Brief February 2024

VOLUME 51

NUMBER 1

FEBRUARY 2024

1974 - 2024

Create firm-branded documents faster When drafting a document or letter in LEAP, all the matter information you have entered will be automatically populated, eliminating repetitive typing for common information such as addressee details or subject lines.

Find out more, visit leap.com.au/essentials

10

Aboriginal and Climate Voices to Local Government

22 Amendments to Unfair Contract

12

Does the Law Support Ageing in Place?

24 The Old Court House Museum:

16

Interview: Hon Melissa Parke

26 Case Notes: Lang v The Queen

18

Human Rights: Protections Against Foreign Social Media Interference

Term Provisions

The Portable Writing Desk

[2023] HCA 29

Volume 51 | Number 1 | February 2024

NEW ARTICLES

SPECIAL FEATURES

CONTENTS

26

10

20 Tackling Forced Marriage in WA

30

39

FOLLOW US lawsocietywa.asn.au @the_Law_Society_of_Western_Australia

LawSocietyWA

LAW IN PRACTICE 28

WA Case Notes

30 High Court Judgment 31

Federal Court Judgments

32 Family Law Case Notes

REGULAR ARTICLES 02

From The President

04 Interview: Law Society President Paula Wilkinson

06 Happenings@theLawSociety NEW 07 From the Archives: 50 Years of Brief

NEW

08 Editor’s Opinion 09 Spotlight on Committees 33 Recognising Members on the Move NEW

@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 Events & Business Development: Maryka Mensink Tel: (08) 9324 8638 | Email: mmensink@lawsocietywa.asn.au Communications and Design Officer: Rebecca Nguyen RRP $16.00 incl GST.

Editor: Jason MacLaurin SC

34 Young Lawyers Committee (YLC)

Editorial Committee: Ryan Arndt, Gregory Boyle, Ben Bullock, Thomas Camp, Gad Coffie, Dr Jessica Henderson, The Hon John McKechnie AO KC, Thomas Moorhead, Dr Pat Saraceni, Robert Sceales, Andreas von Altenstadt.

38 Quirky Cases

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

Section

39 Ethics Column 40 Cartoon 41

Law Council Update

Submission of articles: Contributions to Brief are always welcome.

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

42 New Members & Classifieds

President: Paula Wilkinson

43 Member Extras

Junior Vice President & Treasurer: Judy McLean

Senior Vice President: Gary Mack Immediate Past President: Ante Golem Ordinary Members: Ben Bullock, Thomas Camp, Angie Gimisis, Dr Jessica Henderson, Mark Hemery, June Kenny, Aleks Miller, Kim Morrison, Kellie Woods Country Member: Michael Ryan Junior Members: Bec Rees, Souzi Clifford, Ashton Hardstaff Chief Executive Officer: David Price

1

FROM THE PRESIDENT Paula Wilkinson

President, The Law Society of Western Australia

W

elcome to my first President’s Report and the first edition of Brief for 2024.

•

As we step into 2024 and I commence my term of President, I would like to firstly recognise the contribution of my predecessor, Ante Golem. Ante’s leadership of our Law Society has set a very high bar indeed. He has been a dedicated and committed President and I find myself with a tough act to follow.

•

Vital Support – delivering targeted, relevant and highly valued services;

•

Supported Future – developing programmes and services that respond to change in order to support future careers, expertise and business imperatives;

I look forward to working with Ante throughout the year in his role as Immediate Past President.

In February, the Law Society’s new Council and Executive will hold their first meetings of the year. As with each year, there will be new members who join the Council and I know they will bring new perspectives and ideas as we work together, focussing on what we can accomplish for our profession, members and the wider community.

I especially look forward to working with the new Executive this year, Gary Mack, Senior Vice President and Judy McLean, Junior Vice President.

My connection to the Law Society is long and varied, commencing with my joining the Law Society in 1990. I was elected to the Law Society Council in 1997 and again in 2017, the same year I became a director of Law Access, the pro bono legal assistance organisation.

In 2022 I became the Junor Vice President/Treasurer and then the Senior Vice President in 2023. I am also currently serving on the Law Society Accreditation Committee.

You can read more about me, my leadership style, values and aspirations as President in my interview on page 4.

Law Society’s Four Strategic Imperatives The strategic imperatives of the Law Society are key pillars that inform the representation of members and the enhancement of the legal profession. As outlined in our Annual Reports, the Law Society of Western Australia embodies four pillars:

2 | BRIEF FEBRUARY 2024

•

Strong Voice – proactively engaging with key stakeholders to influence positive change for the profession;

Forward Thinking – being an engaged, sustainable and forwardthinking Society where Council, Committee members and staff are aligned with the vision and purpose of the organisation.

Inherent in these pillars sees the Law Society connect the profession as a community – via a range of engaging fora, social events and educational opportunities to connect and support the profession.

These pillars and the strategic imperatives will be foremost in my mind during my presidency in order to support our members and industry as a whole.

Events in 2024 There are many highlight events on the Law Society’s calendar, which provide fantastic opportunities to enhance your relationships and connections. From experience, these events present the perfect opportunity to make new contacts and I encourage you to attend as many as possible. Events to look forward to include YLC Mixed Beach Volleyball Competition, Welcome to the Profession Breakfast, Mock Trials Competition, YLC Black Tie Ball, The Law Week Long Lunch, Walk for Justice, and later in the year the Gala Dinner and Awards Evening.

Law Society New Website Delivers Improved Navigation and Access for the Legal Profession The Law Society launched its new website in late December 2023. We are pleased to present a website with great visual presence while providing easy access to important information. Our website ensures greater capability, speed and most importantly, a much-improved user

experience.

You may have noticed the new, easier to navigate drop down menus, enhanced search functionality, standalone sites for Law Mutual and the Old Court House Law Museum as well as improved readability and accessibility of the website as a whole.

You can take a look at our new website for yourself here.

A Milestone Anniversary 2024 marks the 50th anniversary of the Brief journal. Brief has seen many changes, challenges and improvements over the previous half century and I look forward to seeing the evolution of this much loved online journal as we progress through the year.

Do you have a favourite article, author or memory of Brief that you’d like to share?

Please email brief@lawsocietywa.asn.au with your thoughts and we may share them in a future edition of Brief.

Congratulations I would also like to take this opportunity to congratulate two esteemed members of the Law Society of Western Australia on their recent appointments.

Firstly, to Greg McIntyre SC on becoming President of the Law Council Australia for 2024. Mr McIntyre is a life member of the Law Society of Western Australia and has been a significant supporter of the Law Society throughout the years.

Elected at the December 2023 Director’s Meeting of the Law Council of Australia, Mr McIntyre is the 64th President of the Law Council and the 6th President from Western Australia.

You can read Mr McIntyre’s PresidentElect speech here.

Secondly, to the Honourable John McKechnie KC on receiving the honour of Officer (AO) of the Order of Australia in the recent Australia Day Honours List 2024.

Mr McKechnie AO KC, is also a life member of the Law Society of Western Australia. Since joining in 1975, he has contributed countless hours to supporting the profession through committee

The Law Society New Website launched December 2023

membership and mentoring other lawyers.

Most recently, Mr McKechnie has been a longstanding member of the Brief journal editorial committee. His regular ‘Quirky Cases’ articles in Brief have become an integral part of the journal.

Read the full list of Australia Day Honours in WA at the Government House website.

Member Survey – feedback on the Brief journal In November 2023, Law Society members were invited to provide feedback on the Brief journal by way of a short online survey.

The feedback was very constructive and you can read more about the survey results and how we’ll be implementing member feedback on page 6.

Summer CPD Programme The Law Society’s summer CPD Programme was launched earlier this month. This season’s programme has some outstanding seminars to choose from. You can see the full programme here.

A reminder that 31 March is the deadline for ensuring you have all your CPD points for the year. To help our members achieve their professional development points, our CPD Freedom subscription offers unlimited attendance at live CPD seminars and webinars at no further cost, all online seminars for $30, and discounts to special CPD events.

Join more than 3,800 members who are enjoying highly engaging and interactive seminars with valuable CPD points.

Please note if you renewed your membership prior to 31 July 2023, CPD Freedom was included as a free membership benefit.

more about this exclusive member benefit, visit lawsocietywa.asn.au/lawcarewa or call 1300 687 327 to speak confidentially with a counsellor.

Attorney General Annoucement The Law Society would like to acknowledge the recent announcement made by the Hon John Quigley MLA, Attorney General of Western Australia, regarding his decision to not seek re-election in March 2025.

The Law Society looks forward to continuing to work closely with the Attorney General for the remainder of his term.

Read more information here and here.

LawCare WA

Feedback

Our profession comes with its own unique challenges and stressors. As a Law Society member, you have access to our popular LawCare WA health and wellbeing service, which is profiled on the last page of this February edition of Brief.

Our Law Society depends on the feedback and ideas from members to remain a robust and responsive organisation. I encourage you to email me directly at president@lawsocietywa.asn.au with any issues or comments. I look forward to the year ahead and wish our members the very best for 2024. ■

LawCare WA will help you manage your career, life, health and wellbeing. To find out

Access to Justice is Life Changing Leaving a gift for Law Access is a meaningful way to make a lasting difference for disadvantaged Western Australians long into the future.

“Law Access was the shining light in a stressful time when justice seemed totally out of reach.”

Your gift will provide vital support to help us ensure that all West Australians have access to justice.

Friend of a vulnerable West Australian assisted by Law Access

Further information

If you are interested in finding out how you can contribute to Law Access in your Will, please refer to our bequest page on our website at https://lawaccess.org.au/get-involved/bequests/ or contact our CEO for a confidential discussion on (08) 6488 8725 or email ceo@lawaccess.org.au.

3

INTERVIEW:

Paula Wilkinson Law Society President 2024

Q A

How long have you been involved with the Law Society and what has inspired you to be an active member?

This is a fundraising venture held each year on behalf of Law Access. The Walk for Justice is supported at all levels of the legal community.

I was first elected to the Law Society Council in 1997 when Kate O’Brien (who later became a Judge of the District Court) was the President, and Alison Gaines was the CEO. While on the Council, it took me a while to understand fully what was going on. I know that I learned a great deal.

Family Lawyers will remember that the late Chief Justice Stephen Thackray of the Family Court of Western Australia was a highly vocal supporter of Law Access, and for many years until we lost him, he was among its most prolific fundraisers.

I was a member of the Council for one term only, and there was a hiatus after that, during which time Kim Wilson & Co was established.

I decided to stand again for the Law Society Council in 2017. By 2017 I was a member of the Law Society Accreditation Committee.

This committee has administered the Family Law accreditation program since 1992.

Accreditation in Western Australia has only ever been offered to Family Lawyers, and I was interested in exploring the potential for the expansion of the accreditation program into other disciplines. This was my motivation for seeking election to the Law Society Council.

Also, if I remember correctly, I was the only family lawyer who stood for the Council in 2017. I hoped my presence as a Family Lawyer would be useful to the Law Society.

In 2017, I became a director of Law Access. Law Access was established in 2013 and is a wholly owned subsidiary of the Law Society. It is a not-for-profit organisation which coordinates the giving of free legal assistance to those who cannot afford a lawyer. I served as a director for approximately five years until my compulsory retirement.

Law Access does important work. I encourage all Law Society members to familiarise themselves with the website of Law Access and to consider if they could become involved in some way, whether through giving, through fundraising, or by offering pro bono services.

I also encourage members to consider attending the Law Society Walk for Justice which will take place on the morning of Monday 21 May 2024.

4 | BRIEF FEBRUARY 2024

It was not until I was elected to the Law Society Council (for the second time) that I became fully aware of the extensive network of the Law Society committees.

There are currently 31 Law Society committees which address different areas of law and aspects of legal practice. I encourage all Law Society members to consider whether they have capacity to participate in a Law Society committee, from junior through to senior lawyers.

The work done by the committees includes for example, running and contributing to the Law Society’s excellent Continuing Professional Development Programme, helping with communications with various other constituent bodies such as the Law Council of Australia, providing expertise to the Law Society Council in relation to, for example, new legislation, and there are of course committees which keep track of important financial matters on behalf of the Law Society.

The committees are the backbone of the Law Society. I cannot speak too highly of the work done by the various members of the committees, and I thank all of them for their contributions.

Q A

As a founding member of Kim Wilson & Co 25 years ago and still with the firm, what do you think makes for a successful business?

Kim Wilson & Co commenced as a start-up legal practice in 1998.

Since then, we have experienced many challenges.

Every legal practice in Western Australia faces challenges and I am acutely aware of this in my new role as President.

Challenges in business obviously come in many forms.

Lawyers with businesses engaged in the practice of law are not just business proprietors although obviously we all want our businesses to be successful and profitable.

First and foremost, we are lawyers, and the practice of the law has been reserved exclusively to us by the oath we gave when we were admitted to practice.

Our businesses are unique in that our overriding obligation is to never forsake our ethical obligations in the pursuit of our aspirations in business. Ethics, and the teaching of ethics to junior practitioners must be a critical part of our daily practice of the law.

As to what makes a successful legal practice - I would say that the focus should always be on stability, consistent quality of service, and of course an unwavering focus on our ethical obligations.

Law Society members should be aware that a strategic imperative of the Law Society is to be an essential support to legal professionals including those of us who are running our own businesses.

The Society sees its role as one of empowering members to do their best work through the provision of high quality continuing legal education, and by providing access to resources and guidelines to aid professional support.

I would suggest that engagement with the Law Society for any member setting up their own practice, is an essential first step.

Q A

How would you describe your leadership style?

Newly qualified lawyers come into the profession with so much hope for their professional lives.

Without exception, they want to do well.

They want nothing more than to progress through the profession and become the best lawyers they can be.

Senior lawyers who employ newly admitted lawyers should be responsive to their aspirations by providing appropriate and targeted in-house supervision and by actively supporting their continuing legal education with the intention of building knowledge and confidence.

I studied for an LLM in my 50’s, and I know without doubt that the study I put in along the way made me a better lawyer. I would say the same of the Law Society accreditation process. Studying for accreditation made me a better lawyer.

It can seem an insurmountable task to embark on a course of study while also working full time. I am living proof that it isn’t insurmountable.

I hope that I have provided and may continue to provide inspiration to others to study throughout their careers.

Q A

What are your aspirations for your Law Society presidency in 2024?

I am acutely aware of how well the Law Society has performed over the years I have been on the Council. I am extremely proud to be President.

It is my wish that in 2024 the Law Society will continue to build on its successes in previous years.

My aspirations on behalf of the members of the Law Society in 2024 must be

continued stability, growth and successful engagement with stakeholders.

We have a very big program already in place for 2024, and in that regard I refer to the information my recent statement in Friday Facts on 1 February 2024.

Q A

Do you have a specific philosophy or values that help guide your day-to-day and navigate challenges?

The late Justice Maurice Casey gave the welcome address to newly admitted practitioners of the Supreme Court (now the High Court) of New Zealand in the year of my admission.

New Zealand is the first jurisdiction to whichI was admitted.

Justice Casey is famous in New Zealand for his injunction which prevented the planned All Black Tour to South Africa in 1985.

The theme of his address to the new practitioners on the day I was admitted was “the evil of the short cut”.

He told us that there could be no short cuts in the practice of the law: a short cut can lead to disaster. He went on to describe

Australia’s leading mortgage broking service for lawyers Leverage your profession and access exclusive benefits through Legal Home Loans. Whether you’re looking to buy property or refinance exisiting mortgages, we’ll coordinate your application from start to finish with a dedicated specialist with you every step of the way.

CHAT TO US TODAY (02) 9030 0420 enquiries@legalhomeloans.com.au www.legalhomeloans.com.au

what form these disasters might take, including the potential to miss something vital to your client’s case, and the potential to mislead a court. Part of my mantra in my working life is Justice Casey’s injunction not to be tempted to take a short cut.

Former Justice Hayne of the High Court has said that we lawyers need to give courageous and “steely-eyed” advice to our clients whether we are a law officer advising a minister of the crown or a solicitor advising our client: it is not our primary task to ease the way for our clients. First and foremost we are officers of the Court. We must always be prepared to give bad news, knowing it is bad news, and knowing the client will not like it. The words of Justice Hayne are also part of a useful mantra.

In my working life, I aspire to give high quality service to my clients, including giving the advice they do not want to hear but must hear, while maintaining my focus on my ethical obligations.

Attention to these considerations helps me to navigate the daily challenges which arise in my professional life. ■

Happenings@theLawSociety David Price

Chief Executive Officer

T

he Law Society is dedicated to the representation of its members and to the enhancement of the legal profession through four strategic imperatives: 1.

