectual creativity is worthy of protection.23 Despite rapid advancement of AI technology, this conversation still has some way to go.

Stifling AI – machine learning as copyright infringement Another looming copyright issue has the potential to either stifle the development of generative AI systems, or make them fairer for human creators, depending on your point of view.

AI systems are trained via a machine learning process using a vast volume of content.

Inevitably, much of that input material will itself be protected by copyright. It is reported that the image generating AI system called Stable Diffusion, operated by Stability AI Ltd, was trained on 2.3 billion images scraped, or data mined, from across the Internet.24 The principal copyright subsisting in respect of a literary, artistic, dramatic or musical work is the right to reproduce the work as a material form.25 Since the definition of ‘material form’ was amended in 200426, even temporarily loading a copyright work into the read-access memory (RAM) of a computer without consent of the copyright owner constitutes

infringement. A recent example of this in operation was QAD v Shepparton Partners Collective Operations27, in which a computer program previously installed under licence, but later used beyond licence terms, during which it was loaded into the RAM of the computer to operate, constituted infringement.

This means that using content to train a machine learning system – even if not storing that content in permanent storage system – will likely infringe copyright if there is no consent from the owner. Of course, this applies to copyright works, and not data or information alone.

At time of writing, proceedings have recently been commenced in both the United Kingdom and the United States against Stability AI Ltd, alleging as much. A proceeding in the United Kingdom High Court brought by stock photo provider Getty Images is reported to allege that Stability AI infringed copyright by processing millions of its images.28 A like proceeding has also been commenced in the US District Court.29 Separately, a class action brought in the US District Court by three artists who claim their art was used without their consent, makes similar allegations, a motivation being to make “AI fair & ethical for everyone”30. A further US class action alleges that AI-powered coding assistant “GitHub Copilot” was trained on open-source code scraped from the Internet published with copyright licences that require anyone reusing the code to credit its creators.31

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Copyright and generative artificial intelligence Such litigation has the potential to heavily impact the development of generative AI systems, if the cost of training AI systems will be to require royalties or licence fees to copyright owners.

The United Kingdom currently permits data mining, making it an exception to copyright infringement to make a copy of a lawfully accessed work, but only for carrying out a computational analysis solely for noncommercial research purposes.32 There is no equivalent exception for copyright infringement in the Australian Copyright Act. Calls have been made to introduce an exception to infringement that would allow text and data mining33, so that the development of an emerging technology with “huge potential” should not be “unnecessarily impeded”.34 The Australian Law Review Commission’s report on Copyright and the Digital Economy35 suggested that text and data mining be considered under a general fair use exception to copyright infringement36 recommended elsewhere in the report.37 However, this was on the basis that text and data mining is a “non-expressive use” of copyright material,38 which does not appear to anticipate contemporary generative AI.

House of Lords Communications & Digital Committee recently labelled those proposals as “misguided”, noting they “take insufficient account of the potential harm to the creative industries”, and that “Developing AI is important, but it should not be pursued at all costs”. 39 The Committee recommended that proposed changes to the text and data mining regime be paused immediately.40 Whether AI-generated material could itself infringe copyright in works on which it is trained will depend on whether each specific item of output constitutes a substantial reproduction of an identifiable original work.

This is a qualitative assessment in each case, and perhaps a daunting task given the huge volume of content on which AI is trained. A more fruitful route for copyright owners may be to focus on training material, rather than AI systems’ output.

Conclusion – an AI poem Just as Nottage v Jackson was required to resolve copyright issues in respect of the new technology of the 19th century, particularly in respect of authorship, again courts and policymakers are challenged with similar issues for the emerging technology of the 21st.

In response to proposed changes to permit data mining generally, in February 2023 the

Generative AI system ChatGPT41 was instructed by this author to “Please write a rhyming poem about intellectual property and

End Notes

18 Ibid at [105]

1 Bowrey, Kathy, “‘The World Daguerreotyped – What a Spectacle!’ Copyright Law, Photography and the Commodification Project of Empire” (1 May 2012).

UNSW Law Research Paper No. 2012-18, accessible at SSRN: https://ssrn.com/abstract=2060803 2 Ibid at page 3 3 Copyright is no longer a registered right. The Fine Arts Copyright Act 1862 (UK) afforded copyright to “the author … of every original painting, drawing and photograph”, which subsisted for the life of the author.

4 Nottage v Jackson [1883] 11 QBD 627 at 631 5 Ibid at 632 6 Ibid at 632 7 Ibid at 633 8 Likely because of these issues, ‘author’ is now only defined in respect of photographs (and not for other types of work) as “the person who took the photograph”.

See Copyright Act 1968 (Cth), s10 9 Copyright Act 1968 (Cth), s32 10 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) CLR 458 at [23] per French CJ, Crennan & Kiefel JJ 11 Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2011) 90 IPR 1 12 Ibid at [118] per Perram J 13 Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 14 Ibid at [76] – [87] 15 Copyright, Designs and Patents Act 1988 (UK), s 178 defines a work that is “computer-generated” to mean that “the work is generated by computer in circumstances such that there is no human author of the work” 16 Copyright, Designs and Patents Act 1988 (UK), s 9(3).

Other jurisdictions with like provisions include New Zealand, Hong Kong, India, Ireland.

17 N ova Productions Limited v Mazooma Games Limited & Ors [2006] EWHC 24 (Ch)

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19 Ibid at [106] 20 See the excellent discussion of these issues in Matulionyte, Rita and Lee, Jyh-An, “Copyright in AIgenerated works: Lessons from recent developments in patent law” (2022) 19:1 SCRIPTed 5 accessible at https:// script-ed.org/?p=4036, section 2.1.1 21 Copyright Law Review Committee, Computer Software Protection, Office of Legal Information and Publishing, Attorney General’s Department, Canberra. See recommendations 2.42 (a) to (c) in Chapter 13, pp 247 - 248 22 F or just one view, see Abbott, Ryan “The Reasonable Robot: Artificial Intelligence and the Law”, Cambridge University Press, June 2020, Chapter 4 (“Artificial Inventors”), arguing for a legal framework that incentivises the generation of intellectual property by AI systems. See also Matulionyte & Lee, refer note 20 above, proposing that the owner of the AI-system ought to be owner of any AI-generated content.

23 A gain, for just one view, see Zurth, Patrick, “Artificial Creativity? A Case Against Copyright Protection for AI Generated Works” (25 March 2021) UCLA Journal of Law & Technology, published at https://uclajolt.com, arguing that artificial intelligence does not equate to “artificial creativity” and copyright protection is the wrong approach to reward AI technology.

24 B aio, Andy, “Exploring 12 Million of the 2.3 Billion Images Used to Train Stable Diffusion’s Image Generator”, Waxy, 30 August 2022, accessible at https://waxy. org/2022/08/exploring-12-million-of-the-images-usedto-train-stable-diffusions-image-generator 25 Copyright Act 1968 (Cth), s31(1)(a) 26 US Free Trade Agreement Implementation Act 2004 (Cth), s186 amended the definition of “material form” in the Copyright Act 1968 (Cth), s10 27 Q AD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615

robots”, and the prescient response, despite minor hiccups in its expression, is a fitting summary of the ground covered in this article: In a world of robots so advanced, Where minds and machines have fused and danced, The question of IP comes to mind, Who owns the creations of robot kind?

Do we treat them as mere machines, Or recognize their novel schemes?

If they create, can they own, Or does that right to us alone?

As they learn and evolve each day, Can we claim what they make in every way?

Or should we give them their fair share, And treat them as creators, fair and square?

Perhaps the answer lies ahead, As robots and humans forge ahead, Collaborating in new ways, To build a future bright and blaze.

But until then, we must debate, And determine the laws and fate, Of intellectual property and robots, As they become our creative co-pilots.

28 Getty Images Statement, 17 January 2023, accessible at https://newsroom.gettyimages.com/en/getty-images/ getty-images-statement 29 V incent, James, “Getty Images sues AI art generator Stable Diffusion in the US for copyright infringement”, The Verge, 7 February 2023, accessible at https://www. theverge.com/2023/2/6/23587393/ai-art-copyrightlawsuit-getty-images-stable-diffusion 30 V incent, James, “AI art tools Stable Diffusion and Midjourney targeted with copyright lawsuit”, The Verge, 16 January 2023, accessible at https://www.theverge. com/2023/1/16/23557098/generative-ai-art-copyrightlegal-lawsuit-stable-diffusion-midjourney-deviantart 31 V incent, James, “The lawsuit that could rewrite the rules of AI copyright”, The Verge, 22 May 2022, accessible at https://www.theverge.com/2022/11/8/23446821/ microsoft-openai-github-copilot-class-action-lawsuitai-copyright-violation-training-data 32 Copyright, Designs and Patents Act 1988 (UK), s29A 33 One example is Matulionyte, Rita, “Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?” (27 October 2020), accessible at SSRN: https://ssrn.com/abstract=3720289 34 Ibid at page 22 35 ALRC Report 122, “Copyright and the Digital Economy”, November 2013 36 Ibid at para 11.74 37 Ibid, Recommendation 4-1 38 Ibid at para 11.60. See generally discussion in Chapter 11, paras 11.57 to 11.84 39 House of Lords Communications and Digital Committee “At risk: our creative future”, 2nd Report of Session 2022-23, published 17 January 2023, HL Paper 125, paras 26 to 35 40 Ibid at para 35 41 At time of writing, accessible at https://chat.openai.com

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The Australian Financial Complaints Authority – An Introductory Guide for Complainant’s Lawyers

By David Huggins David is the principal of Huggins Legal. David specialises in resolving financial services related disputes.

