Brief October 2023

VOLUME 50 | NUMBER 5 | OCTOBER 2023

Special Feature:

Mind. Body.

Environment.

Mental Health and Wellbeing in the Legal Profession

ALSO INSIDE Interview with His Honour Judge Hylton Quail, President of the Children’s Court of Western Australia Workplace Bullying in the Legal Profession Passions Alongside the Law

The "New" Health and Safety: Addressing Psychosocial Risks in the Workplace Elder Law – A Precautionary Tale Western Australia's New Security of Payment Laws

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Mental Health and Wellbeing in the Legal Profession

Special Feature

14

07

Legal Costs Disputes

20

Interview with Judge Hylton Quail

Volume 51 | Number 3 | June 2023

Passions Alongside the Law

CONTENTS

Mind. Body.

Environment.

FOLLOW US lawsocietywa.asn.au

08

Workplace Bullying in the Legal Profoession

@the_Law_Society_of_Western_Australia

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ARTICLES 08 Always a Glass Half Full – Interview with His Honour Judge Hylton Quail, President of the Children’s Court of Western Australia

12

Wellness as an Ethical Duty

14

Passions Alongside the Law

34 Tipping the Scales: Balancing

Mental Health and Wellbeing at Law Schools in Australia

36 The Old Court House Law Museum: Olga's Story

38 Young Lawyers Committee:

Reflections on Mental Health and Wellbeing from the 2023 YLC

20 How to Not Lose Your Mind with Legal Costs Disputes

22 Some Reflections on the Mental

44 Privileging the Rights, Will and

Preferences of Older People Living with Dementia: Health and Lifestyle Decision-Making

Health Review Jurisdiction in Western Australia

25 Workplace Bullying in the Legal

Profession: Outlining the Problem and the Solutions

48 Elder Law – A Precautionary Tale 50 New Guidance on a Common

Retail Shop Lease Issue in the State Administrative Tribunal

28 Fostering Inclusion and Wellbeing for Transgender and Gender Diverse People

31

52 WA’s New Security of Payment

Laws Give New Hope of Payment Protection – Part 2

The "New" Health and Safety: Addressing Psychosocial Risks in the Workplace

President’s Report Editor’s Opinion Cartoon Quirky Cases Ethics Column Law Council Update

@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: Rebecca Nguyen RRP $16.00 incl GST.

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Ben Bullock, Thomas Camp, Gad Coffie, Patricia Femia, Jessica Henderson, Anlee Khuu, Roselina Kruize, The Hon John McKechnie KC, Dr Pat Saraceni, Robert Sceales, 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.

President: Ante Golem Senior Vice President: Paula Wilkinson 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, Kellie Woods

REGULARS 02 04 19 54 55 56

LawSocietyWA

Country Member: Michael Ryan Junior Members: Daniel Dyer-Smith, Tyler Greatrex, Demi Swain

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High Court Judgments

Chief Executive Officer: David Price

Federal Court Judgments Family Law Case Notes Classifieds New Members Member Privileges

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PRESIDENT'S REPORT

Ante Golem President, The Law Society of Western Australia

Welcome to the October issue of Brief.

Included in this edition are updates on the Law Society’s advocacy on issues of importance to the legal profession and the wider community, as well as information on the 2024 Council elections, the upcoming Annual General Meeting and End of Year Celebration event.

Mental Health and Wellbeing WA Mental Health Week in October reminds us of the importance of mental health and wellbeing and provides an opportunity to highlight the need to continually discuss mental health and promote effective strategies to maintain positive mental wellbeing.

While this significant week is important in raising awareness, health and wellbeing is undeniably of vital importance throughout the whole year.

As a Law Society member, you have access to our complimentary LawCare WA health and wellbeing service which includes an assistance programme and free counselling sessions.

We also offer effective strategies for mindfulness and stress management that can be explored in the Law Society’s Continuing Professional Development programme and by visiting our website.

This edition of October includes a mental health and wellbeing special feature, which provides not only helpful advice and tools for creating a positive work and life balance, but also some entertaining reading that will inspire, such as “Passions Alongside the Law” which is back by popular demand.

New Resources to Improve Working Conditions for Young Lawyers The Law Society recently launched the legal profession Version 2 of the informative Society resources Know Your Rights Guide: Law Graduates’ 2 | BRIEF OCTOBER 2023

and Junior Legal Practitioners’ Pay and Working Conditions and the Fair, Safe and Inclusive Legal Workplaces: Guidelines for the Employment of Law Clerks, Graduates and Lawyers, prepared by the Young Lawyers Committee (YLC).

These Guidelines have been prepared with the aim of promoting fair access to employment in the legal profession and to support the health and wellbeing of legal practitioners and other employees engaged in the legal profession.

I encourage all members to read and share the resources as improving working conditions is of benefit to both legal employers and their employees, and the legal profession as a whole.

Spring 2023 CPD Programme Since the last edition of Brief, the Law Society has successfully launched its Spring CPD programme, as well as the Criminal Law (Mental Impairment) Act 2023 seminar series which was launched by the Attorney General in August, in collaboration with the Department of Justice, Aboriginal Legal Services WA, Legal Aid WA, and the Office of the Director of Public Prosecutions.

Given the significance of the Voice to Parliament referendum on 14 October 2023, the Law Society and the Western Australian Bar Association came together to present A Symposium: The Voice – An Opportunity for Discussion on Friday, 8 September 2023.

A sold-out event with over 200 attendees, the event included distinguished keynote speakers, Professor Gabrielle Appleby from UNSW Faculty of Law & Justice and Adjunct Professor Bertus De Villiers from Curtin University, setting the stage with insightful addresses, with valuable commentary provided

by The Honourable Judge David MacLean.

The highlight of the event was the robust panel discussion, moderated

by the Honourable Robert French AC, which included Professor Colleen Hayward AM, Mr Nolan Hunter, Mr Tyson McEwan, and Ms Sophie Coffin.

Elections for 2024 Law Society Council Congratulations to Paula Wilkinson, who was declared to be elected as the Law Society’s President for 2024. Paula has been an outstanding contributor to Council for many years, and a supportive colleague on Executive. I look forward to working with Paula and the newly constituted Council and Executive in 2024 as Immediate Past President.

I strongly encourage all eligible members to engage with the voting process. On Wednesday, 25 October, electronic ballot papers will be transmitted via email to all members eligible to vote. Ballots will close at 15.00 AWST on Wednesday, 8 November 2023.

The Council plays a vital role as the Law Society’s governing body.

Members of the Council help support the strategic direction of the Law Society and have the opportunity to advocate on the important issues affecting the legal profession and the wider community. This is your chance to have a say and make your vote count!

Gala Dinner – Annual Awards Celebration for the Legal Profession The Law Society’s Gala Dinner on Friday, 27 October at Crown Towers will again provide a unique opportunity for the profession to come together in an uplifting night of fun and collegiality, with the opportunity to cheer on some of the outstanding legal profession award finalists and winners to be announced on the night. If you were at the event last year, you will know what a great atmosphere was creating by the positive spirit of guests, and members of the profession. I look forward to seeing you there!

Law Society Annual General Meeting The Law Society’s Annual General Meeting, subject to Council approving the date at their meeting on the 25 October, is proposed to be held on Tuesday, 21 November 2023 at 5.15pm at the offices of Herbert Smith Freehills. This year, for the first time, members may attend in person or online via Microsoft Teams. More details on the registration process will be provided shortly. Please mark this in your calendars, and I look forward to seeing as many members as possible joining us in person or online.

End of Year Celebration – Bookings now open Please join me at the Law Society’s End of Year Celebration on Thursday, 7 December at The

Ritz-Carlton. It is one of the last big social gatherings for the legal profession in 2023 and promises to be the perfect opportunity to catch up with colleagues, fellow members of the legal profession and members of the Judiciary. Make sure you don’t miss out by booking here.

Brief Survey Brief has been the official journal of the Law Society of Western Australia since 1974. With its 50year anniversary coming up, the Law Society would appreciate your feedback via a short survey to find out how our members experience the new online format of Brief, what can be improved, and the preferred format and method of delivery, to ensure that the journal remains current and user-friendly. A link will be sent to all members shortly, and

I encourage you to please give a few minutes of your time as your feedback is invaluable.

Please get in touch I wish you all a happy and healthy month of October, and as always, would love to hear from you, our members. Please contact either me directly, any other member of the Executive or the Law Society’s Chief Executive Officer at dprice@ lawsocietywa.asn.au to share with us your ideas, feedback and concerns.

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

In acknowledgment of Mental Health Week this edition has a special feature on mental health and wellbeing in the legal profession.

Brief thanks all the contributors to the feature, and readers are encouraged to set aside the 15 minutes or so (or, in an unhelpful comparison that totally misses the point, only about two or three billable units) to read the special feature.

This is not only because it provides resources for and is an investment in self-care and mental wellbeing, but also because it shows, through the diverse range of articles in our feature section, that there are many subjects concerning the law and its practice that have implications for mental health and wellbeing – in addition to a raft of other considerations including ethical, professional, and regulatory.

We have an insightful interview with the President of the WA Children’s Court His Honour Judge Hylton Quail “Always a Glass Half Full” that covers a range of questions and contains the sage advice to “celebrate the wins, learn from but don’t dwell on the losses – and to take what pleasure you can from work.”

Kellie Woods explains “How to Not Lose Your Mind with Legal Costs Disputes”. Dr Michelle Sharpe discusses “Wellness as an Ethical Duty” and Kate Blackwood, Maryam Omar, Tim Bentley, and Ben FarrWharton outline key problems and offer insightful solutions regarding “Workplace Bullying in the Legal Profession.” Aidan Ricciardo writes on “Fostering Inclusion and Wellbeing for Transgender and Gender Diverse People” and Julia Sutherland, Isabella Wilson, and Isabella Nathan focus on "Addressing Psychosocial Risks in the Workplace", which deals with the additional aspect of legal compliance.

Elder Abuse, which intersects with mental health and wellbeing issues, is examined by Meredith Blake in “Privileging the Rights, Will and Preferences of Older People Living with Dementia: Health and Lifestyle Decision-Making” and Sue Fielding in “Elder Law – A Precautionary Tale”.

4 | BRIEF OCTOBER 2023

Back by popular demand, and relevant to wellbeing and work/life balance is “Passions Alongside the Law” with entertaining insights into the pursuit of talents and activities, other than the law, such as fencing (the sport), DJ’ing, music and film production, radio broadcasting, playwrighting and barbering (NB – not all the same lawyer).

For reasons which should become clearer below (maybe) we are still on the lookout for lawyers whose other talents include exterminating rabid dogs and adopting children for vengeful jilted spinsters.

The Hon Dr Andrew Lu AM, President of the Mental Health Tribunal, provides “Some Reflections on the Mental Health Review Jurisdiction in Western Australia”. He also recommends the recent Australian film The Rooster as one of the few movies he has seen that, among other elements, sensitively draws the distinction between poor mental health and mental illness.

Movies and literature frequently provide insights into questions of wellbeing, ethics, morals, professionalism and hidden talents.

This is true whether, on the face of them first and foremost about such issues, in those involving lawyers and the law.

One of the most admired fictional lawyers, who needs no introduction (particularly given the word limit for this Editorial) is Atticus Finch from Harper Lee’s To Kill a Mockingbird, later a celebrated movie which gave Gregory Peck, 60 years ago, his one and only Academy Award.1 While To Kill A Mockingbird is memorable for its themes concerning the fight against racism and prejudice, revolving around Atticus’s determined and principled defence of Tom Robinson, an African-American accused of sexual assault of a white girl in a racist and poverty-stricken town, other complex themes permeate throughout.

As to work/life balance, Atticus Finch is a single father and, although a good one, his devotion to the law and the

Robinson case causes issues with his children, Jem and Scout, who regard him and his occupation as uninteresting and even bemoan his age, describing him as feeble and that “He was nearly 50”2 (Editor’s note - Ouch!).

All this changes through the well-worn and almost clichéd path for lawyers to regain the admiration of their children and/or others: go out and shoot a rabid dog in front of them. Atticus shooting the rabid dog (that, perhaps unusually for a dog, has a full name “Tim Johnson”) leads to the revelation that Atticus was once known as “One Shot Finch”, being the best shot in town, but had suppressed this talent from his children. The incident changes Jem and Scout’s attitude towards their father, and serves other symbolic purposes.

As to these profound, dramatic, moving, and symbolic implications: unfortunately, Tim Johnson could not be reached for comment.

Now, it is true that we don’t all have rabid dogs conveniently on hand to shoot, and sometimes other talents may have to be deployed to redefine us in the eyes of others.

Part-time Mississippi Judge Malenda Meacham attracted fame by playing “air bongo” at the opening of Memphis Grizzlies basketball games, with fans even presenting her with a “Bongo Lady” jersey.3 While a hit with Grizzlies fans the performances didn’t have the same effect as Atticus’ performance upon Jem and Scout and her son,4 sitting next to her, reacts in the same way many lawyers’ kids have been tempted to do on occasion: by putting a paper bag over his head.

This year is the 30th anniversary of Tom Cruise’s smash-hit The Firm5 based upon the Memphis lawyer turned prolific and wildly successful author John Grisham, many of whose novels have been turned into successful movies, and who provides another example of a lawyer with other talents.

While not the main point of the blockbuster legal drama/action movie, The Firm does contain some musings

on work/life balance and is a good example of what constitutes a stressful experience in practising law.

For those unfamiliar with the novel/ movie, Cruise plays Mitch McDeere, a jet Harvard graduate who accepts an amazingly attractive offer from a boutique Memphis law firm with all sorts of perks (maybe he got to see Bongo Lady from the good seats at Memphis Grizzly games). While he works all hours on end and studies non-stop for the bar exam, the firm does emphasise a form of work/life balance in that it treats itself and its employees as a family, spouses and children are encouraged for stability, and the firm holds fantastic social events.

He then finds out the firm is, while it has other clients, a front and money laundering operation for the Chicago mafia and occasionally has its partners and employee lawyers murdered (so, the firm’s idea of “work/life balance” occasionally involved removing the “life” part - literally). And, far more seriously and inexcusably the firm is also involved in systematic overbilling.

As a result, McDeere’s first year in the law involves him secretly dealing with and then blackmailing an FBI agent, breaching client/solicitor privilege, stealing confidential information from his employer, extorting the FBI again to have his brother released from prison, getting chased around Chicago all day by hitmen (in that distinctive “Tom Cruise sprinting” style – you know the one), betraying and having his wife seduce and roofie his senior partner, Gene Hackman, essentially leaving him for dead, and then striking a deal with the Chicago mob. At the end, he decides to make a work/life decision to use his law degree for the forces of good, but we suspect we know why there was no “Firm 2” as he likely ended up as a Washington lobbyist or in-house counsel for a large crypto currency firm.

Mr Wemmick, the law clerk to the perhaps more memorable lawyer Mr Jaggers from Charles Dickens’ Great Expectations, is a favourite for many commentators upon wellbeing and work/life balance in the law.6

Several authors have observed that one of the pertinent aspects of Mr Wemmick is that when he was at Jaggers’ law firm he was one person, but when at home at his refuge, Walworth Castle, he was a completely different (and much kinder) one, engaging in all sorts of hobbies and works and activities (but upon return to work he became again the less kind and less humane character).

Commentators have observed that Wemmick represents the phenomena of “identity integration” where multiple identities some of which are associated with home and some of which are associated with work are juggled and can be separate from, or in conflict with, each other.7 One of the other characters from Great Expectations, Estella, has a line in the final chapter that might resonate with lawyers who have practiced for a while: “I have been bent and broken, but – I hope – into a better shape” (President Quail’s excellent advice noted above is more helpful and positive).

Estella did of course have the distinct disadvantage of being raised by the vengeful, obsessed and seriously mentally unwell Ms Havisham, mainly to wreak loveless pain and cruelty on males to avenge Ms Havisham’s jilting at the altar. Some good advice to lawyers would be: “Don’t be Ms Havisham.”

And, who arranged Estella’s adoption, as a young child, to Ms Havisham?

Well, none other than Mr Jaggers no doubt with some assistance from Mr Wemmick, who was likely having a bad day at the office, rather than at home.

As always, there is something for everyone in this edition and we have, in addition to our regular contributions, Peter Lochore providing “New guidance on a common retail shop lease issue in the State Administrative Tribunal”, the second part of Dan Morris on WA’s new security of payment laws in “The Right to be Wrong”, Gino Dal Pont on Sexual Harassment by Lawyers, and the Quirky Case of “The tale of the Pub with No Gents” by the Hon John McKechnie KC.

We thank the Young Lawyers Committee for their regular column which looks at HECS-HELP debt and the increasing burdens on law graduates, and offers some inspiring advice on dealing with work stress, which for some may be a good cup of Yorkshire tea (something the Editor endorses and loves and which, while Dickens’ Nickolas Nickelby may well also have enjoyed, coming from Yorkshire, is probably more of an Emily Bronte kind of tea).

So, let’s go put the kettle on and happy reading! ■

Endnotes 1. Atticus has been named greatest movie hero of the 20th century and To Kill a Mockingbird is on the British Film Institute’s top 50 films that should be seen by the age of 15.

2. Chapter 10 “To Kill a Mockingbird” by Harper Lee. 3. “Bongos, Orcs, Camping at Walmart: The Strange Hobbies of Judges” – www.findlaw. com, Casey C Sullivan 9/11/2015 4. In a scene available on YouTube: “Bongo Lady Memphis Grizzlies” 5. It was the film which bumped “Jurassic Park”, for the first time, from the #1 box office spot.

6. “Charles Dickens and the Law”, Robert Coles, www.vqronline.org/SA/CharlesDickens-and-law (Autumn 1983 Edition); and “Charles Dickens and Work-Life Balance in a Pandemic” eloquentmumbler. com/2020/05/28.

7. In addition to the previous articles, see “Is there an ethical upside to remote work?”, Brett Beasley. https://ethicalleadership. nd.edu/news/is-there-an-ethical-upside-toremote-work/

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

PDF Info Sheet

LGBTIQ helpline:

Telephone 1300 542 874

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

Service provided by Converge International

Phone: 1300 687 327 LawCare WA is available to members of

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.

Mind. Body.

Environment.

Mental Health and Wellbeing in the Legal Profession

Feature Contents 08

Interview with His Honour Judge Hylton Quail, President of the Children’s Court of Western Australia

28

Fostering Inclusion and Wellbeing for Transgender and Gender Diverse People

12

Wellness as an Ethical Duty

31

14

Passions Alongside the Law

The "New" Health and Safety: Addressing Psychosocial Risks in the Workplace

20

How to Not Lose Your Mind with Legal Costs Disputes

34

22

Some Reflections on the Mental Health Review Jurisdiction in Western Australia

Tipping the Scales: Balancing Mental Health and Wellbeing at Law Schools in Australia

36

25

Workplace Bullying in the Legal Profession: Outlining the Problem and the Solutions

The Old Court House Law Museum: Olga's Story

Disclaimer: The opinions and views expressed in all articles in Brief are those of the authors and do not purport to reflect the opinions or views of the Law Society of Western Australia or its members.

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Mental Health and Wellbeing in the Legal Profession

His Honour Judge Hylton Quail, President of the Children’s Court of Western Australia meeting with community members in Halls Creek

Always a glass half full Interview with His Honour Judge Hylton Quail, President of the Children’s Court of Western Australia Judge Hylton Quail shared some interesting insights into the challenges the Children’s Court of Western Australia faces talking about inspiring programmes and work being conducted to serve not only the children in the Court’s jurisdiction but serving the community at large.

Q: How do you experience the work of the Children’s Court?

A: The Children’s Court is the most challenging jurisdiction I have ever worked in and being President of the Court is by far the most difficult and demanding role I have ever had.

Unfortunately, many of the children I deal with as a judge, at the more serious end of the Children’s Court jurisdiction, 8 | BRIEF OCTOBER 2023

are cognitively impaired. In 2018, a study conducted by the Telethon Kids Institute revealed that almost 90 per cent of children at the Banksia Hill Detention Centre had a severe cognitive impairment.

Although the study goes back some time now, the Court’s experience, is that those statistics are still accurate.

Further, many more of the children who appear in the Children’s Court have a serious history of trauma, which is relevant both in terms of their offending and how we try and work with and rehabilitate them within the justice system. Trauma is often the result of family dysfunction, family breakdown, lack of accommodation, neglect or abuse.

So, the mental health challenges which young people appearing in the Children’s Court face, and which the Court deals with, are significant and inform the way judicial officers in the Children’s Court go about our work every day.

Many readers will know that the Court has been very critical of detention conditions for young people in Banksia Hill Detention Centre and Unit 18.

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability last week published their final report and recommendations.

Chapter 3 deals with our youth detention crisis and I very much hope the government read the report and act on it. Banksia Hill, I am pleased to see, has

been improving over the last 3 months but conditions in Unit 18 are still dire and need to be fixed urgently. There are currently 16 boys there who are locked down 23 hours per day. That has caused me many sleepless nights. I dread that a boy will suicide there, or a staff member be seriously harmed.

As bad as the youth detention crisis is, it is important to acknowledge that State governments from both sides of politics have long recognised the benefits of investing in community-based support and rehabilitation services for children.

There is bipartisan recognition that early intervention and rehabilitation of young offenders is the best guarantee of longterm community safety. Although our Perth court infrastructure is old and a bit run down, court support services and youth justice are well funded and provide excellent support to the Court and community-based services to the children we deal with. We have a fantastic on-site mental health team, called LINKS, to support young people who are struggling with their mental health and behaviour, supported by the Department of Justice and the Mental Health Commission. We have a psychologist, nurses who are present every day in the Children’s Court, and beyond that in terms of community outreach.

I just wish that broad community-based commitment extended consistently and reliably to the rehabilitation of children in detention, as they are the most damaged, vulnerable and in need of intensive support.

But despite its challenges, I love my job and the Children’s Court. The Children’s Court is a place where, as a judicial officer, court staff member, lawyer, support or youth worker, you can make a real difference.

Q: Tell us more about your approach of “a glass half full”?

A: What gives me hope and makes me think that these problems are far from being insoluble, is that the number of children who are at the serious end of the juvenile justice system is comparatively small. At any one time in Western Australia, we have around 100 children in detention and another 300 being managed in the community on intensive supervision orders. But only around 30 to 50 of those kids are a risk of serious reoffending and in a state of crisis, needing intensive rehabilitation and support.

We should, given the wealth of our community, be able to address that. It’s

not insoluble and I am definitely glass half full. More effort and resources are being put in now, than five years ago. Over the last 10 years we have been very successful in almost halving the number of children in detention and improving community rehabilitation programmes. There is much more to do, but if we keep at it, we can continue to make a difference.

Q: You have implemented important reforms in your tenure so far, including the expansion of therapeutic court services. Can you tell us more about the role of these courts?

A: We started a therapeutic court a few years ago in our protection and care jurisdiction. It is called Dandjoo Bidi-Ak which means “together on a path”.

It aims to provide a culturally safe and respectful environment to empower and support Aboriginal families who are involved in care and protection matters.

Dandjoo Bidi-Ak started because two Aboriginal babies a week were going directly into the care of the State from King Edward Memorial Hospital. Those are very alarming figures and existing approaches to protection and care weren’t working to reduce the number of babies removed from their parents.

The way that protection and care has worked historically, and the way that it works under the Act, is as an adversarial system, with the Department of Communities acting against parents.

When you think about it, there is a fundamental tension between the Department of Communities on the one hand working with parents to reunify them with their children and, on the other hand, being evidence gatherers in an adversarial setting trying to get a protection order in relation to the child.

So, with all that in mind, we opted for a different approach with Dandjoo Bidi-Ak and started a therapeutic court directed at those young parents and babies coming out of Kind Edward Memorial Hospital. We wanted to find a better way to bring together existing and new support services under the Children’s Court’s direction in a therapeutic non-adversarial environment and work intensively with young parents to try and get their babies back to them.

Now in its third year, Dandjoo Bidi-Ak has not been without its challenges, including being enormously resource intensive, but there have also been very significant successes and we have managed to reunify many babies with their parents who would not have been

reunified otherwise using an adversarial approach. While not every protection and care matter is suitable for a therapeutic approach, there is definitely scope to expand the programme further. The pilot funding for the Court is almost at end and a formal Departmental review process is underway. The Court hopes that will result in permanent funding and possible expansion of the Court to regional areas of the State.

We have also just started a new therapeutic sentencing court, IN-ROADS, aimed at working intensively with young offenders on the cusp of detention and rehabilitating them in the community.

The Court has only been going for a few months and is currently working with 10 young offenders. The early results are promising, and we hope we will be able to get pilot funding for the Court and support services so that we can continue to give it a go.

Q: What is your experience of juvenile justice regionally?

A: I’ll use the Kimberley as an example because there is a community perception that there are serious problems in the Kimberley with juvenile offenders. Last year there was an increase in some types of crime, such as “car ramming” and burglaries, but they weren’t massive increases on previous years and, again, we knew that the number of young offenders involved was relatively small; in the Kimberley, only 15 or so young people. Over the last year, not only the Court but more importantly the local community, shires, youth justice and other government and non-government agencies have all focused on strategies to address the problems. It has made a difference. The numbers across the board are right down for Children’s Court crime in the Kimberley.

A couple of weeks ago I travelled across the Kimberley from Broome to Kununurra to see what was working and what wasn’t. I visited as many youth programs as I could. Everywhere I went, there were numerous programmes directed at kids.

All built around a service model trying to support kids in local communities.

Everybody I met was incredibly passionate and albeit there are different programmes in every town and disparate funding levels, every single program has made a difference. I found it an incredibly positive experience going across the Northwest and seeing what everybody was doing, not only giving young offenders in the Kimberley more support and opportunity, but also kids in general.

9

Mental Health and Wellbeing in the Legal Profession As an example, the shire at Fitzroy Crossing and the local Aboriginal Cooperation, Marra Worra Worra, run a programme for kids seven nights of the week. All the kids come down, most of them are Aboriginal. The night I visited, there were a hundred kids playing basketball and football. As part of the programme, the kids get fed and if they want, they can take some food home with them for their parents and families.

I joined the night patrol, driving around at night dropping kids off in communities all over Fitzroy Crossing. These sorts of programmes work. It’s simple to deliver and the results are obvious. These kids are playing sport, getting fed and going home.

They are not roaming the streets engaging in criminal activities. They are not bored, but worn out at the end ofthe day, and the parents are happy because they are delivered home safely, and they go to bed.

Now, there is always more to be done, because some kids don’t have a safe home to go home to. Another issue is getting the kids to school the next morning. There is only a 20% attendance rate at Fitzroy Crossing District High School. On the day I visited, there were only 12 kids at the school. There are many reasons for that including parents who may not be invested in the importance of education, or often simply don’t have the resources to get kids to school or provide them with the clothes and books they need. Although it is not my place to advocate for educational reform or promote policy, what the Court does see is that a traditional school model does not work for many Aboriginal kids.

You need a different model, or different strategies that recognise that the school’s job doesn’t start only when a child is delivered to the school gate by a parent.

Q: The role of a Judge, and well as the role of President of the Children’s Court, certainly has challenges and stress associated with it. Do you have any strategies to deal with the stress?

A: You need to work out what works for you as an individual to maintain your mental and physical health. The biggest challenge that I find personally is managing the stress that comes with my role and the relentless workload.

Speaking for myself, if anything else in my life is out of kilter, such as relationships or finances, or if you are worried about kids or childcare, then that adds very significantly to your stress, and it makes it much more difficult to do the job. I recognise that I am incredibly fortunate in that my kids are older, and I do not have the burden of childcare anymore, I have a strong relationship with my wife, and being a judge makes me financially secure, and so those stresses being absent enables me to do the job which I otherwise could not do.

Judges are fortunate to have access to psychological support services, as I hope most lawyers and support staff do too. It was very different when I was a young lawyer, there were no employee assistance programmes.

I don’t mind saying that I have been to psychological counselling in the past, when the pressures in my life took a toll on my mental health. I was dealing with a very heavy court load, necessary reform of the court, managing our response to COVID and then unexpected stresses when I was sued and concurrently dealing with a sick child who was in and out of hospital over the course of a year. I found though that while counselling works for a lot of people, it

didn’t work for me. What worked for me was what I have always relied on, the support of my family, close friends and colleagues. I cannot emphasise enough the importance of collegiality to a lawyer or judge. It is the essence of professional life. A life in the law might last 50 years, it is difficult to get through it alone.

If I had one piece of advice for young professionals, it would be to immerse yourself in the life of the profession and do not work from home unless you must.

Get to know your colleagues, senior and junior. Support them and they will support you. For me I have found that debriefing over a glass of wine with my close friends reduces my stress and renews me for the next challenge.