Strong Voice – proactively engaging with key stakeholders to influence positive change for the profession;

2. Vital Support – delivering targeted, relevant and highly valued services; 3. Supported Future – developing programmes and services that respond to change in order to support future careers, expertise and business imperatives; and 4. Forward Thinking – being an engaged, sustainable and forward-thinking Society where, Council, Committee members and staff are aligned with the vision and purpose of the organisation.

Read below to see how we’ve addressed these imperatives since the previous edition of Brief.

Feel free to contact me with your comments or feedback by email at dprice@ lawsocietywa.asn.au.

Supported Future In December 2023, the new website for the Law Society went live. The new website has a significantly improved user experience, larger capacity and greater load speed.

Visually, the navigation has been designed for easy access to important information across the site.

Highlights include improved search functionality, new drop down menus, standalone sites for Law Mutual and the Old Court House Law Museum. You can take a look at our new website here.

Please make sure you also connect digitally with the Law Society on Facebook and LinkedIn and with the Young Lawyer Committee on Facebook, LinkedIn and Instagram.

Vital Support The Law Society celebrated the end of another year with a fantastic gathering of the legal profession at the Ritz-Carlton on Thursday, 7 December 2023.

Thank you to all our guests, including members, judiciary and friends, who took the opportunity to meet and connect at the end of another busy year for the profession.

6 | BRIEF FEBRUARY 2024

Thank you to our valued partners; principal sponsor Glen McLeod Legal and supporting sponsors, LEAP Legal Software and Herron Todd White for their support.

The Law Society’s Summer 2024 CPD Programme is out now. Running until Thursday 28 March, this programme provides an opportunity to obtain your annual CPD points and connects you with leaders in the profession, judiciary and academia.

Our Programme consists of a combination of seminars, webinars, online learning, workshops and forums across the four prescribed CPD categories that are informative and practical, providing you with information and resources that you can use in your day-to-day practice.

A few highlights from the Programme are outlined below: •

Navigating the Regulatory Landscape – Compliance under the Anti-Monley Laundering and Couter-Terrorism Financing Act 2006 (Cth): Thursday, 7 March 2024.

You can read more about one of our Committees – the QPS Committee, chaired

by Craig Slater on page 9.

Forward Thinking The onboarding of the 2024 Council has already commenced, especially for those members who are new to the Council.

It is important to have new voices and perspectives to the Council who during their terms will contribute to and comment on many consultations and policy matters.

Thank you to the Law Society members who took the time to complete the Brief Feedback Survey email in November 2023.

The objective of the survey was to ensure Brief remains relevant and valued by members, especially as 2024 marks the 50th anniversary of the journal. Members were asked what could be improved in relation to Brief, how suitable the current format and functionality was and what articles they enjoyed the most.

Feedback was very constructive and included several main themes:

•

A Top Ten Hit List: Cases Which Establish the Rule of Law and Define Us: Thursday, 21 March 2024.

•

suggestions on different hosting platforms (yes, we agree, the current platform has room for improvement!)

•

Working in a Culturally Respectful and Responsive Way: 27 March 2024.

•

a need for the improved ability to navigate the journal (to be able to save articles, share content and a search function)

•

the preference for more concise content in articles

These seminars are subject to change.

Visit CPD Seminars for a full listing as new seminars are added on a regular basis.

Strong Voice The Law Society’s Council is supported by 35 administrative and statutory Committees with 350+ members covering many areas of legal practice, Law Society business and issues relevant to the legal profession and the rule of law at a State and Federal level.

These Committees focus on areas including ethics, health and wellbeing, access to justice, courts, costs and many areas of substantive law.

They will each meet approximately 5-10 times this year to consider emerging imminent statutory and policy reforms impacting the profession and/or the community, and other matters such as the wellbeing of the legal profession and ensuring the delivery of varied and high quality Continuing Professional Development opportunities by the Law Society.

We’ll be taking on this valuable feedback, seeing how we can apply it going forward and work towards making improvements to the Brief throughout the course of 2024 and beyond.

It’s never too late to have your say. The Brief editorial committee welcomes feedback, suggestions and articles for consideration. Please email us at brief@lawsocietywa.asn.au with your ideas.■

From the Archives:

1974 – 2024

2023

I

n 2024, the Law Society’s Brief journal turns 50! That’s 50 years of continued publication and readership. It's a significant milestone and testament to the value the journal has within the legal profession. Our six editions of Brief for 2024 will include a special segment which looks back across five decades to highlight some burning issues of the time, articles and other fascinating gems we come across.

1974

Feb 2024 – 1974 • February 1974 saw the creation of Volume 1, Issue 1 and this original edition cost 25 cents!

• The inaugural editorial committee members included Malcolm McCusker and Richard Utting • One of the first articles in Brief was authored by Robert French, now Robert French AC regarding Mr John Toohey QC establishing the inaugural Aboriginal Legal Office in Port Hedland • Another key article was the Workers’ Compensation Act, Amendment Act 1973 with comments from Mr J.J. A O’Connor including “The amendments contained in this Act…have effected what are possibly the most sweeping changes in the history of the legislation • The April 1974 edition saw the launch of an appeal for material to set up a legal museum. Guest of Honour at the luncheon, Mr Justic Else-Mitchell, congratulated the Law Society on initiating the project and said he hoped it would become one of the great museums in the Commonwealth. See some of the social photos from the luncheon on this page 7

EDITOR'S OPINION Jason MacLaurin SC

Editor, Brief | Barrister, Francis Burt Chambers To mark the 50th anniversary of the Brief journal, this month we’ve handed over the Editor’s Opinion to the very first editorial published in Brief, from the April 1977 edition, Vol. 4, No. 2.

Read on below to see what the Editor, Nigel Clarke had to say in the inaugural editorial:

Editorial from Nigel Clarke: Brief, April 1977 With this issue some outnovations. We have excluded whatever features could be sensibly discarded to make room for material calculated to edify, entertain or educate.

Mere information is available in the Society’s circulars. Grave erudition, apart from its elusiveness to us, can be found elsewhere.

Brief’s attempts at providing up to date working fodder, legislation summaries and catchword reports, foundered on lack of reporters, limitations of space and infrequency of publication.

The hope lingers for a band of enthusiasts who will produce a monthly circular of judicial, legislative and other pronouncements which will give the busy lawyer a quick and frequent run down on what’s happening, to augment the commercial services.

The Australian Legal Monthly Digest does now contain more, and more recent, happenings from the West.

Brief is dependent on advertising revenue if it is to continue and expand without cost to the Society.

Anyone who can stimulate the increase of such revenue will help to make available space for the happily growing number of members who are spontaneously contributing to the journal.

8 | BRIEF FEBRUARY 2024

Spotlight on Committees QPS Committee by chair Craig Slater

T

he Law Society’s Council is supported by 35 administrative and statutory Committees with 350+ members covering many areas of legal practice, Law Society business and issues relevant to the legal profession and the rule of law at a State and Federal level.

In each edition of Brief, we’ll be shining a spotlight on a different committee, this edition it is the Quality Practice Standard (QPS) Committee, chaired

by Craig Slater.

The QPS Committee administers the Quality Practice Standard scheme for LSWA and includes Erin Blight, Kevin Chalklin, Peter Liron (ex officio), Andrew McGuiness and Julie Ots (ex officio) as members.

The QPS scheme uses quality management techniques and tools in

a scheme for WA law firms to manage risk, formalise internal work practices and improve client satisfaction. The QPS scheme co-ordinates with Law Mutual requirements and the Professional Standards Scheme operated by LSWA. Having a QPS accreditation allows a firm to promote itself as having a commitment to better legal practice management and better client relationships through a high level of consistent service.

LSWA’s QPS scheme has successfully operated since the early 1990’s. A key driver of the lengthy success of the QPS scheme is its simplicity and relevance to local practice.

Anti-Money Laundering legislation are likely to be the focus of this Committee in 2024.

Those with an interest in practice management find the Committee’s discussions interesting as they often consider current and best practices among firms in WA. To hear more about QPS please email qps@lawsocietywa.asn.au and we will get in contact with you.

Endnotes QPS accredited legal practices are entitled to a 7% discount for the first year on Law Mutual professional indemnity insurance premiums, and 5% discount thereafter, provided they retain their QPS accreditation.

The QPS Committee is focused on maintaining that simplicity and relevance. Proposed changes to

Bequests Keep Our Doors Open 365 Days a Year For over 60 years, Cat Haven has been able to take in thousands of homeless and unwanted cats and kittens each year, thanks to the generosity of West Australians through remembering us in their wills. Without this final act of kindness, we wouldn’t be able to provide the community service we have done for the last 60 plus years.

We never say no to any cat coming in no matter how old or sick – we stand by our motto "Every Cat Matters”

We also provide a service to rehome your clients companion cat in the unfortunate circumstance of them passing away before their cat. All we ask is they remember us in their estate, after providing for family and friends.

For further information on the Cat Custodian Programme please visit our website www.cathaven.com.au or emailing admin@cathaven.com.au

9

SPECIAL FEATURES

Aboriginal and Climate Voices

Aboriginal and Climate Voices to Local Government

I

n Western Australia, the 2015 parliament led by Liberal premier Colin Barnett enacted constitutional recognition of Aboriginal people, by adding to the WA Constitution preamble as follows, … whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia ...1 In UWA’s Public Policy Institute 2021 publication, Going Further, Faster: Three ways to diversify and stimulate WA economic growth, Paula Rogers reminds us that, … in Australia, we’re fortunate enough to have one of the richest and oldest continuing cultures in the world … and cited Dr Tom Calma AO … This is something we should all be proud of and celebrate.

Parliament, led by Labor premier Mark McGowan, enacted reconciliation amendments to the Local Government Act 1995 (LGA) by adding an obligation to have regard to a form of “Aboriginal Voice” on 1 January 20232, which became operational on 1 July 20233 under Labor premier Roger Cook.

The Local Government Act 1995 (WA) now provides as follows: 10 | BRIEF FEBRUARY 2024

Greg McIntyre SC

Sandra Boulter LLB

Barrister Michael Kirby Chambers

Chairperson | Local Government Elected Members Association Inc.

… s.3.1

people; and

1. The general function of a local government is to provide for the good government of persons in its district.

ii. to involve Aboriginal people in decision making processes;

A. Without limiting subsection (1), the general function of a local government must be performed having regard to the following —

c. the need to consider collaboration with other local governments

the general function of a local government must be performed having regard to the following — a. the need — i.

to promote the economic, social and environmental sustainability of the district; and

ii. to plan for, and to plan for mitigating, risks associated with climate change; and iii. in making decisions, to consider potential long term consequences and impacts on future generations; b. the need — i.

to recognise the particular interests of Aboriginal

2. The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.

3. A liberal approach is to be taken to the construction of the scope of the general function of a local government… (emphasis added) Local Government Councils, and all their employees, are now required to perform their functions, including decision making, having regard to: •

the need to recognise the particular interests of Aboriginal people

•

involve Aboriginal people in Local Government decision making4,

noting the statutory requirement to construct liberally the scope of those functions5.

Aboriginal and Climate Voices reporting whether or not they have received a request to do so8.

Furthermore, since 1 July 2023 Councils are required to have regard to:

The LGA Aboriginal ‘Voice’ requirement does not identify to which ‘Voices’ of Aboriginal people regard is to be had and so creates a complexity for Councils and their administrations who must now grapple with deciding which Aboriginal groups and elders have ‘particular interests’ based on demonstrated ties with particular areas to ensure that their interests are taken into account and corruption or conflicts of interest do not manipulate the ‘Voice’ outcomes in the hands of those seeking particular outcomes, as can happen in unmeritorious or corrupt government decision making.

Local Government Councils, and all their employees have an obligation to initiate the involvement of Aboriginal people in the decision making process of the ‘general function’ of the local government. Further, Aboriginal representatives in each Local Government District may be making public statements to and asking questions of, their Councils concerning their interests which may give rise to the obligation to recognise their interests. That may require amendment of the employee reporting templates to Council6, and for all Council’s delegated authorities to be conditioned7 to require a demonstrable and statutorily compliant regard for the ‘Voice’ in all its delegated decisions. Prudent good governing Councils will require the Voice

•

the need to promote the economic, social and environmental sustainability of their District9

•

plan for mitigating risks associated with climate change10

•

make decisions having considered the potential long term consequences and impacts on future generations11

•

consider collaboration with other Local Governments12,

which may also have a relationship with Aboriginal interests and engagement.

These regard matters require separate reporting to Councils for every decision they make. Each of these ‘Voice’ headings must be included in employee reports to Council. The practice of marking such headings as N/A - not applicable - will be rejected by wise informed Elected Members practising good governance.

If Councils are governing their District13 and their CEOs as they are required to14, and CEOs are informing Councils15 and implementing Council decisions in a timely way as they are required to16, then electors and Voice observers will be seeing substantial changes in the content of employee reports to Council.

Elected Members, through their Councils, have significant opportunities to advance reconciliation with Aboriginal people and respond to climate change, and are now required to do so.

A CEO who does not advise Council in relation to performing its functions in a manner which enables it to have regard to the need to recognise the particular interests of Aboriginal people and involve Aboriginal people in decision making

SPECIAL FEATURES

processes would be failing to perform the statutory functions of a CEO17.

Furthermore, any Local Government decision that has not clearly had regard to these new Voices, could be overturned on judicial review by the Supreme Court as a failure to take into account a relevant consideration to which is it bound by s.3.1(1A)(b)(i) and (ii) of the LGA to take into account18. ■

Endnotes 1.

Constitution Amendment (Recognition of Aboriginal People) Act 2015 (WA)

2. Local Government Amendment Act 2023 (WA 3. Local Government Amendment Act 2023 Commencement Proclamation (No.2) 2023 (WA 4. Local Government Act 1995 (WA) s.3.1(1A)(b) 5. Local Government Act 1995 (WA) s.3.1(3) 6. Local Government Act 1995 (WA) s.5.24, Local Government (Administration) Regulations 1996 (WA) Regulations 5, 6 & 7 authorised by Local Government Act 1996 (WA) s.5.25; and see each Local Government Council’s Standing Orders/ Meeting Procedure Local Law as authorised by Local Government Act 1996 (WA) s.3.5(1) 7.

Local Government Act 1995 (WA) s.5.44(3)

8. Local Government Act 1995 (WA) s.2.7(1)(a)&(b) and s.2.7(2)(b) 9. Local Government Act 1995 (WA) s.3.1(1A) (a)(i) 10. Local Government Act 1995 (WA) s.3.1(1A) (a)(ii) 11. Local Government Act 1995 (WA) s.3.1(1A) (a)(iii) 12. Local Government Act 1995 (WA) s.3.1(1A) (c) 13. Local Government Act 1995 (WA) s.2.7(1)(a) 14. Local Government Act 1995 (WA) s 5.38; and see Crime and Corruption Commission Report On a Matter of Governance at the Shire of Dowerin 10 October 2016 para.s 11 – 18 15. Local Government Act 1995 (WA) s.5.41(a), (b) & (i) , & s.5.5(1) 16. Local Government Act 1995 (WA) s.5.41(c) 17. Local Government Act 1995 (WA) s.5.41(a) 18. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39.

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.

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

11

SPECIAL FEATURES

Does the Law Support Ageing in Place?