Introduction An Australian Financial Complaints Authority (“AFCA”) Complaint offers very significant advantages over Court litigation. The following is an overview of how AFCA operates.

What is AFCA? AFCA is a company limited by guarantee.

It operates an external dispute resolution scheme under a framework created by the Corporations Act. What sort of businesses are within AFCA’s jurisdiction?

Businesses that are within AFCA’s jurisdiction are known as Financial Firms. Financial Firms include insurance companies, banks and other types of credit providers, superannuation funds, mortgage brokers, financial planners, stockbrokers and operators of managed investment schemes.

AFCA deals with complaints about Financial Services that have been provided by a Financial Firm. Financial Services is a very wide concept.

Any dispute about a product or service that has been provided by a Financial Firm is potentially within AFCA’s jurisdiction.

What is the source of AFCA’s procedures?

AFCA operates in accordance with its Rules.

The Rules form a tripartite contract between the Complainant, AFCA and the Financial Firm.

The Rules are updated periodically. The version of the Rules that applies to a Complaint is the version in force on the day that the Complaint is made not the version that was in force on the day that the cause of action arose.

AFCA publishes Operational Guidelines that sets out detailed information how its Rules operate.

capped in 2 ways. First, there is a cap on the maximum value of compensation that can be awarded and second there is a cap on the value of the Complaint. For example, with respect to a Complaint about poor financial advice, AFCA can award a maximum of $542,500 (if AFCA finds that a loss of $800K was suffered the maximum that it can award is $542,500) and it can consider a complaint with a maximum value of $1.085M (if the total value of the complaint is in excess of this amount, AFCA will not consider the complaint).

No caps apply to Complaints about guarantees over the guarantor’s principal place of residence.

AFCA can exclude a Complaint made by a wholesale client (as this concept is defined in the Corporations Act) but will often accept complaints made by wholesale clients.

Jurisdiction is a very important issue as Financial Firms will argue that a complaint is outside of AFCA’s jurisdiction and AFCA also closely scrutinizes Complaints to determine if they are within jurisdiction.

AFCA does not permit the splitting or abandoning of claims so as to bring a Complaint within its jurisdiction or to increase the amount that it might otherwise award by way of compensation. For example: • A person complains about 5 instances of poor financial advice where the total amount lost was $1M. AFCA would, most likely, treat this as forming one complaint for the purposes of its Rules, so the maximum amount that it would award would be $542,500.

• A person complains about 5 instances of poor financial advice where the total amount lost was $1.2M. The person makes a complaint about 4 instances so as to bring the complaint within AFCA’s jurisdiction (the value of the Complaint must be less than $1.085M). AFCA will take the view that the true value of the Complaint is in excess of $1.085M and exclude it.

What is the value of Complaints that AFCA can consider?

What time limits apply to AFCA complaints?

The value of Complaints that AFCA can consider are set out in the Rules. The maximum value of a Complaint varies in accordance with the type of financial service or product at issue. AFCA’s jurisdiction is

The time in which a Complaint can be made varies according to the service and product at issue. Some very limited time limits do apply (for example superannuation and some types of insurance related disputes) and it is, of course, important to confirm the time limit

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that applies to a particular client.

With respect to many types of Complaints a time limit of 6 years applies from when the Complainant first became aware (or should reasonably have become aware) that they suffered the loss. This will probably be a point in time after the cause of action arose so Complaints can be made well after the time that a matter would be statute barred if proceedings were commenced in a Court.

AFCA can extend the time limit that applies to some types of Complaints. It is most likely to do so where the Complainant is under some form of disability.

In many cases, a Complainant will have made a complaint directly to the Financial Firm. In response, the Complainant will have received a written response which is known as an Internal Dispute Resolution Response (or an IDR Response). An AFCA Complaint must be made within 2 years of receipt of the IDR Response (but this period can be extended).

Is AFCA like a Court?

AFCA is not a Court. It is an external complaint resolution scheme and its operating philosophy and processes are fundamentally different to that which are adopted by a Court. The key issue being that AFCA exists to resolve a complaint made by a Complainant against a Financial Firm not to, as a Court does, decide disputes that have arisen between parties in accordance with the law. The fundamental difference between AFCA and a Court is summed up in AFCA Rules A14.2 and A14.3 which are as follows: A14.2 When determining … a complaint, the AFCA Decision Maker must do what the AFCA Decision Maker considers is fair in all the circumstances having regard to:

a) legal principles, b) applicable industry codes or guidance,

c) good industry practice and

d) previous relevant Determinations of AFCA… A14.3 An AFCA Decision Maker is not bound by the rules of evidence or previous AFCA…. Decisions.

What initial processes does AFCA use to resolve Complaints?

AFCA’s initial Complaint resolution processes involve the making of requests for documents to be provided and for written submissions to be made about issues that underlie the Complaint. AFCA does not receive oral evidence. Occasionally, AFCA will request that specified persons provide a written statement. These written statements are often used as a means to make submission and argument and to otherwise to set out extraordinary evidence about what a person can claim to remember about banal events that occurred many years previously.

AFCA rarely places much weight on these statements. Instead, it is almost entirely focussed on documentary evidence and it is therefore very important to give close attention to what is disclosed by the available documents.

The Complaint will initially be handled by a case manager. Case managers do not tend to have legal qualifications and they vary significantly in their level of experience and expertise. The case manager will consider what has been provided by the parties and prepare a document known as a Preliminary Assessment. This document purportedly sets out how AFCA is likely to decide the Complaint. If both parties accept the Preliminary Assessment, the Complaint will be resolved in accordance with that document. Otherwise, the matter will proceed to the Determination Stage.

The Preliminary Assessment needs to be assessed on its merits (that is, it is not necessarily a reliable indicator as to how the matter will be decided at the Determination Stage). If the reasoning that underlies the Preliminary Assessment is flawed there is a significant possibility that a different decision will be made at the Determination Stage.

What processes are adopted at the Determination Stage?

The Determination Stage is managed by an Ombudsman. Ombudsman are often legally qualified and they have significant levels of experience and expertise. The Ombudsman will sometimes require the parties to provide further documents and written submissions and will then prepare a Determination (sometimes the Determination is prepared by a Panel of decision makers).

The Determination sets out AFCA’s final decision with respect to a Complaint. The outcome of the Determination is binding on the Financial Firm. The Financial Firm has no general right of appeal and can only have an AFCA Determination reviewed on narrow grounds (for example, that there has been a denial of procedural fairness). This type of litigation is rarely successful.

The Complainant can choose to accept or reject the Determination. If the Determination is rejected, the Complainant can commence proceedings in a Court so as to obtain

Compensation from the Financial Firm.

What processes does AFCA use to cause Complaints to settle?

Prior to the Preliminary Assessment being issued, AFCA will usually conduct a mediation conference. The conference is held by telephone. AFCA mediation conferences are entirely unlike a Court conducted mediation conference in that the case manager will attend and take notes as to what is said that can be relied upon by the case manager in preparing the Preliminary Assessment and by the Ombudsman in preparing the Determination. In addition, the case manager and/or the mediator will question the parties with a view to obtaining concessions about factual matters and will express opinions, in a very definite way, about how the matter will be resolved by AFCA.

advice). The next lawyer of guidance can be found in ASIC Regulatory Guides, in fact sheets that are published by AFCA as to the principles that it applies in dealing with particular types of Complaints and in industry codes such as the Banking Code of Practice.

AFCA publishes all of its Determinations on its website. Because of deficiencies in the search function, it can be very difficult to locate relevant Determinations.

Determinations do not operate as a precedent but they can, on occasions, provide some guidance as to how AFCA may decide a particular matter.

Expert evidence can be helpful in formulating a Complaint but it is not necessary. AFCA will calculate loss itself and it will form its own view about the merits of a matter (including consulting with external experts as required).

Outside of a mediation conference it is not uncommon for the parties to be separately contacted by the case manager or an Ombudsman who will make statements about the way that AFCA will resolve a Complaint. This is done with a view to encouraging the parties to reach a settlement. Case managers and Ombudsmen will also actively facilitate settlement negotiations outside of a mediation conference.

Is it better to commence Proceedings in a Court or make a Complaint to AFCA?

How does AFCA calculate loss?