It is also important to take what pleasure you can from work. I take a glass half full approach. Celebrate the wins, learn from but don’t dwell on the losses. I feel incredibly fortunate that I have loved every professional role that I have had, from the start. I loved being a solicitor and a barrister, and I love being a judge. I am fortunate to work with fantastic staff, colleagues and cheeky kids. If I did not enjoy going to work, I would not be able to do this role.

My father was a welder and my mother a legal secretary. They moved to Australia to give my brothers and I the opportunity of higher education and a better life. I feel incredibly grateful and fortunate to be in the position I am. When I became a judge, I took an affirmation of office that I would faithfully serve the people and the State of Western Australia and do right to all manner of people. I find it incredibly rewarding doing what I said I would do. ■

Biography: His Honour Judge Hylton Quail has served as a District Court judge since January 2018 and was appointed as President of the Children’s Court in March 2020.

Prior to this, Judge Quail practised primarily as a criminal lawyer for 25 years, including nine as a barrister. He has also served as President of the Law Society of Western Australia, the Criminal Lawyers Association of Western Australia and as a director of the Law Council of Australia.

Judge Quail was reappointed for a second term as President of the Children’s Court, for three years until his second term expires in 2025. At the time, the State Attorney General, the Hon John Quigley stated that Judge Quail has begun important reforms which have resulted in dramatic improvements in protection and care matters, in terms of increased resolution and improved efficiency, and the expansion of therapeutic court services. Judge Quail is a Life Member of the Law Society of Western Australia.

10 | BRIEF OCTOBER 2023

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Mental Health and Wellbeing in the Legal Profession

Wellness as an Ethical Duty

By Dr Michelle Sharpe Barrister, Castan Chambers

There is growing recognition that poor mental health is a significant occupational hazard for lawyers, judges and others who work within the legal system. While laws have been enacted to make workplaces safer for those working within them, the aim of this article is to outline the ways in which wellness, for lawyers and judges, also gives rise to certain ethical duties owing to the unique context of the legal workplace. The Australian legal system is, at its core, a human system. A system premised, at least in principle, on respect for the autonomy of human beings.

Framed in this way, poor wellbeing and behaviour which undermines wellbeing, can be understood as a threat to the good working order of the legal system – the administration of justice. Lawyers, engaged to aid access the legal system, need to maintain a level of personal wellness to be a ‘fit and proper’ person to practice law and discharge their responsibilities competently. Lawyers and judges need to ensure that their conduct does not diminish the wellbeing, and hence the ability, of people to 12 | BRIEF OCTOBER 2023

participate in the legal system.

The discharge of these ethical duties will require lawyers to become adept at empathy in legal practice.

The legal system is a human system The Honourable Justice Quinlan, Chief Justice of Western Australia, citing the moral philosopher Alasdair MacIntyre,1 invited the attendees at a workshop on inappropriate workplace conduct, to consider ‘Of which of these stories do I find myself apart?’ when considering ‘What am I to do?’2 Lawyers and judges, are undoubtedly, key characters in the story of the legal system, but what kind of story is this?

Our legal system is an adversarial system. Personal autonomy is central to the operation of an adversarial system (both civil and criminal).3 It is the parties in a civil proceeding who define the issues in dispute and determine the evidence that will be adduced at trial. In a criminal proceeding, the State performs its role as prosecutor on the same footing as the accused. The prosecutor

does not enjoy any special privileges.

Both the prosecutor and the accused determine the evidence that they will adduce at trial and engage, equally, in the contest before the Court.

Chief Justice Spigelman (as he was then known) observed that the adversarial system ‘maximises the control that citizens have over the processes of legal decision-making which affect their lives’ and that ‘(t)his is a manifestation of the value that we (the community) attach to personal autonomy.’ 4 Perhaps Chief Justice Quinlan also recognised that the legal system centred on parties’ personal autonomy, or more generally their humanity, when, in a separate address (this time to the Piddington Society) he compared legal ethics with medical ethics and encouraged lawyers to exercise care and empathy in legal practice.5 Personal wellbeing The legal system is complex, and lawyers play a vital role in assisting clients to exercise their autonomy within it. For this reason, the provision of legal services

is tightly regulated. Only lawyers can provide legal assistance.6 A person can only be admitted to practise law if, among other things, that person is a fit and proper person to be admitted to the Australian legal profession.7 A person may not be regarded as being fit and proper to practise law if that person is unable to ‘satisfactorily carry out the inherent requirements of practice...’ 8 At common law fitness to practice is understood to mean that the ‘applicant must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor.’ 9 Poor wellbeing, like depression, will not ordinarily render a person not fit and proper to practise unless it is so severe, and for such a prolonged period, that it causes a lawyer to neglect the affairs of their clients.10 Plainly, a lawyer owes an ethical duty to prevent this from occurring. But, short of this, a lawyer arguably bears an ethical duty to maintain a level of wellness that allows them to discharge their duties to the Court and their clients to the highest possible standard. Colloquially, regulators and insurers report that poor wellbeing is a frequent theme in complaints against lawyers and in insurance claims. Poor wellbeing has also long been recognised by researchers as a factor, among others, that may prompt some employees to engage in inappropriate behaviour in, or in connection to, the workplace, like sexual harassment and bullying.11 This kind of conduct is unethical and a breach of the professional conduct rules. 12 Of course, inappropriate workplace behaviour is also known to have a detrimental effect on the wellbeing of others.13 It seems only logical to infer that not only does a lawyer have an ethical duty to maintain their own wellbeing, to discharge their important and grave responsibilities, but they also have an ethical duty not to jeopardise the wellbeing of other, similarly tasked, lawyers.

The wellbeing of others The prohibition on inappropriate behaviour, in the professional conduct rules, makes it plain that lawyers have an obligation to refrain from conduct that is disrespectful. At common law, the courts have also opined that civility is essential in the administration of justice. Justice Bergin, in Knight v Carter, for example, observed: 14 …it is part of the role of the

practitioner in such cases to assist the client by endeavouring to take some heat out of the dispute rather than writing provocative letters…

The Court expects that solicitors will behave professionally and bring an objective approach to their clients’ problems so that the clients may understand the parameters of the dispute realistically.

observed, required an ability ‘to see another person as a fully realised, living human being’ and empathy is the engine that animates legal ethics. Although His Honour laments that words like ‘care’ or ‘empathy’ do not feature in the legal professional conduct rules, such concepts, as outlined above, do pervade the conduct rules and requirements for admission to practice.

Civility by the bench is equally important to ensure that parties are not deprived of procedural fairness (in other words their autonomy). See, for example, Kuek v Wade & Magistrates’ Court of Victoria15 in which the Victorian Court of Appeal set aside a magistrate’s decision after finding that the magistrate behaved in a ‘non-judicial manner’.

Wellbeing in legal practice may give rise to certain ethical duties. A duty to maintain one’s own wellbeing (to remain a fit and proper person to practice and to competently deliver legal services) and a duty not to impair the wellbeing of others. Our legal system is grounded in a respect for personal autonomy.

That autonomy is threatened by poor wellbeing. Wellbeing cannot be flippantly dismissed as wholly a personal issue that can be managed by allowing for afternoons off for yoga.

It is an issue that can threaten the administration of justice. ■

How work is supervised within a workplace, in terms of workload and management of psychosocial risks, can also have a profound effect on wellbeing. Two recent high-profile cases in Victoria provide a sad and sobering illustration of how poor supervision may result in harm to employee solicitors. In 2018, a solicitor employed at the Coroners Court died by suicide after working under an unrealistically heavy workload in a ‘toxic workplace.’ A prosecutor within the Specialist Sexual Offences Unit of the Office of Public Prosecutions successfully sued her employer for failing to reduce the risk of her psychiatric injury.16 While there are regulatory and common law ramifications for these failures in supervision could there be ethical ones? The professional conduct rules provide that a ‘solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of legal services for that matter.’17 It is not difficult to imagine a scenario in which a similar failure in supervision, to that in the Coroner’s Court or the OPP, results in harm to an employee solicitor undermining that solicitors’ ability to provide legal services in a matter to the detriment of a client.

Empathy Chief Justice Quinlan, in his address to the Piddington Society, recognised that the legal system, as a system, can hurt everyone in the process – including lawyers and judges. His Honour encouraged his audience to try harder at empathy; to be more aware of what is going on around us and to ‘actively look for interactions with one another that are of the kind we can call “an attitude towards a soul”.’ Empathy, His Honour

Endnotes *BA (Juris), LLB(First Class Honours) (Adel), PhD(Melb).

Barrister practicing in Melbourne, Victoria, in commercial and regulatory law. Current Chair of the Victorian Bar’s Health and Wellbeing Committee.

1 Alasdair MacIntyre, After Virtue, University of Notre Dame Press, 1981.

2 What’s Our Story? Opening remarks to the Law Society of Western Australia and College of Law workshop addressing Workplace Sexual Harassment, 24 August 2021.

3 J. J. Spigelman AC, ‘Tolerance, Inclusion and Cohesion’, (2006) 27 Australian Bar Review 133 at 138.

4 As above.

5 ‘Primum non nocere: What might the justice system learn from Hippocrates?’ The Piddington Society, 4 June 2021.

6 Legal Profession Uniform Law (WA) (‘LPUL’), s 10. The LPUL is contained in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) and applies in Western Australia by virtue of Legal Profession Uniform Law Application Act 2022 (WA), s 6.

7 LPUL, s 17(c).

8 Legal Profession Uniform Admission Rules 2015 (WA), r 10(k).

9 Skerritt v The Legal Practice Board of Western Australia [2004] WASCA 28 at [44]-[45].

10 Frugtniet v Board of Examiners [2002] VSC 140 at [10].

11 Denise Salin, ‘Ways of Explaining Workplace Bullying: A Review of Enabling, Motivating and Precipitating Structures and Processes in the Work Environment’, (2003) 56(10) Human Relations 1213.

12 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 42; Legal Profession Uniform Conduct (Barristers) Rules 2015, r 123.

13 Assoc. Prof. Maryam Omari, Towards Dignity & Respect at Work: An exploration or work behaviours in a professional environment, August 2010 (‘Omari Report’), at [30] – [34], [44] and [88].

14 [2015] NSWSC 609 at [27].

15 [2017] VSCA 329.

16 Kozarov v State of Victoria [2022] HCA 12.

17 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 37.

13

Mental Health and Wellbeing in the Legal Profession

Passions Alongside the Law Exploring ways legal professionals connect with environments outside the law to maintain a healthy balance.

I practise family law at Lynn & Brown Lawyers and am an Associate at the firm.

I am originally from Sydney and moved to Perth in late 2019.

I started fencing when I was about 14 years old. A family friend was a coach and had been doing fencing for about 20 years and invited my brother and I down to a session. I loved it.

When I started university, I started training more and competing to get into the Australian team.

By about 2010, I was competing internationally and travelling around the world.

Mitchell Fox-Harding

14 | BRIEF OCTOBER 2023

When I was competing, I was studying, working, coaching, and training almost every day. It was tough, but it was a great balance. Every aspect complemented each other.

In about 2014, I stopped competing and focussed on my work, study, and coaching. I loved that. As I progressed at work, it did become harder to balance everything, but, it was all very fulfilling.

When I started, Fencing was a very small sport in Australia and certainly there was a very small number of kids participating in the sport. Through my coaching, I must have introduced hundreds of kids to the sport and that was fantastic. It also allowed me to travel to places I would otherwise likely never have travelled to and for that I am very grateful.

In 2019, when I moved to Perth, I stopped Fencing to focus on my career and family, but it’s still a part of who I am and, as with all sports, the people I have met through the sport are some of the most important people in my life.

I’m sure I will be back involved in some way, some day.

Fran Veltman I have always recognised the importance of mental health in work and in life. In my experience it is very difficult to enjoy life when one’s mental health is poor. In the early years of my career, I was plagued by anxiety and a poor sense of selfworth and what is now termed imposter syndrome, even though I had that piece of paper from a good university that said I had completed my law degree. As a result, I worked probably harder than anyone else between being a single mum of twins (now I am a married mother of 5) and young lawyer.

In my late 40s I had what I consider a midlife awakening rather than a midlife

crisis. I started to ask the important questions like who am I? Why am I here?

And after an entire career predicated upon relieving suffering, I asked, what if I could bring joy? I thought about what I loved most as a child and it came back to music, singing the little songs that popped into my head when I was very young, which I later stopped creating as an adolescent because of those overwhelming feelings of embarrassment and awkwardness. I decided that the young brazen joyful childhood feeling was what I wanted to recapture. Hopefully capturing it well enough that other people could feel it too.

One day I was proofing a young (and very cool) DJ witness and discovered where I could learn to DJ and produce music. I had no idea I could make music at home until I attended classes at the production school.

I have been studying after work now for six years and remarkable things have happened. First, I discovered once I found joy, I started to see it everywhere: little glimmers of joy.

I was happier than I had ever been before during my criminal law work.

Before in my work (and outside working hours), I was so focused on helping others with their suffering it was what I became astute at noticing. I have met and created music with incredible

artists and had some pretty amazing music achievements. These include a nomination for WAM Song of The Year in 2021, being the self-proclaimed “oldest emerging artist” to be played on both Triple J and Unearthed as well as playing a DJ set for the FIFA Women’s World Cup 2023 during halftime in Perth for the Australia v Canada match. Winning a NY Film Award (ONIROS) in June this year for Best Movie Theme Song for my very first movie theme song (which I cowrote and also performed) has been the icing on the cake this year. Most importantly, I feel blessed, relaxed and happier since. I have also started a new adventure into film. Watch this space!

I would highly recommend seeking out something that inspires you to develop your creative side. Who knows where it will lead!

Fran Veltman is a barrister from Kennedy Chambers who specialises in criminal law. Fran won the Bar Reader’s Prize for Best Performing Bar reader in 2006. Fran has a keen interest in mental health law which led to a secondment from the Bar to the Mental Health Law Centre in 2006 as acting principal. In 2010 Fran was a member of the Ad Hoc Committee on Psychological Distress and Depression in the Legal Profession.

There will be a special screening of Fran's film Castle on 24 November 2023 at Luna Leederville. Book via the link here.

15

Mental Health and Wellbeing in the Legal Profession

me their rhythm sticks9 too - mainly commercial pop selections. At least we are communicating. Smiley face.

Simon Majteles It’s no surprise that music is a popular pastime for those involved in the practice of law. With communication critical to the law, music presents a unique opportunity for communicating though a universal, cross-cultural language. Perhaps that explains why my adventures on the wheels of steel2 began while I was studying law in the mid-1990s.

Initially I was drawn to the underground electronic sounds of Detroit techno, Chicago house, New York garage and the glitchy sounds of Germany and the UK. The vinyl records I craved were found only in a couple of hard-to-find music stores in Perth. Soon, I was regularly appearing on an overnight radio show, mixing techno and playing at the occasional house party for friends.

Before I knew it, I had my own radio show with a fellow lawyer and was a semi-regular weekend-DJ at various pubs, bars and nightclubs. Once I got lucky3 and opened the Boiler Room at the Big Day Out music festival.

There are wonderful parallels between the practice of law and DJ'ing. Both benefit from excellent communication skills. Both require you to sift through swathes of information and have an intimate knowledge of your subject matter. And you must be able to read the 16 | BRIEF OCTOBER 2023

room and work well under pressure.4 It’s not just with music where one can find such synergies. Interests outside of work are incredibly important for mental health and wellbeing, assisting to maintain balance and perspective and to help understand human behaviour5. Having hobbies aid in gaining skills useful for all aspects of life. Lived experience and an outlet to express yourself6 is, I feel, essential to those who want to flourish in the law.

While the demands of fatherhood and maintaining a practice have long put paid to my days moonlighting as a DJ in a smoke machine-filled nightclub, I have managed to maintain my love of musical entertainment by DJ’ing at the occasional party and through broadcasting on radio - though the music I play now is more appropriate for a lazy Sunday morning7.

Now, instead of supporting a superstar DJ8 at a festival, I might be joined at RTRFM on an occasional Sunday afternoon by a special guest or two having a far more distinguished legal career than me. And instead of a sweaty dancefloor, my main audience is my kids. They put up with my musical submissions far more often than they would like. But that’s ok, they hit with

Simon Majteles is a barrister at Francis Burt Chambers. He was called to the bar in 2017. Simon’s general commercial dispute practice has a focus in bankruptcy and insolvency, building and construction, and property. Away from the bar table, Simon is an avid music fan.

He was formerly a DJ at music venues and festivals and a board member of a community radio station. Simon is also a long time radio DJ who still manages to find time to occasionally drop into the RTRFM, 92.1 studio to spin some tunes.

Endnotes 1. Pharoahe Monch, “Simon Says”, Internal Affairs, 1999, Rawkus.

2. Grandmaster Flash, “The Adventures of Grandmaster Flash on the Wheels of Steel”, 1981, Sugar Hill Records 3. Daft Punk feat Pharrell Williams, “Get Lucky”.

Random Access Memories, 2013, Columbia, 4. Queen & David Bowie, “Under Pressure”, 1981, EMI / Elektra.

5. Bjork, “Human Behaviour”, Debut, 1993, One Little Indian / Elektra.

6. N.W.A ‘Express Yourself”, Straight Outta Compton, 1988, Ruthless.

7 The Velvet Underground, “Sunday Morning”, 1967, The Velvet Underground & Nico, Verve.

8 Chemical Brothers, “Hey Boy, Hey Girl”, Surrender, 1999.

Freestyle Dust/Virgin Records.

9 Ian Dury & The Blockheads, “Hit Me With Your Rhythm Stick”, 1978, Stiff Records.

one in a few weeks but a novel- maybe, a year or more!

So my first play came and subsequently 6 others. These were performed in over 14 performances. Three were joint productions with the State Theatre Company. One play was performed at the Griffin Theatre to Sydney and another at the Fringe Festival Hobart.

I started as a reluctant lawyer but I came to be very grateful for what the profession offered. I was lucky to have had a busy and varied professional life that took me overseas on many occasions. I enjoyed court work and the camaraderie of the Bar Mess room.

Many times I envied them, their utter devotion to the law and wished I could be a singular and devoted as them.

However my interest in writing never went away and as the years passed the yearning to write became more than a weekend hobby.

Ross Lonnie

Image Credit: Courtesy of The Blue Room Theatre

In 1969 I finally got my LL.B. I had to work my way through University but on graduation I was still in debt. I could not afford to start Articles.

I flew to Vancouver, using the last of my summer earnings, and got a job. First, as a music teacher (piano, drums, guitar and recorder) then, a Social Worker.

I enjoyed the work and loved living in Vancouver. It is a fabulous city and the country is panoramic. I paid off my debts and saved money to start my career as a writer.

In 1970 I arrived in London and stayed until 1976. I joined a Housing Association that provided Council houses awaiting demolition rent free.

Our street was an eccentric and lively one, populated by students, activists, hippies, anarchists and IRA members (We were regularly raided by the police).

In 1974 I married my Irish girlfriend of two years (Ellen). We arrived home in 1976 and our son (Will) was born shortly after.

I was admitted in 1979 and went into private practice for 15 years and then moved to the bar. Ellen is a nurse.

In 1985 I was appointed to the board of the WA State Theatre Company. My interest in writing was rekindled, but by plays rather than novels.

I discovered there was much more to the spoken word than the narrative.

A novel needs daily attention and may be 3/400 pages long, A play is only 90 pages, but you must have your characters right, your storyline tight and your dialogue – spot on. You could write

I left full time work as a barrister twenty years ago and Ellen and I moved full time to our farm in Margaret River. I wrote three further plays but have been very lazy over the last 5 years and spend too much time playing the piano or mucking around with sculpture.

Recently however creative spirits have returned and I am now working on an ambitious project, which I hope to complete by Christmas.

I also run a course for the University of the Third Age in Margaret River on the subject of “What Makes a Great Play”.

The student group is 10. They study 6 plays over six weeks. The course is very popular and finishes with a long lunch because the final task is to put the plays in an order of appreciation.

It really is a selfish way to find out what makes a great play so that one day I might write one myself. There is a lot to look forward to and I am only 78.

Image Credit: Courtesy of The Blue Room Theatre

I began writing and over the next five years wrote three autobiographical novels.

None were published and they remain in my bottom drawer.

I worked as a Pub pianist, long distance lorry driver, factory worker (ammunitions) and finally in the last three years a relief school teacher in English, Music and Maths.

17

Mental Health and Wellbeing in the Legal Profession a bit odd, but hear me out): the basic, yet therapeutic act of fading out a line created by different hair lengths and the opportunity to potentially make someone feel good. It's not just about giving a fresh haircut, it's how that experience makes people feel when they leave the shop. In a 30-40min window, people share their personal stories, express their problems, and seek a sympathetic ear - I become not just a stylist but a listener, a confidant, a relationship/dating expert, and a pseudo-psychologist.

Sometimes I surprise myself with my advice but a by-product of this, is that it has unexpectedly provided me with perspective and gratitude.

Caleb Mudhan Solicitor's Journey from Courtroom to Barber Shop: As a Solicitor in our litigation team at Murfett Legal, my interests centre around bankruptcy and insolvency, digital assets, and cryptocurrency. However, when the weekend arrives, I don a very different hat – a part-time barber at Empire Barber Shop in Claremont.

This duality of my professional and personal life has given me insights into two distinct worlds, both equally rewarding in their own right.

Empire Barbershop is owned by a friend of mine, Ryan Fozdar. Those of you who get skin fades know how hard it is to find these hair connoisseurs – after one appointment I knew I had found my barber but I was also inspired by the conversations and banter in the shop between clients, barbers and other surrounding businesses in the area – people would sometimes come in just to chat or kill time and on every occasion, people left feeling energised for their day.

The ‘vibe’ is something that is hard to 18 | BRIEF OCTOBER 2023

explain but its success can be attested to by the energy it brings to the community and it’s fostered an environment that has attracted a few Australian sports celebrities and their families including the West Coast Eagles, the Western Force and the Wallabies.

Long story short, I wanted to have this kind of impact on people so I asked Ryan if he could teach me, he said yes and I’ve been an Empire barber ever since.

The majority of my week as a solicitor is centred around interests that are at the intersection of law, finance and technology – a cognitively demanding yet intellectually stimulating profession.

But as with everything in life, you need balance.

Contrasted with my daily grind, my midweek evenings and weekends at Empire is more relaxed but the connections are profound. Barbering is an art in itself, a departure from legal intricacies and paperwork. What draws me to this world is twofold (and this might sound

The barbershop has a weekly tradition to give back to the local community.

On Monday nights, we gather a few barbers to give haircuts to the homeless at St. Mary's outreach service in Victoria Park. This remarkable initiative provides a range of support services for those experiencing homelessness, from laundry facilities to meals. Our contribution may seem small, but the impact is immeasurable. A fresh haircut can instil confidence and a sense of dignity in individuals facing hardship and a lot of their stories I find inspirational – a constant pursuit to change their circumstances that is met by endless obstacles and yet they show up with a smile on their face and are generous with their belongings.

I often get asked how I have the time and energy to juggle barbering with work. The truth is, more often than not it never really feels ‘manageable’, I have to intentionally make time and incorporate it into my week as much as I would with the gym, my relationships and work. I like to think of it like this - everything is ‘work’, requires a level of ‘work’ or as Dr Andrew Huberman would coin it ‘limbic friction’, especially in situations where the outcome is generally good for you. When I first started barbering, I wasn’t expecting it to be an ongoing hustle, but in learning this new skill it’s given me more appreciation for my day to day hustle. Sometimes it can be an inconvenient side-hustle, especially after a long day of work, but if I don’t make time I don’t get to reap the benefits that come with it. In a world that sometimes seems disconnected, this duality has taught me the profound value of listening, understanding, service to something other than yourself and the true realisation that something that we may think as invaluable or unimpactful can be treasure to another. ■

19

Mental Health and Wellbeing in the Legal Profession

How to Not Lose Your Mind with Legal Costs Disputes

By Kellie Woods Lawyer and client costs disputes are inherently stressful for lawyers (and likely their former clients). Such disputes will often immediately cause feelings of betrayal caused by an attack on our professionalism and honesty by a person we have invested a great deal of care and consideration for; putting their interests first. The negative impact of such disputes include inevitable loss of time, energy and focus that could be spent on other work or “life”.

The base responses of “fight” or “flight” will almost always be the first reaction.

And, our first instinctive response will likely be defensive and protective of our commercial and reputational interests leading to a “combative” approach.

Considering the risks and potential range of consequences that can flow from costs disputes including: (a) reduction in fees recoverable from the client; (b) a complaint to the Legal Services and Complaint Committee (whether warranted or not); (c) the commencement of the fee dispute process under the Legal Profession Uniform Law 1 (LPUL). The LPUL introduced the concept of: “costs disputes” which are a “consumer matter” and the power for the Legal Practice Board to assist in resolution of a “costs dispute” and to make a costs determination binding on the parties;2 (d) an assessment of costs in the Supreme Court under the LPUL. The risks associated with costs assessments and the reduction of amounts claimed from the “payer”, includes a referral by the Registrar to the LPB for disciplinary action against 20 | BRIEF OCTOBER 2023

the billing lawyer; 3 (e) disciplinary action; and/or (f) civil proceedings, neither “fight” nor “flight” will likely be in your best interests. Your best interests will likely be best served by the adoption of a calm and objective approach.

That calm and objective approach is the key to not “losing your mind” and reducing the negative impact legal costs disputes can have on you, your practice, your colleagues and your family.

To assist in eliminating and/or reducing the negative impact of legal costs disputes and avoid losing your mind, lawyers can take some key steps from the outset to prevent or reduce costs disputes: 1. Enter into a Cost Agreement with client The requirement that lawyers enter into written Costs Agreements with their clients has not changed under the LPUL if lawyers want to charge their clients more than the relevant legal costs determination (Scale).

The key purposes and aims when entering into Costs Agreement are to: (a) manage compliance with the LPUL, reducing the risk of non-compliance; (b) properly scope and set out the terms of the retainer and where necessary identify exclusions from the scope; and (c) reduce other risks, by including contractual clauses such as limitations of liability.

Whilst Costs Agreements must be in writing under the LPUL the client’s acceptance of the Costs Agreement

can include acceptance by conduct,4 which should be identified in the Costs Agreement.

In addition to preparing a compliant Costs Agreement and properly scoping the instructions, I suggest that lawyers revisit their scope and estimate of costs regularly to reduce the risk of contravention of the LPUL and the costs disclosure provisions and to implement best practice.

2. Complying with your costs disclosure obligations and give proper costs disclosure The LPUL provides the regulatory framework in Western Australia for, amongst other things, lawyer’s costs disclosure.

The objectives of the legal costs disclosure provisions and requirements under the LPUL are to ensure clients can make informed choices, prevent law practices from charging more than what is fair and reasonable and to provide a framework for costs assessments. 5 Lawyers must give costs disclosure in writing to their client or third-party payer, as soon as reasonably practicable after instructions are given by the client or after any significant change to the scope or costs previously disclosed to the client.6 Under the LPUL, costs disclosure must include information about the client’s right to: 7 (a) negotiate a costs agreement; (b) negotiate the billing method; (c) receive a bill and request an itemised bill; and (d) seek the assistance from the designated local regulatory authority in the event of a costs dispute.

Lawyers must take “all reasonable steps” to satisfy themselves that the client has understood and given consent to the proposed course of action and the proposed costs outlined in the Costs Agreement. “All Reasonable steps” is not defined under the LPUL. 8 In Malvina Park Pty Ltd v Johnson [2019] NSWSC 1490 the Court stated that: (a) sending a Costs Agreement to the client and asking the client to sign it does not comply with the costs disclosure obligations under the LPUL; (b) “steps” refers to the measures or actions taken by the law practice toward the client; and (c) the law practice must make an assessment of the client’s understanding and consent based on surrounding circumstances and actively take all reasonable steps available to the lawyer to ensure the client’s requisite understanding and consent to the legal services.

If the matter is litigious lawyers must disclose to the client before any settlement is executed: (a) a reasonable estimate of the amount of legal costs payable by the client if the matter is settled; and (b) a reasonable estimate of what, if any, contribution the client will receive towards those costs from the other party.

VSC 520 the Supreme Court of Victoria stated that: “fairness and reasonableness are discrete concepts, with fairness relating to the method of obtaining the agreement and reasonableness relating to quantum” and “an assessment of proportionality is not a mere mathematical exercise and requires an examination of the surrounding circumstances” at [30] and [33].

In Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194 the Federal Court stated that: “Proportionality looks to the expected realistic return at the time the work being charged for was performed, not the known return at a time remote from when the work was performed; at the later time, circumstances may have changed to alter the calculus, but that would not deny that the work performed and its cost was proportionate at the time it was performed. Perhaps the costs claimed can be compared with the known return, but such a comparison ought not to be confused with a true proportionality analysis.”: [45].

To assist practitioners with complaints and to maintain the independence and objectivity, it is always recommended that lawyers seek independent experienced legal advice about their cost disputes, including from lawyers with experience in legal costs.