Does the Law Support Ageing in Place? The Role of Security of Tenure Housing plays a critical role in the health and wellbeing of older Australians. It serves the basic human need for physical shelter and contributes to physical, psychological, health and emotional security.1

Dr Eileen O’Brien

Professor of Law and Ageing, Discipline of Law, Justice and Society, The University of South Australia

Dr Teresa Somes

Lecturer in Law, Faculty of Law, The University of Technology Sydney

A

geing in place refers to the ability of individuals to remain in their own homes or communities as they grow older, rather than having to move to institutional or specialised care settings.2 Internationally, ageing in place is recognised as the optimal living arrangement for individuals as they age3 promoting better physical and mental health outcomes and enabling individuals to uphold their quality of life, dignity, and autonomy throughout the ageing process.4 The notion of ageing in place has been examined across multiple disciplines.5 Nonetheless, a conspicuous absence in the current literature, which serves as the catalyst for our recent research, is discussion of the interplay between ageing in place and the law.6 In essence, a vital component of ageing in place is security of tenure. This can be expressed as a precise, law-centred concept alluding to the length of time an individual is allowed to reside in a property,7 or to the more sweeping ontological security of tenure, which corresponds to a feeling of safety and constancy in one's personal surroundings.8

As we have noted elsewhere, ‘at risk of stating the obvious, one cannot age ‘in place’ without residing in some form of 12 | BRIEF FEBRUARY 2024

property.’9 The stability and longevity of one's legal security play pivotal roles in determining how secure and anchored individuals feel in their living environment and thus serves as a foundation for ontological security.10 However, this is not law's only contribution to the ageing in place dialogue. Laws that directly or indirectly relate to real property can also play a pivotal, if more subtle, role in shaping ontological security. They do so not by defining the parameters of the tenure, but by recalibrating the harshness of the common law with a focus on balancing the rights of the parties, enhancing consumer protections, and paying heed to health and safety issues. This contributes to an enhancement of the conditions under which older people live in their accommodation, whether for a longer or a shorter term, and to their quality of life during occupation.11 The range of tenures and their impact on ageing in place When discussing the nexus between real property and related laws, security of tenure, and the concept of ageing in place, there are two predominant areas to discuss: 1. Homeownership and Elder Abuse.12

2. Limitations in Alternative Accommodation.13 Homeownership and Elder Abuse Home ownership provides older people with security of housing tenure and longterm social and economic benefits. It can be a key determinant of wealth and financial security in retirement.14 While older people in their own home remain the most likely to enjoy both legal and ontological security, there are instances where that security can be impacted upon and, indeed, lost. During times of economic uncertainty and rising housing prices, many older people are facing pressure from (usually) adult children to provide those adult children with financial support. Often referred to as, ‘inheritance impatience’15 this conduct is recognised as a form of financial and psychological elder abuse. This conduct became more overt during the COVID-19 period with a significant increase of reports of coercive behaviour.16 This will often involve the sale, transfer, or mortgage of the older person’s home and, due to the immutable operation of the Torrens System, and the unpredictable application of equitable principles, can result in the loss of a property or the older person incurring of significant debt

Does the Law Support Ageing in Place? or being deprived of their property or its equivalent value.17 These consequences are particularly severe for older people who are likely to be unable to ‘claw back’ the loss of a home and are unlikely to want to access the justice system in relation to their family.18 For this short article, three brief examples will be considered being: misuse of an enduring power of attorney to sell or mortgage a property to a third party; transfers to family; and assets-for-care agreements.

EPOA and sale or mortgage of the property Misuse of enduring powers of attorney (EPOAs) can lead to the sale or mortgage of a property without the older person's Despite knowledge or consent.19 legal requirements for accountability and record-keeping, very few cases involving EPOA misuse, especially in property matters, result in significant consequences.20 Court action is rare, and even when it occurs, assets or property are often already transferred or lost, especially if they've gone to a third party.

This happens because a valid, albeit improperly used, EPOA can lead to an unassailable title for a genuine third-party purchaser during a sale. Once registered, the principles of indefeasibility protect the third party's title, unless fraud or other exceptions apply, leaving the older person with the loss of their home and recourse to the Assurance Fund.

Where mortgages or guarantees are obtained through EPOA misuse, once registered, a mortgagee's title is secure if verification requirements are met, and the lender wasn't involved in fraud, undue influence, or unconscionable conduct.21 Inter vivos transfers.

Family transfers, where an older person transfers a property – usually for reasons of love and affection or for a vastly discounted sum – to another, are another example of potential abuse and loss of legal security of tenure.22 A recent decision in the Victorian Supreme Court highlights the potential vulnerability of an older person who enters into such an arrangement and also a few lessons for practitioners dealing with these transactions.

In McFarlane v McFarlane23 , Judith McFarlane transferred her home to her son, Mark, claiming 'natural love and affection.' However, the transfer was later invalidated due to undue influence and unconscionable conduct.

Solicitors consulted only Mark during the paperwork process, leaving Judith without independent legal advice. Afterward, she suffered financial consequences, losing

SPECIAL FEATURES

pension benefits and facing higher aged care fees. While the McFarlane case had a satisfactory resolution for the older person, the fact is that this case commenced due to the involvement of the State Trustees, an organisation with experience in legal matters and ‘deep pockets’. Typically, if such matters reach the courts, they are brought by aged care facilities (where financial abuse results in unpaid fees) or organisations akin to the State Trustee in this case.

In retirement villages, legal security of tenure is typically strong, with eviction being rare and reserved for severe misconduct cases.27 However, the challenge lies in resident well-being and satisfaction. While some residents thrive in these communities, others may find them unsuitable. Leaving can be financially burdensome due to exit fees, trapping residents who can't afford to relocate. This can lead to dissatisfaction, isolation, and a loss of emotional security.28

Assets for care

Australia's aged care system has come under scrutiny,29 with the Royal Commission's reports revealing neglect and advocating for significant reform.30 Most aged care facilities in Australia follow an 'ageing in place' model, ensuring tenure security until hospitalisation is necessary.

However, concerns persist about residents' ability to live comfortably and safely. Quality disparities highlighted by the Royal Commission can erode an older person's sense of ontological security.

Assets-for-care agreements, where older parents provide financial support for lifelong care from adult children or relatives, are becoming more common but face legal challenges. These arrangements are often informal and undocumented, leaving important details unresolved.24 Typically, the older person isn't registered on the property title, making them legally vulnerable. For instance, in Flourentzou v Spink, Mrs. Spink contributed $165,000 to a property but had no written agreement.

After leaving due to family conflict, she faced housing instability. The court ruled her payments were not gifts but aimed at securing her lifelong residence, ensuring she received a refund of her contributions plus interest upon her death.25 The harsh reality of older people experiencing financial abuse to pursue the matter In most cases, it is difficult – if not impossible - for an older person to regain their home and thus security of tenure. To do so would mean navigating the tribunals or a court, the evidential standards for establishing unconscionable conduct or undue influence are high, and the prospect of litigation may simply be too costly and stressful for the older person, especially when the action is to be taken against their adult child.26 Limitations in Alternative Accommodation Many older adults find themselves in accommodation arrangements external to home ownership. Some forms of accommodation are regulated by legislation directed towards older people, for example retirement villages while others are more generic (private and public rental, manufactured homes and caravans and boarding houses). This section of the article will provide an overview of the laws impacting on legal and ontological security of tenure with a focus on Western Australian legislation.

A contrast – More legal security of tenure but often less ontological security.

Other forms of accommodation utilised by older people31 As opposed to home ownership, many older adults find themselves in living arrangements where they face limitations on legal and ontological security of tenure.

Such arrangements can range from private rentals, where the older person may have little protection against eviction or sudden rent increases, to more marginal forms of housing including residential parks, which might offer homes in a communal setting but with less security of tenure; and boarding houses or share-housing, which often provide minimal private space and can entail a lack of long-term stability.

Private Rental Rising home prices, negative gearing, and gentrification have driven up rental costs, impacting older individuals on fixed incomes. Older renters in the private sector often face short leases, rent hikes, and 'no grounds' terminations. Research

by Housing for the Aged Action Group reveals a 73% increase in older Australians renting privately since 2011.32 In Western Australia, the Residential Tenancies Act (RTA) has helped enhance tenant security, despite typical 6–12-month leases. Recent changes in the RTA offer improved protections, including allowing pets unless there are reasonable grounds for refusal, a significant boost for older people's well-being. Rent can now only increase once a year. However, 'without grounds termination' remains, as the government won't proceed with its removal.

13

SPECIAL FEATURES

Does the Law Support Ageing in Place?

Residential Parks Residential parks are seen by many older people as affordable retirement living, but their legal and emotional security has been uncertain.33 Generally, residents own their mobile homes but rent the land beneath them, making them vulnerable if their tenancy ends. Recent reforms to the Residential Parks (Long-stay Tenants) Act 2006 have improved legal, and in turn, ontological security of tenure.34 Standard long-stay agreements now better protect tenants' rights and enhance transparency.

Park operators can't terminate agreements without valid reasons, and fixed-term agreements can't end due to park sales. There is opportunity for greater communication between residents.

Homelessness Older people experiencing homelessness, including those in rooming houses, share housing, and 'couch surfing,' lack both legal and emotional security of tenure in Western Australia.35 Unlike tenants covered by the RTA, boarders and lodgers in these situations lack comprehensive rights, standard lease terms, rent controls, or eviction protections, depending on individual agreements. This often leads to overcrowding and disruptive behaviour, eroding emotional security. The issue is exacerbated by the increasing number of older women becoming homeless due to various factors, including loss of housing or tenancy instability. This crisis can't be attributed to a single cause, as it affects a diverse group with varying life experiences and challenges.

Recapping the importance of security of tenure and some final thoughts.

Housing stability, particularly legal security of tenure, is a significant concern for many older individuals. This security not only supports emotional well-being but also has clear health, social, and economic benefits as we age. However, real property law primarily focuses on the nature of land interests rather than the concept of "home." While this focus ensures transaction certainty, it often overlooks the ontological aspects of a home. Achieving ontological security often relies on legal security of tenure.

To promote ageing in place, we must work within the existing legal framework.

Some legislation addresses imbalances in property law and ontological security, but further enhancements are possible.

Greater engagement with real estate entities, regulators, banks, and the wider community on elder abuse and housing issues is crucial.

14 | BRIEF FEBRUARY 2024

While we can't delve deeply into solutions here, some key considerations include legal reforms that bolster both legal and ontological security for older people without disrupting the status quo too much.

1. Enhanced Regulation of EPOAs: Implement stricter regulations, education, and oversight mechanisms for Enduring Power of Attorneys (EPOAs) to protect the rights of older people. Regular and comprehensive training and licensing for individuals who act as EPOAs can ensure they are acting in the best interests of the older person. In Western Australia, consideration could be given to introducing a provision akin to s 87 Enduring Power of Attorney Act 1998 (Qld) that raises a presumption of undue influence.36 2. Transfers or living arrangements: Lawyers dealing with transfers within family or assets for care matters should ensure that any agreements are formally documented. Relying on oral commitments is risky and can lead to disputes. All parties should have independent legal advice, including the consequences of the transaction on Centrelink and aged care implications. A comprehensive assets for care agreement should detail the consequences of potential foreseeable events impacting any party involved and ideally provide legal proprietary interests in the subject property, reflecting their financial contributions to the property.

3. Accessibility to Legal Remedies: Recognize the challenges older individuals face in navigating the court system. Develop simplified, cost-effective, and expedited legal pathways, especially for cases involving family asset transfers or care

arrangements, eliminating the need to always approach superior courts.

4. Obligations of Legal Professionals: Mandate regular training for lawyers dealing with older clients and their families. Emphasise the ethical and legal obligations these professionals have, particularly highlighting the imperative for independent legal advice when engaging in transactions involving older persons.

5. Education on Elder Financial Abuse: Given the permanence of the Torrens system, invest in extensive educational campaigns targeting real estate agents, conveyancers, solicitors, and the public. The aim should be to raise awareness about elder financial abuse, its signs, and prevention measures. On a brighter note, there's been observable progress with banks becoming more vigilant about potential financial exploitation of older people. Institutions are now more attuned to the signs of elder financial abuse and are implementing measures to counteract such practices, thus enhancing protection for older people.

Enhancing Ontological Security 6. Longer Lease Terms: Adopt housing models similar to European standards that allow for longer lease durations.

Lease periods of 6 to 12 months are insufficient in providing older individuals with a sense of stability.

7. Abolish No-Grounds Termination: Reconsider the practice of no-grounds termination in tenancy agreements.

Such provisions can create anxiety and instability for tenants, especially for the elderly who require consistent living conditions for their well-being.

8. Residential Parks Tenure: While there have been improvements in

Does the Law Support Ageing in Place? regulations surrounding residential parks, the security of tenure remains a concern. Continued efforts are needed to enhance the protection and rights of those living in these spaces.

9. Addressing Homelessness Among Older people: The increasing trend of homelessness, especially among older women, is alarming. Immediate, targeted measures are required to address this pressing issue, including dedicated housing schemes and social support systems.

Despite many parts of our legal system being fixed and unchangeable, we must not overlook the profound benefits that come with the assurance of stable residency. Secure tenure in one's home has profound implications: it enhances the overall quality of life, fosters a sense of well-being, and provides individuals the opportunity to age comfortably in a familiar environment. ■

Endnotes 1.

Aplin, T and M Petersen, 'Relationships between Housing and Health for Older Private Renters: Evidence from a Pilot Study in Australia' (2023) J Hous and the Built Environ https://doi.org/10.1007/ s10901-022-10007-9.

2. Australian Housing and Urban Research Institute (‘AHURI’), ‘What’s Needed to Make Ageing in Place Work for Older Australians’ (2019) https:// www.ahuri.edu.au/research/ahuri-briefs/whatsneeded-to-make-ageing-in-place-work-for-olderaustralians.

3. World Health Organization (‘WHO’), The Baseline Report for the Decade of Healthy Ageing 2021– 2030 (2021) https://apps.who.int/iris/bitstream/ handle/10665/341488/9789240023307-eng. pdf?sequence=1.

4. Pani-Harreman, Katinka, Gerrie J. J. W. Bours, Inés Zander, Gertrudis I. J. Kempen, and Joop M. A. van Duren, 'Definitions, Key Themes and Aspects of "Ageing in Place": A Scoping Review' (2020) 41 Ageing & Society 1–34.

5. Ibid.

6. Pollack, Michael C, and Lior Jacob Strahilevitz, 'Property Law for the Ages' (2021) 63 William & Mary Law Review 561; Eileen O’Brien Webb and Teresa Somes, 'Property, Housing and Aged Care' in Nicole Graham, Margaret Davies and Lee Godden (eds), The Routledge Handbook of Property, Law and Society (Routledge, 2022) 165–178.

7.

Aviva Freilich, Pnina Levine, Ben Travia, and Eileen Webb, Security of Tenure for the Ageing Population in Western Australia (Council of the Ageing (COTA), 2014) http://www.cotawa.org.au.

8. Fox-O’Mahoney, Lorna, 'The Idea of Home in Law' (2005) 2 Home Cultures 25–49.

9. O’Brien Webb, Eileen and Teresa Somes, 'Property, Housing and Aged Care' in Nicole Graham, Margaret Davies and Lee Godden (eds), The Routledge Handbook of Property, Law and Society (Routledge, 2022) 165–178.

10. Rowles, Graham D, and Miriam Bernard, 'The Meaning and Significance of Place in Old Age' in Graham D. Rowles and Miriam Bernard (eds), Environmental Gerontology: Making Meaningful Places in Old Age (Springer, 2013).

Limitations in Alternative Accommodation below.

12. Webb, Eileen, 'Housing an Ageing Australia: The Ideal of Security of Tenure and the Undermining Effect of Elder Abuse' (2018) 18 Macquarie Law Journal 57–78.

13. Stone, Wendy et al., Older People’s Housing Insecurity & Homelessness in Australia (Housing for the Aged Action Group, 2023) https://www. oldertenants.org.au/sites/default/files/ageing_ in_a_housing_crisis_-_full_report.pdf.

14. Yet, the outright ownership of a home in older age is diminishing: Recent research prepared on behalf of the Housing for the Aged Action Group (HAAG) noted that: “In 2021, 58% of people aged 55 and over lived in a home that was owned outright. This is a decrease from 62% in 2011. 23% of people aged 55 and over lived in a home that was owned with a mortgage in 2021.This is an increase from19% in 2011: Stone, Wendy et al., Older People’s Housing Insecurity & Homelessness in Australia (Housing for the Aged Action Group, 2023) https://www. oldertenants.org.au/sites/default/files/ageing_ in_a_housing_crisis_-_full_report.pdf.

15. West, Tracey and Nicholas Drew, 'Abuse of Enduring Power of Attorneys and Real Estate Transactions in Australian Courts' (2022) Journal of Financial Crime https://doi.org/10.1108/JFC-082022-0175.

16. Webb, Eileen O’Brien, 'Older Australians during the COVID-19 Pandemic: Experiences, Responses and Lessons' in MK Shankardass (ed), Handbook on the COVID-19 Pandemic and Older Persons: Narratives and Issues from India and Beyond (Springer Nature, 2023) Chapter 17.

17. Although see Issa v Owens [2023] QSC 4.

18. Mitchell, Bill, Access to Justice for Older Australians (2019) 154 Precedent 18.

19. Note the discussion in Reily v Reily [2017] NSWSC 1419 at [114] – [117]. See generally, Tracey West and Nicholas Drew, Abuse of enduring power of attorneys and real estate transactions in Australian courts, (2022) Journal of Financial Crime: https:// doi.org/10.1108/JFC-08-2022-0175.

20. Wuth, Natalia, 'Enduring Powers of Attorney with Limited Remedies - It's Time to Face the Facts!'

(2013) 7 Elder Law Review 3; Ries, Nola, 'When Powers of Attorney Go Wrong: Preventing Financial Abuse of Older People by Enduring Attorneys' (2018) 148 Precedent 9.

SPECIAL FEATURES

28. Australian Institute of Health and Welfare, Social Isolation and Loneliness (2019) https://www.aihw. gov.au/reports/australias-welfare/social-isolationand-loneliness.

29. Regulated at present by the Aged Care Act 1997 (Cth) and the Aged Care Quality and Safety Commission Act 2018 (Cth).

30. Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect (2021) https://agedcare.royalcommission.gov.au/ publications/final-report.