In practice however, AFCA is a much better venue and in my view where it is available an AFCA Complaint should always be preferred over commencing proceedings in a Court (even if the amount at issue is substantially over the maximum amount that can be awarded by AFCA). The reason for this lies in costs, which has 2 aspects.

The calculation of loss can often be difficult as it requires an assessment of the effect of future hypothetical events. AFCA has a specialist unit that calculates loss in accordance with its internal procedures.

Parties will rarely be able persuade AFCA to calculate loss on a different basis.

AFCA does not calculate loss on a cash basis. A simple example illustrates the point. On 1 January 2020 a client receives poor financial advice. On 1 January 2021 the client’s investment is lost. The client’s loss is not the amount that was invested. The client’s loss is the difference between the client’s actual position and what the client’s position would have been had the funds been properly invested from 1 January 2020 (the date when the investment was made). This is calculated using a proxy as to how the funds should have been invested. Depending upon the number of years at issue and how the proxy would have performed there can be a substantial divergence between the cash loss and the loss that is calculated by AFCA. Where should I start to properly formulate an AFCA Complaint and do I need expert evidence?

All Financial Services are provided in a highly regulated environment. The starting point in formulating a Complaint is the source of that regulation (for example the ASIC Act and the Corporations Act with respect to financial

In a technical sense, a Court is a much better venue to litigate matters than AFCA in that the Court’s processes (such as discovery, cross examination and the receipt of oral submissions) better elucidate the true facts and the matter will be decided by a Judge (who is better able to consider legal issues and weight competing evidence).

The first aspect is that AFCA is a much cheaper jurisdiction in which to operate than a Court. The amount of work required to prosecute a Complaint at AFCA is far less than is required to prosecute the same claim in a Court and there are no disbursements such as filing fees. In my experience, the maximum that it could conceivably cost to take a Complaint to a Determination is $60,000 and the majority of Complaints can be resolved for far less. This relative certainty about costs gives clients a much clearer understanding of their overall level of risk and facilitates the entering into of conditional or hybrid fee arrangements which can confer significant benefits upon clients.

The second aspect is that AFCA is a no cost jurisdiction. A Complainant can never be responsible for any costs incurred by the Financial Firm. The effect of this being that worst possible outcome for a Complainant is that it will recover nothing and have to pay its own costs. This, of course, is in stark contrast to the disastrous outcomes that an unsuccessful plaintiff faces in Court proceedings.

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COVID-19 and the Work Health and Safety Act 2020 Part 3: Employee duties and responsibilities

By Peter Lochore, Barrister, Francis Burt Chambers.

This article looks at employee duties and responsibilities for work health and safety, using COVID-19 examples.

It looks at what: (a) duties workers owe under the Work Health and Safety Act 2020 (WA) (WHS Act); and (b) questions workers might ask their employers about work health and safety topics.

Workers’ duties Everyone is responsible for his or her own safety. This personal responsibility is set out in s 28 of the WHS Act, as follows: While at work, a worker must – (a) take reasonable care for the worker’s own health and safety; (b) take reasonable care that the worker’s acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and (d) cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health at the workplace that has been notified to workers.

If more than one person has a duty relating to the same matter under the WHS Act, each person with the duty must, so far as is reasonably practicable consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter. 1

Aspects of workers’ duties relating to COVID-19 Section 28 self-evidently requires every person to take responsibility for her or his own safety.

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For instance, if you have a COVID-19 symptom or you are a close contact of an infected person, your duty requires you to consider the any steps you should take to stop the spread of airborne disease. It is prudent to consider public health guidance as well as the instructions, policies and procedures of your employer. WA Health continues to recommend that close contacts and those with COVID symptoms take a rapid antigen test. Plus, those with COVID-19 symptoms are urged to stay home until symptoms resolve. However, if you are a close contact without symptoms the public health advice is to check with your employer. 2 You may also plan to wear a mask to protect others.

If you test positive, the current health advice recommends that you to stay home until your symptoms reside. 3 You are also urged to tell anyone you have had close contact with over the previous 2 days that you have COVID, as well as to register your positive test result. 4 Along with the health advice, you need to consider the instructions, policies and procedures of your employer. What constitutes taking reasonable care will vary depending on the circumstances. Relevant matters to consider will include any symptoms, the degree of contact exposure with sick people, the nature of your workplace, the nature of any instruction given and the content of your workplace’s policies.

If, by failing to take reasonable care, you expose yourself or others to being infected with COVID-19 at your workplace you may expose yourself to prosecution. For example, on 26 October 2022 a nurse in Victoria was fined $25,000 after working in aged care while positive for COVID-19. The fine was imposed after she pleaded guilty to a single charge of failing, as an employee, to take reasonable care for the health and safety of persons at her workplace. 5 Two points of distinction are important to keep front of mind in considering this example: (i) the offending conduct was in July 2020, while the public health emergency was in full swing; and

(ii) theworkplacewasagedcare,acontext that even now remains “higher-risk” and where stronger infection control measures set a higher expectation for employees. 6 While a prosecution on similar facts is unlikely given these differences, the case still serves as a salutary reminder of the obligation we each have to care for the health and safety for others at work.

Shared duties Across society there is a shared duty under s 34 of the Public Health Act 2016 (WA) for every person to take all reasonable and practicable steps to minimise any harm to public health that might foreseeably result from anything done or omitted to be done by the person.

At work, you and your employer are jointly responsible for the safety of the workplace, so far as is practicable. You must play your part to keep the workplace safe. The flipside though, is that your employer must: (a) consult you on all applicable policies and procedures; (b) cooperate with you on implementing all applicable policies and procedures; and (c) coordinate with you and all others who owe overlapping duties.

For example, if your employer has a policy that requires the use of HEPA filter air purifiers – everyone using the space shares the duty to turn them on. Similarly, if your workplace policy requires that meetings in smaller rooms must be conducted with an open door, everyone shares the duty to open the door if someone else closes it during a meeting.

Questions you may decide to ask your employer As workplace safety is everyone’s responsibility, you may need to ask questions of your employer to clarify how you and others should act in particular circumstances.

Should you attend work if you might be infectious with an airborne disease?

From early in 2020 until 14 October 2022 it was clear that no worker should attend a workplace while positive to COVID-19, except if they came within declared exemptions. But the public health orders mandating isolation have now been revoked. Still, Safe Work Australia advises that the removal of mandatory isolation does not impact on the work, health and safety duties in the workplace. 7 For most workplaces, the basic rule is if you have COVID-19 symptoms or you are feeling unwell and someone in your household tested positive to COVID-19, your attendance at work creates a risk of airborne disease so you should stay away. However, this is not the universal approach. For some workplaces it may be feasible to use a range of alternate controls that enable you to attend work and still provide a sufficient measure of protection to other workers. Though any policy will need to account for staff members with special vulnerabilities (such as the elderly or immuno-compromised). If you are unsure, you should seek guidance from your employer as to when you should, and should not, attend the workplace while potentially infectious.

Questions: 1.

2.

ave you familiarised yourself with your H workplace policy on COVID-19/airborne disease risk?

I f your workplace has not yet updated its policies following the lifting of the public health orders, will you ask your employer: a. what new policy is planned?; and b. w hat process is planned is for workers to be consulted about the policy?

Will your workplace permit non-worker visitors with

symptoms that might be COVID-19?

Any workplace that receives members of the public as visitors, which most law firms will, ought to have a policy for visitors with flu-like symptoms. Staff need to know what such a policy is, to know how to advise visitors.

For instance, are visitors with flu-like symptoms welcome in all circumstances?

Are they asked not to attend? Are they asked to complete a declaration or otherwise attest that they have received a negative result on a test approved by the Therapeutic Goods Administration? Will they be required to mask? If you don’t know the answers, it may be prudent to seek guidance from your employer.

Once a policy is set, then it needs to be communicated clearly to potential visitors.

There multiple ways a policy may be communicated. It might be through posters or signs. In other cases, notices will be placed on a business’ website (for example, Francis Burt Chambers’ visitor policy is on its website). 8

Working from home policy Is work from home permitted? If so, under what circumstances?

Is working from home is something that you may want to do? For instance, if your child or spouse is ill, you have been a close contact of a COVID-positive case but have no symptoms, or you have only mild symptoms? If you haven’t planned for the possibility of working from home, and obtained the relevant permissions in advance, you may be forced to take sick leave instead. You could then miss work opportunities.

For some lawyers, working from home in 2020 was a terrible experience. Some had no suitable workspace. Other workers faced difficulty keeping information confidential and secure when trying to work from home. Yet others had no workspace separate from their children. Junior lawyers had reduced supervision. Proactive

investigation and planning may fix some of these issues.

Employers have to consider not only the physical safety of a home workplace (from immediate trip hazards to cumulative hazards from poor seating or desks) but also the psychosocial hazards. Worksafe WA’s Code of Practice for “Psychological hazards in the workplace” identifies poor workplace policies and those developed with no or limited consultation with workers as a psychosocial hazard. 9 The Code of Practice identifies remote work and isolated work as additional risk factors for psychosocial hazards. If your employer pushes you to work from home despite limited consultation, you may wish to refer your employer to the Code of Practice for “Psychological hazards in the workplace”.