(a) correcting errors or mistakes that the client has not caused;

In addition to the commercial and reputational impacts, legal costs disputes likely also take an emotional toll. Resources that are available to practitioners to reduce the emotional impact of costs disputes include LawCare WA, including the Member Assistance Programme and specialist support.

(b) lawyers learning how to do something;

3. Thoroughly Review your Bills (Before they are sent out)

(e) answering client queries or complaints about bills;

Before sending out bills to clients it is suggested that lawyers review the bills with a critical mind – ask the questions: is the cost “fair and reasonable” and has the cost been “proportionately and reasonably incurred” and are the costs of a “proportionate and reasonable” amount.9

(f) making appointments; and

However, in Lissenden v Dellios [2021]

Lawyers never advise their clients to complete their own legal work and lawyers should stand by their own advice.

Concerns arise about objectivity and independence in lawyers representing themselves and it would not be uncommon for the resolution of costs disputes to be outside their expertise.

The WA Bar Association also offers a referral service to assist lawyers with legal costs disputes and complaints clients make about their legal services.

(c) basic research or reading Court Rules if litigation is within your day-to-day practice;

The LPUL does not provide any guidance of what is meant by the terms “fair and reasonable” or “proportionate and reasonable”.

It is common in the legal profession that clients often try and complete their own legal work, to reduce costs. More often than not, those attempts “backfire” and clients end up paying more money to lawyers to fix the commercial legal problem made worse by the client’s conduct.

It is also suggested that in reviewing bills before sending them to clients that lawyers ensure that clients are not billed for:

In most litigious matters in the various State and Federal jurisdictions parties are required to take these steps and give appropriate disclosure to clients before Mediation or Pre-trial Conferences in compliance with the LPUL.

Lawyers have a strict, positive obligation to ensure that legal costs are properly incurred, reasonable and proportionate before billing their clients.10

When involved in legal costs disputes it is important to maintain objectivity and independence – avoid being the “fool for a client”.

(d) clerical or administrative work unless covered by the terms of the Cost Agreement;

(g) teaching, educating or supervising junior lawyers.

In addition, it is always helpful to ensure that time entries displayed in itemised bills are properly recorded, which includes making time entries detailed, clear and concise and that contemporaneous records of work completed are available and on the client files, beyond the “time sheet” record.

4. Get Independent Advice 11 There is an old adage that: “the man who is his own lawyer has a fool for a client”: 1744 “The Rule of Life” (before gender neutral language).

Many law firms also have employee assistance programs that offer confidential and independent counselling services.

There is no reason to not reach out for help and take care of ourselves! ■ Kellie Woods is a Managing Associate at Dentons Australia.

EndNotes 1. LPUL, section 3.

2. LPUL, sections 286 and 291.

3. LPUL, section 202.

4. LPUL, section 180 5. LPUL, section 169.

6. LPUL, section 174 7. LPUL, section 174(2) 8. LPUL, section 174(3) 9. LPUL, section 172.

10. Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666, [1526].

11. Park, J and Woods, K, “Don’t let legal costs disputes cloud your better judgment”, 23 July 2021: www.dentons.com/en/insights/ articles/2021/july/23/dont-let-legal-costsdisputes-cloud-your-better-judgment

21

Mental Health and Wellbeing in the Legal Profession

Some Reflections on the Mental Health Review Jurisdiction in Western Australia The Hon Dr Andrew Lu AM President, Mental Health Tribunal

The mental health review jurisdiction in Western Australia commenced under the Mental Health Act 1996 (1996 Act) as the Mental Health Review Board.

The Mental Health Tribunal of Western Australia (Mental Health Tribunal), an independent statutory body established

by Part 21 of the Mental Health Act 2014 (the Act), began sitting in 2015 and now exercises protective jurisdiction over people in WA living with mental illness and receiving treatment as involuntary patients. The Act itself is rights-based. Every person treated as an involuntary inpatient in a hospital, or under a community treatment order, or requiring electro convulsive therapy (ECT) or psychosurgery, has their case listed before the Mental Health Tribunal. It hears different forms of review, applications, and appeals. It is not subject to direction or control. Appeals of its decisions are heard in the State Administrative Tribunal.

Mental health tribunals, however described, operate in all Australian States and Territories1. They are vehicles for applying laws, procedures and decision-making approaches directly informed by therapeutic jurisprudence.

Members aim to address cases in a fair, efficient, swift and economical way.

Their decisions either restrict or restore a person’s liberty.

Every day across WA, the Mental Health Tribunal engages in substitute decision22 | BRIEF OCTOBER 2023

making for people who lack the capacity to make decisions about mental health treatment. It seeks to uphold the rights of people with mental illness. Hearings are conducted at authorised hospitals, in the Tribunal’s hearing room, or at community mental health clinics. Most hearings occur in person, but all regional hearings and some urgent cases are heard by videoconference. At the hearing, mental health treatment involving the restriction of liberty is independently reviewed.

The laws relevant to people living with mental illness and who come before the Mental Health Tribunal are contained within the Act but also in anti-discrimination law2, the criminal law, international human rights law operative for Australia through declarations, resolutions and conventions3, and the common law applicable to adjudicative civil and administrative decision-making.

Natural justice, procedural fairness and due process all occur in an environment of relative informality to promote participation. Legal representation from the Mental Health Law Centre, or lay advocates from the Mental Health Advocacy Service, assist patients free of charge. A person may also choose to speak for themselves, or to provide their views and wishes in writing.

Patient participation is encouraged but not mandated. The style of presiding members is usually conversational.

Therapeutic jurisprudence first developed in the context of mental health law. Anyone familiar with David Wexler’s writings on therapeutic and antitherapeutic legal rules and processes, and with his definition of therapeutic jurisprudence, will understand why mental health tribunals operate as they do4. Prof Wexler’s conception of the therapeutic jurisprudence framework incorporates ways in which the law and legal processes can be applied to facilitate just and fair decision-making. The focus is “on the law’s impact on emotional life and on psychological well-being”5.

Importing concepts from psychology, social work and medicine can improve outcomes when compared to the strict doctrinal applications of the law. In the mental health jurisdiction, a hearing conducted with a helpfully written medical report and a care plan in neutral and clear language can promote acceptance of and compliance with orders to take medication, access counselling, work with disability support workers, or to do the very many other things that may be recommended by a treating psychiatrist to support recovery and to help achieve or maintain good and stable mental health. The Act directs that treatment for mental illness should be delivered in the least restrictive manner, so a shared understanding of the expectations and what a patient must

do to comply with a treatment plan can help to minimise any period of restriction under the Act. The Mental Health Tribunal gives all patients their opportunity to have a say, to be seen, and to be afforded the dignity of risk.

Members are appointed by the Governor in Executive Council for fixed terms of up to five years, as is the President. All are independent. Their selection focuses on the essential criteria of intellectual and technical ability, but also on empathy, compassion and collegiality. Tribunal decisions are usually made by a panel of three members – a lawyer, a psychiatrist, and a community member. In psychosurgery applications, an additional psychiatrist and a neurosurgeon also sit. The legal practitioner member is always the presiding member and addresses all questions of law, chairs the meeting, and delivers the oral decision on behalf of the tribunal. All members of the Mental Health Tribunal bring to their decision-making valuable lived experience with aspects of mental illness, NDIS, assisted living or supported accommodation, the health system, or social care generally.

Legal practitioner members may experience additional stress and vicarious trauma from the challenging subject matter and their active role delivering oral decisions that can be met with an emotional response. The fastmoving nature of the jurisdiction, where difficult cases are heard back to back, means that members do not preside every day of the week to mitigate the psychological impact of this work.

The Mental Health Tribunal adopts an inquisitorial rather than adversarial approach to all hearings. Its members take active roles in defining the issues, in guiding the proceeding, and in creating space for patients to tell their stories in narrative form. When patients are already thought-disordered, or have grown suspicious of courts or of government institutions from their experiences with Justice, Family and Community Services, public hospitals, or even the Health Department, the independence of the Mental Health Tribunal helps remind patients that their case will be viewed afresh and through a person-centred lens.

A certain outcome is a practical focus of tribunal work. All presiding members help to give parties certainty by

delivering an ex tempore decision in every case. All hearings are recorded, so oral reasons are available in the case of appeals or complaints. The presiding member also prepares the written Notice of Decision distributed by the registry at the end of each hearing. Such efficiency is only possible when members are well prepared. The timeframes between the provision of hearing papers including the medical evidence, and the hearing, can be very short. All members must be able to work quickly, efficiently and collaboratively.

Each tribunal reviews seven or eight patients a day, and up to four tribunals sit concurrently each day to meet the 4,100 annual listings. The absence of reserved judgments is a credit to tribunal members.

Looking back Over time, informed by research, the mental health system has become increasingly more focussed on recovery and agency, and less paternalistic. Early laws emphasised seclusion, restraint and other restrictive practices for all persons with a mental illness, rather than on therapies. Our State now has the lowest rate of seclusion and restraint in the country.

Approaches to supporting people who may be experiencing poor mental health or mental illness have, thankfully, come a long way since the days when the Fremantle Asylum and the Claremont Mental Hospital were in operation. Conversations about subjects like depression or suicidal thoughts continue to be difficult. Despite the vast number of young people who have died by suicide in the Kimberley region of Western Australia, which places that region’s suicide rates among some of the world’s highest, a word for suicide was not a part of that community’s traditional languages, nor of any Aboriginal language.6 The terminology used in the laws of Western Australia to describe persons with mental illness has become more inclusive and respectful. The Lunacy Act 1845 was what Western Australia inherited from English law. Its local successor, the Lunacy Act 1871 drew no distinction between mental illness and intellectual or physical disabilities.

Section 2 of that act defined a lunatic as every person of unsound mind, and every person being an idiot. It remained in place until 1903 when it was repealed and replaced by the Lunacy Act 1903 that remained in place until

1962, authorised the detention of adults and children in the same facilities, and continued to refer to persons with a cognitive debility as ‘insane, imbecile or idiotic’.

The most significant evolution in terminology occurred with the Mental Health Act 1962 (1962 Act). It continued to draw no distinction between intellectual disability and mental illness – still called a mental disorder – but what it did introduce was the concept of treating persons with a mental disorder in a day hospital or with communitybased treatment rather than simply placing patients in an asylum. But the 1962 Act made no provision for patient rights through a right of review by a specialist tribunal. The only patient safeguards were the right to apply to the Supreme Court for a patient to be discharged on grounds that they were not suffering from any mental disorder, or a statutory right to an interview with the Board of Visitors who sat at hospitals and who had the power to require discharge.

The 1962 Act covered civil and forensic matters. It provided for a person unfit to stand trial because of mental illness after committal for an indictable offence to be admitted to a psychiatric hospital as a security patient until fit to stand trial. The 1962 Act further provided for a person found not guilty on mental illness grounds to be held in custody at the Governor’s pleasure as a security patient. Leave and discharge provisions for the mentally ill held in hospitals did not apply to forensic patients.

The 1962 Act nevertheless did lay the groundwork for the bill passed in 1981 for a new Mental Health Act that was assented to in September 1981 but was never proclaimed. The 1962 Act therefore continued until it was replaced by the Act, which first introduced the concept of periodic review by a specialist tribunal, called the Mental Health Review Board, of persons receiving treatment for mental illness as involuntary patients. This also separated the forensic jurisdiction. The 1996 Act, into which this jurisdiction’s first president Dr Neville Barber had considerable input, assured a role for patient’s rights through the periodic review or the mental health treatment of patients receiving treatment as involuntary patients. It also diverted responsibility for mentally impaired accused to a different process7.

The objects of the current Act include 23

Mental Health and Wellbeing in the Legal Profession ensuring that people who have a mental illness are provided the best possible treatment and care with the least possible restriction of their freedom, with the least possible interference with their rights, and with respect for their dignity8. Thus, whether treatment under the Act is the least restrictive option is one of the criteria to be addressed by tribunal members. The other criteria are whether the person has a mental illness in need of treatment, whether the person is at risk of deterioration or a risk to themselves or to others without treatment, and whether the person has the capacity to make a treatment decision. Children are presumed not to have capacity unless there is evidence that they do, but all adults are presumed to have capacity unless there is evidence to the contrary.

Current perspectives Those who are being treated as involuntary patients are among our society’s most vulnerable people.

There may be a vicious circle. Whether it is intergenerational trauma, gender identity, substance abuse, sexual violence, insecure accommodation, or the epidemic of loneliness, these are all factors contributing to poor mental health or mental illness.

Recurring themes in the histories of many involuntary mental health patients include misuse of methamphetamine, cannabis, nicotine and alcohol; homelessness; and a forensic history.

Forensic involvement is a significant risk for people with chronic mental illness that may be untreated, or inadequately treated. It is common for a person to move from an inpatient admission under the Act, to a community treatment order under the Act, to voluntary status in the community or to a breach of their community treatment order and the involvement of police when a notice to attend for treatment is ignored, to a charge of assault or property damage when unwell, to remand, to return to the community on bail. Undiagnosed or under treated mental illness, combined with substance misuse, may also trigger behaviours that attract police involvement. When on bail, a patient may be placed on a Community Treatment Order and appear before the Mental Health Tribunal. All applications for ECT, including from the State Forensic Mental Health Unit, are heard and determined by the Mental Health Tribunal.

24 | BRIEF OCTOBER 2023

When implementing a regime of periodic review for forensic patients, as contemplated in the new Criminal Law (Mental Impairment) Act 2023 (WA) a focus on treatment and recovery remains important. The inception of the new Mental Impairment Review Tribunal to make determinations about release conditions and review of community supervision orders, gives primacy to the protection of the community, despite genuine concerns about the rights of mentally impaired persons detained in prisons being an impetus to reform the law. The problem is, of course, one that balances community safety and those justice considerations, with the right to access effective treatment and therapies and to be supported in community reintegration.

Members of the Australian legal profession remain uneasy talking about mental health and wellbeing.

Paradoxically, older lawyers may find it more difficult to disclose their struggles with mental health than younger lawyers, because the stigma of mental illness is persistent. Despite methodological problems including the self-selection of more unhappy lawyers completing the surveys, various local studies9 have consistently revealed a significant number of lawyers experience mental illness or poor mental health in the form of stress, anxiety and depression.10 As many as 49% of lawyers in a study published within the last decade reported symptoms of work stress.11 Awareness training, first aid, and confidential psychological supports in the workplace are now available to most lawyers, and their effectiveness has been assessed longitudinally12 but their use and effectiveness has been limited. One step to improve workplace interventions may be cultural change to reduce the stigma of seeking help from employee assistance programs for mental health and wellbeing.13 One vehicle that has helped to counteract the stigma of mental illness and of struggles with poor mental health, has been its depiction in accurate and accessible ways in the cinema. Independent Australian films have been particularly good at this, and there are many examples. In August 2023, the independent Australian feature film The Rooster, sensitively written and directed by Mark Leonard Winter, premiered at the 71st Melbourne International Film Festival and was voted as one of the top 10 audience favourites.

The Rooster is a film that I commend highly for way it explores the themes of mental health, loneliness and masculinity through the lens of two characters in a small regional community. It is one of the few movies I have seen that sensitively draws the distinction between poor mental health, and mental illness.

It manages to avoid the tropes that have come to characterise stories about mental illness. One of the main characters, brought to life by Hugo Weaving, is a hermit estranged from his family living with a clear mistrust of hospitals and doctors. There is a marvellous scene of Weaving’s character absconding from the local hospital after being brought there for a medical episode. The other character, the town’s young policeman named Dan, (Phoenix Raei) finds the body of his oldest friend in a shallow grave and seeks answers from the hermit who may have been the last person to see his friend alive.

The death of his friend is a trigger for Dan to confront his own loneliness.

The story explores past traumas in the lives of both principal characters. With occasional humour, the narrative focuses on these two powerful straight male characters, one eccentric and the other unremarkable, whose performances speak to a contemporary audience so eloquently through authentic representations of what it is to struggle with one’s own mental health. ■ Endnotes 1. In Western Australia, New South Wales, Victoria and Queensland, the mental health jurisdiction is exercised by a stand-alone tribunal. In the Australian Capital Territory, Tasmania, South Australia and the Northern Territory, it falls under the protective jurisdiction exercised by the respective super-tribunal.

2. See, for example, the Equal Opportunity Act 1984 (WA).

3. For example, ICCPR - International Covenant on Civil and Political Rights (1966) (operative 13 August 1980 for Australia); ICESR - International Covenant on Economic, Social and Cultural Rights (1966) (operative 19 March 1976 for Australia).

4. See D Wexler ‘Putting Mental Health into Mental Health Law – Therapeutic Jurisprudence’ (1992) 16(1) Law and Human Behavior 27.

5. D Wexler & B Winick, Therapeutic Key: Developments in Therapeutic Jurisprudence xvii (1996).

6. T Mowarin (Director) (2023) Keeping Hope [Film; online] SBS On Demand.

7. Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

8. Mental Health Act 2014 (WA) s10(1) and (2).

9. J Chan, S Poynton, J Bruce, ‘Lawyering Stress and Work Culture: An Australian Study’ (2014) 27 University of New South Wales Law Journal 1062.

10. One of the most widely reported was the study by N Kelk et al, ‘Courting the Blues: Attitudes Towards Depression in Australian Law Students and Legal Practitioners’ (Report) [Brain & Mind Research Institute, University of Sydney, 2009].

11. A Bergin and N Jimmieson, ‘Australian Lawyer Well-being: Workplace Demands, Resources and the Impact of TimeBilling Targets’ (2014) 21 Psychiatry, Psychology and Law 427.

12. S Poynton, J Chan, M Vogt, A Grunseit, J Bruce, ‘Assessing the Effectiveness of wellbeing initiatives for lawyers and support staff’ (2018) 41(2) University of New South Wales Law Journal 584.

13. Ibid at 614, 617.

Workplace Bullying in the Legal Profession: Outlining the Problem and the Solutions

Associate Professor Kate Blackwood, Deputy Director – Respect at Work of the Edith Cowan University MARS Centre

Professor Maryam Omari, Executive Dean, School of Business and Law, Edith Cowan University

Workplace bullying is a prevalent and persistent issue in the legal profession. One study conducted by the International Bar Association (IBA)1 found that almost half of individuals employed in the legal profession had experienced bullying during their career, while another study of members of the Law Society of Western Australia2 reported that 21 per cent of respondents had been bullied in their current place of work. Workplace bullying is defined by Safe Work Australia3 as “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk of health and safety”.

Studies have shown bullying to be most prevalent in government legal workplaces and large law firms1 and in climates with poorly defined tasks and roles4. The most commonly reported bullying behaviours within the legal profession include ridicule or demeaning language, overbearing supervision, and misuse of power or position1.

The consequences of bullying for individuals and organisations are severe and include impacts on mental health

Professor Tim Bentley, Professorial Chair in Mining Work Health and Safety and Director of the Edith Cowan University MARS Centre

Associate Professor Ben Farr-Wharton, Associate Dean Discipline – Business Administration, Edith Cowan University and MARS Centre Deputy Director – Operations

and loss of reputation, poor morale and job satisfaction, lost productivity, and high absenteeism and turnover4. Bullying is also a major cause of employee turnover, with over half of those who had been the target of bullying in the IBA survey1 either resigning from their role or considering resignation.

targeted than their more senior or male counterparts1. Research has found line managers or more senior colleagues to be the most common perpetrators of bullying1, with a study of members from the Law Society of Western Australia2 reporting 77 per cent of perpetrators were supervisors.

Bullying within the profession is said to be perpetuated by work practices and leadership4. The competitive nature of the profession coupled with work intensification, established hierarchical structures, requirements for efficiency, work intensification and long hours, are all key risk factors contributing to stress and conflict at work, which can proliferate into bullying2. Legal professionals have reported cultures where bullying is accepted and ingrained. Junior employees are at particular risk to ‘aggressive hazing’, with some senior professionals adopting a mentality of needing to be ‘broken in’ to the job. Indeed, abuse of power has been reported within the profession, with junior and female employees at significantly higher risk of being

Managing workplace bullying is a complex challenge, exponentially heightened in organisations where behaviours are ingrained in culture and a tacit acceptance of bullying exists.

Such a culture leads to significant underreporting of bullying, with victims fearful of speaking up and having little trust that their complaint will be taken seriously. Research indicates that less than one-quarter of bullying victims report their experience2, which is perhaps unsurprising considering that the large majority of reported complaints result in either no change or exacerbate the situation. Indeed, the IBA study1 reported that fewer than 10 per cent of victims who made a complaint felt that the organisation’s response was sufficient.

25

Mental Health and Wellbeing in the Legal Profession to other relevant policies (such as the organisation’s Code of Conduct) and sources of information on bullying, outline the steps to follow in making a complaint and possible resolution options (including informal and formal channels), including support options for victims of bullying6,7.

Tackling bullying requires overarching cultural change. Introducing policies and codes of conduct to combat bullying are commonly recommended and, within the legal profession, have been found to have a positive impact on bullying prevalence2. However, policy alone is unlikely to be effective with strong research evidence pointing towards the need for a multi-pronged and collaborative approach to drive cultural change4,5. While societal or industry-level efforts (e.g. the work of professional bodies) would support this change, organisations have a vital role to play in setting the tone with regards to bullying and promoting healthy work environments. The remainder of this article will focus on what organisations can do to tackle workplace bullying.

Managing workplace bullying in organisations Effectively managing workplace bullying requires consideration of all levels of the organisation. At the executive level, senior management need to send a strong message of their stance on bullying to employees, through effectively communicated policy and supporting messaging. An effective policy should clearly outline its scope and purpose and be linked to the organisation’s core values, provide a clear definition of bullying, reference 26 | BRIEF OCTOBER 2023

Organisational commitment to zerotolerance for bullying requires strong processes for dealing with issues when they arise. Encouraging reporting, by designing and communicating clear and safe channels that allow for both informal and formal reporting of bullying is essential8. It is common practice that line managers are used in the first instance for informal reporting of low-level complaints. However, in the legal profession where high prevalence of bullying by supervisors or managers exists, encouraging reporting to line managers may be inappropriate.

Alternative options to consider may include introducing designated staff champions or advisors. It is essential that any individuals responsible for receiving informal complaints are adequately trained in how to advise and support parties to a workplace bullying experience, and how to go about safely and effectively responding to complaints9. Formal complaints are generally directed to a Human Resources specialist or department who follow a formal process of complaint investigation; policies should clearly outline the formal complaint and investigation process and organisations should monitor their processes to ensure they are effective.

Raising awareness of workplace bullying and sensitising the workforce to the problem of bullying is an important step in tackling the issue – not only does it reinforce the organisation’s position on bullying, but it can also assist staff with identifying appropriate and inappropriate behaviours, clarify and encourage the reporting of issues, and send a message to perpetrators of bullying that such behaviour will not be tolerated. Training for line managers is recommended9, focusing on positive role modelling behaviours, effective communication, appropriate approaches to performance management, workplace relations, team building, and conflict management.

With power differentials in the legal profession highlighted as a likely risk factor for bullying, targeted training to equip managers to more appropriately deal with power may be beneficial2.

Organisations should also consider workplace risks that may be contributing to the proliferation of bullying. Research has shown that workplace bullying is largely a product of the work environment, and is likely to have significantly more impact on the prevalence of bullying than individual differences such as personality or demographic characteristics10. While risk factors are likely to differ by organisation, and organisations should tailor prevention activities to their unique issues, research indicates that common risks for legal workplaces include a ‘win-at-all-costs’ climate, long work hours, limited flexibility and poor work-life balance4. Underpinning this is often a competitive and high-pressure work environment, brought about largely by the billable hours regime2.

Giving consideration to how risks can be mitigated through organisational redesign is an essential component of fostering a healthy work environment.

While the aforementioned approaches to the management of bullying are commonly recommended in the literature, off-the-shelf policy and training packages are often found to be ineffective5. Instead, organisations should tailor their approach to the problem as it exists in their organisation. Conducting a risk assessment (via a staff survey, for example) can enable an organisation to gain a sound understanding of the nature, causes, and extent of bullying, and provide a basis upon which to design initiatives appropriate to the organisation.

For example, if superior-to-subordinate bullying is rife, leadership training for managers is likely to be required. If the issue of bullying is contained to several “bad apples”, targeting the behaviour of those individuals directly may have a greater impact. It is important to monitor and evaluate the organisation’s efforts to address bullying, to assess whether actions are having the desired effects or whether revisions to the existing approach is required. A regular risk assessment is a potentially effective approach to monitoring and evaluation, allowing an organisation to assess the impact of their efforts over time.

Recommended steps for introducing an anti-bullying program Introducing an anti-bullying initiative or program within an organisation requires engagement and commitment at all levels of the organisation. Adopting a collaborative approach to the design and implementation of such a program is

widely recommended as it encourages organisational ownership of the initiative and ensures that the program is adequately tailored to the unique risks present in the organisation.

The following steps reflect a common participatory approach to implementing occupational health programs11. The approach can be tailored to specific issues within an organisation and has been proven to be effective in reducing the prevalence of workplace bullying12.

Step One: Prepare the Organisation When considering introducing a program to tackle workplace bullying, it is essential to first obtain senior management commitment and support for the initiative. Senior management should be engaged throughout the process, sending a strong message to employees about the organisation’s commitment to it. Ensuring that the organisation is ready for the change is important at this stage.

It is recommended that organisations establish a Steering Group of managers and staff from throughout the organisation to coordinate and drive the program. Consideration should be given to any barriers likely to impede progress or success of the program and sufficient resources and time should be allocated. Communicating the initiative with all staff, including the need for and value of the initiative should aim to foster awareness and positive perceptions of the initiative from its outset.

Step Two: Risk assessment An initial assessment of the risks should be conducted to gauge the extent and nature of the problem which can then be used to inform the initiatives required to address it. Staff surveys are commonly used to gather such information, alongside audits of existing support and management systems. Feeding back the assessment results to all staff at this stage is important to encourage staff awareness and foster engagement and commitment to the program.

Step Three: Action Planning At this stage, the risk assessment results are considered with a view to developing an Action Plan of initiatives to address bullying. This stage is generally led by the Steering Group and may involve participatory workshops with staff to ensure adequate contextualisation of the plan and solidify their continued commitment and engagement with the process. The Action Plan should

target the issues identified in the risk assessment and may involve a combination of policy development and implementation, targeted training, implementing structures and processes for the management of bullying, or involve aspects of organisational redesign to minimise key risks present in the work environment.

Step Four: Implementation The Action Plan should be implemented by the parties responsible in accordance with the specified timeline.

Communication with all staff about progress made ensures that staff remain aware of the organisation’s commitment to the program and any changes that affect them. Particularly in large organisations, middle managers are likely to play a pivotal role in the implementation of organisationallevel initiatives and the organisation should ensure that they are adequately equipped and committed to taking responsibility for changes to be implemented.

Step Five: Evaluation Evaluation of the implemented initiatives should be regular and ongoing.

Repeating the risk assessment survey at regular intervals may be a useful approach to assessing progress and identifying areas for improvement.

Seeking feedback from staff on their experience of the program and identifying barriers to its success can help to inform necessary adjustments.

The Action Plan should be treated as a living document, frequently reviewed and new initiatives added as new risks emerge. Indeed, the effects of training and communication fade over time, and such initiatives are likely to be required on an ongoing basis.

Research shows that off-the-shelf programs are unlikely to be effective in tackling workplace bullying5. Tailored and contextualised programs are required that target the specific issues present in an organisation. While implementing relevant policy and training is likely to be a helpful starting point, any initiative is most likely to be effective when it is designed and run collaboratively with staff and initiatives are embedded within the organisation and its processes. Where an ingrained and embedded culture of bullying exists, targeting the causes of bullying through organisational redesign is recommended. For law firms using billable hours, consideration should be

given to how this is implemented and operationalised, with consideration given to alternative ways in which work and productivity could be measured that may reduce the risk of bullying2.

While no one approach is likely to be appropriate for the management of bullying in all organisations, tailored strategies should be multi-pronged and multi-level with strong support and engagement from senior management.

The authors are based within the Mental Awareness, Respect and Safety (MARS) Centre, hosted by Edith Cowan University’s School of Business and Law. The multidisciplinary MARS Centre is funded through a threemillion-dollar grant from the West Australian Government and works collaboratively with the mining industry to create mentally healthy workplaces, build a culture of safety and respect, and prepare for workplace safety in future mining. ■

Endnotes 1. Pender, K. (2019). Us too? Bullying and sexual harassment in the legal profession. International Bar Association. https://apo.org.au/node/248266.

2. Omari, M. (2010). Towards dignity and respect at work: An exploration of work behaviours in a professional environment. https://www.lawsocietywa.asn.au/wpcontent/uploads/2015/10/Towards-Dignity-Respect-Work. pdf 3. Safe Work Australia (2016). Guide for Preventing and Responding to Workplace Bullying. https://www. safeworkaustralia.gov.au/system/files/documents/1702/ guide-preventing-responding-workplace-bullying.pdf.