31. Tually, S et al., Alternative Housing Models for Precariously Housed Older Australians, AHURI Final Report No. 378 (Australian Housing and Urban Research Institute Limited, 2022) https:// www.ahuri.edu.au/research/final-reports/378.

32. Stone, Wendy et al., Older People’s Housing Insecurity & Homelessness in Australia (Housing for the Aged Action Group, 2023), 13.

33. Wynne, Emma, 'Perth Park Homeowners on Firmer Ground after Law Reform' (2 August 2017) ABC Radio Perth https://www.abc.net.au/ news/2017-08-02/perth-park-home-owners-onfirmer-ground-after-law-reform/8764880.

34. Changes to residential parks law (Residential Parks (Long-stay Tenants) Act 2006 (WA)and the Residential Parks (Long-stay Tenants) Regulations 2007 (WA) commenced on 31 January 2022.

35. In 2021, boarding houses were the most common residence for homeless older individuals, accommodating 29% (or 5,539) of them. Notably, 39% of older men experiencing homelessness stayed in these facilities, compared to just 14% of older women. Crowded homes were the next prevalent living condition, housing 22% (or 4,358) of the older homeless population. Simultaneously, an equal percentage (22% or 4,314 individuals) temporarily lived with other households: See Stone, Wendy et al., Older People’s Housing Insecurity & Homelessness in Australia (Housing for the Aged Action Group, 2023) https://www. oldertenants.org.au/sites/default/files/ageing_ in_a_housing_crisis_-_full_report.pdf.

36. Note that this presumption is rebuttable: Birch v Birch [2020] QCA 31.

21. In the case of borrowing on the security of the property (authorised or unauthorised by the older person), the National Consumer Credit Protection Act 2009 (Cth) (‘NCCPA’) regulate mortgages, guarantees and reverse mortgages.

However, there have been few instances where a questionable transaction has been set aside for the benefit of the older person rather than the financial institution.

22. Cohen v Cohen [2016] NSWSC 336.

23. [2021] VSC 197.

24. Somes, Teresa, 'Identifying Vulnerability: The Argument for Reform for Failed Family Accommodation Arrangements' (2019) 12 Elder Law Review 1.

25. Tambovsoff v Budd [2023] QDC 198.

26. Webb, Eileen, 'Housing an Ageing Australia: The Ideal of Security of Tenure and the Undermining Effect of Elder Abuse' (2018) 18 Macquarie Law Journal 57; Somes, Teresa and Eileen Webb, 'What Role for Real Property in Combatting Financial Elder Abuse Through Assets for Care Arrangements?'

(2016) 22(1) Canterbury Law Review 120.

27. Levine, Pnina, 'Security of Tenure for the Retirement Village Residents in WA—Does the Law Walk the Walk or Just Talk the Talk?' (2015) 40 The University of Western Australia Law Review 436–462.

11. Please refer to the legislation discussed under

15

SPECIAL FEATURES

Interview: Hon Melissa Parke

INTERVIEW:

Hon Melissa Parke Executive Director of the International Campaign to Abolish Nuclear Weapons (ICAN) The International Campaign to Abolish Nuclear Weapons (ICAN) is a broad, inclusive campaign, focused on mobilizing civil society around the world to support the specific objective of prohibiting and eliminating nuclear weapons.

On 1 September 2023, Melissa Parke, a former United Nations legal expert and Australian government minister was appointed Executive Director of ICAN. Ms Parke spoke to the Law Society about what drives her, her priorities for ICAN in 2024 and beyond, and the Treaty on the Prohibition of Nuclear Weapons (TPNW).

Q

You have had an international career as a human rights lawyer and advocate for the United Nations, a federal politician, a Director of the world’s biggest NGO and a Member of Group of Eminent Experts on Yemen. What has driven your human rights focus and what have been the wins and challenges of your leadership journey in this space to date?

A

The notion of justice and protecting the vulnerable from the abuse of the powerful or the careless banality of bureaucracy. I have been motivated to action by witnessing/learning about injustice, whether in relation to people, animals or the environment. It’s about respect and dignity rather than ‘wins’. I’ve wanted to ensure that

16 | BRIEF FEBRUARY 2024

the voices of those traditionally marginalised or sidelined are heard and given meaningful attention.

Indigenous peoples of the world have always understood, and this has now been confirmed by quantum physics, that everything is connected - people, animals and all of nature. We can’t hurt other living beings or the environment without in some way hurting ourselves. This is the ultimate truth and motivation underlying my work.

Q

Your work in nuclear issues dates back to the 1990s in Western Australia. Tell us more about your earlier engagement with nuclear weapons and what impact this had on you?

A

I first got involved in nuclear issues when I joined the campaign against Pangea Resources’ proposal to establish an international nuclear waste dump in WA in the late 1990’s. Thankfully that proposal didn’t proceed due to public opposition, but every now and then it is suggested anew, and it’s still a bad idea.

I recently read a book by Joshua Frank called ‘Atomic Days’ regarding the Hanford nuclear reservation in Washington State, where the US has been depositing much of its high-level radioactive waste from nuclear weapons for decades. There are some 56 million US gallons of high-level radioactive waste stored in 177 underground steel containers that were meant to be only temporary until they found a permanent solution. The containers are starting to leak nuclear waste into the neighbouring Columbia river. Many of Hanford’s employees and local residents are experiencing serious health impacts from radiation exposure. The clean-up bill for the site stands at US$677 billion so far and they still haven’t found a solution to store nuclear waste safely for the required 250,000 years.

Hanford has been described by the US Environmental Protection Agency as the most toxic place in America and by Frank

as possibly the most contaminated site on Earth.

Under the Precautionary Principle, it is the height of irresponsibility for any nation to be generating high-level radioactive nuclear waste when there is as yet no permanent storage solution even for low-level nuclear waste.

I was horrified to learn about the British nuclear weapons testing that took place in SA and WA in the 1950’s and early 1960’s.

The primary victims of those tests were Aboriginal Australians along with veterans, and they and their children continue to suffer the health consequences. The lack of consultation and care for those affected at the time of the testing and over the decades since has been appalling. It is the same for victims of nuclear weapons use and testing in the Pacific and other parts of the world.

As an MP I was inspired by the example of former Whitlam Government Minister Tom Uren. Tom had been a prisoner of war in Japan during WWII and witnessed the US atomic bombing of Nagasaki. When he came home to Australia he became a lifelong campaigner for peace and nuclear disarmament. He said “the struggle against nuclear weapons is the most important struggle for the human race”.

Fear of nuclear annihilation was top of mind when I was growing up in the 70’s and 80’s but it dropped off the public radar when the Cold War ended. Unfortunately, the dangers have not gone away but indeed have increased, with the breakdown of arms control agreements, renewed nuclear threats and nuclear sharing, and a new nuclear arms race underway. It is important that people understand that nuclear weapons are an existential threat in the same way climate change and biodiversity loss are existential threats, except that while climate change and biodiversity loss are eroding our chances every day, nuclear weapons can end them in an instant. We need to tackle all of these threats simultaneously.

Interview: Hon Melissa Parke that extreme weather events and rising sea levels increase the risk of radioactive contamination from nuclear weapons activities, that climate disruption leading to nuclear winter potentially puts all life on earth at risk, and that while every species will be harmed in a nuclear war, only one species can stop it.

Q

As the not-so-new Executive Director for ICAN what are your priorities for the organisation in 2024 and beyond?

A

Well I’m still pretty new in the role but I have identified three main priorities:

1.

It is critical that ICAN continues to work with our more than 670 partner organisations around the world, governments, cities, parliamentarians, academics, scientists and civil society to build universal support for the UN Treaty on the Prohibition of Nuclear Weapons (TPNW), which is the only shining light in what is otherwise a dark and dangerous time for the planet. This treaty is complementary to older treaties including the Non Proliferation Treaty (NPT), and the Comprehensive Test Ban Treaty; indeed it builds upon them. The TPNW comprehensively prohibits the production, development, testing, use or threat of use of nuclear weapons or assisting in these actions, and it contains a disarmament verification mechanism, which is absent from the NPT. The second meeting of states parties to the TPNW which just occurred in NY showed that the TPNW is the only place where disarmament action is happening, and where communities affected by nuclear weapons use and testing, and countries from the Global South, can have a say in this issue that is of concern to all countries and peoples.

2. It is also critical that we broaden engagement on the issue of nuclear weapons beyond the usual disarmament and security silos. Nuclear weapons can destroy everyone and everything we love, so we all have a stake in their existence and we all have the right to have a say about them. Nuclear weapons must become a normal part of every discussion about the environment, health, development and human rights.

They are a cross-cutting issue.

It is vital that the connections between nuclear weapons and the environment are understood and highlighted, that nuclear weapons development and testing damage the environment and increase carbon emissions, that climate crisis-driven resource insecurity and conflict increases the risk of nuclear war,

Nuclear weapons violate every human right, including the right to life and the right to health. In August 2023 more than 150 medical journals around the world, including the Medical Journal of Australia and The Lancet, issued a joint call for urgent action to eliminate nuclear weapons as a public health issue. They noted the 2022 Nature Food study, which concluded that even a limited nuclear war using less than 10% of the world’s nuclear arsenals, would kill 120 million people outright and put more than 2 billion people at risk of starvation from the resultant climate disruption, known as ‘nuclear winter’. A major nuclear war would put at least 5.5 billion people at risk. As the International Committee of the Red Cross repeatedly stresses, there is no possible health or emergency response to a nuclear war, since hospitals, roads and communications infrastructure would be destroyed and health and emergency workers would be deceased or incapacitated.

Nuclear armed states spent US$83 billion last year ‘modernising’ their nuclear arsenals, weapons they say they will never use, as they are just for ‘deterrence’. This spending comes at the cost of investment in genuine human security, including disarmament, development, diplomacy, health, housing and environmental protection. Getting rid of the existential threat of nuclear weapons would free up enormous sums to help resolve the other existential environmental threats.

3. It is important that ICAN work to highlight the dangerousness of the theory of nuclear deterrence which underpins nuclear weapons possession. Nuclear armed states and their allies, including Australia, rely on the theory of nuclear deterrence for their and the planet’s ‘stability’, while at the same time agreeing that nuclear weapons are so dangerous they must be eliminated (just not now).

Of course the theory of deterrence is just that – a theory that relies on 100% rationality and predictability of all actors, including one’s enemies, 100% of the time. That’s a pretty big assumption upon which to base the future of the planet.

Meanwhile, the theory of deterrence cannot deter accidents, miscalculations, unhinged leaders, terrorist groups, cyber attacks or simple mistakes. There have been more than 60 nuclear near-misses over the decades that could have ended

SPECIAL FEATURES

the world. It is actually sheer dumb luck, rather than good management, that we are all still here.

Importantly, the second meeting of states parties to the TPNW in NY called out the dangerous theory of deterrence in its closing statement. Austria will lead a research project on this issue in the lead up to the third meeting of states parties to the TPNW in March 2025.

Q

How important is the Treaty on the Prohibition of Nuclear Weapons (TPNW) and what are the trends in the countries who have signed up to the Treaty so far and those who are yet to do so, including Australia?

A

It was great that Australia and some other countries that are not yet parties to the TPNW attended as Observers at the second meeting of States parties, however it is important that they now go further and sign the treaty. The AUKUS deal only makes this more important, to reassure Australians and our region that the deal does not diminish Australia’s sovereignty and that nuclear-powered submarines are not a precursor to Australia hosting or acquiring nuclear weapons. The countries in NATO and those in other military alliances with the US, including Australia, Japan and South Korea, which have all so far failed to sign the TPNW, are presently relying upon the theory of nuclear deterrence in their defence policies and doctrines. It is my belief that it is only a matter of time before deterrence theory is discredited.

Q

Do you think people understand the impact of the use of nuclear weapons; is there enough being done globally to promote and educate on this issue?

A

Of course more can and must be done to promote and educate the global public (who will then put pressure on their governments) on this issue.

Ultimately, it is a matter of resourcing.

ICAN is a small NGO, albeit with many partners around the world, which started in Australia in 2007. Just 10 years later in 2017 it won the Nobel Peace Prize for its work highlighting the humanitarian consequences of nuclear weapons and for its efforts in getting the TPNW adopted at the UN. However, there is still so much more to be done. Donations are most welcome!

Q A

What do you say to those who would like to become involved with human rights work?

Follow your passions and never give up on your dreams. Everyone has the power to make a difference and the responsibility to try, in your own way.■

17

SPECIAL FEATURES

Human Rights

Human Rights: Protections Against Foreign Social Media Interference

Lorraine Finlay

Patrick Hooton

Human Rights Commissioner, Australian Human Rights Commission

Human Rights Advisor (Business and Technology), Australian Human Rights Commission

T

he Senate Select Committee on Foreign Interference through Social Media (‘Committee’) released its final report (‘Final Report’) earlier this month, concluding that foreign interference is now Australia’s principal national security threat.

The Committee’s terms of reference were broadly to consider the risks posed to Australian democracy and values by foreign interference through social media, and how to mitigate any identified harms.

The Final Report follows significant controversy surrounding the collection of data by TikTok and its parent company, ByteDance. The Final Report was informed by submissions and evidence provided to the Committee, and the recommendations could (if implemented) result in significant transparency obligations being imposed on social media platforms.

The inquiry Over the past two decades, social media has solidified itself as an integral part of everyday life; it is used to post updates about people’s lives, connect with friends and family, provide people with news and information, and promote causes individuals are passionate about. As of 2022, it was estimated that approximately 82.7 per cent of the Australian population had active social media accounts.

Although there are undoubtedly positives from the widespread usage of social media, there are also significant concerns.

One example is the growing evidence that social media platforms are being used

by State, and non-state, foreign actors to conduct interference operations – impeding democracy and undermining human rights.

18 | BRIEF FEBRUARY 2024

The Australian Human Rights Commission (‘Commission’) has actively promoted the importance of ensuring that human rights are put at the heart of all technology.

In particular, the Commission made a submission to the Committee highlighting the importance of ensuring that social media does not become a tool for foreign interference.

However, before discussing the Committee’s findings, it is important to understand how social media is being used to conduct foreign interference operations.

Foreign interference operations Given the indispensable nature of social media in the modern world, and the fact that effective regulation has lagged behind the development of new technologies, it is unsurprising that foreign entities have correctly identified social media as an effective and inexpensive tool that can be used to conduct interference operations.

Such operations are often aimed at unduly influencing geopolitics, achieving strategic objectives and potentially undermining democratic processes and human rights.

These operations via social media are on the rise in Australia. In its 2020-21 Annual Report, the Australian Security Intelligence Organisation (‘ASIO’) stated that espionage and foreign interference have supplanted terrorism as Australia’s principal security concerns – as digital environments remain the ‘most pervasive vector for espionage’ and ‘[m]ultiple foreign governments are determined to interfere in Australia’s democracy and undermine our sovereignty’.

AI-driven interference What is especially concerning is the role

that artificial intelligence (‘AI’) plays in these operations, as coordinated inauthentic behaviour (‘CIB’) is regularly employed to influence online users. CIB generally refers to coordinated efforts to manipulate public debate for strategic reasons, where fake accounts are paramount to the endeavour.

CIB is an effective tool in driving interference operations, as the use of AIgenerated engagement on social media can instantaneously generate ‘comments’ on news articles, forums or social media posts which push a certain narrative or agenda. This kind of CIB is a key element of Russia’s Internet Research Agency, a St Petersburg-based ‘troll farm’, which was provided a $1.25 million USD monthly budget to interfere with the 2016 U.S. presidential election.

Such manufactured engagement can ‘trick’ social media and search engine trending algorithms by effectively spamming a topic through CIB (Hannah Smith & Katherine Mansted, Weaponised Deep Fakes). This has been an effective strategy, one example of which was the alleged use in 2022 to drown out online acts of defiance in respect of China’s COVID-19 lockdowns. (Stuart Thompson, et al., ‘How Bots Pushing Adult Content Drowned Out Chinese Protest Tweets’).

Senate Committee findings Social media has become a new digital battleground as foreign actors endeavour to improperly interfere in decision-making processes and unduly influence people and nations across the globe.

Risks to democracy and Australian values led to the Committee outlining 17 recommendations in the Final Report.

Broadly speaking, these recommendations focused on addressing these risks through

Human Rights reforms designed to ensure:

SPECIAL FEATURES

usage; and

•

transparency obligations are imposed on social media platforms;

•

•

the usage of TikTok and WeChat is curtailed in certain circumstances;

•

audits/mapping of the security risks of social media platforms;

•

designation of an entity to counter cyber-enabled foreign interference;

•

law reforms to strengthen Australia’s national security;

These obligations place serious obligations on social media platforms and, if the recommendations are adopted, will likely require them to make substantial changes to the way their platforms operate.