I suggest that flexibility will be needed to permit working from home in some circumstances, but without public health orders urging it, employers will rarely be entitled to insist on it.

End Notes 1 WHS Act, s 46.

2 D epartment of Health (WA), “COVID-19 cases and contacts”, updated 20 December 2022, available at <https://www.healthywa.wa.gov.au/articles/a_e/ coronavirus/covid19-cases-and-contacts>.

3 G overnment of Western Australia, Department of Premier and Cabinet, “COVID-19 Coronavirus: Managing COVID-19 in WA”, updated 3 March 2023 online at <https://www.wa.gov.au/government/covid19-coronavirus/covid-19-coronavirus-managing-covid19-wa>.

4 Government of Western Australia, Department of Premier and Cabinet, n 3.

5 W orksafe Victoria, “Nurse fined for working while COVID-19 positive”, 26 October 2022, available online at <https://www.worksafe.vic.gov.au/news/2022-10/ nurse-fined-working-while-covid-19-positive>.

6 D epartment of Health (WA), “COVID-19 cases and contacts”, n 2.

7 S afe Work Australia, <https://covid19.swa.gov.au/ covid-19-information-workplaces>.

8 F rancis Burt Chambers, “COVID-19 Update”, 24 October 2022 available online at <https://www. francisburt.com.au/updates/francis-burt-chamberscovid-19-update/>.

9 W orksafe WA Code of Practice for “Psychological hazards in the workplace”, available online at <https:// www.commerce.wa.gov.au/worksafe/mentallyhealthy-workplaces-codes-practice>.

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HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Insolvency Contract of insurance The High Court effectively declared 8 February 2023 “insolvency day” at the Court by treating insolvency practitioners to the delivery of two decisions on the operation of voidable transactions in insolvency governed by Part 5.7B of the Corporations Act 2001 (Cth) (Act).

Both decisions were also concerned with transactions alleged to be an unfair preference given by one company to the company’s creditor within the meaning of s588FA of the Act.

Unfair preferences – set-off In Metal Manufacturers Pty Limited v Morton [2023] HCA 1 (8 February 2023) the High Court was required to determine whether a set-off under s553C(1) of the Act could be raised against a liquidator’s claim for recovery of an amount received as an unfair preference.

The appellant was paid $50,000 and $140,000 by MJ Woodman Electrical Contractors Pty Ltd (MJ Woodman). Both payments were made within the sixmonth period prior to the winding up of MJ Woodman (“relation-back period”). MJ Woodman’s liquidator, the first respondent, sought to recover both payments from the appellant under s588FF(1)(a) of the Act on the basis that each payment was an unfair preference. It was an admitted fact that MJ Woodman owed the appellant money and that this was a separate and distinct debt from the appellant’s liability in respect of the unfair preference payment. Given that the debt exceeds the liability, if the appellant could set-off its debt against the liability the liquidator would not get an order for payment. Accordingly, the primary judge (Derrington J) reserved for consideration by the Full Court of the Federal Court the question of whether a set-off under s553C(1) of the Act was available to the appellant against the liquidator’s claim for recovery of the unfair preference. The Full Court’s answer was “No” (Allsop CJ, Middleton and Derington JJ agreeing).

The appellant sought a different answer from the High Court but was disappointed again. The High Court unanimously dismissed the appeal. Keifel CJ, Gordon,

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Edelman and Steward JJ observed, at [45], that s553C(1) – properly construed in context of the statutory scheme of liquidation – requires that the mutual debts, mutual credits or other dealings referred to in the section, be mutual debts, mutual credits or other dealings existing in some form before the winding up of the company.

Their Honours point out, at [46], that immediately before the commencement of the winding up of MJ Woodman, the company owed the appellant money but the appellant did not, at that time, owe MJ Woodman any money. The unfair preference liability plainly did not, and could not, exist prior to the winding up of MJ Woodman. Their Honours, at [56], declared that to the extent that other authorities are inconsistent with their analysis, they should now be considered wrongly decided.

In a separate judgment, Gageler J, agreed with reasons given by Kiefel CJ et al but went on to write further about the concept of mutuality in s553C of the Act. Gageler J, at [73], observes that the right to seek recovery of the unfair preference liability is a statutory right conferred on the liquidator (not the company) for the benefit of the general body of creditors and, as such, there could be no mutuality of interest between the unfair preference liability and the debt incurred by the company (now in liquidation).

Unfair preferences – peak indebtedness rule and continuing business relationship In Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (8 February 2023) the High Court was required to determine two key issues: whether the so-called “peak indebtedness rule” (PIR) is part of or excluded by s588FA(3) of the Act and the proper approach to ascertain whether a transaction is “for commercial purposes, an integral part of a continuing business relationship” within the meaning of s588FA(3)(a) of the Act. The appellants are the liquidators of Gunns Limited and its wholly owned subsidiary, Auspine Limited (collectively, Gunns). The respondent (Badenoch) is a creditor of Gunns. In 2003, Badenoch entered into an agreement with Gunns to supply Gunns with timber. Under that agreement Badenoch invoiced Gunns for the timber at the end of each calendar

month and payment of the invoice fell due on the last business day of the following month. The parties renewed the agreement in 2008 for a further period ending in June 2013. But, in 2010 Gunns suffered significant declines in revenue. And in 2011 and 2012 Gunns’ financial position grew precarious. Badenoch continued to supply Gunns with timber during this period despite Gunns frequently being either late in making payments or making only partial payments of Badenoch’s invoices.

Badenoch did various things to protect itself from Gunns’ increasing indebtedness, such as threatening to cease supply, ceasing supply for short periods and issuing letters of demand (among other things).

Finally, in August 2012 Badenoch agreed with Gunns to terminate the agreement on the basis that it would continue to supply some timber for a further short period to allow another supplier time to “get up to speed”. On 25 September 2012, while Badenoch was still supplying Gunns, Gunns appointed the liquidators as joint and several administrators. Subsequently, the liquidators applied, under s588FF(1) of the Act, to have payments made by Gunns to Badendoch during the relation-back period (26 March 2012 to 25 September 2012) declared voidable transactions.

After a separate, contested, hearing the primary judge (Davies J) determined Gunns’ insolvency date to be 30 March 2012. The liquidators then contended that all payments made by Gunns to Badenoch between 30 March 2012 and 25 September 2012 were voidable transactions. The liquidators also contended that, if there was a “continuing business relationship” between Gunns and Badenoch (triggering s588FA(3) of the Act) the liquidators were entitled by the PIR to choose the starting date within the relation-back period to prove the existence of an unfair preference

by Gunns to Badenoch. On the basis that the “continuing business relationship” ended by 30 June 2012, the liquidators chose 31 May 2012 as the starting point of the “single transaction” for the application of s588FA(1) of the Act. On that date Gunns’ indebtedness to Badenoch peaked at $1,416,563.31. By 30 June 2021 that debt had been reduced by Gunns to $1,365,321.02. The liquidator claimed that the difference between these two sums represented the amount of Gunns’ unfair preference.

At first instance the primary judge held that the PIR continued to apply under s588FA(3) of the Act and, as such, the liquidators were entitled to determine the date of the first transaction in the “relationship” for the purpose of the comparison required by s588FA(1)(b). The primary judge also held that only a couple of the Gunns’ payments (“payments 3 and 4”), made in May and June 2012, were an integral part of a continuing business relationship and subject to s588FA(3) of the Act. As to the other payments, the primary judge considered that these payments were directed to the partial payment of the old debt rather than the provision of continuing services.

On appeal to the Full Court of the Federal Court, the Full Court (Middleton, Charlesworth and Jackson JJ) held that the PIR was inconsistent with the reasoning in Airservices Australia v Ferrier (1996) 185 CLR 483 which was concerned with the “running account principle” and the associated “doctrine of ultimate effect”, embodied in s588FA(3) of the Act. The doctrine of ultimate effect, as the name suggests, stipulates that in determining whether a payment is a preference regard must be had to the ultimate (as distinct from immediate) effect of the payment.

The Full Court also held that if the purpose of the payment is to induce the creditor to provide further goods or services, as well as discharge an existing debt, the payment will not be a preference unless the payment exceeds the value of the goods or services – and in each case the court looks to the ultimate effect of the transaction.

The Full Court went on to find (contrary to the findings of the primary judge) that two payments (“payments 1 and 2”) were part of a continuing business relationship.

The Full Court otherwise agreed with the primary judge’s characterisation of the balance of the payments.