4. Omari, M., & Paull, M. (2013). ‘Shut up and bill’: Workplace bullying challenges for the legal profession. International Journal of the Legal Profession, 20(2), 141-160.

5. Branch, S., Murray, J., & Ramsay, S. (2012). Workplace bullying: What can be done to prevent and manage it? In W. Rothwell & G. Benscoter (Eds.), The Encyclopedia of Human Resource Management: Thematic Essays (pp.

181-196). John Wiley & Sons, Inc. 6. Ferris, P. A., Deakin, R., & Mathieson, S. (2021). Workplace bullying policies: A review of best practices and research on effectiveness. In P. D’Cruz, E. Noronha, C. Caponecchia, J. Escartín, D. Salin, & M. Tuckey (Eds).

Dignity and inclusion at work (pp. 59-84). Springer Link.

7. Rayner, C., & Lewis, D. (2020). Managing workplace bullying: The role of policies. In S. Einarsen, H. Hoel, D. Zapf, & C. Cooper (Eds.). Bullying and harassment in the workplace (pp. 497-519). CRC Press.

8. Catley, B., Blackwood, K., Forsyth, D., Tappin, D., & Bentley, T. (2017). Workplace bullying complaints: Lessons for “good HR practice”. Personnel Review, 46(1), 100-114.

9. Gardner, D., & Cooper-Thomas, H. D. (2021). Addressing workplace bullying: The role of training. In P. D’Cruz, E. Noronha, C. Caponecchia, J. Escartín, D. Salin, & M. Tuckey (Eds). Dignity and inclusion at work (pp. 85-107).

Springer Link.

10. Bowling, N. A., & Beehr, T. A. (2006). Workplace harassment from the victim's perspective: A theoretical model and meta-analysis. Journal of Applied Psychology, 91(5), 998-1012.

11. Nielsen, K., Randall, R., Holten, A.-L., & González, E. R. (2010). Conducting organizational-level occupational health interventions: What works? Work & Stress, 24(3), 234-259.

12. Li, Y., Tuckey, M. R., Neall, A. M., Rose, A., & Wilson, L. (2023). Changing the underlying conditions relevant to workplace bullying through organisational redesign.

International Journal of Environmental Research and Public Health, 20(5), 1-27.

27

Mental Health and Wellbeing in the Legal Profession

Fostering Inclusion and Wellbeing for Transgender and Gender Diverse People: A Practical Guide for Lawyers and Legal Workplaces Aidan Ricciardo Lecturer Law School University of Western Australia

Background As members of a profession, lawyers are required to uphold a range of ethical and professional obligations.

These obligations include duties to treat others with respect,1 and not to engage in discrimination or harassment.2 These ethical obligations are consistent with, and promote, the objective of an inclusive and diverse profession. However, in the legal profession, inclusion is not merely an ethical obligation, but also a strategic imperative. Adopting inclusive practices is an essential step in prioritising good mental health and wellbeing amongst the legal profession and those who interact with it. This is especially so for people who belong to marginalised groups, who often face additional barriers in this regard.

The legal profession has made significant progress in becoming more inclusive generally,3 and with respect to LGBTQI+ people specifically.4 However, more work is required to ensure that the profession is truly inclusive of the transgender and gender diverse (TGD)5 people who 28 | BRIEF OCTOBER 2023

form part of, and interact with, the profession (eg, both clients and lawyers).

Indeed, research suggests that many legal workplaces ‘do not know how to accommodate the needs of a trans staff member or client, and have not put in the training, policies or facilities to appropriately accommodate [them]’.6 For example, in relation to TGD clients, an Australian study from last year found that half of the TGD people surveyed felt they had been treated disrespectfully by lawyers, and more than half reported that lawyers did not always use their correct pronouns.7 That same study also surveyed lawyers about their perceptions of how lawyers treated TGD clients, with only 18% of lawyers rating the profession as ‘very accepting’ or ‘extremely accepting’ of TGD people.8 In relation to TGD lawyers, a different Australian study from 2021 on perceptions of inclusiveness in the legal profession reached similar results. It found that whilst participants believed the profession was generally accepting of some LGBTQI+ identities, it remained particularly unaccepting of TGD lawyers,

with participants reporting that TGD lawyers (and other TGD employees within legal workplaces) were more likely than other LGBTQI+ people to face barriers in the workplace.9 With these realities in mind, this article provides some foundational evidencebacked strategies to help lawyers and legal workplaces create inclusive and supportive environments that foster good mental health and wellbeing for TGD people.

Making the legal workplace inclusive for TGD employees All employers should take steps to make their legal workplace inclusive for TGD employees, not just those employers who are aware that they already have TGD people working within their organisation. In fact, you might unknowingly work with people who are TGD, whatever stage of transitioning they may be at. Making the legal workplace inclusive for TGD people will also make the organisation more inviting and attractive for potential future employees who are TGD.10

(1) Actively foster an inclusive and educated workplace: Creating an inclusive workplace culture begins with education.11 Legal workplaces should ensure that all staff – including senior leaders – are educated about TGD people and inclusive practice. This education may take many forms – on one end of the spectrum it may involve formal inclusive training delivered by a transgender advocacy group like TransFolk of WA.12 Alternatively, there are plenty of excellent resources available for free online, including TransHub’s ‘101’ introduction to the basics (www.transhub.org.au/101) and their ‘Trans-affirming Language Guide’ (www.bit.ly/TransHubLanguage), which can even be printed out and posted in a communal office space.

Whatever form this education takes, it is important that it is positioned as meaningful and important, not just as a ‘box-checking’ exercise. In this regard, it can help to provide a dedicated time for staff to do the training, or otherwise reduce the employee’s workload expectations in a given week to provide them with the time and flexibility to meaningfully engage.

Continuing professional development (CPD) may also provide opportunities to learn more about TGD people,13 the matters relevant to their lives, and inclusive practice. Legal workplaces should support the lawyers they employ to complete CPD courses like these even where the connection to their usual practice isn’t immediately obvious.

(2) Develop inclusive policies and practices: Whilst education is a necessary step, it is not itself sufficient – it needs to inform the implementation of inclusive internal policies and practices.

In relation to formal policies, legal workplaces should ensure that their policies on discrimination and harassment include specific discrimination and harassment protections for TGD people. A specific prohibition is necessary for two reasons. First, as put by the Australian Human Rights Commission, ‘it is important that the different types of discrimination and harassment are welldefined and addressed comprehensively [in internal policies] … [if a policy is] too broad or generic it can create confusion among staff and, as a result, not be effective.’14 Second, as the Law Reform Commission of Western Australia recently noted, the Equal Opportunity

Act 1984 (WA) only provides protection for a small portion of TGD people – those who have obtained legal recognition of their affirmed gender (which remains a fraught and difficult process in WA).15 Although the State Government has said that they intend to reform these laws, the present lack of adequate legislative protection makes the need for specific protection in internal policies even more important.

Beyond formal policies, there is also much that legal workplaces can do to develop practices and facilities that are inclusive for TGD people. Where possible, workplaces should provide appropriate all-gender bathrooms.16 Where gendered bathrooms remain, signage should be put up to make it clear that people have a right to use a bathroom that best aligns with their gender (for example, you can see the signs we use at the UWA Law School at www.bit.ly/UWABathroomSign).

Sanitary bins should also be provided in all bathrooms, not only those bathrooms designated for women.

Care should be taken to ensure that all documents and systems across the workplace (eg, IT systems) use a person’s correct names and pronouns.

Except where a document or system is of a legal nature, these can – and should – be updated even if a person has not changed their name at law or has not received legal recognition of their affirmed gender.

All staff should be encouraged to include their pronouns (eg, she/her, they/them, or he/him) in their email signatures and business cards. Some people incorrectly assume that sharing pronouns is something that only TGD people should do. In fact, establishing a culture of pronoun sharing helps to normalise the practice, and enables TGD people to share their pronouns without othering themselves or ‘outing’ themselves as TGD. When people who are not TGD share their own pronouns it is an act of solidarity with TGD people, and helps to remind everyone that a person’s pronouns cannot be assumed.17 However, nobody should be forced to share their pronouns – whilst it should be encouraged as part of standard practice, it shouldn’t be enforced or imposed by any policy. This is because a person’s feelings about their own gender and pronouns can be complicated, especially for some TGD people – for example ‘[f]or those who are closeted with respect to

gender identity, mandatory [pronoun sharing] can force people into an uncomfortable lose-lose of either outing themselves before they’re ready or lying and feeling incredibly dysphoric.’18 (3) Provide effective and affirming support: Providing ongoing support that is appropriate for all employees is an essential part of creating an inclusive workplace that genuinely prioritises mental health and wellbeing.

For example, many legal workplaces already have employee assistance programs (EAPs) to provide employees with confidential mental health support.19 Legal workplaces should ensure that their EAP providers are LGBTQI+ friendly, and that they are able to provide safe support for TGD people. There are also dedicated LGBTQIA+ EAP providers who can be engaged to allow employees to obtain assistance from practitioners who have appropriate training and experience to assist TGD people.20 Another way that legal workplaces can support TGD employees is by implementing flexible work practices and specific leave policies. It is important to recognise that TGD people may need some extra flexibility in their work arrangements for various reasons, including medical appointments and mental health support. Further, many employers in Australia – especially those in the public sector – now have policies to provide gender affirmation leave for TGD employees. For example, the Victorian Public Service enterprise agreement provides for up to 20 days of paid leave for gender affirmation treatment, and up to 48 weeks of unpaid leave over the life of the employment.21 These policies are becoming more common, including amongst Australian law firms.22 Support for TGD people should also be demonstrated in visible ways, for example, by displaying the ‘Progress’ Pride flag (which includes light blue, light pink, and white for the TGD community) alongside a statement of the legal workplace’s allyship and commitment to LGBTQI+ inclusion. A 2022 study of LGBTQI+ law students and recent law graduates found that visible support markers like these have a positive impact on LGBTQI+ people and institutional culture, with participants noting that they found the visible support reassured them that they were in an accepting and inclusive environment in which they felt safe to be themselves.24 29

Mental Health and Wellbeing in the Legal Profession Where they can, legal workplaces should also provide support to the broader TGD community – for example, by sponsoring initiatives that promote TGD inclusion and acceptance, or by providing probono assistance to TGD advocacy groups. Doing so demonstrates to TGD employees and potential employees that the workplace is genuinely supportive of TGD people and their rights. Importantly, the burden of doing this work should not fall only on TGD employees – as put by the Transgender Law Center: ‘While some transgender employees may have a special interest in working on or discussing transgender-related issues, others do not… Expecting a transgender person to be the company’s expert on all things transgender both is an unfair burden on that person and can inadvertently tokenize them.’25 Delivering competent legal services to TGD clients For lawyers, learning more about TGD people and the matters relevant to them isn’t just about fostering inclusion – it’s also about delivering legal services in a competent manner and treating clients with respect.

(1) Learn, listen, and respond: Research shows that it is not uncommon for TGD people to have negative experiences with lawyers,26 and suggests that ‘more widespread and better education and training’ is necessary.27 In this regard, the guidance set out above in relation to fostering an inclusive and educated workplace is relevant. Indeed, developing an understanding of TGD people is likely to benefit both TGD employees and TGD clients, equipping lawyers with the knowledge and confidence they need to interact with all TGD people respectfully (eg, by using pronouns correctly).

Understanding more about TGD people can also help lawyers better understand and listen to their clients’ legal issues.

As previously put by the now Sex Discrimination Commissioner, Professor Anna Cody, the ‘lived experiences of clients [affect] how they interact with the law. To be good lawyers we must be able to listen to and understand our diverse clients.’28 It is important for lawyers to recognise that TGD clients often face unique challenges in legal matters, including discrimination and complex legal issues related to their gender identity, and that these issues can arise even when 30 | BRIEF OCTOBER 2023

the crux of the matter isn’t about their gender identity. However, lawyers need to be conscious that often, the legal matter at hand is totally unrelated to the person’s TGD identity. As put by the Transgender Law Center: ‘It is important not to focus so narrowly on the fact that a person is transgender that you end up making that characteristic more important than the actual reason the person is seeking your services.’29 (2) Make clients feel safe and accepted: Much of the guidance in the previous section of this article is also relevant to interacting with TGD clients. For example, visible markers of support (like the ‘Progress’ Pride flag) can help TGD clients to feel more at ease, knowing they are in a safe space where they can tell their whole story without fear of judgment.30 This can lead to more candour between lawyer and client, helping the lawyer to take note of all relevant information. For this reason, supportive paraphernalia and messages should also be placed in spaces visible to clients (eg, email signatures, websites, client areas of an office), not just behind closed doors. On a similar note, TGDfriendly bathrooms should also be available in client areas.

(3) Call out and correct disrespectful behaviour: Research shows that TGD people are exposed to misgendering and other disrespectful behaviour throughout legal processes (eg, in court).31 It is always incumbent on lawyers to advocate for the proper treatment of their clients, and this includes ensuring that other people – eg, other lawyers, court staff, and judicial officers – refer to clients using correct names and pronouns.

Conclusion Fostering inclusion and wellbeing for transgender and gender diverse people is not just a moral imperative; it’s also good for business. Legal workplaces that are supportive and inclusive of TGD people are more likely to recruit and retain good staff.32 These workplaces are also better positioned to enable their lawyers to deliver competent and respectful legal services to TGD clients.

The guidance in this article should not be taken as comprehensive, but it provides a solid starting point to enable lawyers and legal workplaces to continue to develop their inclusion efforts. ■

Endnotes 1

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA) rule 4.

2 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA) rule 42.

3 Law Society of NSW, 2020 National Profile of Solicitors (Report, 1 July 2021).

4 Aidan Ricciardo et al, 'Perceptions of LGBTQI+ diversity in the legal profession: "It’s happening slow, but it’s certainly happening"' (2021) 46(2) Alternative Law Journal 100, 106.

5 ‘Trans and gender diverse’ (TGD) is an umbrella term to refer to people whose gender is different to the sex they were assigned at birth. It includes non-binary people.

6 Matthew Mitchell et al, 'Criminalising Gender Diversity: Trans and Gender Diverse People’s Experiences with the Victorian Criminal Legal System' (2022) 11(4) International Journal for Crime, Justice and Social Democracy 99, 105.

7 Ibid 104.

8 Ibid 105.

9 Ricciardo et al (n 4) 104.

10 Ann Hergatt Huffman et al, 'Workplace Support and Affirming Behaviors: Moving Toward a Transgender, Gender Diverse, and Non-binary Friendly Workplace' (2021) 22(3) International Journal of Transgender Health 225.

11 Ibid.

12 www.transfolkofwa.org/training 13 For example: https://pidsoc.thinkific.com/courses/trans non-binary-issues-in-the-law 14 https://humanrights.gov.au/quick-guide/12076 15 Law Reform Commission of Western Australia, 'Review of the Equal Opportunity Act 1984 (WA)' (Project 111 Final Report, May 2022) 78–82.

16 https://www.transhub.org.au/allies/bathrooms 17 https://www.transhub.org.au/101/pronouns 18 https://www.thecrimson.com/article/2020/10/16/xiao against-mandatory-preferred-gender-pronouns 19 Robert-Leigh Compton and John G McManus, 'Employee Assistance Programs in Australia: Evaluating Success' (2015) 31(1–2) Journal of Workplace Behavioral Health 32.

20 https://www.acon.org.au/support-services/pride-eap/ 21 https://vpsc.vic.gov.au/workforce-capability-leadership and-management/gender-affirmation/ 22 For example, see Minter Ellison’s policy, though note that it is not as extensive as the Victorian public service policy: https://www.minterellison.com/about-us/diversity-and inclusion 23 https://www.idahobit.org.au/identity-and-stats understanding-pride-flags 24 Aidan Ricciardo et al, ‘Understanding, Promoting and Supporting LGBTQI+ Diversity in Legal Education’ (2022) 56(3) The Law Teacher 307, 316–317.

25 https://transgenderlawcenter.org/resources/employment tips-for-lawyers-working-with-transgender-clients-and coworkers/ 26 Mitchell et al (n 6) 105.

27 Ibid.

28 Anna Cody, ‘The Importance of Diversity in our Profession’ (2019) 154 Precedent 2, 2.

29 https://transgenderlawcenter.org/resources/employment tips-for-lawyers-working-with-transgender-clients-and coworkers/ 30 See generally, Elizabeth K Kuzma, Michelle Pardee and Cynthia S Darling-Fisher, 'Lesbian, Gay, Bisexual, and Transgender health: Creating Safe Spaces and Caring for Patients with Cultural Humility' (2019) 31(3) Journal of the American Association of Nurse Practitioners 167.

31 Mitchell et al (n 6) 103, 106–107.

32 The Law Society of New South Wales, Diversity and Inclusion in the Legal Profession: The Business Case (Report, 2021) 2.

THIS ARTICLE CONTAINS CONTENT ABOUT SUICIDE

The "New" Health and Safety: Addressing Psychosocial Risks in the Workplace

Julia Sutherland Partner, Ashurst Why is it important to manage psychosocial risks?

1. Psychological health is critically important to everyone, everywhere.

All over the world, psychological health needs are high, and in recent years the focus has shifted towards how employers can address what are described as psychosocial risks in the workplace.

2. Levels of stress and mental illness have been on the rise (especially in the wake of the COVID-19 pandemic). The World Health Organisation's World Mental Health Report, which was published in June 2022, states that about one in eight people in the world "live with a mental disorder".1 Interestingly, the report also estimated that globally 12 billion working days are lost every year to depression and anxiety, at a cost of $1 trillion per year in lost productivity.2 3. Workers (no matter what industry they belong to) are likely to be exposed to a combination of work-

Isabella Wilson Lawyer, Ashurst related psychosocial hazards and risk factors. These may include stress, fatigue, bullying, violence, aggression, remote or isolated work, harassment and burnout,3 which can be harmful to the health of workers and compromise their wellbeing beyond the workplace.

4. If employers are on the fence about the importance of managing psychosocial risks, at the very least, what is clear from the statistics is that there's an overwhelming business case for minimising adverse psychological health outcomes arising from work because of their substantial impact on business operations.

Recent developments regarding psychosocial risks 5. In recent months, there have been a number of developments across Australia regarding how employers are to address psychosocial risks, particularly following the release of ISO 45003,4 which is the first international standard dealing with

Isabella Nathan Graduate, Ashurst managing psychological health in the workplace.

6. ISO 45003 was published in June 2021. It offers guidelines for organisations to manage psychosocial risks in the workplace as part of an occupational health and safety management system based on ISO 45001, including accountability and transparency of senior management when it comes to identifying and managing psychosocial risk. The ISO 45003 defines psychosocial risk as the combination of the likelihood of occurrence of exposure to workrelated hazards of a psychosocial nature and the severity of injury and ill health that can be caused by these hazards. Hazards of a psychosocial nature include things such as aspects of work organisation and social factors at work, such as poor work relationships, harassment, bullying, lack of support, and lack of trust.

7. The Australian Federal Government has undertaken to ratify ISO 45003, 31

Mental Health and Wellbeing in the Legal Profession

but has not yet done so. While the Standard is not itself compulsory under law, it has clearly had an influence on how Australian work health and safety law has defined psychosocial risk.

How did we get here?

8. From a legislative viewpoint, over the past 12 months, many jurisdictions in Australia have introduced updates to their work health and safety regulations to expressly require employers to eliminate psychosocial risks in the workplace, or if that is not possible, to minimise those risks so far as is reasonably practicable.

9. If there was any doubt as to the application of the WHS legal framework to psychological health and safety, those doubts have been put to rest. Recent changes expressly bring psychosocial harm within Western Australia's work health and safety regime.

10. The Work Health and Safety Act 2020 (WA) (WHS Act) makes it clear

that a person conducting a business or undertaking's duty to ensure the health and safety of workers includes psychological health.

Further, on 24 December 2022, psychosocial hazard regulations were introduced into the Work Health and Safety Act Regulations 2022 (WA) (WHS Regulations) as part of the McGowan Government’s response to the Enough is Enough report, which concerned sexual harassment against women in the FIFO mining industry.5 11. In other jurisdictions, psychosocial risk regulations are also in force, as illustrated by the infographic below.6 12. The WHS Regulations define psychosocial risk as "a risk to the health and safety of a worker or other person arising from a psychosocial hazard".7 A psychosocial hazard is defined as "a hazard that arises from the design or management of work, a work environment, plant at a workplace, or workplace interactions that may cause psychological harm".8

Broadly, this could mean anything in the workplace or arising from work that might cause harm to a worker's psychological health. There are some clear parallels between this definition in the WHS Act and the definition in ISO 45003, which defines psychosocial risk as "the combination of the likelihood of occurrence of exposure to work-related hazard(s) of a psychosocial nature and the severity of injury and ill-health that can be caused by these hazards".

13. The WHS Regulations require a person conducting a business or undertaking to manage psychosocial risks in accordance with Part 3.1 of the WHS Regulations.9 Part 3.1 of the WHS Regulations requires a duty holder to identify reasonably foreseeable hazards that could give rise to risks to health and safety.10 In managing risks to health and safety, a duty holder is required to eliminate these risks so far as is reasonably practicable and if elimination is not reasonably practicable, a duty holder must minimise those risks so far as is reasonably practicable.11 Further, under the WHS Regulations, a person conducting a business or undertaking is required to implement control measures to eliminate or minimise psychosocial risks so far as is reasonably practicable.12 Regulator involvement 14. In Australia, each state and territory has its own separate work health and safety regulator, and there is also a regulator at the Commonwealth level.

These regulators have a number of functions including to monitor and enforce compliance with the work health and safety legislation. In Western Australia, WorkSafe WA is the relevant regulatory body.

15. Unsurprisingly, coinciding with the

32 | BRIEF OCTOBER 2023

updates to the WHS regulations across Australia, we have seen an increase in regulatory focus and activities across most jurisdictions with regard to psychosocial risk.

For example, regulators are placing an emphasis on psychosocial risk in their strategies and agendas.

Safe Work Australia, in its work health and safety strategy for 2023 through to 2033, identifies managing psychosocial risk in their top three persistent challenges.

16. At a local level, WorkSafe WA has now introduced codes of practice on managing psychosocial hazards in the workplace and other associated matters.13 These codes include information on how to identify, assess, and control these types of hazards.

17. WHS regulators, including WorkSafe WA, will now more actively investigate matters that were once commonly considered to fall within the purview of human resources departments or anti-discrimination or employment tribunals. These matters include how employers might deal with and investigate workplace complaints and concerns of bullying and harassment.

18. Safe Work Australia has recently called for submissions regarding a range of proposed reforms to the incident notification provisions in the national model Work Health and Safety Act. The proposed reforms are intended to address gaps in the model WHS Act, which were identified by Safe Work Australia during their review of the clauses in 2021-22.14 Safe Work Australia has proposed to expand the model incident notification provisions to better capture psychological injuries/ illnesses/harm and psychosocial hazards (including workplace violence, bullying and harassment).

19. To illustrate a change in regulator focus, there have been two recent prosecutions under work health and safety laws in Australia, relating to psychosocial risk, both concerning suicide.

20. In August 2022, the Commonwealth prosecutor filed three charges against a Commonwealth department alleging breaches of the Work Health and Safety Act 2011 (Cth) for alleged failures in managing risks to psychological health and

safety. The charges go to the administration of workplace policies and procedures as they relate to the suicide of a worker.15 21. Earlier this year in New South Wales, the New South Wales Ambulance Service entered a plea of guilty to breaching the Work Health and Safety Act 2011 (NSW) in circumstances where an ambulance driver was alleged to have taken an opioid painkiller, fentanyl, from work and later died by suicide.16 The New South Wales District Court found that the appropriate fine for the offence was $250,000.00, reduced by 25% to reflect the plea of guilty ($187,500.00 total). To our knowledge, this is the first guilty plea related to psychological and psychosocial health and safety in Australia.

to support their own psychological health (e.g. yoga at lunch time).

Conclusion 25. Law practices should proactively consider psychological health risk factors arising from their business and engage with their workers about how to manage those risk factors, including by having conversations about areas of their work which may lead to work-related stress, including demands, support, relationships, the role and changes within a person's job.

26. Businesses should listen to workers' concerns and feedback and identify control measures which can be implemented to eliminate risks to psychological health and safety, or where that is not reasonably practicable, minimise those risks, so far as is reasonably practicable.

What can employers do in practice to address the safety concerns surrounding psychosocial risks in the workplace?

27. There are a lot of good reasons for prioritising this issue – legal compliance is just one of them. ■

22. In Western Australia, the WHS Regulations set out a non-exhaustive list of relevant matters to which businesses must have regard when considering what control measures should be put in place to manage psychosocial risk (based on the updated model regulations).17

Endnotes

23. These measures include things such as the design of work, including job demands and tasks, systems of work, including how work is managed, organised and supported, and workplace interactions or behaviours.

4 International Organisation for Standardisation, ISO 45003:2021: Occupational health and safety management – Psychological health and safety and work – Guidelines for managing psychosocial risks (June 2021) <https:// www.iso.org/standard/64283.html>.

24. In response to legal and societal developments that recognise the importance of mentally healthy workplaces, some employers are incorporating ISO 45003 into their existing work health and safety management systems. We are also seeing a greater integration and collaboration between human resources and work health and safety departments within businesses to manage these risks. Some organisations have introduced mental health officer roles, including at an executive level. Psychological health initiatives are becoming more targeted to how to sustain a mentally healthy work environment, and are moving beyond initiatives that were more focussed on how individuals could adopt strategies

1

World Health Organisation, World Mental Health Report (16 June 2022) <https://www.who.int/publications/i/ item/9789240049338>.

2 Ibid.

3 Safe Work Australia, Model Code of Practice: Managing psychosocial hazards at work (July 2022) <https://www. safeworkaustralia.gov.au/sites/default/files/2022-08/ model_code_of_practice_-_managing_psychosocial_ hazards_at_work_25082022_0.pdf>.

5 Western Australian Government, Regulations on psychosocial hazards now in place (23 December 2022) <https://www.wa.gov.au/government/media-statements/ McGowan-Labor-Government/Regulations-onpsychosocial-hazards-now-in-place-20221223>.

6 Although specific regulations are not yet in force in Victoria, detailed draft regulations are being considered.

7 Work Health and Safety (General) Regulations 2022 (WA) reg 55B. 8 Ibid reg 55A. 9 Ibid reg 55C. 10 Ibid reg 34.

11 Ibid reg 35.

12 bid reg 55D(1).

13 Department of Mines, Industry Regulation and Safety, Mentally healthy workplaces codes of practice (12 April 2022) <https://www.commerce.wa.gov.au/worksafe/ mentally-healthy-workplaces-codes-practice>.

14 Safe Work Australia, Consultation on options to improve WHS incident notification (28 July 2023) <https://engage. swa.gov.au/whs-incident-notification-consultation>.

15 Comcare, Defence charged over death of RAAF member (9 August 2022) <https://www.comcare.gov.au/about/ news-events/news/defence-charged-over-death-ofraaf-member#:~:text=The%20Department%20of%20 Defence%20has,the%20death%20of%20a%20worker>.

16 SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW [2023] NSWDC 134.

17 Work Health and Safety (General) Regulations 2022 (WA) reg 55D.

33

Mental Health and Wellbeing in the Legal Profession

Tipping the Scales: Balancing Mental Health and Wellbeing at Law Schools in Australia

Dr Joshua Aston, Associate Professor and Associate Dean of Law, School of Business and Law, Edith Cowan University A study conducted in 2022 by the Ulster and Atlantic Technological University in Ireland, focusing on the increased risks of psychopathology, substance abuse, and suicidal tendencies, has identified law students as the most affected group. This research has alarming findings, indicating that law students exhibit a wide range of mental health issues, such as depression, panic disorder, social anxiety, and Attention Deficit Hyperactivity Disorder commonly referred to as ADHD1. These findings echo the situation observed in Australian law schools and the legal profession.

seems to be prevalent mainly in the early years of the studies, as indicated by literature in this study area4.

In 2009, the University of Sydney's Brain and Mind Institute surveyed 2,500 professionals and law students from 13 law schools across Australia. This survey revealed that approximately 41% of law students experienced significant psychological distress, which warranted clinical assessment2. Moreover, these students were found to have difficulty recognising symptoms of depression and were less likely to seek help. The recent study conducted in Ireland aligns with and supports the concerns raised in the Australian context. Evidently, this is a widespread issue affecting law schools globally.

Accordingly, the literature underscores several crucial factors that higher education institutions must be cognisant of in effectively addressing this issue. These factors include the prevalent tendency among law students to experience high levels of stress, anxiety, or depression, which further shapes the psychological profile of this student cohort. While it is true that university students, in general, encounter elevated stress levels, law students tend to exhibit even higher levels than most. Another noteworthy factor is the inherently competitive nature of the law student community, which can foster a sense of exclusion among some students in the program, particularly those from lower socioeconomic backgrounds.