However, such reforms are necessary to ensure an active and firm response to the risks posed by foreign interference.

•

countering and disrupting AIgenerated disinformation and foreign interference campaigns;

•

production of educative guidance materials to better inform the public on how to critically examine content online; and

•

promotion of digital literacy in the IndoPacific region.

Key recommendation: Transparency obligations One of the key recommendations to emerge from the Committee was the introduction of a requirement that all large social media platforms operating in Australia meet minimum standards for transparency.

These obligations would require that all large social media platforms must: •

proactively label state-affiliated media;

•

be transparent about the content they censor or take down;

maintain a public library advertisements on their platform.

of

In recommending these transparency obligations, the Committee was particularly critical of TikTok (whose parent company is ByteDance). The Committee claimed TikTok had attempted to obfuscate, and avoid answering questions about, ByteDance’s relationship with the Chinese government.

TikTok’s conduct during this inquiry was cited as just one of the reasons the Committee recommended that, should a social media platform fail to meet the enforceable transparency standards, they will face fines.

Repeated failure to comply with the transparency requirements could also, as a last resort, result in a social media platform being banned in Australia by the Minister for Home Affairs. Any ban would be made via a disallowable instrument and must be reviewed by the Parliamentary Joint Committee on Intelligence and Security.

This ‘last resort ban’ builds on other recommendations, including that, due to the espionage and data security risk posed by TikTok, the government broaden its ban of TikTok. As of April 2023, TikTok was banned on government user devices.

The Committee’s recommendation goes further and seeks to ensure that the app be banned on all government contractors’ devices with access to government data.

•

disclose any government directions they receive about content on their platform;

•

disclose cyber-enabled interference activity;

•

disclose any takedowns of CIB and how/when the CIB was identified;

Key recommendation: Ensuring an Australian presence

•

disclose any instances where a platform removes or takes adverse action against an elected official’s account;

•

disclose any changes to their platform’s data collection practices or security protection policies as soon as reasonably practicable;

Another recommendation influenced by TikTok and WeChat’s conduct during the inquiry was that all large social media platforms must have a direct Australian presence.

foreign

•

make their platform open to independent cyber analysts and researchers to examine foreign interference;

•

disclose which countries they have employees operating in who could access Australian data and provide information about data collection and

The Committee cited evidence that China’s 2017 National Intelligence Law means the Chinese government can legally require companies to cooperate with intelligence agencies. In the Commission’s submission, it was noted that there have been allegations that ByteDance used TikTok to track the physical location of multiple Forbes journalists who were reporting on the company as part of a covert surveillance campaign. This followed an

earlier investigation by BuzzFeed News which concluded China-based TikTok employees had access to U.S. user data and repeatedly accessed that data.

The Committee heard evidence that China-based employees can, and have, accessed Australian user data – however TikTok was unwilling to provide the Committee with further evidence relating to this question. This unwillingness was a point of tension for the Committee as social media companies based in foreign countries, including China, were reluctant to engage with the Australian inquiry.

TikTok was reluctant to provide witnesses and was (in the Committee’s estimation) evasive in their answers, while WeChat refused to appear before the Committee.

The Committee strongly recommended that social media companies which operate in Australia must establish a physical presence in the country to ensure they are accountable under Australian laws.

Key recommendation: Divestment Following the U.S. government’s inquiries into ByteDance, the Committee found that, should the U.S. force ByteDance to divest ownership of TikTok, Australia should consider imposing similar requirements.

A new era of tech-regulation These proposed obligations would require significant action on the part of social media platforms, but this is necessary to address the serious risks that have been identified. The Committee’s findings do not seek to curtail the usage of social media by everyday people – but rather foreign actors who seek to assert their political objectives to the detriment of Australia and our democratic values.

The tech industry, and Silicon Valley wunderkind, have for too long proclaimed that self-regulation is the panacea to the harms of social media. The Committee’s findings demonstrate that self-regulation alone is no longer, and never was, the solution.

This article first appeared in the Law Society Journal's Legal Updates section.■ 19

SPECIAL FEATURES

Forced Marriage in WA

Tackling Forced Marriage in Western Australia

by Associate Professor Fiona McGaughey University of Western Australia Law School

Introduction

What is forced marriage?

In 2023, UWA Law School researchers, and Sexual Health Quarters (SHQ),2 carried out a pilot project on tackling forced marriage in Western Australia.

1

This project responded to needs identified

by SHQ who had conducted community education sessions with young women from culturally and linguistically diverse (CaLD) backgrounds. The young women identified a gap in knowledge on forced marriage and asked that more be done in this area.

Walk Free provided funding for the pilot project and following ethics approval from UWA, we carried out three workshops with a total of 30 women from CaLD backgrounds in partnership with community organisations. These sessions were part community education (sharing information about women’s human rights and forced marriage) and part focus group. Participants’ birth countries were varied and included: Afghanistan, Chile, Colombia, El Salvador, Eritrea, Ethiopia, Iran, Iraq, Korea, Liberia, Mauritius, Serbia, South Africa, Sudan, and Vietnam.

We also carried out three focus groups with 22 professionals and volunteers working in the area of forced marriage or in related fields where forced marriage may arise (e.g. family and domestic violence).

Many participants were from the not-forprofit sector and some from government agencies and the vast majority were based in Perth.

Here, I discuss what forced marriage is and provide a brief summary of our key findings.

20 | BRIEF FEBRUARY 2024

Forced marriage is a global problem affecting an estimated 22 million people around the world.3 It occurs in Australia, including here in WA. In Perth, in 2020, 21-year-old Ruqia Haidari was murdered by her husband. She reported to the Australian Federal Police two months before the marriage that she was being threatened and coerced into the marriage.4 Her husband Mohammad Ali Halimi was subsequently convicted and sentenced to life imprisonment for her murder. In 2021, there were an estimated 41,000 people in ‘modern slavery’ in Australia.5 Modern slavery is an umbrella term used to describe forced marriage, human trafficking, forced labour, sexual slavery, child labour and trafficking, domestic servitude, bonded labour, debt bondage, slavery, and slavery-like practices.6 Forced marriage is prohibited under the Criminal Code Act 1995 (Cth) (the Code) as amended in 2013,7 and as such, falls under the jurisdiction of the Australian Federal Police (AFP) rather than being dealt with as family or gender-based violence under the Criminal Code Compilation Act 1913 (WA)8 as amended by the Family Violence Legislation Reform Act 2020 (WA).9 Section 270.7A(1) of the Code defines forced marriage as follows: A marriage entered into without free and full consent of one, or both of the parties involved, as a result of coercion, threat or deception. The definition applies to legally recognised marriages as well as cultural or religious ceremonies and registered relationships; regardless of age, gender or sexual orientation.10

Consent cannot be given if the victim is incapable of understanding the effect and nature of marriage. This applies where free or full consent cannot be given either due to age or mental incapacity.11 Persons under 16 are not considered capable of understanding the nature and effect of the marriage ceremony.12 Section 270 applies to de-facto relationships, marriages, and marriage-like relationships, marriages recognised in Australian law, or the law of other countries, including cultural and customary marriages. Breach of section 270 of the Code carries a maximum penalty of 7 years’ imprisonment, or 4 years’ imprisonment for non-aggravated offences but prosecutions are rare. In the 2022-2023 financial year, there were 90 reports of forced marriage in Australia,13 but it is well-established to be ‘strikingly under-reported’.14 Our Findings and Recommendations Discussions in the women’s workshops showed that ‘arranged marriages’ are common but in fact, are often de facto forced marriages. Women can be ‘married off’ by their family due to shame/perceived shame – for reasons such as socialising with a man or being sexually assaulted by a man, who they may then be forced to marry. There was broad awareness of women’s rights among many participants and an awareness of various avenues for seeking help. However, there was a strong reluctance to act on this by asking for help or reporting forced marriage. As family members are typically involved, women felt they risked being ostracised by family and community if they speak to someone outside their community about these issues. A key recommendation from the women was to carry out community

Forced Marriage in WA education. The women who participated were engaged, resilient, and thirsty for knowledge and we endorse research that supports peer educators in tackling forced marriage and recommend consideration of this approach here.15 The key barriers to preventing forced marriage or enabling women to leave forced marriages are cultural, rather than relating to a lack of information. All focus groups and workshops identified opportunities to work with communities to address cultural barriers to change and the need for community education and leadership on forced marriage. A key challenge is to raise awareness of women’s rights in the Australian context, to examine questions of consent to marriage and to sex (whether married or not); and to understand the difference between an arranged and a forced marriage. Faith leaders, community elders, and other influential adults within communities were all identified as key stakeholders.

There is scope for community groups and government agencies such as the Department of Communities and the Office of Multicultural Interests to collaborate to tackle this issue.

The information available to service providers and other stakeholders is more lacking than we had anticipated and there is a need for training, information, cultural competence, and referral pathways. A range of service providers could be better equipped to identify and respond to risks of forced marriage, these include FDV workers, healthcare workers (including midwives), and educators and support staff in schools and vocational and tertiary education settings.16 As part of our project, we developed a list of all stakeholders relevant to WA as this was not previously available.17 The WA Interagency Group on Human Trafficking and Modern Day Slavery and the Forced Marriage Network – two networks of government agencies and not-for-profits - were identified by

focus group participants as very useful but require funding, for example, through contributions from the agencies to host a secretariat. Funding options for future capacity-building and awareness raising workshops could be investigated. Also, there are a number of government agencies or not-for-profits with experience of delivering training on forced marriage and there is scope for further collaboration. For example, although some professionals expressed concern about the AFP delivering training in a community setting, conversely, some community members expressed that the information coming from an authority figure might carry more weight. In our project, staff with connections to diverse communities and community-based organisations were key in delivering workshops for women and there is potential for a similar model to be used in partnership with the AFP and others – as appropriate to the context and community in question.

Finally, we raise the question whether forced marriage as a criminal offence should be in the Federal or State and Territory criminal codes and recommend considering how forced marriage can be brought within FDV frameworks.

Here, we draw on the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 (Vic), which recognised forced marriage as a form of family violence in response to recommendations in the Victorian Royal Commission into Family Violence.18 Victoria is the only state in Australia to have legislated forced marriage as a form of family violence and a recent report has noted stakeholders expressed consistent support for forced marriage within family violence legislation as it offers opportunities to increase identification of those at risk and improves access to pathways for community engagement and for supports.19 In the interim, interagency networks and ongoing close collaboration

SPECIAL FEATURES

between the AFP and WA Police is critical, as is further education for both communities and professionals. ■

Endnotes 1.

Staff members Associate Professor Fiona McGaughey, Professor Natalie Skead, Associate Professor Jani McCutcheon, Ms Kate Offer and Ms Tsitsi Gotora.

2. Staff members Ms Karen Molhuysen, Ms Diyane Dushime, and Mr Mick Pierce.

3. International Labour Organization (ILO), Walk Free, and International Organization for Migration (IOM), Global Estimates of Modern Slavery: Forced Labour and Forced Marriage (‘Global Slavery Estimates’) (2022) 2.

4. Marta Pascual Juanola, ‘I don’t want to do this’: Forced into marriage, Ruquia Haidari was dead two months later. August 9, 2021. WAtoday (Online newspaper article). <https://www.watoday.com. au/national/western-australia/i-don-t-want-todo-this-forced-into-marriage-ruqia-haidari-wasdead-two-months-later-20210803-p58fed.html>.

5. Walk Free, Global Slavery Index 2023 (2023), ‘Modern Slavery in Australia’, <https://www. walkfree.org/global-slavery-index/countrystudies/australia/>.

6. Parliament of the Commonwealth of Australia, Joint Standing Committee on Foreign Affairs,.

Defence and Trade, Modern Slavery And Global Supply Chains: Interim Report of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Inquiry Into Establishing a Modern Slavery Act in Australia (Report, August 2017) 1.8.

7.

The Criminal Code Act 1995 (Cth) amended by the Crimes Legislation Amendment (Powers, Offences And Other Measures) Act 2015 (‘Criminal Code’).

8. Criminal Code Compilation Act 1913 (WA).

9. Family Violence Legislation Reform Act 2020 (WA).

10. Criminal Code, n 7.

11. Ibid, s 270A(b).

12. Marriage Act 1961 (Cth) s 270.7(4).

13. Australian Federal Police, Human trafficking reports continue to increase in Australia (Media Release 8 December 2023) <https://www.afp.gov.au/newscentre/media-release/human-trafficking-reportscontinue-increase-australia>.

14. Samantha Lyneham, Samantha Bricknell, ‘When saying no is not an option: Forced marriage in Australia and New Zealand’ (Australian Institute of Criminology, Research Report 11, 2018) 2.

15. See, eg, María Florencia Amigó and Sandeep Gurung, ‘The transformational possibilities of a peer education program to address child marriage in Nepal’ (2022) 32(7) Development in practice 890.

16. See, eg, Renate Klein, Nicola Taylor, ‘Postsecondary Education Responses to Forced Marriage and Gendered Abuse Against Students’ (2013) 38 (4) Children Australia 162.

17. Refer to final project report (forthcoming) to access this.

18. Shih Joo (Siru) Tan, Laura Vidal, Forced Marriage as a Form of Family Violence in Victoria (Monash Gender and Family Violence Prevention Centre, 2023) 6.

19. Ibid.

21

NEW ARTICLES

Unfair Contract Term Provisions

Fair Warning: Amendments to Unfair Contract Term Provisions Have Now Taken Effect

by Trina Storm and Dominic Rawlings Clayton Utz

A

year has now passed since the long-awaited Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) (the Act) received Royal Assent. Schedule 2 of the Act has amended the current unfair contract terms prohibitions within the Australian Consumer Law (ACL) set out in the Competition and Consumer Act 2010 (Cth), by expanding the scope of contracts captured by the provisions and introducing civil penalties for using and relying upon unfair contract terms.

With the federal government's 12-month advance notice period ending on 10 November 2023, and the ACCC indicating that unfair contract terms are an enforcement priority in 2023-24, this article acts as a final call for businesses to review their standard form contracts against the new ACL provisions. This is particularly important for businesses that: a. have previously characterised the

22 | BRIEF FEBRUARY 2024

compliance risk in relation to unfair contract terms as low under the previous provisions; or

Each unfair term and each instance of entering into or relying upon the contract with that term is a separate contravention.

b. now fall within the expanded definition of a "small business" under the ACL.

From 10 November 2023, a person who contravenes the provisions may be exposed to civil pecuniary penalties. For corporations, the maximum penalty could be the greater of:

Civil Penalties Possibly the most significant of the amendments brought about by the Act is the introduction of substantial financial penalties for breaching the ACL's unfair contract terms provisions.

Under the former provisions, once a court had found that a term was unfair, the term was automatically void, and although that would have contractual implications, there was little else by way of a stick in this part of the ACL. However, a person may now contravene the ACL if they enter into or rely or puport to rely on a standard for contract made, renewed or varied after 10 November 2023 that contains an unfair term.

a. $50 million per contravention; b. 3 times the value of the benefit that the corporation obtained from the contravention (if that can be determined); or c. 30% of the corporation's adjusted turnover during the period of the contravention.

For individuals, the maximum penalty per contravention will be $2,500,000.

In addition, the court now has power to make declaratory orders to: a. redress, in whole or in part, loss or

Unfair Contract Term Provisions

NEW ARTICLES

damage that has been caused, or to prevent loss or damage that is likely to be caused; b. on application by the ACCC, prevent a term that is the same or substantially similar to an unfair term from being included in future contracts; or c. on application by the ACCC, prevent or reduce loss or damage which is likely to be caused to any person by the unfair term.

Courts may also order injunctions preventing the party from entering into any future contracts or relying on any existing contract with the same or a substantially similar unfair term.

This brings the unfair contract terms regime into alignment with the other contraventions of the Competition and Consumer Act 2010 (Cth).

Expanded scope of unfair contract terms regime Under the ACL, parties are now prevented from proposing, including, and relying on an unfair contract term in "consumer contracts" and "small business contracts" that are "standard form contracts". Additionally, to increase the number of contracts subjected to the ACL, the amendments have: a. significantly increased the threshold for business that are now considered a "small business" under the ACL; and b. has provided clarity to the definition of a "standard form contract".

Small Business Contracts

obligations; b. is not reasonably necessary to protect the legitimate interests of the party who is seeking to rely on the term; and c. causes financial or other detriment to a party if applied or relied on.

The question of whether a contract contains an unfair contract term will continue to be decided on a case-bycase basis, with consideration being given to the extent that the term is transparent and by reference to the contract as a whole. Examples of unfair contract terms typically include, but are not limited to, terms that allow one party to unilaterally: a. vary the terms of the contract; b. avoid or limit performance of the contract; or c. assign the contract to the detriment of another party without that party's consent.