In a unanimous decission the High Court dismissed Gunns’ appeal. Jagot J set out reasons for the decision with which Kiefel CJ, Gageler, Gordon, Edelman, Steward, and Gleeson JJ agreed. Jagot J, at [45], cautions that it “cannot be assumed or inferred” that by incorporating the “running account principle” in s588FA(3) that the legislature also intended to incorporate the PIR. Jagot J then embarks on an examination of the relevant sections of the Act, Explanatory Memorandum (EM) and the cases referred to in the EM. At the end of this journey, Jagot J concludes, at [76], that while the “running account principle” is plainly embodied in the Act, in s588FA(3),

the PIR is not. Although Jagot J, at [77], considers that the PIR is not irreconcilable with the “running account principle”. Jagot J also notes that, in most cases, some date will have to be chosen to allow for a comparison to be made to determine whether the payment is a preference, and that it might as well be the liquidator who does the choosing.

As to the proper approach to determine whether a “transaction is, for commercial purposes, an integral part of a continuing business relationship”, Jagot J simply observes, at [79] and [85], that the task is one of objectively ascertained fact.

Adopting this approach Jagot J reaches the same conclusion as the Full Court as to the characterisation to be given to Gunns’ payments to Badenoch.

Dr Michelle Sharpe is a Victorian barrister practicing in general commercial, real property, 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.

FEDERAL COURT JUDGMENTS

By Dan Star KC

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Consumer law – civil penalties Breach of Australian Consumer Law – proposed agreed penalties – quantum of penalty proposed for one category of misrepresentation not within the range of appropriate penalties – lesser penalty imposed In Australian Competition and Consumer Commission v Uber B.V. [2022] FCA 1466 (7 December 2022) Uber admitted two categories of conduct which contravened s18 (misleading or deceptive conduct) and s29(1)(i) (misleading representations with respect to price) of the Australian Consumer Law (ACL).

The Federal Court declared that Uber contravened those provisions of the ACL as follows: • between 20 June 2018 to 31 August 2020 Uber displayed on the Uber app and the Uber website an estimated fare range for UberTaxi trips booked through the Uber platform, and thereby represented to consumers that the price the consumer would pay for a taxi booked through UberTaxi would likely be in the displayed fare range (UberTaxi Representation), when in fact the actual price paid by riders was likely to be less than the lower range of the fare estimate

• between 8 December 2017 to 20 September 2021 Uber displayed on the Uber app and the Uber website to consumers who booked an UberX, Uber Premier, Uber Comfort or UberPool ride and had subsequently selected the “Cancel Trip” option during a period in which Uber’s terms and conditions or cancellation policies provided for a free cancellation, a message stating that they may be charged a small fee (Cancellation Representation), when in fact such consumers would not be charged a fee if they cancelled during the free cancellation period.

In relation to the UberTaxi Representation, Uber over-estimated the fare at the time of booking, and the consumer ultimately paid a lower fare. As to the Cancellation Representation, Uber did not in fact charge consum-

ers a cancellation fee when it was not entitled to do so. Its contravention involved the communication of an incorrect statement that consumers may be charged a small fee when that was not the case.

While no penalty can be imposed for a contravention of s18 of the ACL, under s224 the Court may impose a pecuniary penalty in respect of contraventions of s29 in such amount as it determines to be appropriate, subject to specified statutory maximums.

The parties by agreement jointly proposed orders for the payment by Uber of total pecuniary penalties of $26m comprised of $8m for the UberTaxi Representation and $18m for the Cancellation Representation.

O’Bryan J was satisfied that the proposed penalty for the Cancellation Representation was within a range of penalties that he considered to be appropriate (at [130]). However, O’Bryan J held that the proposed agreed penalty for the UberTaxi Representations greatly exceeded any amount that could be considered to be appropriate having regard to the mandatory statutory considerations in s224 of the ACL and all other relevant considerations (at [128]). The Court held an aggregate penalty of $3m to be appropriate for that course of conduct and, therefore, the aggregate penalty imposed was $21m (at [36] and [129]). As O’Bryan J said: “[t]his is an unusual case in which the Court has determined that the appropriate penalty to be imposed is less than the penalty jointly proposed by the parties (including the respondent)” (at [37]).

The Court’s reasons address the importance of the mandatory considerations under s224(2) of the ACL and centrality of the nature and extent of harm that may be caused by the contravening conduct (at [13]-[21] and [85]). O’Bryan J held that there was inadequate evidence adduced on the question of harm caused by the contravening conduct and other matters to support the higher penalty supported by both the regulator and Uber, even after the Court afforded the parties multiple opportunities (at [22]-[23], [32] and [86][96]).

Dan Star KC 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.

Curing Successive Conflicts Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Ethics Column Lawyers must eschew former client (successive) conflicts.

Differing judicial views have been expressed over time concerning the efficacy of information barriers to address successive conflicts.

The modern judicial trend, though, appears to harbour fewer misgivings in this context.

I

t is well established that a lawyer should not accept an engagement to act against a former client, and can be restrained from doing so, “if a reasonable observer, aware of all the relevant facts, would think that there is a real, as opposed to a theoretical possibility that confidential information given to the [lawyer] by the former client might be used by the [lawyer] to advance the interests of a new client to the detriment of the [former] client”. 1 Professional conduct rules evince a parallel sentiment.2

The foregoing targets an individual lawyer, but the issue surrounding what are termed “successive conflicts” can surface when a law practice acts against a former client of the practice (earlier represented by another lawyer therein) or a lawyer has since moved to the practice (the “migratory lawyer”). The seminal, though now in some ways superseded, authority in the field, Rakusen v Ellis, Munday and Clarke,3 involved a law practice (the respondent) consisting of two partners (M and C). The appellant consulted M for advice arising out of alleged unfair dismissal. The appellant later engaged another law practice in the matter, which issued a writ. In the ensuing arbitration, C was appointed, under the name of the respondent practice, to act for the employer. The appellant sought to restrain this engagement.

Despite that the respondent law practice was now acting against a former client of the practice, the English Court of Appeal rejected the appellant’s plea. Influential in this decision was that although M and C were the only

partners in the practice, the evidence revealed that they performed legal work separately and without any knowledge of each other’s clients.

Also, at the time of the earlier engagement, C was away and unaware of the appellant’s consultation with M. C’s undertaking not to make any inquiries or obtain information from M regarding the matter proved the clincher, Fletcher Moulton LJ saying that “[n]obody pretends that this gentleman will not act up to that undertaking”. 4 For decades thereafter it was assumed that Rakusen reflected the law, including its focus on whether the representation raised “any reasonable probability of any mischief” 5 or “real mischief and real prejudice”. 6 The tide appeared to have turned by 1990, when Ipp J in Mallesons Stephen Jaques v KPMG Peat Marwick 7 restrained Mallesons from acting for the Commissioner of Corporate Affairs to prosecute criminal charges against the defendant, where it had previously advised the defendant as to its potential criminal liability out of which the charges later stemmed. The large size of Mallesons, coupled with different teams of lawyers acting in each matter located in separate buildings, in tandem with undertakings, did not sway his Honour to the contrary. Relying on partnership law principle that imputes one partner’s knowledge to other partners, Ipp J saw the position of Mallesons as inherently conflicted.

This reasoning appeared to preclude scope for information barriers within a practice to salve the prospect of conflict. Yet months earlier a Queensland court countenanced the efficacy of information barriers, in a case of former and current retainers performed by a discrete “section” of a mid-tier firm, each under the control of different partners with separate areas of operation, and engaging separate support staff, attended by detailed undertakings.8 This pre-existing segregation within the firm, Lee J held, legitimised scope for information barriers. This very point was picked up by Lord Millett in the modern leading case, Prince Jefri Bolkiah v KPMG (a firm), 9 speaking of the need for barriers “to be an established part of the organisational structure of the firm”.

sensitivity many feel concerning litigation of this kind, informed by a belief that the appearance that a lawyer can readily change sides is subversive to the appearance of justice being done. 10 Yet case law has since marked a step away from treating family law as unique in this context,11 an upshot of which is that information barriers may, in an apt case, prove effective even in this domain.

The point has been driven home in a recent case, where the potential risk of disclosure by a lawyer — who had previously had “the direct, substantial and ongoing conduct of the wife’s case for a considerable period” 12 before joining the firm representing the husband — was assuaged by information barriers and undertakings. Though bearing in mind that each case must rest on its facts, it seems that curial mistrust of the information barrier may be waning somewhat.

End Notes 1 Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 312 per Drummond J. 2 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA) r 10.2.

3 [1912] 1 Ch 831.

4 Ibid at 841.

5 Ibid.

6 Ibid at 835 per Cozens-Hardy MR. 7 (1990) 4 WAR 357.

8 Fruehauf Finance Corp Pty Ltd v Feez Ruthning (a firm) [1991] 1 Qd R 558.

9 [1999] 2 AC 222 at 239.