Additionally, various socio-economic factors contribute to these mental health conditions.

These findings are indeed concerning.

However, some literature criticises stress measurement studies based on the nature of legal thinking, suggesting that mental health issues exist independently of university education5.

Additionally, these concerns are exacerbated by the stringent entry requirements for law programs, comparable to those in medicine3, which imply a subliminal anticipation of high academic performance. This expectation adds an additional layer of stress that law students must manage alongside the external pressures that all students face. This problem

While it is impossible to comprehensively address all mental health challenges, higher education institutions are trying to support their law student cohorts to the best of their abilities. Edith Cowan University, for instance, has adopted a proactive approach by prioritising mental health in its policies, plans, and strategies. All students have access to

34 | BRIEF OCTOBER 2023

Dr Cecilia Das, Lecturer and Law Course Coordinator, School of Business and Law, Edith Cowan University

various services to seek assistance when needed. However, the primary challenge lies in identifying these issues when they arise. Faculty members may not always be equipped to handle such matters, and there's a delicate balance between supporting students with mental health concerns and respecting their autonomy. This is undoubtedly a sensitive area and often one that is approached cautiously.

Law schools have made strides in routinely assessing the wellbeing of their students.

Yet, there is a clear imperative to promote more personalised interactions and cultivate robust mentor-mentee relationships.

Establishing a supportive atmosphere conducive to personal development is vital, especially considering the vulnerability often associated with the typical age group of law students6. However, there are some universities, like Edith Cowan University (ECU) where the typical demographic does not apply. In ECU law, the student cohort is primarily mature-aged and is already juggling with existing work and personal commitments. They are also primarily parttime students, which makes intervention strategies challenging.

This brief article acknowledges the magnitude of the issue, emphasising its urgency. As previously outlined, multiple factors are at play, and the initial priority is to offer the necessary support to students.

Ensuring mental resilience at the law school level is crucial, as it equips students to navigate the demanding and stressful legal profession, which frequently presents challenges related to mental health.

The commitment to enhancing student wellbeing across all law schools in Australia is evident in the introduction of the "Promoting Law Student Well-Being Good Practice Guidelines for Law Schools" by the Council of Australian Law Deans (CALD)7. This guideline was inspired by the report published by the Brain and Mind Research Institute in 2009.

The primary aim of the Guideline is to offer law schools valuable recommendations for promoting student wellbeing. While it is not mandatory, this Guideline serves as a critical reference point for all law schools in Australia, outlining the minimum standards a law school should aspire to implement in addition to existing university-wide practices.

This article seeks to clarify the primary factors contributing to mental health challenges among university law students.

Mental health is a sensitive subject, and students often worry about the potential stigma of acknowledging their mental health issues. What makes this even more challenging is that mental health conditions can be elusive to diagnose, unlike physical illnesses. It is possible not to recognise the impact of mental health concerns until they have progressed significantly. Recognising such issues is vital in addressing mental health challenges among students. The most effective approach to achieving this is educating the student community about mental health conditions.

Addressing the underlying issue is crucial, but it can be challenging when the core problem is linked to the academic environment. The demanding academic standards for obtaining legal qualifications significantly strain students mentally and emotionally. Pursuing academic excellence can lead to heightened stress, anxiety, and, in some cases, even depression.

Additionally, legal studies frequently confront students with moral and ethical dilemmas.

These moral quandaries can be emotionally taxing and challenging to navigate.

Further, the significance of academic achievements, co-curricular engagements,

and extracurricular activities is often overemphasised by peers, seniors, and even faculty, leading to excessive stress on students. Those who attempt to address this issue may find themselves immobilised by the fear of failure and are overwhelmed.

Consequently, students may discontinue their efforts and grapple with mental health concerns. Law schools should avoid the exclusive focus on excellence and adopt a more holistic approach to legal education to enhance student wellbeing.

Additionally, the Australian legal profession has been criticised for being exclusively the domain of students from privileged backgrounds8. This leads to the lack of diversity amongst the student cohort within the law program. This landscape becomes the breeding ground for forming exclusive peer groups within the cohort, excluding students from lower socioeconomic backgrounds. This situation does cause mental anguish and stress among these students since they feel excluded or marginalised (or, in modern parlance, "cancelled"). Elite law schools9 ought to make a concerted effort to be inclusive, eschew any impression of exclusivity, and ensure that the legal profession is still open to people from all backgrounds rather than just to a small elite.

Law schools encounter inherent challenges that necessitate reformation in their operations. This transformation should involve embracing more diverse demographics and shifting the focus from a relentless pursuit of excellence. Law schools must lead in advocating for mental health, especially given its prominence in the legal profession. To achieve meaningful progress, Australian law schools should collectively recognise the situation's seriousness and collaborate to implement the provided guidelines. One of the primary initiatives that should take precedence is educating faculty and students about mental health conditions and actively promoting available resources for all who may need them. ■

Endnotes * Associate Professor and Associate Dean of Law, School of Business and Law, Edith Cowan University, WA. ** Lecturer and Law Course Coordinator, School of Business and Law, Edith Cowan University, WA. 1. McLafferty M; Brown N, et. al. (2022) Variations in psychological disorders, suicidality, and helpseeking behaviour among college students from different academic disciplines, https://www. lawyersweekly.com.au/careers/36437-lawstudents-have-highest-alcohol-misuse-suicideideation-rates#:~:text=When%20surveyed%20 about%20myriad%20mental,ADHD%20 (32.1%20per%20cent); 9 September 2023.

2. Kelk, N; Luscombe G, et. al. (2009) Courting the Blues: Attitudes towards depression in Australian law students and legal practitioners. Brain & Mind Research Institute at the University of Sydney.

3. Soh, N; Burns, Fiona; Shackel, Rita; Robinson, Bruce; Robertson, Michael; and Walter, Garry (2015) "Law Student Mental Health Literacy and Distress: Finances, Accommodation and Travel Time, "Legal Education Review: Vol. 25: Issue. 1, Article 3. https://epublications.bond.edu.au/ler/ vol25/iss1/3; 4 September 2023.

4. Ibid 3 5. Ibid 3 at page 39 6. Universities Australia. 2022 Higher Education Facts and Figures. https://www. universitiesaustralia.edu.au/wp-content/ uploads/2022/09/220207-HE-Facts-and-Figures2022_2.0.pdf; 8 September 2023.

7. Promoting Law Student Well-Being Good Practice Guidelines for Law Schools. https://cald.asn.au/ wp-content/uploads/2017/11/Promoting-LawStudent-Well-Being-Good-Practice-Guidelinesfor-Law-Schools-March-2013-and-revisedSeptember-2014.pdf; 7 August 2023.

8. A profession for the wealthy? The enduring problem for diversity in law. LJS Online. https:// lsj.com.au/articles/a-profession-for-the-wealthythe-enduring-problem-for-diversity-in-law/; 10 August 2023.

9. Opinion: Why are there no poor kids in the legal profession? LJS Online. https://lsj.com.au/articles/ opinion-why-are-there-no-poor-kids-in-thelegal-profession/; 10 August 2023.

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35

Mental Health and Wellbeing in the Legal Profession

The Old Court House Law Museum

Olga's

Story

Olga Hurina

Museums are not passive environments; interpreting history creates a catalyst, inspiring change for an improved future. A rewarding element of my role as Museum Curator is the opportunity to introduce visitors to the Old Court House Law Museum and engage meaningfully with a range of people about the ideas and stories which the Museum inspires.

I don’t always find out who comes through the door, but each visitor has a story and unique life experience. I was very privileged to connect with one such visitor, Olga who was keenly interested in a Law focused Museum due to her legal background in Ukraine.

The war forced Olga to adapt to situations beyond her control which forced her to leave behind her life in Ukraine and relocate to Perth as a refugee. Interactions with visitors and hearing their stories reminds me that we are all living and experiencing history in progress, I am grateful to Olga for sharing her story and informing a personal depth to my understanding of this history being made.

Megan Shaw, Old Court House Law Museum

My name is Olga Hurina, and I am a refugee from the war in Ukraine and came to Australia in March 2022. It has been a big journey, and I am grateful for the generous support and opportunities that I have received here in Australia.

I have a degree in Law. I have always been passionate about helping people and protecting them from injustice, and I am sure many professionals in the law community share this same drive. I would like to thank the magazine editor for giving 36 | BRIEF OCTOBER 2023

me the opportunity to reach out to the local law community and share my story. I hope that my experience will be interesting for some and useful for others in solving similar issues.

Before the war, I had a successful legal career in Ukraine, working in local municipality and various state bodies.

For the last year and a half before the fullscale war, I worked as a manager at the National Agency on Corruption Prevention (NACP), which was established in 2016. The

launch of the NACP agency was one of the requirements of the European Union for a visa-free regime with Ukraine.

The NACP’s primary mission was the development of a virtuous government and a just society, and our achievements over the years included the creation of an open Register of declarations for all public servants, Register of persons that committed corruption or corruptionrelated offences, Register of financial reports of political parties, automatic verification of declarations, monitoring of public servant’s lifestyles, an educational portal on issues of integrity.

In 2022, Australia established the National Anti-Corruption Commission (NACC), which has similar functions to the NACP. This independent agency will detect, investigate and report on serious or systemic corrupt conduct in the Commonwealth public sector. The NACC will also educate the public service, and the public, about corruption risks and prevention. The National Anti-Corruption Commission (NACC) commenced its operations on 1st July 2023. The department where I

worked was responsible for approving anticorruption programs of the state bodies and local governments and assessing corruption risks in their activities.

In December 2021, the NACP updated a new Methodology for assessing corruption risks, aligning it with international standards (ISO 31000:2018, IEC 31010:2019) and best global practices. We also launched the anti-corruption portal, which automated the process of developing, adopting, and approving anti corruption programs. We had ambitious plans for the future in the fight against corruption in Ukraine.

able to persevere. However, the lack of local work experience and professional connections made it challenging to find suitable employment and navigate the law community.

However, everything changed on the morning of February 24, 2022. My family and I learned about the start of the war from a phone call from our friend early in the morning. During the first few weeks of the war, I worked remotely from home in Kyiv, but events unfolded very quickly.

Russian troops were tens of kilometres from Kyiv within days.

Initially, I recognised the importance of stabilising my psycho-emotional state.

Maintaining mental health is a crucial aspect of organising a productive work culture, particularly in the conflict-ridden environment that lawyers work in daily.

Finding the right organisation or consultant to help you achieve inner balance is essential. The Association for Services to Torture and Trauma Survivors (ASeTTS) proved to be a valuable resource for me.

This organisation assists humanitarian entrants and refugees in their settlement process in Australia.

My husband urged me to leave Kyiv because it was dangerous to stay in the city. Russian soldiers in the territories they occupied were cruel to the civilian population, and there was no regard for international humanitarian law. In his speech on the recognition of the DPR and LPR, Vladimir Putin publicly stated that the NACP I worked for was controlled by the USA Embassy. All these circumstances threatened my life and health, forcing me to make a decisive decision to leave Kyiv for Western Ukraine. My husband stayed in Kyiv to meet the enemy.

As I journeyed to the West of Ukraine, I couldn’t help but notice the heartbreak and fear in the eyes of my fellow Ukrainians. Despite the surrounding turmoil, I also saw an incredible outpouring of love and support for those in need. It was during this journey that I received the news from my husband that his sister was offering me a safe haven in Australia. Although I was grateful for the offer, I was not mentally prepared for such a drastic change.

I felt as if my life was being swept up in a turbulent flow of external circumstances that were beyond my control. With only a backpack in my hand, I landed in Perth Airport, unsure of what my future held.

However, thanks to the kindness and support of the amazing people I met in Australia, I was able to navigate through these challenges and move forward with my life.

Despite the difficulties I faced, such as the psychological trauma caused by the war and the language barrier that prevented me from expressing myself fully, I was

And this list of issues is not exhaustive.

Perhaps we’ll discuss them another time.

For now, let me delve into my personal experience of professional adaptation in Australia and the strategies I employed to overcome the challenges mentioned above. My hope is that these experiences may prove useful to others.

Next, I prioritised studying English, recognising that it is essential for the work of a lawyer. Perfect command of the language is necessary to represent clients effectively, draft documents, and articulate positions in court. The Adult Migrant English Program (AMEP) proved to be instrumental in helping me improve my language skills. Last December, I completed the Certificate III in English as an Additional Language (Access) at South Metropolitan TAFE. This provided me with the opportunity to enrol in the Certificate IV in Work Health and Safety at North Metropolitan TAFE, allowing me to specialise in compliance and risk assessment in the field of occupational safety. This profession is currently in high demand in the job market.

I also made an effort to connect with the people around me, recognising the importance of building a network to find work that suits my qualifications in Australia. Most of the people I encountered were generous and eager to help, and over time, through proactive engagement, I was able to build useful connections. I also participated in various programs such as the Settlement Language Pathways to Employment and Training (SLPET) course at South Metropolitan TAFE, and the Women’s Career Clinic organised by Deakin Centre for Refugee Employment, Advocacy, Training, and Education Career Clinics. These programs aim to assist humanitarian entrants and refugees to

navigate the job market and learn about working conditions in Australia.

Thanks to effective networking, I secured my first job in Australia as a compliance analyst in March of this year. I am grateful to my employer for believing in me and giving me the opportunity to work in a team that values diversity and inclusion in the workplace.

However, I also had a negative experience that I believe is worth sharing. As a condition of receiving social benefits for assistance to humanitarian entrants, I registered with an employment service provider that receives government funding to help people like me find work.

Unfortunately, during the three months of our interaction, I had four different managers, none of whom were interested in my resume or my desire to find work in my field. I hope that the relevant state institutions will consider redesigning this service to make it more client-oriented.

I actively participate in the local community, which helps me feel connected to the processes that shape Australian society and enables me to be useful. I’ve had the privilege of participating in events organised by various organisations such as the United Ukrainians Inc., the Lions Club of Duncraig, and the Rotary Club of Karrinyup.

In conclusion, my journey to Australia has been a challenging yet rewarding experience. Through the help and support of my newfound friends, I have been able to overcome the obstacles that came my way. I believe that Australia offers great opportunities for assistance to humanitarian entrants and refugees who take a proactive approach towards their professional growth. While I have left much behind, I know that there are many exciting events and opportunities waiting for me in the future.

As I continue on my journey, I ask that you keep Ukraine in your thoughts and prayers. The Ukrainian people are currently defending important democratic principles that are crucial not only for their own country but for the entire civilised world. Let us continue to support each other in our respective journeys towards growth and progress. ■ Olga Hurina Postscript: Since this article was written, Olga graduated from TAFE with a Certificate IV in Work Health and Safety and won the Government of Western Australia Department of Training and Workforce Development’s WA Cultural Diversity Training Award 2023.

37

Thomas Coltrona What is your go-to activity to unwind from a hard day of lawyering?

Reflections on mental health and wellbeing from the

Thomas Coltrona

At the end of the day I love going to the gym and chucking a podcast on, before coming home to cook a delicious meal and play some video games.

Anthony Dique What do you know now that you wished you knew when you started as a graduate?

Anthony Dique

Always take your full lunch break.

Partners may notice if you come in early or stay back late, but they’ll never know if you’ve skipped lunch and are working hungry.

Tom Durkin What is your trick to overcoming stress and anxiety during work hours?

Tom Durkin

A good cup of Yorkshire Tea and some cringey pop music coming through my headphones.

Garrick Garvey What is your go-to activity to unwind from a hard day of lawyering?

Garrick Garvey

My go to activity is generally go to the gym on the way home from work. That sounds pretty basic, however it works, it improves your mental and physical health and keeps you fit!

38 | BRIEF OCTOBER 2023

Tyler Greatrex What do you know now that you wished you knew when you started as a graduate?

Tyler Greatrex

You are your harshest critic, the only person who expects you to know everything is you and it is much easier to enjoy the process of learning and developing when you become comfortable in not knowing what you don’t know.

Your colleagues don’t expect perfection from you and your superiors don’t expect perfection from you they just expect you to turn up and have a reasonable go of it.

Isabel Inkster

When I'm being virtuous, I use the mini meditations on Headspace (some are as short as 3 minutes!).

When I'm being less virtuous, I just whinge to my colleagues. For me, both are effective mechanisms for managing stress and anxiety during work hours.

Aleksandra Miller What is your go-to activity to unwind from a hard day of lawyering?

Katherine Swann

What do you know now that you wished you knew when you started as a graduate?

What is your go-to activity to unwind from a hard day of lawyering?

Aleksandra Miller

Heading to the gym or a fitness class - I'm definitely not a morning exercise person!

Matthew Petriwskyj

Katherine Swann

When I have time, I

I wish I knew that it’s okay to make mistakes and growth will come with experience. You can study cases and legislation for hours on end, but the people skills you will need will be just as important. We are in a services industry after all!

love to go for a run or spend time outdoors.

I otherwise aim to prioritise weekly choir rehearsals to keep me connected to music!

Jessica Sheppard

What is your trick to overcoming stress and anxiety during work hours?

What is your trick to overcoming stress and anxiety during work hours.

Isabel Inkster What is your trick to overcoming stress and anxiety during work hours?

Matthew Petriwskyj

Jessica Sheppard

Taking a few minutes in the beginning of the day to consider what I have on and what work needs to be prioritised (I still use handwritten ‘to do’ lists).

Isabella Wilson

Isabella Wilson

When I feel overwhelmed by seemingly insurmountable tasks or fast-approaching deadlines, I take a moment to myself (sometimes just a few minutes) and do some breathing exercises. I find that I always return to my desk feeling calmer and more focused.

Demi Swain What do you know now that you wished you knew when you started as a graduate.

Demi Swain

Saying “yes” to everything does not win you, your colleagues or your clients any favors. It means you are spread thin and unable to appropriately delve into matters.

By being upfront about your capacity, you preserve your wellbeing and are able to fully dedicate yourself to your matters.

OFF 39

Do you know your number?

HECS-HELP debt and the increasing burden on law graduates “Have you checked your HECS debt lately?” is a question we’ve encountered repeatedly in recent months. Often, this inquiry is followed by frustrated former students bemoaning the fact that their HECS debts have either remained stagnant or, in some cases, increased.

On 1 June 2023, Australian student debts were subject to indexation at an unprecedented rate of 7.10%. This historically high rate means that law graduates from the University of Western Australia are now burdened with debts of at least $60,000, and for some, the debt has surged past $130,000. This recent adjustment to indexation translates to an extra $4,000 to $9,000 being added to their “interest-free” debts.

For something that was once hailed as “good debt” by the ubiquitous Barefoot Investor, the reality of HECS/HELP-Debt is proving to be rather tough for young professionals aspiring to enter their chosen fields. How did we find ourselves in this situation?

A Brief History of HECS-HELP Debt Back in 1974, tertiary education was made free for all students, aiming to enhance accessibility for individuals classified as working and middle class. However, in 1989, the concept of ‘income contingent loans’ (ICLs) was reintroduced to contribute to the system’s cost. The underlying reasoning was that young people who pursued higher education would gain substantial financial benefits from their studies in the long run, and therefore should bear a share of the societal burden associated with their education.1 Central to the ICL system was the idea that graduates would only start repaying their debts once their income reached a comfortable threshold, alleviating undue pressure on those just starting out in their post-graduate careers.2 Over time, the HECS scheme underwent 40 | BRIEF OCTOBER 2023

several modifications in terms of debt accrual and repayment methods.

191% surge in the overall student debt in Australia since 2011-12.6

In 2005, the scheme was rebranded as the Higher Education Loan Program (HELP), which expanded the range of eligible courses and raised the maximum loan amount again.

The average student debt load has risen to $24,770 per student, in contrast to $15,191 per student in 2012.7

Additional changes to repayment and loan structures were introduced by the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 (Cth), which included:3 •

Reducing the minimum income threshold for mandatory repayments from $51,956 in the 2018–19 fiscal year to $45,880 for 2019–20.

•

Increasing the maximum repayment rate from 8% to 10%.

•

Linking the repayment income threshold to the Consumer Price Index (CPI) instead of Average Weekly Earnings (AWE).

In 2020, the government unveiled the Jobs Ready Graduates Package, significantly hiking the HECS-HELP debt for typical arts-law students.

For instance, humanities or social science students in 2020 faced a mandatory HECS contribution of $6,684 annually, whereas those starting the same courses just a year later would grapple with a compulsory HECS contribution of $14,500 per annum.4 The system designed to render higher education more accessible and equitable has morphed dramatically since its inception. In our perspective, these changes have rendered higher education less attainable, less equitable, and generally less appealing to potential students.

Current Landscape Australians currently bear a recordbreaking amount of HECS-HELP Debt - exceeding $74.3 billion in the 2021-22 period.5 This represents a staggering

The Australian Taxation Office (ATO) manages the HECS/HELP repayment process, with repayments being automatically deducted from a student’s income once their earnings surpass the threshold. This procedure is streamlined through the tax system.

The obligation to make repayments now kicks in well before attaining a ‘comfortable income’, affecting individuals who earn around $51,500 per annum. The threshold is crossed by individuals earning just slightly above the minimum wage.8 On one hand, the current administrative system has its merits, as repayments are carried out without additional taxpayer intervention. However, the automated process, combined with a lack of awareness about outstanding debt, has led to a level of complacency among those most impacted by the HECS/HELP system.

Unlike mortgages, personal loans or credit cards, where a reputable financial institution has obligations to inform customers of changes to their loan accounts, graduates do not receive specific updates from the ATO in respect of changes to their HECS/HELP debts.

A Flawed System Under Scrutiny The combination of record-high indexation rates and escalating university fees has sparked criticism of the present HECS-HELP regime.

In November 2022, Deputy Greens Leader Senator Mehreen Faruqi introduced the Education and Other Legislation Amendment (Abolishing Indexation and Raising the Minimum Repayment Income for Education and

By Mary-Kate Ledger & Isabel Inkster Training Loans) Bill 2022 (Education Bill). Among other provisions, this bill proposed: 1.

Suspending indexation.

2.

Elevating the minimum repayment threshold to the median wage (currently around $62,500).

3.

Calculating an individual’s liability based on the median wage (while retaining the scale of 1% to 10% of income). As the median wage climbs, the repayment threshold would adjust proportionally.

On December 1, 2022, the Senate referred the Education Bill to the Senate Education and Employment Legislation Committee (Senate Committee).

Over the ensuing months, the Senate Committee solicited input from universities, unions, think tanks, and individuals.

Submissions to the Senate Committee highlighted the impact of CPI indexation on their debts.

One submission recounted making repayments totalling $2,582.94 within four months, only to see their overall debt reduced by a mere $30.45 due to indexation.9 This is a common scenario for many recent graduates, where indexation effectively offsets their contributions, rendering early career income and HELP debt payments virtually ineffective.

Numerous submissions advocated for the alignment of HELP debt indexation with the Wage Price Index (WPI).10 Such alignment holds several benefits and appears more fitting for the following reasons:11 •

WPI tends to be steadier than CPI and exhibits similar trends over longer periods.

•

WPI would correspond more accurately to the value of Australian labour and be less influenced by price inflation stemming from external factors in global markets.

•

Indexing to real wage growth would be the fairest form of indexation (if retained).

In essence, WPI seems a more appropriate indexation metric that could potentially mitigate the escalating burden of HECS debt repayments.

affected by the lowered payment threshold and heightened indexation.

While women’s earnings stagnate, their HECS-HELP debt continues to mount.

In early 2023, the Senate Committee issued its report, recommending against the passage of the Education Bill. The Senate Committee acknowledged the need to address the mounting cost of living crisis but expressed doubts about the Education Bill’s ability to effectively achieve that objective.

Diminished diversity within the legal sector harms all those within the profession and anyone seeking assistance from it. Overall, the legal profession suffers as a result.

In November 2022, the Albanese Government initiated a comprehensive review of the higher education system.

The Minister for Education, the Hon. Jason Clare MP, announced that the review would encompass a wide range of aspects, from funding and access to affordability, transparency, regulation, employment conditions, and the synergy between higher education and vocational education and training.12 Earlier this year, the review unveiled a ‘University Accord Discussion Paper’.

The review has received over 300 written submissions, which are currently under evaluation.13 Amidst this period of ongoing reconsideration, we hope for an appetite for adopting a fresh strategy to address the ballooning student debt and its associated pressures.

Relevance to the Legal Profession We have all benefited from tertiary education. As fees escalate and universities shift toward costlier undergraduate/postgraduate models, the expense of acquiring a law degree is spiralling upward.

This renders entrance into the legal profession prohibitively expensive for certain individuals and, consequently, jeopardises diversity within the legal field.

HECS-HELP debt disproportionately impacts young individuals and women, who were hit hardest by the pandemic and are now grappling with the aftermath of escalating rents, precarious employment arrangements, and stagnant wages.14 Although women tend to engage more with higher education, they are also more likelyto take breaks from full-time employment.

Consequently, they are particularly

Concluding Message The YLC confirms its support for a new approach to student debt and, more specifically, for addressing the societal barriers that unchecked fee hikes and record-high indexation have created for entry into the legal profession.

This article heralds the launch of our ‘Know Your Number’ campaign. Keep an eye out for social media posts aimed at raising awareness about the HECS-HELP Debt system and advocating for a more transparent and equitable framework.

If you wish to participate in this campaign, please don’t hesitate to get in touch.

End Notes 1 Senate Committee Report, 23; Centre for New Industry, Submission 10, p. 5.

2 Senate Committee Report, 23; Emeritus Professor James Guthrie, Professor John Dumay and Dr Ann Martin-Sardesai, Submission 18, p. 3.

3 https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/ pubs/rp/rp2021/Chronologies/HigherEducation. See also Budget Savings (Omnibus) Act 2016.

4 https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/ pubs/rp/rp2021/Chronologies/HigherEducation#_ ftn44.

5 Australian Taxation Office, answers to question on notice, 17 March 2023 (received 3 April 2023); National Union of Students and Foundation for Young Australians, Submission 13, p. 1.

6 Senate Committee Report, 7; National Union of Students and Foundation for Young Australians, Submission 13, p. 1.

7 Senate Committee Report, 15; National Tertiary Education Union, Submission 8, p. 4.

8 https://www.fairwork.gov.au/pay-and-wages/ minimum-wages.

9 Senate Committee Report, 20; Name Withheld, Submission 20, [p. 1].

10 CAPA and NATSIPA, Submission 12, [p.2]; Public Universities Australia, Submission 41, p 5.

11 APA and NATSIPA, Submission 12, [p. 5]; cited in the Senate Committee Report, 22.

12 The Hon Jason Clare MP, Minister for Education, Media Release, Universities Accord, (accessed 31 January 2023). The Panel will report to the Minister, providing an interim report on priority actions by June 2023, with a final report to be delivered by December 2023.

13 https://www.education.gov.au/australian-universitiesaccord/announcements/consultation-accorddiscussion-paper.

14 Senator Mehreen Faruqi, Second Reading Speech, Senate Hansard, 30 November 2022, p. 2581.

41

Prudence Juris Dear Aunt Prudence The R U OK cookie and cupcake didn’t really make me feel better, especially when I had to work until 10pm that evening and my rent just went up again.

Dear Aunt Prudence I’ve been admitted for a year now. Plenty of people have said to wait until I’m unrestricted before moving but I feel like I need a change of scenery now. Should I job hunt?

- Just Alright

- Ready to Fly

Dear Just Alright It is no surprise that the tokenistic gesture of sweet and unhealthy treats didn’t really help your mental health, but don’t say that too loudly or you may upset HR who organised the spread.

Dear Ready to Fly The adage that you should wait until you're unrestricted before changing jobs no longer applies and is said more by Partners who want you to stick around for longer.

We all know that to feel better at work, what we really want is better working conditions and pay rises to match (but again, don’t say that too loudly).

In the meantime, reach out to your employers EAP or to LawCare.

The reality is that there is such a demand for experienced juniors, one-year PAE is now enough for most firms. Spread your wings and make the change, you’ve earned the pay rise that will also come with the move.

Aunt Prudence

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.

Gifts in Wills help us get closer to our vision of a cancer free future for our community.

How are we going to achieve this?

By funding world-class researchers here in WA.

By providing support from the point of diagnosis through to treatment and beyond.

By empowering healthier lifestyles and shaping public policies for West Australians to reduce their risk of cancer.

When writing a Will for a client please ask them to consider a charitable gift.

42 | BRIEF OCTOBER 2023

To find out more contact us on 08 9212 4333 or visit cancerwa.asn. au/getinvolved/a-gift-in-will Cancer Council Western Australia (Inc).

Level 1, 420 Bagot Road, Subiaco WA 6008 ABN: 15 190 821 561

Book Review

by Thomas Coltrona

It is an unfortunate fact that a career in the law consistently ranks in the top two for occupations that have the highest prevalence of mental health issues.