Now that the Act has come into effect, the definition of "small business contracts" in the ACL focuses entirely on the character of the small business rather than the price of the contract. "Small business contracts" is expanded to include contracts for the supply of goods or services, or a sale or grant of an interest in land where either party has:

The exceptions to the unfair contract terms regime also remain unchanged.

These include terms which define the subject matter of the contract, set the upfront price payable under the contract, and those that are otherwise permissible by law.

a. up to 99 employees (increased from less than 20 employees); or

Under the former ACL provisions, there was a presumption that a contract was a “standard form contract”, until proven otherwise. Relevant to this determination was whether the contract was offered to a party on a “take it or leave it” basis, that is, the party was not provided with an opportunity to negotiate its terms.

b. an annual turnover of less than $10 million.

When will a term be considered "unfair"?

The definition of an "unfair" contract term remains unchanged. By way of recap, s 24(1) of the ACL provides that a contractual term will be considered unfair if it: a. causes a significant imbalance in the parties' contractual rights and

Standard Form Contract

Post 10 November 2023, the ACL now allows the court to consider how often a party has used contracts with substantially the same terms, and clarifies that a contract may still be a “standard form contract” despite the weaker party having the opportunity to:

a. negotiate changes that are minor or insubstantial in effect; b. select a term from a range of options; or c. negotiate terms the terms of another contract.

Takeaways Through the expansion of the definition of standard form contracts and the introduction of significant civil penalties, the amendments to the ACL are likely to give rise to risks that businesses have not accounted for when performing their last review of contract terms. These amendments will apply to contracts made, renewed or varied after 10 November 2023.

Businesses must now ensure that their contracts are not in contravention of the unfair contract terms provisions under the ACL. As the ACCC have lobbied strongly for these changes, it is reasonable to expect that they will be eager to see the new provisions being enforced. Hence, it is advised that businesses review their standard contracts and in collaboration with their legal teams: a. identify whether the amendments will apply to them or any counterparties; and whether they are using a "standard form contract" under the expanded definition; b. seek written confirmation from counterparties that may be small businesses by asking for their employee count and annual turnover; c. determine whether any significantly advantageous terms are reasonably necessary to protect their legitimate interests; and d. reconsider the compliance risk under the newly introduced civil penalties. ■

23

NEW ARTICLES

Old Court House Law Museum

The Portable Writing Desk: The Victorian Laptop

by Margie Eberle

Visitor Services and Collections Officer, Old Court House Law Museum

A

Writing box photographs by Bo Wong

lso known as a writing slope or writing box, the portable writing desk first appeared in the 17th century. It became very popular during the Victorian era and was typically a lockable wooden box with a hinged, sloping lid, that opened to reveal compartments for all the necessary letter writing equipment; such as writing paper, ink bottles, pens, and blotting paper.

Just like a laptop, writing boxes could be moved from room to room or taken on long journeys. They became an indispensable tool for keeping up with both personal and business correspondence.

One of the first objects documented in the Old Court House Law Museum Collection was a writing box dating from around 1825.

This wooden veneered compendium was once owned by William Henry Mackie (17991860) and measures 16cm (H) x 49.5cm (W) x 27.2cm (D) when closed. When the lid is opened, the underside forms a sloped writing surface under which are separate compartments and a side drawer. It was donated to the Museum in 1976 by the Royal Western Australian Historical Society.

William Henry Mackie

William Henry Mackie arrived in Western Australia, shortly before his 30th birthday in 1829. He had acquired a large land grant and his legal background saw him very promptly appointed as one of eight Justices of the Peace by Lieutenant-Governor Stirling.

Stirling had been worried about the increase of petty crime and drunkenness and wished to provide some continuity of legal control, similar to the rule of law in England. Courts of Petty and Quarter Sessions were introduced, and Mackie was appointed their chairman as well as counsel to the local government.

In 1831, he became one of the foundation members of the Western Australian Legislative Council, taking up the position of Advocate-General. In 1834 he resigned from

24 | BRIEF FEBRUARY 2024

Portrait of William Henry Mackie, Image reproduction from the Encyclopedia of WA

the Council and became the Commissioner of the Civil Court, presiding over the civil and criminal courts of the colony.

for future reference.

Based on British Law circa 1829, Mackie enabled legal reforms that were adapted to local conditions within the young colony.

Digitising the Museum Collection is a collection management priority and is one of a series of initiatives being undertaken by the Museum to conserve and expand access to Western Australia's legal and social history.

Collection preservation and digitisation

Quarter Sessions – have you subscribed?

In late 2022, thanks to support from Lotterywest, conservation work was undertaken on Mackie’s writing box by International Conservations Services.

The remaining timber veneer, cloth and paper linings were carefully cleaned and consolidated. A degraded brown paper layer on the base was removed to reveal an original engraving illustration of deer in a forest.

The Museum will soon publish a new digital publication, called Quarter Sessions.

The broken tip of an old pen nub was also discovered wedged inside the drawer, which remains with the compendium - now on display in the Museum.

The Old Court House Law Museum Collection is significant in that it represents Western Australia's social, civic, and legal history. In 2023, Bo Wong captured high quality images of a range of objects, regalia and documents which demonstrate the scope of the Old Court House Law Museum Collection. These photographs will enable the objects to be accessed and studied remotely, and ensure that the condition of objects are documented

Named after the type of matters heard at the Old Court House, Quarter Sessions, is a digital newsletter published every three months; connecting the community to the behind-the-scenes work, news, and upcoming events at the Museum. ■ Subscribe today by emailing museum@lawsocietywa.asn.au Museum Open: Tuesday to Sunday | 10am to 4pm

Endnotes 1.

“The Portable Writing Desk – the Victorian laptop”

by Catherine Golden, Professor of English, Skidmore College: https://victorianweb.org/art/ design/furniture/golden1.html.

2. “William Henry Mackie (1799-1860)” by JHM Honniball: https://adb.anu.edu.au/biography/ mackie-william-henry-2410

Young Lawyers

Black Tie Ball

Energy, Fun and a Great Atmosphere!

Friday, 12 April 2024 | 6.30pm to midnight | Optus Stadium, Burswood

Experience spectacular river views and a glamorous evening of entertainment at this unique event for young lawyers and the wider profession.

Set the tone with pre-drink panoramic views across the peninsula from the Stadium’s top level Sky View Lounge.

Followed by a three-course meal, drinks package, photo wall, and a talented DJ in the River View Room, this event will wow!

If you were at the last YLC Ball, you know this is the event to be at!

Members may bring one guest at the member ticket price.

Platinum Sponsor

Gold Sponsor

25

To register pleaseTo see registration or visit lawsocietywa.asn.au register pleaseform visit overleaf lawsocietywa.asn.au

NEW ARTICLES

Lang v The Queen [2023] HCA 29

When Will an Expert's Opinion Be Shown to Be Based on Their Specialised Knowledge?

Lang v The Queen [2023] HCA 29

I

Aidan Ricciardo

Julia Symons

Lecturer, The University of Western Australia Law School

Adjunct Teaching Fellow, The University of Western Australia Law School

n Lang v The Queen, the High Court considered whether a forensic pathologist’s opinion – that the deceased's wounds were more likely inflicted by another person than self-inflicted – was founded on their expert knowledge within the field of forensic pathology (and thus, whether the opinion was admissible as expert opinion evidence).

two people in the deceased’s apartment at the time of her death were the deceased and the appellant. It was accepted at trial that there were only two possible explanations for her death: either the deceased was killed by the appellant, or the deceased died by suicide.

The prosecution case at trial was the former explanation.

Lang was heard on appeal from the Court of Appeal of Queensland. There were two grounds of appeal in both the Court of Appeal and the High Court, though this article is concerned only with the second ground, which was that a miscarriage of justice was caused by the wrongful admission of the forensic pathologist’s evidence at trial.

In support of their case, the prosecution adduced evidence from a forensic pathologist, Dr Ong (who had performed an autopsy of the deceased and produced a postmortem report based on that autopsy), that the deceased's wounds were more likely to have been inflicted by another person than self-inflicted. Dr Ong’s evidence was adduced over objection made by the appellant and ultimately found to be admissible by the trial judge in a pre-trial hearing.

The appellant argued that the opinion evidence from Dr Ong (the forensic pathologist) was inadmissible because it was not demonstrated to be based on his expert knowledge in forensic pathology. Ultimately, a majority of the High Court (Kiefel CJ, Gageler and Jagot JJ, Gordon and Edelman JJ in dissent) dismissed the appeal, noting as to the second ground that: ‘… we cannot conclude that, in engaging in the process of reasoning which led to the formation of the opinion, Dr Ong did other than draw substantially on his specialised knowledge.’

(Kiefel CJ and Gageler J at [26]); and ‘It is clear from a fair reading of the transcript of Dr Ong's evidence that the impugned evidence was based on his specialist knowledge and reflected the combined effect of that knowledge brought to bear on multiple facts that he could ascertain only by reason of his specialist expertise…’ (Jagot J at [469]) As an appeal from Queensland, this case concerns the common law of evidence.

However, as stated by Kiefel CJ and Gageler J in their joint judgment (at [11]), the relevant requirement (for the expert’s opinion to be shown to be based, at least substantially, on their specialised/expert knowledge) applies equally under the Uniform Evidence Law. Background The deceased died from blood loss secondary to a stab wound to her abdomen. The only

26 | BRIEF FEBRUARY 2024

The appellant accepted that forensic pathology was a field of expertise, that Dr Ong was an expert in forensic pathology, and that the question of whether wounds may have been self-inflicted or inflicted by another was capable of being the subject of expert evidence if ‘a suitable foundation as to the [witness's] training, study or experience has been laid’.

Therefore, the crux of the issue was whether or not the opinion was shown to be based on Dr Ong’s expert knowledge.

Dr Ong said he took a number of factors into account in reaching the opinion that the wound was more likely to have been inflicted by another person than self-inflicted, such as the absence of evidence of self-harm (for example, incisions to the wrist). Dr Ong said that the factor he took most into account in forming his opinion was ‘the multiplicity of the stab wounds’ and the ‘rotation of the blade’. Dr Ong gave evidence that there was a single penetrating stab wound, comprised of two internal thrusts of the knife in one direction, a partial retraction and rotation of the knife while it was mostly withdrawn from the deceased’s body, followed by a further two or three thrusts, with the knife rotated in a different direction to that of the first two thrusts. There was a single point of entry.

Critically, Dr Ong said in his evidence-in-chief in the pre-trial hearing that his opinion was based on his ‘logical sense of what happened’. In

cross-examination at trial, Dr Ong said he had found no literature on a wound bearing the same features as the deceased’s (featuring as it did a single entry external wound, a couple of internal stabs, rotation, and then a couple of more internal stabs). He said he had also not dealt with a case like this in his career.

The appellant submitted that Dr Ong’s opinion was, therefore, substantially based on his subjective view as to how a person may or may not act when attempting to die by suicide, rather than being properly based on his special expertise in forensic pathology.

Justice Jagot's Judgment Of those in the majority, Jagot J wrote the most substantive judgment. Justice Jagot found that Dr Ong’s opinion was not based on his subjective view of human behaviour (a matter beyond his expertise) – rather, the conclusion that the wounds were more likely to be selfinflicted was based on the wounds themselves and his experience as a forensic pathologist.

Justice Jagot relevantly said: ‘It is apparent that Dr Ong was not purporting to give evidence as to the deceased's psychological state or, indeed, the psychological state of any person who ends their own life.

He was explaining that the evidence of the wounds themselves…, based on his expertise and experience over 25 years, led him to the conclusion that the wounds were more likely to be inflicted by another person than to be self inflicted. It is because drawing conclusions from wound patterns involves a process of deductive reasoning based on expertise as a forensic pathologist, and because he had no expertise to opine as to the particular psychology of the deceased at the time of the infliction of the wounds (and did not so opine), that he could not rule out the possibility that the wounds were self inflicted.’ (at [468]) As to whether Dr Ong could form such a conclusion without having encountered an identical case in his experience or in the literature, Jagot J said that ‘the essence of expertise is the capacity to reason from facts based on specialist training, study, or experience’ (at [469]):

Lang v The Queen [2023] HCA 29 ‘… The fact that Dr Ong had not identified such a sequence of events in either a suicide or a homicide caused by stabbing does not mean that his evidence was not based on his expertise and does not mean his evidence lacked a rational foundation… it is highly unlikely that any case of suicide or homicide reported in the literature will be identical to an actual case which confronts a forensic pathologist… He is entitled to bring to bear all his specialist training, study, or experience to form an opinion without being able to point to an identical or even similar case. It is clear… that the impugned evidence was based on his specialist knowledge and reflected the combined effect of that knowledge brought to bear on multiple facts that he could ascertain only by reason of his specialist expertise…’ (at [469], emphasis added) Justice Jagot thus dismissed the ground of appeal.

Chief Justice Kiefel and Gageler J's Judgment Chief Justice Kiefel and Gageler J agreed with Jagot J, but wrote separately from the lead judgment to elaborate on the common law principles which bore on the admissibility of Dr Ong's opinion.

In particular, their Honours discussed the requirement for an expert witness to reveal to the court their process of reasoning, so as to demonstrate that their opinion is based on application of their specialised knowledge to the relevant facts. Drawing on Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, as applied in Dasreef Pty Ltd v Hawchar [2011] HCA 21, Kiefel CJ and Gageler J noted that: ‘…in order to satisfy the condition of admissibility that the opinion of an expert be demonstrated to be based on specialised knowledge or experience, the inference drawn by the expert which constitutes the opinion [must] be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to facts which the expert has observed or assumed.’ (at [11]) Their Honours noted that this requirement exists both at common law and under the Uniform Evidence Law (at [11]). They also noted that the standard set explicitly by the Uniform Evidence Law – that an expert’s opinion need only be ‘substantially based on’ their specialised knowledge – applies equally at common law (at [12]).

Their Honours also noted that for the purposes of admissibility, the relevant question is simply whether the process of reasoning is sufficient to demonstrate that their opinion is the product of the application of their expert knowledge to the facts. Whether or not the reasoning is clear and convincing does not go to admissibility, but is relevant to how much weight the factfinder might afford to the opinion (at [15]–[16]).

Chief Justice Kiefel and Gageler J went on to note that the cogency of an expert witness’ reasoning could affect the admissibility only if and when a court is called upon to decide

whether its probative value is outweighed by its prejudicial effect (ie, when applying the Christie discretion at common law, or ss 135/137 of the Uniform Evidence Law).

It is of particular interest that their Honours said ‘assessing the probative value of the opinion [by] having regard to the cogency of the reasoning proffered in evidence in support of it involves no departure from the now settled principle that the assessment of the probative value of evidence requires that evidence to be "taken at its highest": taking evidence at its highest involves making no assumption that the evidence in question is convincing’ (at [17]).

Though these principles have been stated and settled previously, it is worth noting the inherent difficulty – at least in some cases – involved in teasing apart notions of credibility and general reliability (which are not to be considered when determining probative value) from the cogency of the reasoning (which can be considered as going to probative value).

Turning to consider the case at hand, their Honours said ‘The overwhelming impression which emerges from reading the transcript is that of a professional and dispassionate forensic pathologist seeking to make sense of observed phenomena in respect of which neither his long experience nor his wide reading furnished an exact precedent.’ (at [20]) As to Dr Ong’s statement that he formed his opinion based on his ‘logical sense of what happened’, their Honours noted that ‘This expression was unfortunate in that it could be interpreted as Dr Ong saying that, in forming his opinion, he had drawn on some third source of background knowledge additional to his professional experience and the scientific literature. However, it is clear enough… that what he was saying was that he had engaged in a process of inductive reasoning which involved applying his knowledge of the interpretation of stab wounds to observed features of [the deceased’s] wound to form a conclusion about which of the two scenarios was more likely.’ (at [21]) Chief Justice Kiefel and Gageler J acknowledged that at trial, Dr Ong perhaps did not do a particularly good job of explaining why the wounds were more consistent with stabbing by another than they were with stabbing oneself. Their Honours said that ‘Absent a clearer explanation of Dr Ong's process of reasoning, his opinion about whether the features of the wound which he identified were more consistent with stabbing by someone else might legitimately have been thought to have carried [little weight]... That weakness might well have been thought to have gone to the admissibility of Dr Ong's opinion had the argument been advanced that its probative value was outweighed by its prejudicial effect.’ (at [25]) However, the argument put by the appellant was instead that the reasoning was not sufficient to demonstrate that the opinion was based on Dr Ong’s expert knowledge, and on that point Kiefel CJ and Gageler J agreed with Jagot J that the ground of appeal should be dismissed.