10 Arguably the seminal case is D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 (see at 124 per Bryson J).

11 Osferatu v Osferatu (2015) 301 FLR 295.

12 Hatzis v Hatzis [2022] FedCFamC1F 745 at [33] per Gill J.

At the same time, a succession of family law cases struggled to accept scope for any legitimate information barrier to cure a successive conflict, here targeting the

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FAMILY LAW CASE NOTES

By Craig Nicol and Keleigh Robinson Accredited family law specialists. Editor and co-editor of The Family Law Book Children – Indefinite severance of children’s relationship with their mother disproportionate to identified unacceptable risk

Property – No error in 60:40 contribution weighting in $4.5 million asset pool where de facto wife’s father provided $1,250,000 and interest free loans

Children – Unified parents’ joint opposition to grandmother spending interim time with children does not displace judicial scrutiny as to the children’s best interests

In Bielen & Kozma [2022] FedCFamC1A 221 (20 December 2022) the Full Court (McClelland DCJ, Henderson & Harper JJ) allowed an appeal from orders where 6 and 4 year old children changed from living with the mother to the father.

In Bokin & Wild [2022] FedCFamC1A 209 (13 December 2022) the Full Court (Alstergren CJ, Rees & Altobelli JJ) dismissed with costs a de facto husband’s appeal from a decision of Brasch J in respect of a relationship of between 17 and 21 years, which produced five children.

The de facto wife also had a child of a previous relationship.

In Chandler & Bonner [2022] FedCFamC1A 210 (14 December 2022) Tree J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed an appeal of unified parents against interim parenting orders made by the Magistrates Court of Western Australia for professionally supervised time between the parents’ four children and their maternal grandmother.

At first instance, the Court found that the children had been exposed to the mother’s ongoing false narrative that they had been sexually abused by the father, posing an unacceptable risk of ongoing emotional harm in her care. The Court ordered that the mother have no time nor communication with the children, save for the provision of cards.

The mother argued that the Court erred where it found that as the mother posed an unacceptable welfare risk “it is unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC” ([40]).

The Full Court said (from [28]): “ … [T]he focus of parenting proceedings should be on ‘the effect on the child’ of the parties’ respective proposals (Fairfield & Hoffman [2021] FamCAFC 151 … ( … ) [37] … [T]he primary judge was in error in failing to consider s 60CC(2)(a) and any factor contained within s 60CC(3), particularly s 60CC(3)(d). ( … ) [42] … The fact that [the primary judge] … failed to give ‘proper, genuine and realistic consideration’ in a manner that was consistent with the objects of Part VII of the Act … is apparent from the judgment. Nowhere in the body of the judgment does the primary judge set out her assessment of the consequences for these young children of losing the benefit of a meaningful relationship with their mother. ( … ) [51] In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained … that where a case is conducted on the basis of … unacceptable risk of harm to a child in the care of one parent, ‘[t] he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk’ … ”

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The de facto husband argued that the Court erred in its assessment as to contributions and by offsetting his contribution to the de facto wife’s child against the de facto wife’s father’s contributions.

The Full Court said (from [16]): “ … The Court does not adopt a precise, mathematical approach to the exercise of discretion as the various matters taken into account under s 79 are not all capable of precise calculation (Kessey and Kessey [1994] FamCA 162 … ). Some considerations involve value judgments or are matters of impression (Lovine & Connor [2012] FamCAFC 168 … ).

[17] The findings of the primary judge are the result of a detailed and holistic assessment of a myriad of contributions in a long marriage. ( … ) [24] … [T]he respondent’s father’s quantified contributions were some $1,250,000 and his unquantified contributions, particularly the provision of interest free loans, were substantial and in addition to the quantified contributions.

[25] The … assessment of contributions as favouring the respondent by 20 per cent or $914,696.75 is readily explained by a proper analysis of … contributions. ( … ) [27] … [H]er Honour’s reasoning is well able to be ascertained. … [W]e are satisfied that the inevitable ‘leap’ from words to the figure of 60 per cent … does not invite appellate intervention …(…)

[43] … [T]he appellant raised … Robb and Robb [1994] FamCA 136 … owing to his assistance with the care of Ms B the respondent’s first child from an earlier relationship (‘Ms B’). ( … ) [50] … [E]vidence of the respondent’s father’s contributions is relevant to negate the appellant’s contention … that he provided financial support for Ms B.”

The parents argued that the Court had erred, including by not applying s 43 of the Act. Tree J said (from [17]): “Plainly neither s 43 nor s 69ZN of the Act operate to displace the paramountcy of children’s best interests established by s 60CA … [A]s the section headings of both s 43 and s 69ZN suggest, they … articulate general principles to which regard must be had in all proceedings under the Act (s 43) and to which effect must be given in conducting child-related proceedings (s 69ZN). ( … ) [19] … [T]he primary magistrate did not … disregard either s 43 or s 69ZN of the Act. … [H] e expressly considered the potential impact on the parents and the children of time with the grandmother resuming, and … recognised the desirability of minimising that impact … ( … ) [25] … [T]he time the children were to spend with the grandmother was sparse … and … denigration of a party, or discussing the proceedings in the presence of the children was prohibited … [E]nforcing those prohibitions was the main reason for the grandmother’s time with the children being supervised. ( … ) [34] … [T]he interim orders merely enabled any relationship to be, in a very limited way, facilitated at least until final orders were made. …

[35] … [T]he grandmother’s historical involvement in the children’s lives was … contested, and therefore unable to be determined … ( … ) [41] … [T]he reason why … the primary magistrate considered that the children should spend time with the grandmother, was the possibility of them deriving benefit from that relationship ... ”

Law Council Update Law Council unwaveringly supports Constitutional recognition of First Nations peoples The release today of the question and proposed Constitutional amendment to establish a Voice to Parliament and the Executive that will be put to Australian voters at referendum is a welcome step closer to the necessary and overdue recognition of First Nations peoples in the Australian Constitution.

“The Constitutional enshrinement of the Voice is necessary to meet the aspirations of the Uluru Statement, and to respect the direct wishes of First Nations peoples,” Law Council of Australia President, Mr Luke Murphy said. “Our nation’s support of a Constitutionally enshrined Voice will represent an acceptance of the invitation extended to all Australians in good will by First Nations people through the Uluru Statement.

“The Law Council considers that amending the Constitution to provide for a Voice is a modest step in respecting the enduring value and strength of First Nations culture; recognising the unique place First Nations occupy in Australia’s history as its Indigenous peoples; and overcoming an indisputable legacy of dispossession and disadvantage since European settlement.

“The Law Council considers that the Voice is a necessary and overdue advancement of the right of First Nations peoples to selfdetermination. The right to self-determination is a fundamental principle of international law,” Mr Murphy said.

“Too often the voices of First Nations persons go unheeded amidst the formal, complex and time-critical processes of lawmaking and implementation. This can, and does, have disastrous consequences.

“Empowering First Nations peoples and enabling their voice to be heard on policies

and legislation that impact them will help ‘close the gap’ and address the significant disadvantage First Nations peoples experience across several key indicators such as life expectancy, health, household income, experiences of violence and education.

“A bill containing the text of the proposed amendment to the Constitution will be introduced to the Parliament next week.

The Law Council looks forward to making a submission to the joint parliamentary committee inquiry which has been foreshadowed.”

Law Council Calls for Reform to Abolish Continuing Detention Order Regime The Law Council of Australia welcomes the release of the Independent National Security Legislation Monitor’s (INSLM’s) report into the operation and effectiveness of Division 105A of the Criminal Code Act 1995 (Cth) and calls for urgent consideration of its recommendations.

“There are two post-sentence orders that can be made pursuant to Division 105A: the continuing detention order (CDO), and the extended supervision order (ESO).

In essence, the CDO regime allows for the detention of an individual based on a prediction they may commit a future offence,” said Law Council President Luke Murphy.

“Detention should only be imposed as a criminal sentence following a person's conviction for an offence. The Law Council welcomes the INSLM’s recommendation that the power to make CDOs be abolished.

“The Law Council’s long-standing position is that the CDO regime is not a necessary or proportionate response to the threat of terrorism. Detention should not be available based on a prediction of a person's future

risk, which is a fraught exercise in the absence of an empirically validated risk assessment methodology. The Law Council agrees with the INSLM’s findings that Australia remains an outlier among countries that share Australia’s values and traditions, such as the United Kingdom and New Zealand, in having a CDO mechanism as a response to the risk of terrorism.

“The Law Council has consistently expressed concern that there is a lack of an established body of specialised knowledge on which to base predictions about a person’s future risk of committing a terrorism offence.

Accordingly, the Law Council supports implementation of amendments suggested by the INSLM, which will improve procedural fairness governing the admission and use of expert evidence in determining the risk posed by an offender.

“In principle, the Law Council supports retention of the ESO scheme, subject to implementation of the INSLM’s detailed recommendations to improve proportionality and better achieve the objectives of rehabilitation and reintegration of the defendant into the community.

“The Law Council strongly supports the INSLM’s finding that the Commonwealth has the obligation to fund the legal costs of defendants confronting these applications and must fund them in a timely and adequate manner. It is essential that defendants have, or be provided with, the capacity to respond to these applications in a manner consistent with their seriousness.

“The Law Council congratulates the INSLM and his office for this report and looks forward to seeing these important recommendations implemented.”