For me, many of my colleagues and graduating law students, the COVID-19 pandemic multiplied these issues by introducing isolationism, added anxiety and fear and the workload of having to adapt to a new way of working and studying. One of the factors that I believe contributed to my ability to manage these stresses in my formative years of practice, and indeed my years at law school, was that I had read Jerome Doraisamy’s book ‘The Wellness Doctrines’.

The book follows a courageous account of Jerome in his final years of law school, his descent into severe clinical depression and his road to recovery as he made his way into the legal profession. However, the book also contains first-hand accounts and case studies of numerous legal and health professionals, providing practical and relatable advice about how to manage your health and wellbeing in the legal profession.

The book contains a foreword from Sir Gerard Brennan, former Chief Justice of the High Court of Australia. Without spoiling what is a beautifully written passage (unsurprising given that he was the presiding judge of the famous Mabo judgment), he begins by stating “[t]his is a book of its time and it is a book for its time.” Mental health issues still retain a stigma, both in the legal profession and the broader community. This book, by confronting these issues head on in a relatable fashion, goes some way towards breaking down this traditional stigma. It sends clear messages to those going through mental health struggles that ‘you are not alone’, ‘people want to help you’ and ‘there are ways to help ou to help yourself’.

The book was first published in 2015.

Jerome has left practice as a lawyer behind and is now the Editor of Lawyers Weekly. The legal profession is an ever shifting landscape. The oncoming rise of assistive AI tools that will no doubt fundamentally change the how the profession operates, especially at a junior level. Despite this fact, the advice and stories in the Wellness Doctrines are as relatable and useful today as they were 8 years ago. I would highly recommend it as reading for any and every law student or young lawyer, regardless of whether they are currently experiencing mental health issues. Life is unpredictable and sometimes cruel and it pays to develop good habits early to ensure that you can find and maintain a sense of wellbeing throughout your career.

The book covers topics including: identifying and challenging typical lawyer personality traits, finding the right job for you, managing the common onerous workload, achieving work-life balance, and helping others that are struggling.

At the end of every chapter is a section called ‘TWD Wellbeing Wisdom’, where Dr Robert Fisher (Head of Department of Psychiatry and Psychological Services at St Vincent’s Clinic and Private Hospital) provides his own commentary and observations from a mental health professional perspective.

The target audience of the book is clearly law students and young lawyers.

However, this is most certainly a book for all in the profession, both young and old. It is clear that the aim of the book is to arm its readers with the necessary information to achieve success and meaning, both in their careers and personally.

The Wellness Doctrines: For Law Students & Young Lawyers, by Jerome Doraisamy

43

Privileging the Rights, Will and Preferences of Older People Living with Dementia: Health and Lifestyle Decision-Making

By Meredith Blake, Associate Professor Deputy Head of School (Learning and Teaching) Director of International Partnerships and Exchange, Scholars at Risk National (Australian) Network UWA Representative UWA Law School

44 | BRIEF OCTOBER 2023

Introduction When considering the way that legal regulation can particularly impact on the lives of older people, escalating rates of dementia1 expose the limitations of traditional approaches to health care and lifestyle decision-making. Dementia refers to a syndrome caused by several diseases associated with chronic and terminal neurodegeneration. It is currently the second highest cause of death in Australia, and the highest cause of death in the female population.2 While not exclusively associated with older age, most cases are diagnosed in this phase of life, and it is considered that the escalating rates of dementia reflect Australia’s ageing demographic.3 Given the cognitive decline, (often experienced over many years prior to death) the ability of the person to make independent decisions about their health care and lifestyle is inevitably impeded.

This raises questions about the way in which capacity determinations can impact the autonomy of the older person living with dementia with respect to these decisions. This short article argues that the incorporation of supported decision-making into decision-making frameworks is essential to ensuring that the human rights of older persons living with dementia are respected.

Traditional Legal Mechanisms for People Living with Dementia: Guardianship A diagnosis of dementia is both confronting (it is the most feared diagnosis amongst people aged 65 years and over4) and triggering – in the sense that it raises the question of how a range of health and lifestyle decisions (both isolated and continuing) are to be made. Terminal cognitive decline is particularly challenging for the traditional way in which decisions of this nature are made. Australian common law presumes that all adults have the capacity to make decisions about their health and related lifestyle decisions,5 as do some statutes.6 The binary approach to capacity determination – based on a person’s ability to take in information, process it and weigh options to come to a decision7 - establishes a legal ‘bright line’ dividing the capacity ‘haves’ from the ‘not haves’. For the ‘not haves’, guardianship legislation in each Australian jurisdiction provides the legal framework for adults lacking decisional capacity based on substituted decision-

making. Under those frameworks, it is possible (although this varies between jurisdictions) for adults to make advance health/care directives (AHDs) and an appointment using the enduring power of guardianship (EPG). This is specifically aimed at facilitating the preservation of the personal autonomy of the person who lacks decisional capacity, although in most jurisdictions, the basis upon which an enduring guardian decides is the criticised ‘best interests’ test.8 Some jurisdictions have incorporated a ‘substituted judgement’ standard,9 one which has been recognised as more closely aligned with the person’s autonomy interests. In the absence of an applicable AHD or EPG, a tribunal appointed guardian or a ‘person responsible’ makes the decision, again most commonly based on what is considered to be the represented person’s best interests. Dementia is now the most common condition leading to guardianship applications10, highlighting the significance of guardianship legislation for decisions relating to the health and lifestyle of older persons living with dementia. The ‘bright line’ approach to capacity enshrined in the common law and most guardianship legislation does not align with the nature of progressive cognitive impairment; it has been noted that a person with such an impairment:

Article 12(4) requires States Parties to introduce safeguards to ensure that the exercise of legal capacity respects the disabled person’s rights, will and preferences. Article 12(3) of the CRPD states that: States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

These obligations therefore require Australia to introduce supportive measures and practices which place the rights, will and preferences at the centre of the decision-making process. While the CRPD’s Interpretation Committee has denounced guardianship regimes (being based on a model of substituted decision-making) as inconsistent with supported decision-making12, Australia has issued a Declaration in connection with its interpretation of Article 12 which envisages the continuance of these regimes for the foreseeable future.13 Looking forward, it is therefore likely that supported decision-making will be associated with Australia's guardianship legal frameworks.

Supported Decision-Making

The ALRC in its 2014 Report on Equality, Capacity and Disability in Commonwealth Laws14 recommended that the National Decision-Making Principles it developed be used to guide reform of laws at a Commonwealth, State and Territory level. It also recommended that changes to legally recognise ‘supporters’ and their role in the expression of a disabled person’s will and preferences in the NDIS, social security and aged care be reflected in changes to guardianship legislation. It did acknowledge, however, the submission made by National Seniors Australia to the ALRC Inquiry that:

Australia’s adoption of the Convention on the Rights of Persons with Disabilities 2006 (CRPD) in 2008 focused attention on the issue of decision-making for persons living with cognitive impairment, including those with mental illness, intellectual disability, and dementia. Clearly the characteristics and experiences of these conditions vary considerably, but a potentially transformational section of the CRPD seeks to enhance the legal rights of all persons with cognitive impairment by separating the concepts of ‘mental capacity’ and ‘legal capacity’ and creating a presumption that all persons enjoy an equal right to legal capacity.

Terry Carney has argued that discussions around issues arising in connection with the scope of supported decision-making and the meaning of rights, will and preferences have been

may often appear ‘just about capable but not completely’ or ‘probably capable’ but still be properly aware of a series of issues relating to the decision.

Moreover, their cognitive abilities might be subject to fluctuation, so that one day they seem completely lost and on another perfectly aware of the world around them.11

A national approach to capacity should only take place following a review of Guardianship and Administration Acts and precedent in each state and territory. This will ensure that an appropriate mechanism for measuring decision making capacity will be evidencebased, supportive of individual circumstances and secure against forms of elder abuse or exploitation of power of attorney status.15

45

the purview of philosophers and jurists, literature that has largely not engaged with how supported decision-making does and should work in practice.16 The scholarship identifies a wide range of decision-making models associated with the implementation of supported decision-making, including informal support and more formal models incorporating the appointment of representatives and co- decisionmakers. There is also a view that supported decision-making should be situated within the broader notion of ‘assisted decision- making’.17 It has been claimed that the CRPD ‘proposes a new human rights and support-orientated model of legal personality and legal capacity’18.

However, while supported decisionmaking clearly has the potential to benefit older persons living with dementia, it is accompanied by a variety of conceptual and practical challenges which are now considered.

Supported Decision-Making and Guardianship Laws Fifteen years on from Australia’s adoption of the CRPD, only Victoria has formally amended its guardianship legislation to incorporate supported decision-making with the inclusion of the power to appoint a supportive guardian whenever an application is made to the Victorian Civil and Administrative Tribunal for the appointment of a guardian.19 While the Queensland guardianship legislation requires the represented person to be given the support necessary to make, participate in and communicate decisions, this is within the context of a conventional guardianship order.

Recently the Council for Intellectual Disability (NSW), in conjunction with the NSW Trustee and Guardian Office, commenced a two year project to raise awareness of supported decisionmaking, but no legislative change is proposed.

It has been argued that if supported decision-making is regarded as the way to secure the rights, will and preferences of people with disability, then there must be a true understanding of what privileging these concepts looks like in practice.20 There has to date been an emphasis in the literature on persons 46 | BRIEF OCTOBER 2023

living with mental illness and intellectual disability, with little engagement with conditions associated with progressive cognitive decline and the particular issues which these raise in terms of supported decision-making. There has also been limited interrogation of the substantive content and practical understanding of rights, will and preferences separate to the idea of securing a person’s wellbeing – there has been a conflation of the protective approach with the promotion of the disabled person’s right, resulting in a failure to identify the latter as a separate consideration.21 The gaps in the scholarship mean that an understanding of what is currently happening in the tribunal space is very relevant. A recent review of guardianship laws and their operation considered whether these laws facilitated supported decision-making for people living with dementia. It is evident that key provisions in the various pieces of legislation significantly impacted the facilitatation of supported decision-making, including the definition of capacity, whether it is presumed, and the statutory prescription of a person’s ‘need for a guardian’.22 It is also evident that, as in other contexts, tribunals demonstrate reliance upon medical evidence in determinations of capacity in relation to people with dementia. The review found that in Western Australia, where there is a statutory rebuttable presumption of capacity enshrined in the legislation, the tribunal expressed the need to exercise caution around over-reliance on clinical capacity assessments at the expense of how the person with dementia ‘functions in the real world.’23 This approach was observed to influence the determination of whether there was a ‘need’ for a guardian. For example, in LP (which concerned a 97 year old woman who did not have a dementia diagnosis but whose children had expressed concern about her cognitive capacities), the Tribunal looked to the evidence of LP’s general practitioner of over 30 years, and concluded that while LP would need some help from her family in relation to various lifestyle decisions, a guardianship order was not necessary and that while she required some support ‘on the evidence, she has the necessary help that she requires…and with that help

she is capable of making reasonable decisions…’24 It has been noted that the reasonably accessible nature of guardianship in Australia has made guardianship proceedings a relatively popular option for persons whose decisional capacity is being questioned.25 While this is concerning given the guardianship regime's premise in substituted decisionmaking, it is also evident from recent research that a substantial amount of ‘unofficial guardianship’ occurs, where the tribunal is satisfied that the person brought before the tribunal is being satisfactorily supported by family and friends. Demonstration of a lack of decisional capacity is therefore not in itself the trigger for the issuing of a guardianship order – it is whether there is a ‘need’ for a guardian, a question which is able to accommodate consideration of the support networks available to the person without decisional capacity. The persisting problem, however, is that there remains no way of knowing whether in the provision of this support the person’s rights, will and preferences are the centre of the decision- making process. In this respect, ‘informal guardianship’ facilitates substituted decision- making on an ongoing basis, absent the oversight of the Tribunal. In several cases, Tribunals have made guardianship orders in circumstances where informal care arrangements cease to work because of the increasing burden on carers, or conflict between family members.26 In Victoria, the 2018 guardianship legislation specifically includes the ability of the Tribunal to make a formal ‘supportive guardianship order’, taking the notion of supported decision-making to a more general level of application.27 Section 8 sets out key principles in relation to the exercise of powers and duties under the legislation, the first of which is: (1) A person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision- making capacity.

The requirements for issuing a supportive guardianship order are that the person consent to this order and have decision-making capacity ‘when

practicable and appropriate support is provided’ (s87(2)). VCAT must specify the proposed support person. This author's review of VCAT decisions to date failed to find a case in which a supportive guardianship order had been issued. While the tribunal always references the supportive guardianship provisions in a guardianship application, the cases indicate a reliance upon medical evidence to deny decisional capacity – in only a couple of instances did the tribunal ask whether the person could, if supported, demonstrate capacity.28 In other cases the tribunal seemed to dismiss the applicability of the supportive guardianship order on the basis that the person lacked capacity.29 In one case the rejection of the supportive guardianship order option seemed to lie in the deep and ongoing conflict between the person’s two parents.30 It is difficult to see from these cases how the new provision will result in a changed approach given the tribunal’s requirement that the person have decisional capacity in order to consider a supportive order. This seems a deficit interpretation of supported decision-making, one which continues to cling to the ‘bright line’ approach, rather than focusing on the decision- making process.

In many respects supported decisionmaking reflects how people routinely make decisions, whether living with a disability or not. Individuals often rely upon family, friends and colleagues in making decisions, particularly those which they regard as significant. As such there is a pragmatic appeal to implementing supported decisionmaking in a specific and more formal way to facilitate the expression of a disabled person’s wills and preferences in achieving equality before the law.

However, as this article has noted, Australia has yet to make definitive progress in making meaningful changes and relies upon a model of decisionmaking which is not aligned with our international obligations towards a cohort of the Australian population who are at great risk of both paternalistic and abusive practices.

While legislative change around supported decision-making awaits, there has been development in connection

with guardianship legislation which promises increased autonomous choice of older persons around health care decision-making. Recent amendments to the provisions on advance health directives (AHDs) seeks to make the process of making these more comprehensible and accessible. In August 2022 the Guardianship and Administration Act Regulations changed the AHD form to facilitate the capturing of a person’s values and preferences, extending it beyond ‘treatment decisions’. The AHD form also provides guidance, examples and combines tick box and free text questions. Older people were a focus of these changes,31 there being awareness amongst the drafters that the pre-existing documentation was difficult to understand and confusing.

The changes have also included educational materials for consumers and health professionals as well as a nonbinding Values and Preferences Form.32 Conclusion Decision-making which prioritises the rights, will and preferences of older persons is associated with improved wellbeing and quality of life.33 It is particularly important when considering persons living with dementia to consider that capacity is decision-specific and not aligned with status. As such those with early or even middle stage dementia may well be capable of independent decision-making, at which point execution of advance care planning measures should be encouraged, given these prioritise autonomous choices in health care. Supported decision-making can minimise the ‘capacity bright line’ to enable more older people to exercise their right to realise their will and preferences in accordance with global human rights, once cognitive decline prevents independent decision-making. ■

End Notes 1. The Australian Institute of Health and Welfare (AIHW), Dementia in Australia (23 Feb 2023) estimates that in 2022 almost 400,000 people have dementia and this is projected to increase to almost 850,000 by 2058.

2. A IHW n 1 – in 2022 dementia accounted for 9.6% of all deaths in Australia 3. AIHW, n 1 4. R Watson et al, ‘Dementia is the second most feared condition among Australian health service consumers: results of a cross-sectional survey’, BMC Public Health 23 (12 Mar 2023) 5. Brightwater Care Group v Rossiter [2009] WASC 229 6. F or example, the Guardianship and Administration Act 1990 (WA) s4(3), Guardianship and Administration Act

2019 Vic s592) 7.

e C (Adult: Refusal of medical treatment) [1994] 1 WLR R 290, Re MB [1997] 2 FLR 426

8. T he guardianship legislation in Western Australia, New South Wales, Tasmania, and the Northern Territory prescribes this standard. The ALRC Report on Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, 2014) recommended replacing the best interests standard with one which reflects the person’s will and preferences – see National Decision-Making Principles 3 and 4.

9. T he South Australian Guardianship and Administration Act 1993 s5 requires the decision-maker to make the decision which the incapacitated person would have made had they the capacity to do this. The Victorian legislation specifically requires the substituted decision-maker to ‘give effect as afar as practicable in the circumstances to what the person believes the represented person’s will and preferences are likely to be, based on all the information available.’ – Guardianship and Administration Act 2019 (Vic) s9(1)(b).

10. Office of the Public Advocate (SA)< Annual Report 20162017 (2018) 11. K De Sabbata, ‘Dementia, Treatment Decisions, and the UN Convention on the Rights of Persons with Disabilities: A New Framework for Old Problems’ (2020) 11 Frontiers in Psychiatry 2.

12. Committee in the Rights if Persons with Disabilities, General Comment No 1, 11th sess, UN Doc CRPD/C?GC/1 (20140 (General Comment No 1) 13. Australia, Convention on the Rights of Persons with Disabilities Declaration (2007) 14. ALRC Report No. 124 (2014).

15. https://nationalseniors.com.au/uploads/140122NationalSeniors-ALRCDisablity-Submission.pdf 16. T Carney et al, ‘Realising ‘Will, Preferences and Rights’: Reconciling Differences on Best Practice Support for Decision-Making?’, (2019) 28(4) Griffith Law Review 357.

17. SN Then, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-Making’ (2013) 35 Sydney Law Review 133.

18. De Sabbata, n8 19. Guardianship and Administration Act 2019 (Vic) s87 20. M Blake, C Stewart, P Castelli-Arnold and C Sinclair, ‘Supported Decision-Making for People Living with Dementia: An Examination of Four Australian Guardianship Laws’, (2021) 28 JLM 389 21. N Munro, ‘Taking Wishes and Feelings Seriously: The Views of People Lacking Capacity in Court of Protection Decision-Making’, (2014) 36(1) Journal of Social Welfare and Family Law 59 22. M Blake, C Stewart, P Castelli-Arnold and C Sinclair, ‘Supported Decision-Making for People Living with Dementia: An Examination of Four Australian Guardianship Laws’, (2021) 28 JLM 389 23. Re ES [2020] WASAT 98 at [40], referred to in M Blake et al, n18.

24. Re LP (2020) 99 SR (WA) 123 [187]; [2020] WASAT 25 25. D Tait and T Carney, ‘Too Much Access: The Case for Intermediate Options for Guardianship’, (1995) 30(4) Australian Journal of Social Issues 445 26. See, eg., Re JH [2016] WASAT 20 27. The Medical Treatment Planning and Decisions Act 2016 (Vic) s31 already provided for the possibility of an appointment of a support person to represent another person’s interests in connection with their medical treatment, including where the person lacks decisional capacity 28. WMO (Guardianship) [2023] VCAT 53; ALG (Guardianship) [2023] VCAT 344 29. BEZ (Guardianship) [2021] VCAT 314; RYZ (Guardianship) [2023] VCAT 295; BXE (Guardianship) [2023] VCAT 87.

30. MBG (Guardianship) [2021] VCAT 206.

31. The author was a member of the Health Department’s Advance Care Planning Education Reference Group 32. Values and Preferences Form: Planning for my future care - https://www.healthywa.wa.gov.au/~/media// HWA/Documents/Healthy-living/End-of-life/Values-andPreferences-Form.pdf 33. L Pritchard-Jones, ‘Ageism and Autonomy in Health Care: Exploration Through A Relational Lens’, (2017) Health care analysis 25 (1); 72-89

47

Elder Law – A Precautionary Tale

By Sue Field, Adjunct Associate Professor, School of Law, University of New England

The term Elder Law refers to the many legal issues which impact upon older people. As such it also involves the family and all those professionals associated with the older person.

This article provides a brief introduction and background to Elder Law and focuses on three particular topics within the domain of Elder Law: substitute decision making, granny flats and loans and/or guarantees and how each of these can, when “mishandled”, facilitate what is known as Elder Abuse.

Elder Law per se is not a modern phenomenon. There have always been older people and they have always had legal issues; they just have not been recognised as such.

In countries such as the United States of America, attorneys (lawyers) have recognised this important speciality and practised in the area for some decades. Proof of this can be found in the National Academy of Elder Law Attorneys (NAELA) which was founded in 1987 ¹. However, recognition in Australia has been a slow process, and all too often Elder Law has been the poor relation to Succession. A glance at the jurisdictional Law Societies, including the Law Council of Australia, reveal that only two have discreet Elder Law Committees, the others appear to conflate the area with Succession2 !

Elder Law encompasses a broad range of topics – Substitute Decision Making (which includes mental capacity, cognitive impairment, supported decision making and the various jurisdictional legislation which governs this component of Elder Law); Accommodation (which includes, residential aged care, retirement villages, granny flats, reverse mortgages, lifestyle villages boarding houses and residential parks); Discrimination (with a focus on age discrimination); Centrelink benefits (this then highlights the

48 | BRIEF OCTOBER 2023

need for practitioners to work in conjunction with financial advisors and planners); Mediation (as so many issues involving the older person, also involve the family); Wills and succession and last, but certainly not least elder abuse which is the topic to be addressed in this article.

Elder Abuse has been most commonly defined as: . . . a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person3 While the above World Health Organisation definition is recognised world-wide, it is the “expectation of trust” which in some minds does limit the number of persons who could be perceived to be the perpetrators of elder abuse.

However, a more recent definition put forward by the Australian Institute of Family Studies4 expands upon this earlier definition by including the words highlighted below.

This then allows for a broader range of perpetrators to be included as “elder abusers”. . . . a single or repeated act or failure to act, including threats, that results in harm or distress to an older person. These occur where there is an expectation of trust and/or where there is a power imbalance between the party responsible and the older person The focus in this article is on how elder abuse can occur in three specific topics – substitute decision making instruments, namely powers of attorney and enduring guardianship5, granny flats and loans and/or guarantors.

While powers of attorney can be considered essential instruments for all people over the age of eighteen years, they can be used as vehicles for abuse. The powers given to an

attorney, pursuant to the instrument, are often not understood by either the attorney or the principal. It is therefore important to choose the right attorney and to take the utmost care in the preparation of these documents.

It is certainly not uncommon for principals to be asked “who” they would like to appoint as their attorney. Many older people believe that they “must” appoint their adult children.

To counter this, perhaps the question that should be asked of intending principals is, “What qualities do you want in your attorney?”

After all, how much time, when interviewing a client, is usually allocated to the topic of family dynamics. Consider, for example, if one sibling is to be appointed, then the other siblings may soon realise that the chosen one has control over their future inheritance.

Equally, if a “child” cannot look after their own money, why would any sound-thinking parent believe that the appointment as an attorney will bestow upon them immediate financial acumen or integrity?

This, of course, pre-supposes that the principal is making a voluntary decision to appoint the attorney. Perhaps the second question to be asked, is “why” the principal wishes to appoint a particular person.

Coercion does occur even with adults/parents who are not cognitively impaired. A coerced parent may well become a soon to be abused parent. In other words, powers of attorney, irrespective of whether they are General or Enduring, can in the wrong hands be the perfect vehicle to enable financial abuse.

This is particularly so when one considers that there is no automatic checking mechanism in place to ensure that the attorney is acting in the best interests of the principal. Conversely, if the appointment of an attorney is made willingly by an informed parent, and an adult child has the qualities required of an attorney,

namely, integrity, financial acumen, availability (both geographical and willingness), and an understanding of their role and responsibilities, then it would make sense to appoint them.

While elder abuse is usually associated with financial abuse of the older person, it can also be found in the health and lifestyle domain, through the appointment of an enduring guardian. Rivalry between siblings can surface particularly when a parent is placed into a residential aged care facility and the enduring guardian is of the mistaken belief that they have the power to dictate who will visit the cognitively impaired parent.

Such situations inevitably end up before the relevant Guardianship Tribunal and very rarely to the satisfaction of any of the parties. Once again, the questions that should be asked are, “What qualities do you want in your enduring guardian?”

At first instance a granny flat sounds like the perfect solution to all the relevant parties. The conversation usually starts with, “Mum, ever since dad died you have been rattling around here on your own. The house is too big, the garden is too big, and we worry about you in case you have a fall. Why not sell up, give us the money, and we will build a granny flat for you to come and live with us. You will have support nearby, be close to the grandkids, you will have your privacy and not have to worry about managing the big family home and garden.”

What could possibly go wrong with that scenario? How often do we discuss with the client the “what ifs”? “What if you go away each year on your annual overseas holiday, will I go with you?” “What if I become unable to look after myself, will you look after me?”

“What if I get a boyfriend and we decide we want to live together in my granny flat?”

What if I get a boyfriend and we want to live

together somewhere else, will I get all my money back?” “What if I live longer than you think I might live?” The answers to these questions can be addressed by the use of a Family Agreement, in other words, Assets for Care6. And perhaps most importantly of all, what are the Centrelink implications of such an arrangement7. The old adage “Hope for the best but plan for the worst” is an excellent starting point when discussing granny flats with an older client.

In respect of loans, it is estimated that $35 billion is on loan, by parents, to their children to assist in purchasing their first home.

Euphemistically referred to as “The Bank of Mum and Dad”, it appears to be the ninth largest mortgage lender in the country8 .

Loans such as this can often take the form of a deposit for the home, or the parents acting as guarantor. It is not uncommon for such loans, between the parent and their children, to be a verbal arrangement with the parent of the belief that “ . . . if you can’t trust your family, who can you trust?” However, these loans run the risk of the children, over a period of time, believing that the money was a gift.

This situation is compounded if the parent develops a cognitive impairment and cannot accurately recall the original agreement. If not resolved during the lifetime of the parent it remains, like a sword of Damocles, hanging over the head of an unsuspecting executor who may well be an unwitting party to years of litigation as beneficiaries fight over their inheritance “entitlements”.

Interspersed with the family dynamics is an oft ignored “third party”: The Government.

Services Australia9 takes an active interest in parents who loan money to their children, either in the form of cash or going guarantor.

The Government website “Moneysmart”10 explains the pitfalls associated with

guarantees and should be compulsory reading for any individual, or professional, involved in these family transactions. This is particularly so when parents feel that they have no option but to help their children out by guaranteeing their loans without a full understanding of their responsibilities if their child defaults on repayments.

Along with the guarantees of death and taxes, we can perhaps add elder abuse. If 14.8% of persons over 65 years of age may be the victims of elder abuse, all the elements of loans and guarantees should be taken into consideration to enable making an informed decision to commit to a financial transaction within families. After all, if we make a foolish financial decision when we are 20, we have another 47 years of working life to correct and make good that decision. Making a foolish financial decision at 67 inevitably means we end our lives in penury. ■

End Notes 1. National Academy of Elder Law Attorneys (naela.org) 2. Queensland Law Society and the Law Institute of Victoria 3. https://www.who.int 4. National Elder Abuse Prevalence Study: Final Report, July 2021 p17 @ National Elder Abuse Prevalence Study: Final Report (aifs.gov.au). This study (p2) also estimated that of those persons 65 years of age and older 14.8% had experienced some form of abuse.

5. It is important to note here that substitute decision making instruments are governed by state/territory legislation so the nomenclature often varies between jurisdictions as does the powers that can be given to the attorney.

6. An example of a Family Agreement can be found @ Sample-Family-Agreement1.pdf (seniorsrights.org.au) 7. Granny flat interest - Age Pension - Services Australia 8. Financial Review ‘Bank of Mum and Dad a rich source for first-home deposit’, March 2, 2022 @ Bank of mum and dad a rich source for first-home deposit (afr.com) 9. Gifting - Age Pension - Services Australia 10. https://moneysmart.gov.au/loans/going-guarantor-ona-loan

49

New Guidance on a Common Retail Shop Lease Issue in the State Administrative Tribunal

By Peter Lochore Barrister, Francis Burt Chambers The largest volume of applications in the Commercial and Civil stream in 2022 (61%) were from landlords seeking to be able to determine retail leases earlier.1 While landlords and their professional advisors knew these applications were common, few others did. That is because the Tribunal rarely published reasons for these decisions.2 The Royal Commission into the Robodebt Scheme drew attention to the damage that can be done to public administration where administrative decision making 3 (in that case social security meritreviews by the Administrative Appeals Tribunal) were routinely unpublished. The Commission said that publishing reasons, at least where significant points of law or policy arise, would promote uniformity in decision-making, allow public scrutiny and wider community understanding of how the Administrative Appeals Tribunal was applying law and policy. 4 President Pritchard’s decision in Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 published on 26 June 2023 included this remarkable paragraph at [58]: "In my respectful view, the failure by the Tribunal to give any reasons for its decisions (other than when written reasons have been expressly requested by a party) is not consistent with the requirements of s 77 of the State Administrative Tribunal Act 2004 (WA) and may constitute an error of law by the Tribunal. Equally importantly, that approach is not conducive to ensuring that landlords and tenants, their legal advisers, members of the public, and the executive government, are able to be informed about the approach taken by the Tribunal to the exercise of its jurisdiction. In that respect, the approach by the Tribunal has not been consistent with sound tribunal practice. In my respectful view, this approach should not continue."