NEW ARTICLES

Concluding comment This case is interesting and helpful for a number of reasons. It provides a solid illustration of an opinion which is demonstrated to be based on expert knowledge even though the process of reasoning was not particularly clearly expressed. To that extent, it also demonstrates the distinction between ‘sufficient reasoning’ to demonstrate that the opinion is substantially based on expert knowledge, as compared to ‘cogent or convincing reasoning’ which chiefly goes to weight but can also affect probative value.

The stark difference between the majority judgments and Gordon and Edelman JJ’s dissent on this point is also interesting. Justices Gordon and Edelman found that Dr Ong did not adequately establish how his expertise provided a substantial basis for a connection between the facts he observed and his opinion as to how the wounds were inflicted. Their Honours found that Dr Ong’s opinion involved speculation about human behaviour, a matter which he did not have expertise in: ‘In circumstances where he had neither seen nor read of an example of a single wound with multiple tracks and a rotation of the knife, whether suicide or murder, the entire extent to which his expertise was exposed in connecting those facts to his opinion was his own speculation that the facts were "odd", the injury would be painful, and an injurer (if committing suicide) would not choose to ("take the trouble to") rotate a blade rather than just plunge it in different directions. None of these matters was shown to have any connection with expertise….

And to the extent that they might have a connection with any expertise it would be in the field of psychology, including the psychology of the appellant or the psychology of Mrs Boyce…’ (at [239]–[240]) Finally, the case is also interesting because it speaks to and demonstrates a number of commonalities between the common law and Uniform Evidence Law tests for admissibility of expert opinion. A consequence of this is also that it is relevant to those practicing in all Australian jurisdictions. As the Attorney General has publicly stated several times in the past few years,1 Western Australia is set to adopt the Uniform Evidence Law in the near future (though a modified version which will 'retain any Western Australian evidentiary provisions that are deemed sound').2 As this case speaks to both the common law and Uniform Evidence Law rules relating to expert evidence, it is presently relevant in Western Australia, and will continue to be relevant if/when the Uniform Evidence Law is adopted here. ■

Endnotes 1.

See, eg, Hon John Quigley, ‘Attorney General’s Update to the Profession’ (August 2021) 48(4) Brief 49, with the same sentiment repeated in Volume 49(3) of Brief (June 2022).

2. Law Reform Commission of Western Australia, Project 112 – Admissibility of Propensity and Relationship Evidence in WA (Final Report, 18 August 2022) 5.

27

LAW IN PRACTICE

WA Case Notes

WA Case Notes

Trust issues — Cardaci v Cardaci [2023] WASCA 158

by Christopher Taylor-Burch Barrister, Francis Burt Chambers

Key takeaways In Cardaci, the Court engaged in a wideranging assessment of when and why trustees and executors may be replaced, and the consequences for using trust funds to pursue hostile litigation. Most relevantly: •

•

•

•

A beneficiary of a discretionary trust need not prove bad faith, improper purpose, misconduct, or failure or refusal to consider exercising a trustee’s powers before a trustee may be replaced. It is enough for their conduct to so impair the Court’s confidence in the future administration of the trust that the welfare of the beneficiaries is opposed to them continuing in office.

That a beneficiary requires litigation funding, repayable from any future trust distributions, to bring proceedings to remove a trustee may not prevent the beneficiary becoming the replacement trustee. That may be particularly so where the trustee denies the beneficiary funds and the trustee’s conduct increases the beneficiary’s costs.

A trustee’s failure to seek independent advice before accepting or ratifying a large debt with adverse consequences for a trust or estate’s solvency may well have serious consequences for a trustee’s attempts to be excused of personal liability for breach under Trustees Act 1962 (WA) s 75.

Even if a trustee’s personal integrity is in question, they must defend proceedings in a reasonable manner; otherwise, they risk demonstrating — after litigation calling for their removal has commenced — that they are unsuitable for office, and risk losing their indemnity for legal costs.

What happened?

Marc Cardaci held most of his wealth in a discretionary family trust, and a discretionary testamentary trust left to him by his mother. Before falling ill, Marc met Mae, who became his wife and cared for him until he died.

Marc left his property on discretionary trust for Mae. He also expressed his desire, in a memorandum of wishes, for

28 | BRIEF FEBRUARY 2024

the income and capital from his family trust be paid to Mae after his death. Marc and Mae had discussed making charitable contributions to assist other families facing terminal illness.

Marc’s brother, Philip, became the controller of the trustee companies for each of Marc’s two trusts, and executor of his will.

For a while, Philip carried out those roles uncontroversially. But, when Mae began a new relationship, Philip told her he would never distribute anything to her from the family trust again. He went on to claim that payments made to her from the trusts were loans, not distributions.

Philip then, having failed to distribute anything to Mae at the end of the previous financial year, made a ‘settlement offer’ to ‘buy out’ her interest in Marc’s estate and the two trusts. In doing so, Philip did not distinguish between his own capacity, or his capacities as controller of the trusts and executor. He valued Mae’s interest in the family trust at nil. Mae never accepted that offer.

Soon after, Philip sought to have Marc’s estate administered in bankruptcy, relying in part on an alleged debt owed by Marc’s estate to his testamentary trust. That debt was said to have come about shortly after Marc’s death, when the testamentary trust paid $1.2 million to a company that had been jointly owned by Marc and Philip.

That company had lent money to Marc to buy a boat.

Mae commenced proceedings, relying on litigation funding as she had no access to Marc’s wealth. Mae won, mostly. The primary Judge made orders removing the trustee companies, and Philip as executor, and appointed Mae to those roles. He held the $1.2 million payment had not been authorised when made, but Philip had caused it to be ratified in breach of trust. Accordingly, Marc’s estate was not indebted to the testamentary trust, and was never insolvent.

However, the primary Judge dismissed Mae’s claim for damages for the costs of Marc’s estate being administered in bankruptcy, on the basis Philip had acted honestly and reasonably within the meaning of Trustees Act s 75, and the trustee company ought to be excused of

its liability.

The primary Judge did, though, find Philip caused the trustee companies to act in breach of trust in using trust funds for their legal costs, and ordered that they be repaid.

Philip and the trustee companies appealed on various grounds against their removal and obligations to restore the trusts.

Mae cross-appealed the dismissal of her damages claim.

In deciding those grounds, the Court of Appeal provided guidance about when trustees may be replaced, the effect of litigation funding on a beneficiary’s eligibility to be a replacement trustee, and when trustees may not be excused of liability for their own breaches of trust.

What is required before a trustee may be removed from office?

The appellants contended that the trustee companies could not have been removed where there had been no finding of their bad faith, improper purpose, misconduct, or failure or refusal to consider the exercise of their powers in favour of an eligible object.

The Court rejected that limitation on the scope of Trustees Act s 77 and its inherent power to remove a trustee of a discretionary trust. The Court considered: •

The only conditions on the existence of the power in s 77 are that ‘it is expedient to appoint a new trustee’ and that it is ‘inexpedient, difficult or impracticable to do so without the assistance of the Court’. The discretionary power arises ‘whenever’ those conditions are satisfied, and the broad language of s 77 is inconsistent with the appellants’ limitation: [186].

•

That is supported by s 77(2), which refers to particular instances where trustees may be replaced that are not confined to cases involving misconduct, but extend to circumstances giving rise to a lack of confidence in the trustee to administer the trust: [187].

•

The authorities indicate a breach of duty by a trustee may be neither necessary nor sufficient to justify removal of a trustee. Other factors

WA Case Notes may sufficiently impair the Court’s confidence in the trustee’s future administration of the trust. On the other hand, an established past breach of trust may not have that effect: [198].

•

•

•

The Court has a broad discretion to be exercised with a view to the interests of the beneficiaries, the security of the trust property, the efficient and satisfactory execution of the trusts, and the faithful and sound exercise of the powers conferred on the trustee.

The authorities are inconsistent with the appellants’ contended-for limitation: [199].

That broad discretion is consistent with the principles as to the limits on judicial review of the exercise of a special power of appointment: [200].

Those principles do not confine the jurisdiction to remove a trustee, nor the considerations relevant to doing so: [204], [291]–[293]. If the Court concludes there has been a breach of trust in exercising or failing to exercise the power, it will still ordinarily be necessary for the Court to consider whether that breach sufficiently impairs the Court’s confidence in the future administration of the trust: [205]. Even if the Court does not find a breach, it may still conclude there are other reasons justifying the trustee’s removal: [206].

The appellants’ construction was inconsistent with the approach taken in Elovalis v Elovalis [2008] WASCA 141: [207].

In short, a trustee may be removed from office if their conduct so impairs the Court’s confidence in the future administration of the trust as to lead to the conclusion that the welfare of the beneficiaries or objects is opposed to the trustee’s continuation in office: [205]–[206], [231]. That is, where the trustee is not willing and able, or is unlikely to be willing and able, to discharge their duties according to law: [233].

Having reviewed Philip’s conduct, the Court concluded replacing the trustee companies was justified by: •

•

•

Philip having set his mind against any exercise of discretion in Mae’s favour — where she was the prime candidate for the favourable exercise of discretion — so that the trustee companies would not give real and genuine consideration to the exercise of the special powers of appointment in her favour: [224]–[229]. the prospect that the trustee companies may simply reinstate their decisions not to make income distributions to Mae: [230].

Philip making his offer to ‘buy out’

Mae in order to never have to make a distribution to her from the family trust, which offer was premised on him never doing so: [232].

It was not to the point that Philip might, by some other action under the trust deeds, have excluded Mae from receiving further income and capital. What mattered was what Philip actually did: [231].

How might litigation funding affect a beneficiary being appointed as replacement trustee?

The appellants contended that Mae’s litigation funding agreement, under which she would owe almost $10 million, placed her in a position of conflict which disqualified her from being the replacement trustee.

reasonable care and skill as executor in ratifying the $1.2 million debt from Marc’s estate to his testamentary trust.

The Court therefore went on to deal with Mae’s contention that Philip had not acted reasonably within the meaning of Trustees Act s 75.

In doing so, the Court indicated that: •

While negligence will not necessarily prevent a court from concluding that a trustee acted reasonably within the meaning of s 75, negligent conduct by a trustee may lead a court to conclude they did not do so: [519].

•

Put another way, a conclusion that a breach of trust resulted only from some want of care by a trustee will not necessarily disentitle them from relief under s 75, but equally it will not necessarily entitle them to be found to have acted reasonably; each case depends on its facts: [519].

The Court rejected that argument, and considered: •

•

Mae’s potential conflict was no different in character from the potential conflict inherent in the object of a power of appointment being made trustee: [461].

There were exceptional reasons for appointing Mae, in that no one had proposed an alternative, Mae was the prime and natural candidate for provision from the trusts, and the family trust deed envisaged the trustee could and would be a beneficiary: [451], [463].

•

Mae had been placed in the ‘invidious’ position of needing funding to take legal action to protect her interests where Philip had denied her funds. Her costs had been increased by Philip’s approach to the litigation. And there was no evidence of any better funding terms having been available: [464].

•

Any trustee would have to manage the problem of Mae’s debt to the litigation funder. Mae, who had the capacity and integrity to be trustee, was capable of doing so: [465].

•

There could be other funds, besides distributions made by Mae to herself, to discharge her debt, including amounts recovered from Philip and the former trustee companies, and the capital of the testamentary trust: [466].

Accordingly, the existence and terms of the litigation funding agreement did not disqualify Mae from being the replacement trustee: [467].

When might trustees not be excused of liability for their breaches of trust?

The Court overturned the primary Judge’s conclusion that Philip acted with

LAW IN PRACTICE

The Court rejected that Philip’s conduct was reasonable where: •

He did not prove he relied on his accountants and business managers’ advice, and they were not independent advisers in any event: [499]–[505], [520].

•

He did not know or believe Marc had authorised a $1.2 million payment at all or as a loan from his testamentary trust: [496]–[498], [520].

•

A person of ordinary prudence in the management of their affairs would not have accepted a debt of $1.2 million with adverse consequences for their solvency — including where Philip doing so would cause Marc’s estate to incur very significant costs in bankruptcy and have very serious consequences for Mae — without reasonable grounds for doing so, and without taking independent legal advice: [506]–[507], [520].

Philip therefore could not be excused for his liability for his breach of trust.

A warning to practitioners and trustees In short, Cardaci is a warning that, before setting out to defend long and expensive litigation in an effort to keep a trustee in office, trustees and their advisers should carefully reflect on whether doing so could be for the benefit of the beneficiaries, and not the trustee’s personal interests.

And, if proceedings are to be defended, advisers must be careful not to undermine their client’s interests by acting with hostility toward beneficiaries and their representatives. Taking a win-at-all-costs approach seems more likely to turn into a lose-at-huge-cost reality.

29

LAW IN PRACTICE

High Court Judgment

High Court Judgment

by Dr Michelle Sharpe

Castan Chambers, Melbourne

Constitutional law Duties of excise In Vanderstock v Victoria [2023] HCA 30 (18 October 2023) the High Court was, for the first time this century, required to examine the scope and operation of s90 of the Constitution in considering the validity of a charge imposed under the Zero and Low Emission Vehicle Distancebased Charge Act 2021 (Vic) (ZLEV Charge Act).

Section 90 gives the Commonwealth parliament the exclusive right to, among other things, “impose duties of customs and of excise”. Section 7(1) of the Zero and Low Emission Vehicle Distancebased Charge Act 2021 (Vic) (ZLEV Charge Act) imposed a charge on the registered operator of a Zero and Low Emission Vehicle (ZLEV) for use of the ZLEV on specified roads (ZLEV Charge).

The definition of a “specified road”, in s3 of the ZLEV Charge Act, encompasses all roads in Australia (public or private) over which the public has a right of way. The charge is calculated, under s8 of the ZLEV Charge Act, annually at a prescribed rate for each kilometre travelled. The plaintiffs are registered operators of ZLEVs. The proceeding was brought in the High Court’s original jurisdiction and (as agreed between the parties) the Full Court was asked: “Is the impugned provision of the ZLEV Charge Act invalid on the basis that it imposes a duty of excise within the meaning of s90 of the Constitution?”

At the hearing, the Attorney-General of the Commonwealth intervened to support the plaintiffs. The Australian Trucking Association was granted leave to participate as amicus curiae and also supported the plaintiff’s position. But, in the other corner, the Attorneys-General for each Australian state and territory intervened in support of Victoria.

30 | BRIEF FEBRUARY 2024

Victoria conceded that the ZLEV Charge was a tax but argued that the ZLEV Charge was a tax on the activity of driving a ZLEV on specified roads.

Victoria asserted that this characterisation of the ZLEV Charge arose from the fact that it was only imposed when a ZLEV was driven on a specified road, it was calculated by reference to distance travelled (and not the value of the ZLEV), and it was levied on a single ZLEV periodically.

Victoria also relied on the majority decision in Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 that a tax on goods imposed at the stage of consumption did not answer the description of an excise.

In a split decision, of four (Kiefel CJ, Gageler, Gleeson and Jagot JJ) to three (Gordon, Edelman and Steward JJ), and judgments spanning a total of 951 paragraphs, the High Court answered the question in the affirmative – s7(1) of the ZLEV Charge Act was invalid on the basis that it imposes a duty of excise within the meaning of s90 of the Constitution.

Kiefel CJ, Gageler and Gleeson JJ, after examining the authorities, concluded, at [133], that Dickenson’s Arcade should be reopened and overruled. Their Honours held, at [134], “A tax properly characterised as a tax on goods does not fall outside the constitutional conception of excise merely because it is imposed at the stage of consumption of those goods”.

Their Honours then considered, at [182][185], whether the ZLEV Charge bore a close relation to the use of ZLEVs and whether it affected ZLEVs as articles of commerce.

Their Honours were dismissive of Victoria’s argument that the ZLEV Charge was a tax on the activity of driving a ZLEV and had no difficulty finding the ZLEV Charge to be a tax on the use of ZLEVs that adversely affected the sale of ZLEVs

– and as such was an excise within the meaning of s90 of the Constitution. Jagot J also held, at [948], that Dickenson’s Arcade should be overruled and agreed with Kiefel et al, at [949], that the ZLEV Charge was an excise.

The minority declined to reopen Dickenson’s Arcade (Gordon J at [439]; Edelman J at [665]; Steward J at [759]).

The minority also considered that the majority’s approach in this case could lead to uncertainty in the future and disturb existing legislative and financial arrangements (Gordon J at [438]; Edelman J at [612]; Steward J at [825]).