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Reflections from a Country Practitioner

by Alex Granich

Rural, Regional and Remote (RRR) legal practitioners face unique challenges in their careers in law, but make a significant contribution to servicing the legal needs of RRR communities.

To provide more insight, the Law Society’s Country Practitioners Committee asked Alex Granich to ruminate on his own experiences as a country practitioner. This short reflection is also a reminder of how much things have changed over the last 40 years in both regional Western Australia and the law.

I commenced practising on my own account in Merredin in 1976 a few months after being admitted to the bar and completing 2 years of articles. I continued to practise in Merredin until June 1983 when I became a partner in the West Perth practice of Picton Warlow Granich and Co. On 7 March 1976, me, my wife Andrea and our children, Justin aged 3 and Naomi aged 9 months arrived in Merredin. On the following day, my excellent secretary, Julie Brooks (recently PA to a partner at Lavan and Walsh) and I, both aged 27, opened the office of AP Granich, Barristers and Solicitors . As I met the local business people, I would ask them how business was and wished them all the best.

When the local undertaker told me he really needed another funeral per month, I found myself wishing him all the best with that.

My practice in Merredin consisted of general commercial work, personal injury claims, criminal and traffic matters in the Magistrates Court, civil litigation in the Supreme Court, deceased estates, wills, commercial litigation, property settlements, general advice and later, mining law.

There was a resident Magistrate in Northam also who attended courts in Merredin, Southern Cross, Kellerberrin, Bruce Rock, Narembeen, Wyalkatchem and Mukinbudin. These courts provided a regular source of work. All of the those Courts except for Northam, have now closed.

A reasonably extensive library was essential to a country practitioner in those days. I had a text book for each major area of law, Butterworths forms and precedents, Halsburys, Western

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Australian and Commonwealth Law reports and a loose leaf tax reporter.

The general charge out rate for solicitors was about $40 per hour in 1976 and rose to about $90 per hour by 1983. However, hourly rates were not as universally charged as they are today. The scale fees for commercial work were based on the consideration and the relatively high values of farming properties often resulted in far higher rates than the hourly rates. This facilitated a form of cross subsidisation where low consideration matters (such as civil disputes in the local court or work for ALS) were charged at levels well below hourly rates.

There was a professional conduct rule prohibiting undercharging except of poverty of or friendship with the client. Lawyers were not permitted to advertise except to advise basic particulars such as the name and address of the practice and its opening hours. These were the days before the Hawk Keating economic liberalisation reforms.

The largest practice expense after salaries for support staff was telephone costs. Long distance calls were expensive; amounting to about $5000 per year or about $25,000 in today’s terms. Faxes were not common place until the mid 1980’s and of course, there was no internet. Client communication was largely by mail or personal attendance.

In 1978, I financed the purchase of a then state of the art IBM magnetic card (or computerised) typewriter for $10,000 (about the then price of a new Holden Commodore). The machine was well worth the saving in typist salaries. Our office was located in the CBA building next to the fire station. Because of the novel nature of

the machine, the finance company presented me with an exhaustive questionnaire which included, ‘What special steps are taken to protect the machine from fire?’. I was able to answer; ‘The machine is located adjacent to the fire station. Andrea would take the machine to IBM in Perth for service twice per year.

Some farmers were rather casual about the written word. One farmer told me that he paid off the farm he purchased from his neighbour over 10 years without a written contract until the transfer of the land was executed once the purchase price had been paid in full. When I phoned a farmer client to tell him I had a 20 page opinion from the QC, he responded “well don’t f…. send it to me, I am not going to read it, tell me what it means.”

Long distance driving was part of the job.

Merredin is a 3 hour drive from Perth. I recall an example, in 1981 I drove from Merredin to Perth to appear on the final day at a Coroners Court Hearing (that had been adjourned from Merredin to Perth) and drove home after a full days hearing. My longest drive was leaving Merredin at 3:00am to arrive at Leonora, Wardens Court, a distance of 560 kilometres, at 10.00 am to appear for a Plaintiff in a contested forfeiture application.

Serious criminal matters arising out of the Southern Cross area were referred to the Kalgoorlie Supreme Court. In about 1980 I was acting for an alleged accessory on a charge of causing damage by an explosion (which carried a maximum penalty of life imprisonment). I appeared in the Supreme Court in Kalgoorlie (wearing Julien Grill’s wig and gown) as Brian Singleton’s junior before Justice Wallace

with Geoffrey Miller QC prosecuting and the legendary Kalgoorlie lawyer, Tom Hartrey appearing for the principal defendant who set off the explosion. Shortly before lunch, His Honour ruled that there was insufficient evidence against our client to go to the jury.

Brian, myself, our client and others promptly adjourned to the Palace Hotel. We were joined later in the afternoon by Tom and his client as, after a short deliberation, the jury found Tom’s client not guilty. Tom explained that Kalgoorlie juries were not greatly troubled by explosions. I did not travel back to Merredin that night.

After the commencement of the mining boom in 1980, country Wardens often sat late into the night to determine contested matters. I was once involved in the Wardens court hearing at Southern Cross that finished at 8:00pm.

represented by Malcolm McCusker QC. The 3 day hearing finished at 10:00pm. Our client lived in the Palace Hotel so was able to organise a lavish late night banquet for his exhausted legal team, expert witnesses and others.

Later, in 1987 I acted for a Plaintiff on an application in the Kalgoorlie Wardens Court against Anglo American seeking forfeiture of the highly valuable tailings dumps just South of the Kalgoorlie townsite. I briefed future federal Attorney General, Daryl Williams QC with Alan Camp as junior. The defendants were

This short reflection is a reminder of how much things have changed over the last 40 plus years in both regional Western Australia and the law.

The Law Society of Western Australia invites you to an opportunity where you can engage with country colleagues, share your experiences in working in rural, remote, and regional areas and promote greater support for RRR practitioners.

Session 2: Technology in the Courts: an update, Department of Justice Western Australia

& Migration Law Committee of the Law Society of Western Australia

The day will also provide you with a unique opportunity to attend relevant and topical CPD seminars. Attend the face-toface CPD Day and have an opportunity to be with and develop professional relationships with colleagues working in similar areas of practice. All sessions will also be provided in virtual format.

Offered free for Country members of the Law Society* with CPD Freedom, this CPD day comprises seven informative sessions: Session 1: “Overcoming the Barrier of the Unknown: The Treechange Initiative”; Keynote Speaker Crystal Garwood, CoChair of the Law Council of Australia RRR Committee

Endnotes 1 Our daughter Rhyannon was born in Merredin in December 1981.

Session 3: Speakers from the Family and Domestic Violence: Safety in the Regions - Speakers request this week.

Session 7: Courts in the Regions: His Honour Kevin Sleight, Chair; Judge Gary Massey; Magistrate Catherine Crawford; Magistrate Deen Potter

Michael Horvan, Manager family Court & Child Protection Duty Services Legal Aid WA. Daniel Gibbard, Senior Lawyer Domestic Violence Legal Unit, Legal Aid WA

*Country Member means an Ordinary Member who ordinarily practises outside a radius of 80 kilometres from the Central Office of the Supreme Court of Western Australia, Perth.

Session 4: Cyber Security in 2023: A cat and mouse game, Dr Mohiuddin Ahmed, Course Coordinator, Master of Cyber Security Course Coordinator Edith Cowan University

Please note: A maximum of six CPD points can be claimed for attending this CPD Day. Register here.

Session 5: Advocacy, Evidence and Procedure in Criminal Proceedings: Simon Freitag SC Barrister, Albert Wolff Chambers Session 6: Migration Issues in the Regions: Crawford Yorke (Chair) and Martin Udall (Member) Administrative 57

Vale Notice for Stewart Yesner AM from Bruce Meredith

Vale Stewart Yesner AM 24/03/1955 – 27/08/2022 Stewart Yesner lived his life with heart and soul, to be fearless, to make a difference.

He achieved more in his lifetime than could be accomplished by most able bodied persons. Stewart was a legal practitioner in Perth from the late 1980s specialising in personal injury law. He also played an inspirational and founding role for spinal research first in the UK and later in Australia and challenged how many think of disabled people.

He was born in Ndola, Zambia (at the time, Northern Rhodesia). His father was from England, and his mother, Lithuania.

Stewart had an idyllic childhood with his two siblings, enjoying the outdoors, fishing and water-skiing.

It was January 1974, as carefree young man Stewart had just completed final year at boarding school in neighbouring Rhodesia (later to become Zimbabwe), and was enjoying the best of his holidays and newfound freedom, when his life was turned upside down. While driving along a remote dirt road he swerved to avoid a cyclist, lost control and was thrown from the vehicle.

This was the period before seatbelts became compulsory.