A new era has now dawned. In the 10 weeks since Synicast the Tribunal has published reasons in 12 decisions citing those reasons.

Most were applications dealing with similar issues.5 What are these applications anyway?

The Commercial Tenancy (Retail Shops) Agreements Act 1985 (Retail Shops Act) aims to give retail shop tenants security of tenure, typically for at least a 5 year lease term.6 Section 13(7) of the Retail Shops Act

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empowers the Tribunal to approve, in special circumstances, a lease that does not provide that security of tenure.

Synicast – Fresh clarity arrives In Synicast Archer J upheld an appeal and remitted it back to the Tribunal for reconsideration and “hearing of further evidence in relation to whether special circumstances exist”. 7 President Pritchard assigned herself the case (which was heard on the papers). Her Honour’s reasons for decision provide detailed guidance for Tribunal members deciding cases, legal practitioners advising clients, commercial landlords and tenants. 8 The statutory framework Practitioners should read s 13 of the Retail Shops Act in full. However, they can now also get a precis of its key features from President Pritchard. 9 One might expect that any early termination clause included in a lease covered by the Retail Shops Act will be void since (as noted earlier) the Retail Shops Act aims to give retail shop tenants at least a 5 year lease term and s 15(2) of the Act provides that a lease term that is contrary to, or inconsistent with, anything that the Act is taken to provide. But that is not the case. President Pritchard explains that as relevant definitions encompass proposed leases and an application by a prospective tenant or landlord and a lack of policy reason to preclude an application under s 13(7) being made after the lease has been entered into, the Supreme Court has held that an application for approval of an early termination clause can be made either before, or after, the lease is entered into.10 Supreme Court cases provided some insight Some more proactive litigants began appealing some decisions in the past few years. 11 In 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd Curthoys J found that s 13(7) has 4 jurisdictional facts which are a necessary condition precedent to the Tribunal’s exercise of power. 1 2 They are: (a) The application to the Tribunal is made by the landlord; (b) Notice of the application is given to the tenant; (c) The retail shop lease contains a provision empowering the landlord to determine

the Lease before the date set out in subsection (6)(aa) or (ab); and (d) The Tribunal is satisfied that special circumstances exist by reason of which such approval ought to be given.

Justice Curthoys construed “special circumstances” in s 13(7) to mean “circumstances that are out of the ordinary, but without having to be extraordinary or exceptional”.13 Similarly, in WASCF, Allanson J held “special circumstances” to mean “out of the ordinary” and “unusual”. 14 The proper construction of s 13(7) of the Retail Shops Act The High Court has repeatedly stated that every statutory power, however widely expressed, is confined by the subject matter, scope and purpose of the statute. 15 In Synicast President Pritchard construes s 13(7) of the Retail Shops Act by reference to its subject matter, scope and statutory context. 16 The balance of s 13(7) reveals a requirement that by the time of the application to the Tribunal under s 13(7) of the Retail Shops Act either: (a) the special circumstances must already have come into existence; or (b) there must be an objective intention that the special circumstances will arise during the term of the lease. 17 Whether that intention exists will require the existence of objective and provable facts. 18 While the consent of the tenant is not itself a condition precedent and consent does not of itself constitute a ‘special circumstance’,19 President Pritchard observes that if the circumstances indicate the tenant has reached a free and informed decision to consent, that will be relevant to whether the circumstances are sufficient to warrant approval being given to the clause. 20 The broader statutory context within which s 13(7) of the Retail Shops Act appears shows that approval to terminate early under this clause is one of only a limited set of circumstances where the Act permits early termination. 21 Another part of the Retail Shops Act that bears upon the construction of s 13(7) is s 14A. This provision relates to relocation clauses in leases. It has been a key consideration in several recent Supreme Court appeal decisions. 22

President Pritchard explains that the answer to how the approach in these decisions can be reconciled with her construction of ss 13(7) and 14A is that in none of those cases did the subject clause contemplate the possibility that the landlord might relocate the tenant’s business as an alternative to merely terminating the lease and payment of compensation to the tenant. In other words, the cases may be understood as supporting the proposition that a lease term which deals with: (a) A redevelopment of a retail shop, retail shopping centre or other complex; and (b) The lease is to be subject to early termination to enable the redevelopment to proceed, may be approved under s 13(7) of the Retail Shops Act if the Tribunal is satisfied that ‘special circumstances’ exist to warrant approval being given.

What circumstances have been regarded as “special circumstances”?

The cases appealed to the Supreme Court all featured planned redevelopment of the retail shop or complex along with provision for compensation to be paid to the tenant, the agreement or support of the tenant, the requirement for the landlord to give notice of the proposed termination, the landlord or tenant were each entitled to terminate the lease in the circumstances, the departure of other tenants in the retail shopping centre in light of the proposed redevelopment and the practical context.

In each case the assessment of special circumstances considered the totality of the circumstances.23 The limited jurisprudence as to what constitutes “special circumstances” under s 13(7) of the Retail Shops Act cannot be regarded as exhaustive. Each application must be considered on its own facts.24 The way that President Pritchard determined the point in Synicast offers a further example.

Her Honour found special circumstances did exist, taking account of the following: 25 (a) Special Condition 5 permits early termination – and it is a redevelopment clause; (b) The evidence shows the redevelopment plans are being pursued; (c) The right to terminate is given to the tenant as well as the landlord; (d) There is provision for the tenant to benefit financially; (e) The 18-month minimum period before termination was negotiated by the tenant, supporting a conclusion that the tenant was satisfied with the lease overall; and (f) Aside from this lease, the other last remaining tenancy will expire in March 2024.

The Tribunal does not have the power to approve early termination where the provision is already a prescribed basis for termination: see s 13(6)(da). 26 Conclusion President Pritchard’s reasons for decision in Synicast shed considerable light on the Tribunal’s power to approve early termination clauses in retail shop leases. The flurry of decisions delivered in subsequent weeks applying Synicast show that it has had an immediate impact.

End Notes 1.

The Tribunal’s 2022 Annual Report records (p12) that these applications comprised 61% of all applications in the Commercial and Civil Stream. For more detail on the applications themselves, see the Tribunal’s Register of Proceedings dated 14 March 2023. The Annual Report and the Register of Proceedings are both available online at sat.justice.wa.gov.au under “Resources”.

2. A few decisions were published in response to a request under s 78(1) of the State Administrative Tribunal Act 2004 (WA): Coffey and Australia the Gift Pty Ltd [2020] WASAT 67; 100 SR (WA) 204; Sentinel Countrywide Retail Pty Ltd and He [2020] WASAT 110; WDS Property Investments (WA) Pty Ltd and Kitto Corporation Pty Ltd [2023] WASAT 14; Hyde Park Management Limited and Teresina Ann Pearson [2023] WASAT 12; Hyde Park Management Limited and Amanda Bryce & Gusty Pharmacy Pty Ltd ATF the Amanda Bryce Family Trust [2023] WASAT 24; 108 SR (WA) 338.

3. As to the status of these Tribunal decisions as administrative not judicial, see the decision of Deputy President (Judge) Glancy in Perth Airport and Smarte Carte Australia [2023] WASAT 72 at [28]-[35].

4. Royal Commission into the Robodebt Scheme (Final Report, July 2023), vol 1, [2.1], p554. The Royal Commission recommended (#20.4) that first instance social security decisions that involve significance conclusions of law or have implications for social security policy be published on a platform that is readily accessible.

5. Bieson Pty Ltd and Fix N Shop Pty Ltd [2023] WASAT 50; Far East Harbour Town Pty Ltd and Phone Xperts Pty Ltd [2023] WASAT 51; GPT Re Limited and LAM [2023] WASAT 52; Pinzone and Portcare Incorporated [2023] WASAT 53; Vicinity Manager Pty Ltd and OM JI OM Pty Ltd [2023] WASAT 54; Broadway Fair Limited and AHMADI Investments Pty Ltd (ACN 156 518 188) ATF A & F Family Trust No 2 [2023] WASAT 56; Le and AMN Charcoal Group Pty Ltd [2023] WASAT 57; Arunamari Pty Ltd and Berrigan Vet Pty Ltd as Trustee for the Panwar Setia Family Trust [2023] WASAT 58; Ninofam Pty Ltd and Cavania Australia Pty Ltd [2023] WASAT 59; Scentre Custodian Pty Limited and the Book Centre Group Pty Ltd [2023] WASAT 60; Grant Trading Pty Ltd and Hansen [2023] WASAT 61; Perth Airport and Smarte Carte Australia [2023] WASAT 72.

6. Note though, that the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) is currently under review by the State Government.

7. Synicast Pty Ltd as trustee for the Quentin Avenue Unit Trust v Showroom X Pty Ltd [2021] WASC 449.

8. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47.

9. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [21]-[22], pp. 12-15.

10. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [24], citing Re Commercial Registrar of the Commercial Tribunal of Western Australia; ex parte Commissioner of Main Roads and Scarff and Hough (unreported, Sup Ct of WA, Lib No. 970522).

11. 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd [2020] WASC 59 and WASCF Alliances Pty Ltd v Bowling Centres Australia Pty Ltd [2020] WASC 41. The decisions of Synicast Pty Ltd as trustee for the Quentin Avenue Unit Trust v Showroom X Pty Ltd [2021] WASC 449 and Hay & Colin Pty Ltd v West End Hospitality Pty Ltd [2021] WASC 458 should also be noted.

12. 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd [2020] WASC 59 at [41].

13. 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd [2020] WASC 59 at [42].

14. WASCF Alliances Pty Ltd v Bowling Centres Australia Pty Ltd [2020] WASC 41 at [23], applying Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 at [20], a security for costs authority.

15. Northern Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [34], citing 6 prior High Court decisions at footnote 48 going back to 1947.

16. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [28]-[32].

17. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [30], citing 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd [2020] WASC 59 at [31]. The failure to demonstrate that the special circumstances already exist was a fatal flaw in each of the subsequent decisions cited above at endnote v.

18. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [30], citing 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd [2020] WASC 59 at [31].

19. WASCF Alliances Pty Ltd v Bowling Centres Australia Pty Ltd [2020] WASC 41 at [24].

20. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [31], citing WASCF Alliances Pty Ltd v Bowling Centres Australia Pty Ltd [2020] WASC 41 at [24].

21. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [32].

22. WASCF Alliances Pty Ltd v Bowling Centres Australia Pty Ltd [2020] WASC 41; 480 Hay Street Pty Ltd v Irwin St Lower Pty Ltd [2020] WASC 59; Hay & Colin Pty Ltd v West End Hospitality Pty Ltd [2021] WASC 458; Synicast Pty Ltd as trustee for the Quentin Avenue Unit Trust v Showroom X Pty Ltd [2021] WASC 449.

23. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [54].

24. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [55].

25. Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47 at [69]-[79].

26. Retail Shops Act, s 13(6)(da) read with Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA), sch 1. See examples in Vicinity Manager Pty Ltd and OM JI OM Pty Ltd [2023] WASAT 54 at [6], Broadway Fair Limited and AHMADI Investments Pty Ltd (ACN 156 518 188) ATF A & F Family Trust No 2 [2023] WASAT 56 at [7], Le and AMN Charcoal Group Pty Ltd [2023] WASAT 57 at [7], Arunamari Pty Ltd and Berrigan Vet Pty Ltd as Trustee for the Panwar Setia Family Trust [2023] WASAT 58 at [7], Ninofam Pty Ltd and Cavania Australia Pty Ltd [2023] WASAT 59 at [7], Scentre Custodian Pty Limited and the Book Centre Group Pty Ltd [2023] WASAT 60 at [7] and Grant Trading Pty Ltd and Hansen [2023] WASAT 61 at [8].

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WA’s New Security of Payment Laws Give New Hope of Payment Protection Part 2: The “right to be wrong” wins again in Goodwin Street Developments

By Dan Morris Principal, Dan Morris Legal Another somewhat creative attempt to sidestep the bar on relying on legal error to overturn an adjudicator’s determination may be seen in the NSW Court of Appeal’s decision in Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276.

That attempt also failed.

In that case, reliance had been placed on the NSW Security of Payment legislation’s requiring adjudicators to approach their task in “good faith”. Somewhat oversimplifying, the argument was that by apparently failing to apply a particular provision of that legislation in what was said to be the correct way, the adjudicator must not have approached the task of considering and applying that provision, in good faith. A lack of good faith in this context does not imply dishonestly or impropriety, but rather, simply, a failure to give due attention to a relevant matter or consideration, in performing an administrative or judicial function.

This argument was based on a fatal assumption. That assumption was that because the adjudicator had not expressly articulated her interpretation of the relevant provision and how, in her view, it applied to the particular circumstances of the case, this must have meant she did not turn her mind to that question at all. In its reasons, the Court referred to a narrower approach taken by Vickery J. in the Victorian case SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631 at [101]. There, his Honour referred to what he termed the eleven principles to be followed by adjudicators in order to ensure that their reasoning process would not overturned for lack of good faith.

The New South Wales Court of Appeal rejected this approach and said that just because the adjudicator did not expressly articulate in her reasons for decision, a particular interpretation of the relevant provision and how she thought it applied to the particular circumstances of the application before her, that did not mean that she ignored that provision, in bad faith. One does not follow the other.

To the extent that this reasoning is inconsistent with the earlier approach of Vickery J, it is my expectation that the Courts in Western Australia will follow the New South Wales approach,

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because, being a decision of a full bench (three Judges) of the Court of Appeal, it constitutes higher authority. There are other reasons, too, which go beyond the scope of this article series but which I would be pleased to discuss privately with interested readers.

The “right to be wrong” wins round three in Harlech v Beno Yet another attempt to sidestep the requirement for jurisdictional error in order to overturn an adjudicator’s determination was based on what the law calls “issue estoppel”. Issue estoppel is basically a legal restraint on arguing questions of fact or law that have already been determined.

In Australia, the law regarding issue estoppel is as stated by the High Court in Kuligowski v Metrobus [2004] HCA 34.

There, the High Court (following an earlier UK decision), pointed to three factors that create an issue estoppel preventing the re-agitation of a question of fact or law that has already been decided: (a) the fact that the same question has been decided; (b) that the decision that decided the same question was final; and (c) that the parties that were heard in relation to the question that was decided are the same as the parties to the proceedings in which the estoppel is sought to be raised.

For a while, it appeared that issue estoppel had at long last given lawyers a ground outside of jurisdictional error, to challenge an adjudicator’s determination. What suggested this was a 2009 decision of the NSW Court of Appeal in Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69. There, a construction contractor that was dissatisfied by the determination of a particular progress claim made the same claim (within applicable deadlines calculated according to reference dates – more on that later) to different adjudicators.

Its principal had had enough and decided to challenge the contractor’s right to repetitious adjudication applications.

The Court of Appeal upheld the challenge, relying on issue estoppel.

There followed a string of single-judge decisions in New South Wales, overturning

repetitious arguments in successive adjudication applications, based on this concept of “issue estoppel” in New South Wales. Examples include Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416; University of Sydney v Cadens Australia Pty Ltd [2009] NSWSC 635; Urban Traders v Paul Michael [2009] NSWSC 1072.

Then, 13 years later, in 2022, came the ACT Court of Appeal’s decision in Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42.

There, for the first time, the Court authoritatively rejected the application of issue estoppel in the context of adjudication determinations. In giving its reasons, the Court went right back to the basic principle that whilst an adjudication determination was enforceable, what was lacking in order to give rise to an issue estoppel was finality. Beyond this, the Court emphasised the rough-and-ready, pay-now-argue-later nature of security of payment and the fact that its basic objects and purposes, being to keep cash flowing quickly, freely and regularly down the construction contracting chain, would be defeated if already decided questions of fact or law could not be re-agitated in later adjudications.

Interestingly, in rejecting the application of issue estoppel, the Court did not take the further step of declaring that Dualcorp v Remo Constructions had been wrongly decided. The Court instead said that Dualcorp was different because it was based on a specific prohibition on making more than one claim in respect of the same reference date – and not on any issue estoppel.

The Court was careful to explain that this is not the same as saying that several payment claims, referable to the one reference date, could not be accumulated, and combined in the one payment claim.

All that was said was that once a payment claim had been made in reference to a particular reference date, and determined by an adjudicator, that was the one and only claim that could ever be made in reference to that reference date. To justify this, express reference was made to sections 13(5) and (6) and 22(4) of the Building and Construction Industry Security Payment Act 1999 (NSW). These have equivalent provisions in WA’s new

security of payment legislation, so I expect the same reasoning will apply in WA. This shift of focus away from concepts of “issue estoppel”, back towards the words of the legislation itself, is of more than academic interest. It is expected to have a real effect on the scope of judicial review of adjudications going forward, including in WA. This is because, as a result of this shift in reasoning, it is only a payment claim that has already been made in reference to a particular reference date that will still be reviewable by a court.

Beyond that, a decision about a matter of fact or law that arises for consideration in the course of an adjudication can still be reagitated, and even decided differently, from one adjudication to the next, without any right of review.

The decision in Harlech, then, has had the real effect of constraining the scope of judicial review of adjudications yet further.

As a result of the High Court’s recent refusal to grant special leave to Harlech to appeal the decision of the ACT Court of Appeal, its authority in Australia is now settled.

Reference dates in adjudications and the “one contract” rule Provisions limiting a contractor’s right under security of payment legislation to the making of only one payment claim with respect to each reference date, which are now substantially replicated in New South Wales, Queensland and WA, created a potential new threat to adjudications in the form of the “one contract rule”. This rule posits that if only one payment claim can be made with respect to any reference date and a construction contract, which governs when a payment claim can be made, affects that reference date, then it must follow that a payment claim capable of being adjudicated cannot be made under more than one contract.

There has never been any serious challenge to this idea but what has recently been challenged is the idea that a violation of the “one contract” rule can lead to jurisdictional error.

Remember that it is not every kind of mistake by an adjudicator, that allows an adjudication to be overturned by a court. Rather, perhaps uniquely amongst administrative decisions, adjudicators can only be overturned for what is known as

“jurisdiction error”: basically, purporting to exercise a power that an adjudicator does not have.

In New South Wales and Queensland, violation of the “one contract” rule has always been treated as a jurisdictional error. For the most part, this was the result of single-judge decisions.

That is until 2021, when the Queensland Court of Appeal had occasion to consider the “one contract” rule in Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QCA 223.

This decision appeared to have determined the issue once and for all. But a closer analysis of the reasoning again shows that no critical evaluation was undertaken as to whether a violation of the “one contract” rule amounted to a jurisdictional error. The decision was made on other grounds.

What led to the appeal being decided without any reflection on whether the “one contract” rule impacts the jurisdiction of the adjudicator was that: (a) the respondent to what would have been an adjudication had not served a payment schedule in response to the contractor’s relevant payment claim; and (b) as a result, there was no need for adjudication because the contractor had applied instead for summary judgment.

When summary judgment is sought on this basis, it does not follow any adjudication at all: it is sought directly.

That is what happened in Ausipile. It was the mere absence of a payment schedule that led to the dismissal of the appeal from the decision granting summary judgment.

That is why there was no critical analysis of the application and effect of the “one contract” rule.

The Court went no further than to say that if the “one contract” rule had been said to apply in any hypothetical adjudication, then that would have been a question for the adjudicator to decide. This may suggest that the “one contract” rule is no longer considered to be a jurisdictional matter.

In any case, there was no payment schedule; there therefore was no adjudication; there therefore was no opportunity to consider the merits of the application of the “one contract” rule. So, as a matter of principle, judicial guidance on that rule was no further advanced as a result of the decision in Ausipile.

The main takeaway for contractors and principals alike is that a principal cannot challenge a contractor’s payment dispute under what is now WA’s security of payment regime (in harmony with Queensland’s and New South Wales’) without having first served a payment schedule on the claiming contractor. ■

This is important to understand for WA-based construction contractors and principals, because it means that from now on, WA’s Act will also allow contractors who have not been served with a payment schedule in response to a payment claim, simply to apply to the Court for summary judgment, on the whole of the payment claim.

Summary judgment can be sought in New South Wales and Queensland (and now in Western Australia) on the basis that security of payment legislation does not allow the respondent to a payment claim to resist that claim on any basis that has not been set out in a payment schedule served on the claiming contractor. If no payment schedule has been served, then no grounds for resisting the payment claim can be raised and summary judgment becomes available.

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The tale of the pub with no Gents

By The Hon John McKechnie KC

Jimmy Smith may seem an unprepossessing name.

Joynton Smith sounds far grander as Mr Smith was known after he added the extra name. Born in 1858 in England, eldest of 12 children, he was shipped as a cabin boy to Australia, here to make his fortune and reputation, passing away in 1943 as Sir James Joynton Smith, a pillar of society and a force in promoting rugby.

Joynton Park bears his name.

After working at various occupations, he leased the Imperial Arcade hotel in 1896. Renamed the Arcadia hotel, it became the foundation of his second fortune (he had gambled away the first). The residential hotel became very popular. Situated by the Imperial arcade running between Pitt and Castlereagh Streets Sydney, it was also a popular bar, though Smith himself was a teetotaller.

One hot afternoon, Mr Mountnay stopped at the Arcadia hotel bar for a few drinks. After a while, nature being what it is, he asked the barmaid “Show me where the lavatory is” to which she replied, “Go through them two doors, cross the arcade and there you will find it.” It appears that the hotel did not have its own conveniences but used those in the adjacent arcade.

Mr Mountnay, no doubt hurrying a little, went through a door marked Hotel Arcadia and down an ill lit passage.

He came to a dark entrance and, thinking relief was at hand, turned in. Alas. It was not the promised urinal but an uncovered lift shaft, down which Mr Mountnay fell, severely injuring himself.

He duly sued the owner of the Arcadia hotel and recovered 300 pounds in damages.

Joynton Smith appealed to the Full Court. The 3 judges who heard the appeal must have been imbued with Victorian decency to the extent that they denied Mr Mountnay his damages.

At issue was whether the brief words spoken by the barmaid were admissible in evidence.

Justice Owen: “It seems to me that it would be a monstrous thing to suppose it was any part of the duty of a girl who was employed in the bar of a hotel to serve customers with drink to point out to those customers where the lavatory for men was.”

Justice Pring: “It is contended that the evidence is admissible on the ground of authority on the part of the barmaid to direct male customers to the places

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of convenience. I decline altogether to lay down a law which would lead to such indecency” Maybe their honours had never been caught short.

Perhaps they had never been in the front bar of a hotel.

Mr Mountnay appealed to the High Court where he had success. Sir Samuel Griffith, Chief Justice, in delivering judgment, was scornful of judicial sensitivities: “I can see nothing unseemly in asking the only person on the spot representing the proprietor where the place was that the proprietor was bound to provide for the convenience of his customers.”

The Arcadia hotel continued to provide comforts, if not conveniences.

In September 1909, Mr Henry Cox from Woy Woy and his wife were guests at the hotel. Arising early one morning Mr Cox was thirsty. A bottle of water was handy so he poured himself a glass. It was to be his last. He immediately turned pale and died. This is not good publicity for a hotel. Poisoning customers is somewhat worse than leading them to fall down a lift well. However, the hotel was not to blame. A young Polish visitor, Stanislaus Diktor had been experimenting with electroplating in his room and rather carelessly left a bottle containing cyanide of potassium in his room, assuming the maid would dispose of it.

Things moved more quickly than today and three months later, Mr Diktor stood trial for manslaughter. He was swiftly acquitted. Justice Tucker said he agreed with the verdict of the jury but warned Mr Diktor in future to be very careful in dealing with chemicals or other matters of the nature of which you know nothing.

Smith sold his interest in the Arcadia Hotel and later was a co-founder of the popular paper Smith’s Weekly.

Knighted in 1920 he had been Lord mayor of Sydney and a member of the legislative council. He died in 1943 and the fight over his estate lasted for 6 years, one of the most expensive pieces of litigation of its time.

The Arcadia hotel and the Imperial arcade were demolished in 1961.

Adapted from Mountnay v Smith (1903) 3 SR (NSW) 688; Mountnay v Smith (1904) 1 CLR 146; R v Dyktor 7 December 1909 ©John McKechnie QC

Sexual Harrassment

by Lawyers Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Ethics Column The relevant professional rules proscribe sexual harassment by lawyers in the course of practice.

The trajectory of disciplinary findings in this context is upward.

Discipline can ensue for harassment through electronic means.

R

ule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules contains an explicit proscription on a solicitor, in the course of practice, engaging in conduct that constitutes sexual harassment. The latter targets harassment that is unlawful under applicable anti-discrimination or human rights legislation. Like many of the professional rules, rule 42 reflects the general law to which solicitors are subject. Unlike the general law, though, it creates no obligation enforceable by a third party, but speaks to what is (in) appropriate conduct from a professional (and thus disciplinary) perspective.1 To this end, it puts lawyers on notice that sexual harassment can, and will, register on the disciplinary radar.

I have addressed this topic via columns in this journal in 2016 and 2021, by reference, respectively, to two then recent disciplinary determinations.2 These have proven the metaphorical tip of an iceberg, which is regrettable because it reveals that some lawyers continue to flout both their legal and professional obligation in this space. At the same time, it operates to highlight that regulatory bodies attach to the topic of sexual harassment by lawyers the seriousness it deserves.

This ensues upon a longstanding disciplinary trend in the United States, an early (1957) illustration of which is Re Gould.3 There the respondent lawyer ‘lured young women to his premises by advertisements for help wanted, sought to elicit from them answers to highly improper questions by giving assurances

that as a lawyer he would keep such answers in strict confidence, attempted to induce them to commit prostitution and other immoral acts, made indecent proposals, and attempted assault with intent to commit rape’. The respondent’s explanation that he was seeking to ascertain the womens’ temperament for positions with his firm was branded ‘patently incredible’. His ‘flagrant misconduct’ indicated ‘complete unfitness’ to remain a lawyer.

The upward trajectory of American jurisprudence in this field nonetheless awaited the 1990s,4 as a herald to professional discipline for sexual harassment now featuring in other common law jurisdictions, including England,5 Singapore6 and New Zealand.7 Unsurprisingly, Australian illustrations persist, some recently involving harassment at a distance through electronic means. In a 2023 case, a lawyer who sent unsolicited sexually explicit and demeaning emails to other lawyers was found to have committed professional misconduct, which sounded in a fine coupled with a nine month restraint on applying for a practising certificate.8 The lawyer was spared a more serious sanction in large part because the tribunal appeared willing to accept that his misconduct was a product of a psychiatric condition, coupled with his display of insight and remorse.

Only a few months later a professional misconduct finding likewise met a Victorian lawyer who sexually harassed a family law client via text messages.

The tribunal accepted the submission that ‘sexual harassment of a vulnerable client requires strong and clear condemnation’.9 The lawyer’s conduct was especially concerning because it occurred in the context of a client who was ‘navigating legal processes arising from marital discord’, bearing in mind that ‘family law disputes are often highly charged and distressing for all involved’.10 Again, though, the lawyer avoided a protective order, instead being reprimanded in the face of evidence that he was, at the time, experiencing

major depressive disorder, alcohol abuse disorder and undiagnosed ADHD, for which he was now under treatment.

Though psychological or psychiatric evidence is not infrequently adduced as an attempt to explain harassment, it should not be assumed that it will, as in the above cases, necessarily palliate the disciplinary response.

Nor, it appears, will seemingly minor instances of harassment always fly under the radar; the seriousness ofthe proven misconduct will translate to the appropriate sanction.11 The era has come, it may be said, where any tolerance for sexual harassment within the profession has well and truly waned.

End Notes

1 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 2.

2 See ‘Discipline in Sexual Harassment’ (August 2016) 43 Brief 6 (referring to PLP v McGarvie [2014] VSCA 253); ‘“Me Too” on the Character Radar’ (August 2021) 48 Brief 43 (referring to Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21; the determination was subsequently affirmed on appeal: Council of the New South Wales Bar Association v EFA (2021) 106 NSWLR 383).

3 (1957) 4 AD 2d 174 at 176.

4 See, for example, Principe v Assay Partners (1992) 154 Misc 2d 702.

5 See, for example, Farquharson v Bar Standards Board [2022] EWHC 1128 (Admin).

6 See, for example, Law Society of Singapore v Ismail bin Atan [2017] 5 SLR 746.

7 See, for example, National Standards Committee 2 v Mr Q [2023] NZLCDT 14.

8 Legal Services and Complaints Committee v Abou Haidar [2023] WASAT 23.

9 Victorian Legal Services Commissioner v VKI [2023] VCAT 504 at [27].

10 Ibid.

11 See, for example, Council of the New South Wales Bar Association v Raphael [2021] NSWCATOD 44.

55

Legal profession proactively mitigating money laundering risks A new report released today shows the Australian legal profession is proactively working to mitigate the risk of being a party to money laundering and that where vulnerabilities exist, those not already being addressed can be addressed through augmentation of existing controls to which the profession is already subject.

“The Government is currently considering how best to achieve the existing anti money laundering and terrorism financing (AML/CTF) regime objectives in relation to the legal profession,” Law Council of Australia President, Mr Luke Murphy said.

“The Law Council has always believed that due to the strict rules and regulations under which the Australian profession operates, the potential for lawyers being used to facilitate AML/CTF is small. To test the validity of that belief, we engaged Russ + Associates to undertake an independent review of the profession’s vulnerability to being an unwitting party to money laundering and terrorism financing.

“Russ + Associates is a specialist tax and AML law practice who are recognised experts in AML/CTF advice.

“To our knowledge, the examination of vulnerabilities Russ + Associates were engaged to undertake is a world first. We believe this highlights the commitment the Australian legal profession brings to understanding and minimising AML/ CTF risks and provides a strong evidence base upon which effective decisions and changes can be made.

“What the report found is that beyond the regulations and professional requirements lawyers are subject to, they have taken additional steps to reduce risks. These include limited receipt of cash, particularly when it comes to funds from overseas, not holding assets for clients, and ensuring they meet all reporting obligations.

“That is not to say that no vulnerabilities exist, and we thank the firms who participated in this study for being frank about the risks they have identified in their 56 | BRIEF OCTOBER 2023

practices.”

Vulnerabilities identified included lawyers not routinely making enquiries about a client’s source of wealth and difficulty in confirming the provenance of funds, with differences in risk between jurisdictions.

“Knowing where vulnerabilities exist, we can be even more vigilant in addressing them through training and education; working with the banking sector to improve transparency; harmonising practices, regulations and requirements; and increasing use of technology such as electronic conveyancing,” Mr Murphy said.

“The report highlights the positive attitudes and behaviours among the legal profession towards integrity, risk awareness and aversion, and to fulfilling statutory and professional obligations. It shows vulnerabilities are present, but they can be managed through augmentation of existing controls.

“There are other considerations that cannot be ignored as we consider an extension of the AML/CTF regime. The most serious issue is the financial and regulatory burden that a disproportionate and overly burdensome regime would impose on small law firms. We know from experience overseas, such as in New Zealand, that a number of legal practices chose to close their doors following the imposition of disproportionate AML/CTF reforms.

“The vast majority of the Australian legal profession, 92 per cent, operates through practices with less than four principals.

These are classic small businesses scattered across the country, in the suburbs and the regions. Compliance costs in both time and money would potentially cast doubt on the ongoing viability of these firms.

Australians, generating more demand on the underfunded legal assistance sector and potentially having a chilling effect on access to justice in this already challenging economic climate.

“Extension of the AML/CTF regime also potentially presents a threat to client legal privilege, which underpins the administration of justice in this country.

“The Law Council deplores financial criminality and recognises the importance of a regulatory regime to mitigate the risk of Australians engaging in, or being used to facilitate, money laundering and terrorism financing. The Russ + Associates report provides evidence that these risks do not require the imposition of an extreme, disproportional and potentially damaging AML/CTF regime. The report provides a clear road map for addressing our areas of vulnerability.”

You can access the full report here.

Human Rights Act must overcome inadequate patchwork of laws The Law Council of Australia has today called for Australia’s National Human Rights Framework to be re-established and introduction of a federal Human Rights Act prioritised.

“Australia currently has an incomplete patchwork of laws which provide inadequate protection for many rights,” Law Council of Australia President, Mr Luke Murphy explained.

“On a daily basis, members of our profession become aware of individuals having had their rights breached whether through discrimination, invasions of privacy, treatment in detention, and more.”

“What that may mean for our community is, when someone needs legal services, they will either not be available or will be more expensive. It is likely to hit hardest in rural and regional communities where there may already be a shortage of legal professionals.

Appearing before the Parliamentary Joint Committee on Human Rights today as part of the Committee’s Review of Australia’s Human Rights Framework, the Law Council said all Australians should have a means to seek an effective remedy for such breaches.

“Legal services would be less affordable and even more out-of-reach for

“This inquiry is vitally important and we have recommended a number of

Law Council Update

measures be implemented without delay,” Mr Murphy said. “Foremost, is a federal Human Rights Act; but we also think there is significant value in a new federal human rights education program and continuing anti-discrimination law reform.

“In addition, governments should undertake regular engagement with civil society on human rights matters; and the effectiveness of our national framework be monitored through a strengthened parliamentary scrutiny regime.

“Support for a federal Human Rights Act is not new. The extensive National Human Rights Consultation in 2009 recommended a federal Human Rights Act. Developments since the 2010 Framework, including Royal Commissions on rights-related matters and debates about the adequacy of rights protections during the pandemic, emphasise the case for a federal Human Rights Act is as strong as ever.”

Law Council representatives told Committee members that as noted in many submissions to this inquiry, the rights Australia needs to protect, and the form a federal Act should take, are largely agreed.

A Human Rights Act would benefit vulnerable Australians who might experience unfair administrative practices, including those in care and others at heightened risk of abuse. It would do this by providing an independent cause of action and effective remedies for breaches of rights. It should impose duties

on public authorities, providing a muchneeded framework for public service decision making – especially in challenging circumstances where rights impacts need to be carefully considered. The experience of the states and territory which already have human rights legislation is that it strengthens democracy by facilitating better decisions and ensuring peoples’ rights are not overlooked.

Judicial immunity All comments to be attributed to Law Council of Australia President, Mr Luke Murphy The Law Council is aware of the judgment in the matter of Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020. We do not comment specifically on this decision. However, we make the following observations with respect to the personal liability of judicial officers exercising their judicial function.

An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, strengthening public confidence and dispensing justice.

The common law and statutory rules of judicial immunity in Australia are intrinsically related to the principle of judicial independence, and critically important features of our legal system.

Judicial immunity serves an important role in ensuring a judge can exercise his or her

functions based on an application of the law, without external influences such as a fear of personal liability after the fact.

There are well-established limits to this immunity, most importantly where a judicial officer knowingly acts beyond their powers.

There is a need for certainty and consistency in the approach to immunity and accountability of judicial officers across federal Australian courts and tribunals, noting that legislation in multiple jurisdictions addresses these issues. This recent decision highlights the particular need for further consideration to be given to legislative certainty with respect to the Federal Circuit and Family Court.

Importantly, judicial immunity does not mean a lack of accountability for the exercise of judicial functions. The exercise of judicial power carries enormous responsibility and the effects of judicial decisions on parties can be profound.

The majority of Australia’s states and territories have an independent statutory mechanism to receive, manage and investigate complaints about judicial officers, and at the federal level the Australian Government is in the process of establishing of a Federal Judicial Commission. The Law Council has long supported this initiative as one that can fairly and punctually address complaints directed to the federal judiciary in an independent and structured manner.

Did you know? – You could get published in Brief The Brief Editorial Committee invites article submissions from members and non-members for consideration. For example, case notes, legal articles or items of interest to the profession are all welcome submissions.

published in Brief. The amount of CPD points practitioners can earn as a Brief author can be found on the Legal Practice Board of Western Australia’s website here: https://www.lpbwa. org.au/Legal-Profession/Continuing-Professional-Development

Practitioners in Western Australia can earn up to five CPD points per CPD year by writing a legal article and having it

To submit material for Brief, please send it via email to brief@lawsocietywa.asn.au

57

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Negligence Vicarious liability In CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (2 August 2023) the High Court was required to determine whether an employer was liable for a tortious act committed by their employee, on another employee, in shared staff accommodation.

Mr Schokman (the respondent) was employed by CCIG (the appellant) to work at a resort in the Whitsunday Islands off the coast of Queensland.

It was a requirement of Mr Schokman’s employment that he live on the island in shared accommodation. Mr Schokman shared his room with another CCIG employee, Mr Hewett. At about 3:30am one morning, Mr Hewett returned to the shared accommodation heavily intoxicated after spending some time at the staff bar. Mr Hewett unintentionally urinated on Mr Schokman causing the latter to suffer a cataplectic attack.

A cataplectic attack being a sudden and brief loss of voluntary muscle tone triggered by emotional distress.

Mr Schokman brought proceedings against CCIG claiming that CCIG was vicariously liable as an employer for Mr Hewett’s negligence because it occurred within the scope of his employment.

At first instance, the trial judge did not accept that Mr Hewett’s act was committed in the course of his employment by CCIG. The trial judge accepted that the tort was committed in shared accommodation provided

by CCIG but did not consider that it was fair to impose vicarious liability, for Mr Hewett’s drunken misadventure, on CCIG. Mr Schokman successfully appealed to the Court of Appeal.

McMurdo JA (Fraser and Mullins JJA agreeing) considered that this case was analogous to Bugge v Brown (1919) 26 CLR 110. The Court of Appeal held that there was a requisite connection between the employment and Mr Hewett’s actions because Mr Hewett was obliged to occupy the shared accommodation not as a stranger but as an employee under the terms of his employment contract.

58 | BRIEF OCTOBER 2023

CCIG obtained special leave and appealed to the High Court. The High Court unanimously allowed the appeal. The leading judgment was written by Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ. Their Honours noted, at [15], that whether a tort was committed in the scope of employment depends on the circumstances of the particular case.

Keifel CJ et al go on to note, at [16] citing Bugge v Brown, that an employer should not be held liable for acts totally unconnected with the employment.

Their Honours observed the fact that the shared accommodation, required by their employer, created a “physical proximity” between the two men, was not enough: “mere opportunity provides an insufficiently strong connection with the employment to establish vicarious liability”. Their Honours here drew a distinction between this appeal and Prince Alfred College Inc v ADC (2016) 258 CLR 132 in which a housemaster sexually abused students in shared accommodation. Their Honours noted that in that case it was the housemaster’s role that placed him in a position of power and intimacy that the performance of his role could be said to give occasion for his wrongful acts. Conversely, their Honours observed, at [40], that Mr Hewett was at leisure when he committed the tort and that the “functional, geographical and temporal aspects of Mr Hewtt’s course or scope of employment were absent”. Their Honours concluded, at [46], that “Nothing in the present case points to the drunken act in question being authorised, being in any way required by, or being incidental to, the employment. In truth, it had no real connection to it”. Edelman and Steward JJ lamented the state of the law on vicarious liability over the past 60 years.

Their Honours declared, at [48], that the problem was that lawyers tended to think of vicarious liability in a “stovepipe manner” conflating areas of law in which a defendant is liable in the absence of fault. Their Honours spent the bulk of their judgment mapping out, for stovepipe lawyers, different areas of law described as “vicarious liability”. Their Honours, at [84], identified the appeal as being concerned with “(true) vicarious liability”. Their Honours, after describing

the task of characterisation to be undertaken, at [85], concluded, at [86][87], that Mr Hewett’s act of urination was not closely connected with any of his duties or powers of employment.

Gleeson J agreed with Keifel et al, stating at [93] “The limits of the course of employment can be difficult to discern but the employee’s tort in this case falls comfortably outside those limits”.

Statutes Interpretation and presumption of duty to afford procedural fairness In Disorganised Developments Pty Ltd v South Australia [2023] HCA 22 (2 August 2023) the High Court was required to consider the validity of two regulations (Cowirra Regulations) which purported to declare land in Cowirra, South Australia (Cowirra Land), a “prescribed place” for the purposes of s83GD(1) of the Criminal Law Consolidation Act 1935 (SA) (1935 Act).

Section 83GD is located in Division 2 of Part 3B of the 1935 Act. Part 3B is headed “Offences relating to criminal organisations”. Section 83GD(1) simply provides that “Any person who is a participant in a criminal organisation and enters, or attempts to enter, a prescribed place commits an offence”.

A prescribed place is defined, in s83GA(1) of the 1935 Act, to mean a place declared by regulation. It was not contested that the manifest purpose of s83GD is to disrupt the activities of criminal organisations. It was also not contested that the Hells Angels Motorcycle Club is a criminal organisation for the purposes of s83GD(1). The first appellant (Disorganised Developments) is the registered proprietor of the Cowirra Land. The directors of Disorganised Developments, Mr Stacy and Mr Taylor, are members of the Hells Angels. The Cowirra Land consisted of two blocks, with a cabin located on each block.

Mr Stacy occupied one cabin, Mr Taylor occupied the other.

The Cowirra Regulations were drafted as a variation to earlier regulations, adding the Cowirra Land to a list of places declared to be prescribed places.

But the Cowirra Regulations did not, in their terms, declare the Cowirra Land to be a prescribed place. On a case stated by a single judge of the Supreme Court of South Australia, the Court of Appeal found that the Cowirra Regulations impliedly declared the Cowirra Land to be a prescribed place and, accordingly, valid.

Following a grant of special leave, the appellants argued before the High Court that the Court of Appeal was in error in failing to find that the Cowirra Regulations were invalid on two grounds: (1) the Cowirra Regulations do not declare the Cowirra Land to be a prescribed place within the meaning of ss83GA(1) and 83GD(1) of the 1935 Act; and (2) the Cowirra Regulations were made in breach of a duty to afford procedural fairness to the appellants as owners or occupiers of the Cowirra Land.

The High Court decided, unanimously, to allow the appeal. As to the first ground of the appeal, the High Court unanimously held that the Cowirra Regulations were ineffective to declare the Cowirra Land to be a prescribed place and, as such, invalid. The majority (Kiefel CJ and Gageler, Gleeson and Jagot JJ) observed, at [23], “As a matter of ordinary English, a ‘declaration’ is a positive statement or proclamation.

To declare a place to be a prescribed place by regulation requires a positive statement that the relevant place is a

prescribed place”. Steward J, at [47], agreed with the majority. As to the second ground of appeal, the majority held (Steward J dissenting) that the Cowirra Regulations were invalid on the basis that the Governor failed to afford the appellant, as owners and occupiers of the Cowirra Land, procedural fairness before making the Cowirra Regulations. The majority observed, at [32], that “The existence of a duty to afford procedural fairness is a question of statutory interpretation”.

The majority, citing Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 110, noted that the duty is “both fundamental and universal” such that, if the legislature has not addressed the question of procedural fairness, the Court may presume that the legislature intended to leave it to the courts to prescribe and enforce an appropriate procedure. The majority, at [37], considered that the features of the 1935 Act, identified by counsel for South Australia, were insufficient to displace this common law presumption. But Steward J, in dissent, seized on these features, among other things, to conclude that the Governor of South Australia did not owe the appellants a duty of procedural fairness. Indeed, Steward J remarked, at [59], that “It is, with great respect, a remarkable proposition to require the South Australian Government to consult with a criminal organisation before declaring one of that organisation’s

properties to be a prescribed place”.

Steward J picks out four matters which, he says, demonstrate Parliament’s intention to exclude any obligation of procedural fairness. First, the subject matter. Steward J observed, at [77], that the legislative object is the “injury and disruption of criminal activties carried out by offensive and dangerous organisations”. In these circumstances, Steward J said, at [78], it is “simply incongruous”, to conclude that Parliament did not intend to eliminate the presumption in favour of procedural fairness. Second, Steward J at [80], noted the absence of any conditions or requirements for the making of a regulation to declare a prescribed place.

Third, Steward J at [81], pointed out that the repository of the power to make regulations is the Governor (or effectively the South Australian cabinet). Fourth, and finally, Steward J, at [82], observed that there is “effective Parliamentary supervision and oversight” in the making of the regulations because the regulations must be laid before each House of Parliament.

Dr Michelle Sharpe is a Victorian barrister practising 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.

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FEDERAL COURT JUDGMENTS

By Dan Star QC

Administrative law – migration law – practice and procedure Judicial review – appeal – application for disqualification of one of the judges sitting on an appellate bench Judicial review – appeal – application for disqualification of one of the judges sitting on an appellate bench Masi-Haini v Minister for Home Affairs [2023] FCAFC 1326 (9 August 2023) was an appeal from orders made dismissing an application for judicial review of a decision of the respondent (Minister). The appellant’s visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) by a delegate of the Minister. The Minister made a decision refusing to revoke the cancellation decision. The appellant’s judicial review challenge at first instance failed and his appeal to the Full Court was dismissed.

Of general interest is the appellant’s renewal of an application for disqualification of one of the judges sitting as part of an appellate bench following the High Court’s decision in QYFM v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (QYFM) (17 May 2023).

Shortly prior to the Federal Court’s appeal hearing, the appellant wrote to the Associate to Kennett J foreshadowing an application that his Honour recuse himself from the appeal.

The appellant then filed an application seeking an order that Kennett J recuse himself on the ground of apprehended bias. The basis of the application arose from the fact that Kennett J appeared as senior counsel for the Minister in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 (Viane). Kennett J’s junior in Viane was appearing in the appeal on which Kennett J was sitting and in Viane they advanced submissions for the Minister on a very similar issue that potentially arose in the appeal on which Kennett J was sitting.

Kennett J dismissed the recusal application: Masi-Haini v Minister for Home Affairs [2023] FCA 430 (8 May 2023). His Honour followed the usual Australian practice to determine the recusal application himself rather than by the entire Full Court. At that time, the High Court was reserved in QYFM in which one of the questions raised was the appropriateness of the then prevailing practice that, in the context of an appeal, an application for recusal be determined by the individual judge to whom the application relates. However, while the Full Federal Court was reserved on its appeal, the High Court delivered its judgment in QYFM. The Full Court invited the parties to provide submissions addressing the effect of the decision in QYFM. The appellant submitted that Kennett J’s recusal decision was contrary to the majority’s findings

60 | BRIEF OCTOBER 2023

in QYFM because Kennett J decided the recusal application alone and it should have been determined by the entire Court. The Full Court therefore considered the High Court’s decision in QYFM. While noting it did not form part of the ratio of that case, the High Court’s judgments contained “seriously considered obiter dicta” on this issue (at [94]). Markovic, Meagher and Kennett JJ analysed QYFM as follows (at [95][96]): “. . . a majority of the High Court considered that where objection is made to the jurisdiction of a multi member court on the basis of apprehended bias, the preferable course is for the judge in question first to be given the opportunity to determine for him or herself whether they will recuse themselves. Thereafter if the judge decides not to recuse themselves after having provided notice to the other judges of the material facts or circumstances and an application based on apprehended bias is maintained, or the other judges are concerned there are matters that may give rise to a potential for apprehended bias, the Full Court will need to determine the issue: see QYFM at [94][100] (Gordon J), [108], [131]-[135] (Edelman J) and [193] (Steward J).

“Chief Justice Kiefel and Gageler J (at [26]-[35]) considered that an objection to jurisdiction on the grounds of apprehended bias should be considered by all members of the court and not the judge the subject of the application alone, Gleeson J (at [271]) expressed no view on the question of procedure and Jagot J (at [316][317]) considered that the convention that an application should be determined by the judge the subject of it alone remains correct.”

The Full Court noted that at the time that Kennett J refused the recusal application, no application was made to the Full Court to consider the application. In any event, having had the opportunity to read Kennett J’s reasons and the initial submissions relied on by the parties in relation to the recusal application, Markovic and Meagher JJ agreed with Kennett J’s reasons (at [97]).

The Full Court also rejected additional submissions of the appellant’s renewed recusal application (at [98]-[106]). The application was not analogous to the circumstances in QYFM. In contrast to the position in QYFM, Kennett J was not “involved as an advocate” in the prosecution of the appellant (at [104]). The fair-minded lay observer should be taken to understand the role of counsel in a contested hearing, including that counsel need only take the view that a submission is reasonably arguable before it is put and, given his or her role as advocate, a submission says nothing about counsel’s own views (at [105]). The only known circumstance is that in Kennett J’s former role, he appeared as advocate and propounded a submission which was arguable in a case which did not concern this appellant (at [106]). Such circumstances do not satisfy the test for apprehended bias.

Corporations Law – Penalties Contraventions of civil penalty provisions – observations on agreed penalties with regulator In Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v Crown Melbourne Limited [2023] FCA 782 (11 July 2023), the respondent admitted contraventions of ss81(1) and 36(1) of the AntiMoney Laundering and Counter-Terrorism Financing Act 2006 (Cth). The parties submitted that a penalty of $450 million was appropriate in the light of the nature and seriousness of the contraventions, and to deter future contraventions of the Act. Notwithstanding some hesitation that the penalty was too light, the Court was satisfied that the proposed penalty was within a range that will achieve specific and general deterrence (at [226]-[228]; also [13]).

Of general interest are a series of preliminary comments of Lee J, which included the following (noting that the Judge expressly stated he was not criticising the lawyers in this case): • There is a real public interest in regulatory proceedings being conducted with more alacrity compared to the pace in the case before the Court (at [12]).

• If a regulatory body approaches litigation on the basis that it will not run to a contested hearing and always reaches an agreement, it risks being perceived as a soft touch (at [13]).

• It is naïve to consider that agreements as to penalty do not sometimes present real challenges at the hearing. Lee J elaborated: “The reality is that AUSTRAC had become, not unnaturally, a friend of the deal. In other types of cases where this phenomenon presents itself, for example, settlement approvals in class actions, the Court commonly appoints a contradictor which assists in avoiding the Court entering into the fray. With the benefit of hindsight, it may have been prudent to adopt this course …” at [14]; see also [237]-[239]).

• The parties’ press release did not indicate is that an agreement had been struck whereby the proposed penalty was subject to a payment plan over two years. The significance of this is that the net present value (NPV) of the proposed penalty today is not $450 million. It is common ground that at the usual and default post-judgment interest rate, assuming no discount, the NPV of the proposed penalty is approximately $405 million (at [18]; see also [229]).

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.

FAMILY LAW CASE NOTES

By Craig Nicol and Keleigh Robinson Accredited family law specialists. Editor and co-editor of The Family Law Book Property – Court failed to explain or provide procedural fairness as to two pool approach, when it divided nonsuperannuation pool 65:35 without any adjustment to super pool

Children – Father sought limited increase in time via judicial review of Senior Judicial Registrar’s order – No error in Court ordering change of primary care upon review on the papers

In Petrellis [2023] FedCFamC1A 104 (30 June 2023), McClelland DCJ allowed a wife’s appeal against a decision of Judge Jenkins in respect of an 18 year marriage that produced two children.

In Abbey & Cyris [2023] FedCFamC1A 103 (29 June 2023), Austin J dismissed a mother’s appeal from interim orders made in respect of an 8 year old child. The parties were the mother, the father, a paternal aunt and the independent children’s lawyer (“ICL”).

Judge Jenkins adopted a two pool approach. The non-superannuation pool was $14,060,433 and the superannuation pool was $1,023,785. The Court assessed contributions in respect of the nonsuperannuation pool as 57.5 per cent in favour of the wife and made a 5 per cent adjustment for s 75(2).

Superannuation was not adjusted. The husband retained $653,600 and the wife $370,185.

McClelland DCJ said (from [30]): “… [T]he … judge adopted … a ‘two pool’ approach … [and] treated the parties’ superannuation interests as separate from … non-superannuation … ( … ) [38] … The difference … between … adjusting the parties’ property on the basis of a global pool, as opposed to a two pool approach, would have been … $269,681 …

[39] … [P]rocedural fairness required the … judge to notify the parties of her intended approach … ( … ) [42] … [T]here was a deficiency in the reasoning of the … judge in concluding that it was appropriate … to adopt a two pool approach because ‘it is agreed that each party will retain their … entitlements in the … super fund’ … ( … ) [44] … [T]hat outcome could have been achieved … by adopting a one pool approach to … superannuation and nonsuperannuation assets and treating the parties’ … superannuation … entitlements as property already in their possession.”

Upon considering the wife’s contributions the Court said (from [94]): “ … I am … satisfied that the adjustment determined to be … just and equitable by the … judge, being … 7.5 percent … is appropriate. ( … ) [96] … [T]hat adjustment should … be applied to the totality of the parties’ property … ”

The father sought recovery orders when the mother unilaterally relocated from Sydney.

A Senior Judicial Registrar made interim orders that the child live with the mother and spend time with the father and paternal aunt. The father filed a review. He and the paternal aunt sought an increase of the father’s time.

The Court directed that the review occur by written submissions to be determined on the papers.

The Court ordered that the child live with the paternal aunt. The mother appealed, saying she had been denied procedural fairness, where the father and paternal aunt had only sought orders for an expansion of the father’s time via review, not orders for a change of primary care.

Austin J said (from [36]): “ … The review application … required the … judge to conduct an original hearing of the competing underlying applications determined by the registrar in the exercise of delegated power (r 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).

[37] Although the father and the paternal aunt only sought to change the registrar’s orders in a limited way, the mother and the ICL envisaged a more expansive review of the orders. The ICL was entitled to prosecute a wider case than the father chose to do so in the review hearing because it was an original hearing without regard to the decision made by the registrar. No error by the registrar had to be demonstrated as the pre-condition to interference with the registrar’s orders. ( … ) [39] … [T]he … judge heard the dispute afresh, including adjudication of the enlivened applications concerning the child’s residence … ”

Procedure – Joinder – Appeal from order joining party to proceedings prohibited by s 26 of Federal Circuit and Family Court of Australia Act 2021 (Cth) In Genesalio [2023] FedCFamC1A 109 (6 July 2023) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, dismissed an appeal from a decision of Johns J where a wife had successfully sought that her husband’s brother be joined as a party to property proceedings.

The brother filed a Notice of Appeal. The appeal registrar listed the proceedings so that the brother could be heard as to “the apparent incompetence of the proposed appeal” and why “it should not be summarily dismissed” ([8]) where appeals “from orders joining a party to proceedings are prohibited by the terms of s 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) … ” ([17]).

The appeal registrar summarily dismissed the appeal and the brother appealed that decision.

Austin J said (from [23]): “ … [W]here the [husband’s brother] … asserts his exclusive proprietary interest in assets which the wife will contend belong, either exclusively or partially, to either she or the husband, [he] … is entitled to be heard …(…)

[26] This proposed challenge has no reasonable prospects of success because … the … judge accepted the wife’s contention that the proprietary interest allegedly enjoyed by her or the husband … is a ‘triable’ issue … ( … ) [29] The corollary of the [husband’s brother’s] … submissions is … he could not be properly joined as a party to the proceedings unless and until the … judge was satisfied as to the merit of the wife’s claims … That proposition is rejected. The substantive dispute between the parties … could not be determined by the … judge at an interlocutory hearing. Her Honour was not obliged to accept the [husband’s brother’s] unilateral assurance that he alone owns the assets in question … ( … ) [34] The [husband’s brother] fails to demonstrate his proposed appeal enjoys any reasonable prospect of success and so his application for leave to appeal should be summarily dismissed …”

The Court agreed with a 5 per cent adjustment for s 75(2) factors and the overall division was 62.5:37.5 in favour of the wife across both pools.

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New Members

New members joining the Law Society (August and September 2023)

Associate Member

Ordinary Member

Zane Chan

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Paul Devlin Isabelle Sutton

Law Student Member Michele Frost

Restricted Practitioner Member

Pasan Ganegamar

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Kulandra (Kulen) Ratneser 18.03.1933 – 21.08.2023

Passed away peacefully in Darwin on 21 August 2023 aged 90. Beloved husband of Sujatha. Dearly loved father of Rajiv and Sanjiv and father-inlaw of Jane and Monique. Much loved grandfather of Grace, William, Teddy, Milo and Lucky. A dedicated legal practitioner for 63 years who remained a steadfast guardian of our laws till the end. Loved and remembered always.

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62 | BRIEF OCTOBER 2023

Missing Will Would any person or firm holding or knowing the whereabouts of a Will or other documents purporting to embody the testamentary intention of STEPHEN CHARLES CHANEY of 65 Beraking loop, Dalyellup WA, DOB 22/03/195, please contact Christiane Chaney with any information by phone 0447 391 006 or email sara.2004@yahoo.com.au

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In each issue of Brief we highlight a small selection of the exclusive special offers and discounts our members receive on a variety of goods and services. For the full listing of member privileges head to our website: lawsocietywa.asn.au/member-privileges/

Black Swan State Theatre Company Receive concession price tickets to all main stage Black Swan State Theatre Company productions* Black Swan is a theatre company of national significance, creating exceptional theatre that nurtures Western Australian audiences and artists, and promotes our artists within the state, nationally and internationally. Founded in 1991, Black Swan has earned both critical and popular acclaim for its world premiere productions and highly distinctive reinterpretations of international theatre classics – all of which are infused with the unique culture of Western Australia. * Valid for A-reserve tickets, in-season performances only.

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The Law Society’s pro bono arm Law Access Ltd has developed an online training platform with Albany Community Legal Centre (CLC) and Lander & Rodgers to provide legal and practical information about Criminal Injuries Compensation (CIC) for use by both legal assistance sector and pro bono lawyers. Lawyers interested in pro bono CIC, regardless Find out more here of prior experience, are encouraged to have a look.

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DINNER 2 0 2 3 Annual Awards Celebration for the Legal Profession A sophisticated night, celebrating inspiring people and creating an impressive social gathering to remember.

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Join the legal profession as we set the stage to recognise others and celebrate with those who make us proud.

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