At the local hospital he and his family were given the grim news he had injured his spinal cord at the C6/C7 neck level and would never walk again. Following a short stay at the local hospital, Stewart was flown to England for his recovery at Stoke Mandeville Hospital in Aylesbury, Buckinghamshire, a hospital renowned worldwide for the treatment of spinal injuries. While at that hospital, Stewart was told nothing could be done to cure spinal cord injury paralysis. Stewart refused to accept this as reflected in his comment in an inspiring video made in 2019 and published on the Spinal Cure Australia website: “I remember lying in a hospital bed in the UK where they flew me to for treatment, and I kept on having a recurrent thought in my

58 | BRIEF APRIL 2023

head: that we could get man all the way to the moon in 1969, yet in 1974, the year I had my accident we could not get a man out of a wheelchair. That we had to do something about it.”

And so, that thought remained with him, and became the driving force in his life.

While completing a law degree at Manchester Polytechnic and qualifying as a barrister at Gray’s Inn in London, he began working on the project to create a charity to raise funding for spinal research into possible treatments for paralysis. He secured support from scientists, influential people and dignitaries (such as Lady Diana Spencer and Dame Margot Fonteyn who became patrons), and in London in 1980, at the age of 25, he launched International Spinal Research Trust, today Spinal Research (https://spinal-research. org/about-us), which is a premier spinal research charity in the UK, and facilitates ground-breaking research.

Stewart arrived in Australia in 1985. With that same driving force, he, together with Joanna Knott and Professor Perry Bartlett, replicated the UK charity by co-founding the Australian trust called Spinal Cure Australia (https://www.spinalcure.org.au/about/) in 1994.

Over the years Spinal Cure Australia SCA has raised $100M to fund research in various modalities and areas, which more than ever gives hope to people suffering from spinal cord injury.

In the 1997 Queen’s Birthday honours list, Stewart was made a Member of the Order of Australia (AM) for service to people with disabilities through the development and promotion of research into spinal cord injury.

Stewart also ran a successful personal injury legal practice in Perth. He championed the rights of those injured in motor vehicle and workplaces accidents, and was unrelenting in his commitment to achieving the best outcome for his clients. He secured, some significant settlements for his clients, including an important ruling in the District Court in 1995 that his hearing-impaired

client with injuries was entitled to an award for future loss of income. This was hailed as an important victory for the hearing impaired, recognising their contribution in the workforce. Stewart retired from practice in 2007 for health reasons.

As many members may recall, Stewart was a quietly spoken, compassionate man, who faced his challenges and tribulations with grace and dignity. He saw good in people and the world. He was a man of indomitable spirit and vision.

Stewart is survived by his wife Oranuch, son Benjamin, brother Malcolm and sister Simone. He was admired by so many from various walks of life. His family hold dear memories of Stewart, a unique, tenacious and kind man.

Stewart’s life is an inspiration, and he has left an enduring legacy.

Vale

Douglas William Routley – 15/11/1930 – 12/02/2023

Commenced work in the mid-1940s with law firm Bischoff & Co in the City of London and, after a period of national service, returned to Bischoff & Co where he qualified as a legal executive. Emigrated to Australia in 1967 with his young family and took up a position as a managing law clerk with Jackson McDonald. Eventually moved from the law into the transport industry and then to construction, but never lost his passion for the law and a good (usually reasoned) argument.

An honourable man who was well-respected and loved. Died peacefully at home in Mundaring.

Loving husband of Jean, devoted father of Julia, Susan, Christine and David, loving grandfather to eleven and great-grandfather to three.

New Members Associate Membership The University of Western Australia Ms Lauren Dougherty Miss Amanda Tan Mr Rory Hewson Ms Claire Local Ms Agnieszka Whisenhunt Miss Brianna Monforti Ms Hannah Skinner Ms Rojin Zaniani Miss Yvonne Su Miss Grace Pham Mr Ethan Nicholas Miss Shahad Aiez Ms Elizabeth Lydon Miss Talia Bensusan Ms Anna Kimpton Miss Baran Rostamian Miss Lara Lindenberg Miss Hayley French Mr Revant Bisht Mr Wai Kheong Chan Mr Jackson Lavell-Lee Mrs Heather Stuart Miss Emily Graham Miss Hannah Stannard Dr Chuneeta Nunhokee Mr William Bevan Miss Bonnie Cheng Miss Jasmine Cruickshank Miss Michelle Maio Ms Melanie Owens Miss Jasmyn Joseph Ms Amelia Hurst Miss Joelle Zeidan Mr Daniel Juhasz Dr Katie Elliott Murdoch University

New members joining the Law Society (February and March 2023) Mrs Ashani Perera Mrs Candrika Ray Miss Jordan Tabb Miss Aya Faris Mr Umar Badat Miss Caris De Oliveira Miss Ela Yavuz Miss Sarah Tucker Mr Liam Durtanovich Ms Jodi Martins Miss Marisa Apa Mr Roy Voss Edith Cowan University Mr Minh Khuu Miss Tenielle Henson Mr Benjamin Clifton Mrs Clare McAlaney Mr Hugh McGowan Curtin University Miss Isaiah Mckenna Ms Elle Verhoeff Mr Shaun Tan Mrs Syeda Shah Miss Isha Nagar Miss Georgianna Boyd Miss Phoenix Rogers University of Notre Dame Australia Miss Kylie Zhang Mr James Cowe Ms Deniz Kansak Ms Sascha Wholley Gilbert + Tobin Mr Tom Penglis Griffith University Ms Brianna Bird Central Queensland University Mr Darryl Wilkie

Ordinary Member Monaco Compensation Lawyers Ms Daniella Dababneh Ms Amabel Kuan Mr Leon Monaco Bennett Mr Johan Lock Mining Access Legal Ms Tegan Fitzgerald EMZ Legal Miss Michelle Huber Wheatbelt Community Legal Centre Mrs Jessie Yeow Australian Family Lawyers in Perth Mr Richard Crane Barrister Part-time Member Administrative Appeals Tribunal Dr Colin Huntly Part Time Membership Milevski Family Lawyers Ms Emma Wilson Restricted Practitioner Primary Securities Ltd Mr Graham Segall Youth Legal Service (Inc) Mr Webster Chimanga HWL Ebsworth Lawyers - Perth Miss Simone Basso State Solicitor’s Office Miss Maddi Watson Galilee Solicitors Mr Marcelo Cintra

Missing Will

Would any person or firm holding or knowing the whereabouts of a Will or any other testamentary documents of Maxwell Anthony Clark, late of 1/4 Kitchener Road, Melville, Western Australia (D.O.B. 22/12/1942) please contact Irdi Legal of 248 Oxford Street, Leederville, Western Australia by phone (08) 9443 2544 or email ryan.same@irdi.com.au.

Any person holding or know the whereabouts of the last Will or other testamentary document of the late ERIC WILLIAM SCHULSTAD of 55A Charles Street, Maylands, Western Australia, who died on or about 19 December 2022, please contact Tang Law at Address: 7/12 St Georges Tce, Perth WA 6000; Tel: (08) 9328 7525; Email: info@tanglaw.com.au

Missing Will

Missing Will

Missing Will

Any person who knows the existence or whereabouts of any Will made by Doreen Jean Doherty of 18 Holland Street, Fremantle in the State of Western Australia, born 11 November 1932, please contact Rebecca Conder of Cullen Macleod Lawyers, Level 2, 95 Stirling Hwy, Nedlands WA 6009.

Telephone: (08) 9 389 39 9 9 Email: rconder@cullenmacleod.com.au

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of ANNETTE ROSE COOPER, born 17 March 1961, late of 7 Parmelia Ave, PARMELIA, Western Australia, who died on 7 November 2022, please contact Joss Legal (Addr) Suite 1.6, Level I, 9 Bowman St, South Perth, WA 6151 Tel: (08) 6559 7480 Email: lawyers@josslegal.com.au

Would any person or firm holding or knowing the whereabouts of a Will or other testamentary document of LAWRENCE JOHN TODD born on 8 March 1956 who died 17 January 2023 please contact Thomas Legal Lawyers of Subiaco.

Telephone: 0417 980 955 or email sabina@thomaslegal.com.au

Classifieds

Missing Will

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

Specialised Support

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

Service provided by Converge International

Phone: 1300 687 327

We understand that people face many challenges in their lives and that sometimes these require specialised support. We believe the counsellors providing this support should be specialists with specific social or cultural experience, knowledge and understanding.

LawCare offers access to one session of specialist support per annum (available during business hours only).

Aboriginal and Torres Strait Islander Peoples helpline:

Telephone 1300 287 432

PDF Info Sheet

Domestic and Family Violence Helpline:

Telephone 1300 338 465

LGBTIQ helpline:

Telephone 1300 542 874

PDF Info Sheet PDF Info Sheet

Practitioner Advice

CoronaCare

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

LawCare WA now includes a suite of dedicated support programmes called ‘CoronaCare’ to help support you and your organisation manage through the uncertainty that we are all experiencing as a result of the emergence of COVID-19 (Coronavirus). Visit our website to find out more.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

Service provided by Converge International

Phone: 1300 687 327 For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

This service is only for a Law Society member who is an individual employee (not an employer). Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.