Dr Michelle Sharpe is a Victorian barrister practising in general, real property, commercial, disciplinary and regulatory law, ph 03 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

Federal Court Judgments

LAW IN PRACTICE

Federal Court Judgments

by Nadia Stojanova Barrister, Victorian Bar

Industrial law Employees entitled to back pay for increases to their pay and entitlements under an enterprise agreement commencing during their employment but coming into effect after their resignations on the first pay period after the enterprise agreement came into effect – ss51 and 54 of the Fair Work Act 2009 (Cth) construed to mean that an entitlement to arrears not limited to employees still employed when the enterprise agreement comes into operation In Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba [2023] FCAFC 172 (30 October 2023) the Full Court of the Federal Court (Collier, Logan and Meagher JJ) allowed an appeal by two employees against a decision to dismiss an application for back pay for increases to their pay under enterprise agreements commencing during their employment but coming into effect after each employee had resigned (at [50]). In doing so, the Court held that ss51 and 54 of the Fair Work Act 2009 (Cth) (FW Act) do not limit an entitlement to arrears to employees still employed when a relevant enterprise agreement comes into operation (at [46]).

The first and second appellants were employees whose resignations took effect in December 2019 (at [2]-[3]) (Employees). The Employees had both been employed on 1 July 2019 (at [4]).

In November 2020, the Fair Work Commission (FWC) approved enterprise agreements (Enterprise Agreements) which respectively covered the Employees (at [5]-[8]).

The Enterprise Agreements contained commencement clauses which contained words to the effect that the Enterprise Agreements would operate seven days after approval from the FWC and where the Enterprise Agreements specify an earlier operative date for a particular provision, then that provision shall operate from that date for all “applicable employees” employed at that earlier date (at [9]-[10]).

The Enterprise Agreements provided for staged salary increases that were backdated to 1 July 2019 (at [11]).

The first and second respondents were the former employers of the Employees (Employers). The Employers did not pay the 1 July 2019 pay increases to the Employees or other employees who were employed at 1 July 2019 but, in particular, had resigned before the Enterprise Agreements came into operation (at [16]).

This decision is of great significance because it provides authority for the operation of ss51-54 of the FW Act in relation to entitlement to back pay after enterprise agreements come into operation. This is so despite the relevance of the specific text of the Enterprise Agreements in question (at [18]).

A key argument made by the Employers was that the only employees who had an entitlement to back pay were those who remained employed when the enterprise agreements came into operation (at [23]).

The Bill, which became the FW Act, expressly contemplated that, once operative, enterprise agreements could provide for back pay for work performed prior to the operative date of the agreements (at [46]).

Critically, the Court did not find “an overt intention to discriminate in terms of coverage” between employees who were employed as at 1 July 2019 but ceased employment before the Enterprise Agreements came into operation and those employees who remained employed when the Enterprise Agreements came into operation (at [48]).

Practice and procedure

Potential operation of s570 of the Fair Work Act 2009 (Cth) does not operate as a bar to the production of documents relevant to an application for security for costs In Dove v Everforex Financial Pty Ltd [2023] FCA 1171 (3 October 2023) the Federal Court (Goodman J) dismissed the respondent/ cross-applicant’s Everforex Financial Pty Ltd (Everforex) application to set aside Notices to Produce. In doing so, the Court held (among other things) that s570 of the Fair Work Act 2009 (Cth) (FW Act) does not operate as a bar to the production of documents relevant to an application for security for costs.

The Court’s decision to dismiss the application considered a range of matters. One of those matters was the relevance of s570 of the FW Act. Section 570(1) of the FW Act provides that a party to proceedings (including an appeal) in a court (including a court of a state or territory) in relation to a matter arising under the FW Act, may be ordered to pay costs incurred by another party to the proceedings only in the limited circumstances established by that section. This includes the matter set out in s570(2), such as that the party instituted the proceedings vexatiously or without reasonable cause.

The first applicant sought (among other things) that Everforex provide security for the first

applicant’s costs of the relevant cross-claim (at [7]).

The first applicant issued Notices to Produce to Everforex requiring Everforex to produce for inspection various documents, including financial statements (at [9]-[11]).

Everforex opposed the Notices to Produce on various bases. Among other things, Everforex argued that insofar as the documents sought were relevant to Everforex’s ability to meet an adverse costs order: s570 of the FW Act applies to the relevant cross-claim; there is “no prospect” that s570(2) of the FW Act would be satisfied in relation to the relevant crossclaim; this means there is no prospect that Everforex would have costs ordered against it; this means that the Court should not make an order requiring Everforex to provide security for costs or to produce documents relevant to the matter of security for costs; and the Court must form the view that it is likely to grant the security for costs application before requiring the production of the documents sought (at [13]).

The Court was prepared to accept that s570 of the FW Act would apply to the cross-claim because of the broad language used in the expression “in relation to a matter arising under this Act” in s570(1) of the FW Act. However, the Court was not prepared to accept that there was “no prospect” that s570(2) would be satisfied. Instead, the Court was prepared to accept that there was “some” prospect that s570(2) would be satisfied and, therefore, that the discretion to award costs against Everforex may arise (at [26]).

The Court also refused to accept Everforex’s argument that the Court was required to find it likely that security would be ordered before Everforex should be required to produce the relevant documents (at [27]).

The Court rejected Everforex’s submissions that the Full Court of the Federal Court had held in Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 283 FCR 123 that it was not possible for security for costs to be provided in a proceeding to which s570 of the FW Act applied (at [29]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia. stojanova@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.

31

LAW IN PRACTICE

Family Law Case Notes

Family Law Case Notes

by Craig Nicol and Keleigh Robinson Editor and co-editor of The Family Law Book.

Accredited family law specialists

Children

Property

original proceedings were dismissed for want of jurisdiction. Costs certificates were ordered.

Children – Trial judge unnecessarily interrupted and curtailed cross examination via a “five minute warning” to counsel – Unfounded and unfair findings as to family violence

Property – Court lacked jurisdiction to hear non-federal aspects of justiciable dispute between husband and his former business associate – No common substratum of facts between matrimonial cause and husband’s civil suits

Property – Arbitration – Ordinary principles of procedural fairness apply to arbitrations – Husband’s failure to adduce evidence as to capital gains tax did not relieve the arbitrator from making orders that were just and equitable

In Akbar & Gandega [2023] FedCFamC1A 174 (12 October 2023) the Full Court (McClelland DCJ, Austin & Wilson JJ) heard an appeal from a decision of Riethmuller J. The appellant was the husband’s former business partner.

In Vida [2023] FedCFamC1A 175 (18 October 2023) the Full Court (Tree, Hartnett & Schonell JJ) considered an unsuccessful application to review an arbitral award, dismissed by Wilson J.

In Edinger & Duy [2023] FedCFamC1A 194 (10 November 2023) the Full Court (Aldridge, Schonell & Carter JJ) heard a father’s appeal from parenting orders for a child (born in 2015) to spend no time with him [2].

The mother alleged that the child witnessed sexual activity in the father’s house, was subject to sexual abuse by the father’s girlfriend and neglect by the father and paternal grandfather [13].

The trial judge found that the least detrimental outcome for the child was to remain in the mother’s care and spend no time with the father [19]. The father appealed, arguing he was denied procedural fairness [5].

The Full Court said (from [274]): “ … [I]n this hearing there was a significant departure from that permitted for proper trial management such as to give rise to a miscarriage of justice. The interventions were excessive, including needlessly interrupting the flow of the evidence and cross-examination … (…)

[49] Section 69ZX(2)(d) of the Act sets out that the Court’s general duties and powers relating to evidence [and] includes permitting the court to give directions limiting the time for the giving of evidence. That must … be tempered by the primary duty of a judge, namely to ensure a fair hearing …

[50] … [I]t was procedurally unfair and unreasonable for [the father’s] counsel to be given … a five minute warning when a significant part of the evidence regarding family violence had not yet been put to the [mother]. That is particularly problematic … where it is readily apparent from the reasons that the mother’s experiences of family violence were central to the Court’s determination.

[51] … [T]he primary judge identified the lack of cross-examination on many aspects of the mother’s allegations regarding family violence as relevant to her fact-finding process … Yet she permitted only about 20 minutes in total for counsel for the father to complete his crossexamination on the topic – during which time the primary judge continued to interrupt counsel.”

The appeal was allowed, the orders set aside and the proceedings were remitted for rehearing. Costs certificates were granted.

32 | BRIEF FEBRUARY 2024

The husband and the appellant agreed to the husband’s withdrawal from their business in exchange for payment, but the appellant did not pay. The wife joined the appellant as a party, “purporting to sue him on behalf of the husband for damages to compensate him for the appellant’s alleged breach of the contract” [10] Austin J (with whom McClelland DCJ and Wilson J agreed) said (from [25]): “The existence of the husband’s chose in action was not contentious as between the spouses … Only its value was liable to be controversial between them. But placing a value on that property interest for the purpose of resolving the spouses’ matrimonial dispute did not demand the determination of the causes of action brought against the appellant … ( … ) [28] Claims grounded solely in contract, tort, equity, or some other form of non-matrimonial relationship (such as partnership or corporation shareholdings) are not likely to attract jurisdiction as a matrimonial cause when the spouses’ marriage is purely coincidental to the dispute ... ( … ) [33] … [T]he relationship between the husband and appellant arose exclusively out of their mutual business activities … The husband’s legal grievance with the appellant could easily have been litigated independently … There was no common substratum of facts between the spouses’ matrimonial cause and the husband’s civil suits …

[34] … The convenience of first determining whether or not the husband should have judgment for a certain sum of money entered in his favour against the appellant … is not the same as the essentiality of determining those causes for the purpose of then determining the matrimonial cause … ” The appeal was allowed and the causes of action at common law and in equity pleaded by the respondents against the applicants in the

The arbitrator ordered that the husband pay the wife $1,920,043 within a period of four months [17].

The husband identified that a sale of real estate would give rise to “significant tax implications” but did not adduce evidence from his accountant of capital gains tax calculations [18].

The arbitral award did not factor in the potential capital gains tax liability.

The Full Court said (from [32]): “The primary judge concluded that no error of law was occasioned by the arbitrator failing to take capital gains tax into account, particularly where the [husband] had adduced no evidence about the tax implication arising from the sale of the properties. ( … ) ( … ) [41] We are satisfied that a sale of real estate was a natural product of the award … [T] he result of the award is that the [husband] is not left with the property identified by the arbitrator … after payment of the $1,920,043 but something considerably less because of capital gains tax. ( … ) [52] The mandate is to make an order that is just and equitable. It is not just the underlying percentage but the order that must also be just and equitable ... At that stage, knowing what net property a party is to be left with must satisfy the requirement of justice and equity.

Here the arbitrator knew from the unchallenged evidence of the [husband] that a sale of real estate would give rise to capital gains, that the size of the capital gains tax, albeit unknown, was ‘significant’, that there was no evidence that the [husband] had the capacity to borrow such a sum and that consequently, there was an inevitability about a sale … ” The appeal was allowed, the orders of Wilson J set aside and the review application was remitted for rehearing. Costs certificates were ordered.

Recognising Members on the Move

REGULAR ARTICLES

Recognising Members on the Move The Law Society warmly congratulates the following Law Society Member appointments that have occurred since October 2023:

OCTOBER 2023 • The Hon Justice Alain Musikanth Judge of the Supreme Court of Western Australia

JANUARY 2024 • The Hon John McKechnie KC Receiving the honour of Officer (AO) of the Order of Australia

• Mr Greg McIntyre SC New President of the Law Council of Australia

NOVEMBER 2023 • Master Sarah Elizabeth Russell Master of the Supreme Court of Western Australia

• Mr Craig Bydder SC

FEBRUARY 2024

Solicitor-General of Western Australia

• Her Honour Judge Genevieve Cleary Judge of the District Court of Western Australia

• Her Honour Judge Fiona Vernon

DECEMBER 2023

Deputy President of the State Administration Tribunal

• The Hon Justice Kate Glancy Judge of the Supreme Court of Western Australia

• Ms Jean Shaw Board Member of the Law Reform Commission of WA

• Ms Helen De Brito Director of Legal Aid WA

• Magistrate Jane Johnson Magistrate of the Family Court of WA

33

REGULAR ARTICLES

Young Lawyers Committee (YLC)

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

by Demi Swain

Chair, Young Lawyers Committee

The YLC is ready to kick off another eventful year: 2024 will see us continue to focus on opportunities to advocate for junior lawyers, graduates and students in the legal profession.

Our popular law student mentoring programme, social, sports, advocacy and careers-focused events remain key features of promoting networking and collegiality, and we are excited to continue delivering valuable information campaigns and resources to help improve the legal profession.

The countdown is on to our calendar highlight, and much-anticipated event, the Young Lawyers Black Tie Ball. This is shaping up to be a great night and if you were at our last YLC Ball, you know this is the event to be at.

We have six new committee members joining the YLC this year. We will be introducing them via the February edition of YLC News and on our socials.

Make sure you follow us on our Instagram @ylc.wa to keep up to date with all things YLC! And if you have ideas or thoughts on what you would like to see us doing this year, or simply need some assistance, please email us at younglawyers@lawsocietywa.asn.au.

Demi Swain, Chair

Event Recap: End of Year Sundowner at Lalla Rookh Thursday, 30 November 2023 The last day of spring kicked off the YLC end of year Sundowner on the right note.

Making the most of the last event in the YLC calendar for 2023, members grazed on delicious bites, charged their glasses to the outgoing year and appreciated relaxing time spent with colleagues and friends.

With thanks to our sponsor Legalsuper

34 | BRIEF FEBRUARY 2024

Young Lawyers Committee (YLC)

REGULAR ARTICLES

Event Recap: Mixed Beach Volleyball Competition

Welcome to the Profession Breakfast

Friday, 16 February 2024

Thursday, 7 March 2024

The YLC’s first event of the year, the annual Mixed Beach Volleyball Competition was held on Friday, 16 February at Sand Sports in Nedlands.

Joining the legal profession after completing your years of study and hard work is a significant milestone in your life and the Law Society is committed to supporting your journey in law from day one.

Six teams battled it out on the sand in a fun and friendly competition, with players enjoying wood fired pizza and refreshments when the rounds were completed.

Keep an eye on our socials for the announcement of the winning team and to check out some photos of what was a great evening!

The Welcome to the Profession Breakfast is a key event for the year and welcomes newest members whilst showing support for the career in the future. This celebration will be marked by special keynote address from a member of the judiciary which promises to inspire and motivate our newest members of the profession.

To register, please visit our website here.

UPCOMING EVENTS

2024 Law Student Mentoring Programme The 2024 Law Student Mentoring Programme is now open for applications for both Mentors and Mentees.

The Programme pairs emerging practitioners (young lawyers) with current law students to provide guidance and support to the transition from student to law graduate and then to lawyer.

The Programme runs from March to November, so contact us at younglawyers@lawsocietywa.asn.au to be a part of this mutually rewarding collaboration.

Young Lawyers Black Tie Ball Friday, 12 April 2024 Tickets are flying out the door for the much-anticipated biennial Young Lawyers Black Tie Ball!

Being held on Friday, 12 April at Optus Stadium, we invite you to experience spectacular river views and a glamorous evening of entertainment at this unique event for young lawyers and the wider profession.

A three-course meal designed by Matt Moran, 5.5 hour beverage package, talented DJ and a very special keynote speaker will make this a night to remember.

Special early bird tickets are available until Friday, 1 March 2024, so book today! You can choose from a variety of ticket options – table of 10, VIP tables, groups and single tickets.

With thanks to our Platinum Sponsor, Curtin Law School and Gold Sponsor Hall and Wilcox.

Click here to book your tickets right now.

35

REGULAR ARTICLES

Young Lawyers Committee (YLC)

Prudence Juris Dear Aunt Prudence

Dear Aunt Prudence

I am a lawyer at a relatively large firm. By all accounts, I am doing well. I receive positive feedback from both colleagues and clients.

However, I can’t shake the sense that I am an imposter and that I’m not smart enough to work here, let alone argue cases. I am afraid of making a mistake because my skills just aren’t up to par with everyone else.

My emails have gotten completely out of control. I can barely get billable work done because my inbox is full. I am afraid that I will miss an important deadline, and every day I am afraid to open up my email and see another hundred emails added to the already unruly inbox. What do I do?

How do I get over feeling so insecure?

Insecure Overachiever Dear Insecure Overachiever Feeling like an imposter is not unusual in a profession where mistakes are punished and perfection is expected. It is important to remember that you are a human, and you are bound to make mistakes. Show yourself some compassion. Mistakes are not a reflection of your intelligence or character – unless you refuse to learn from them!

However, if you are facing significant anxiety over this and it is causing you to feel panicked, then you shouldn’t feel ashamed to reach out to somebody for help. The Law Society offers an EAP Program for all its members.

Sometimes talking it through with someone can help you realise you’re not failing, and that you are on the same footing as everyone else.

Aunt Prudence

36 | BRIEF FEBRUARY 2024

Pandora’s Email Box Dear Pandora’s Email Box Email overload is a serious problem for a great many lawyers. Here are some tips that can help manage your inbox: 1. Diarise those Court deadlines ASAP! As soon as those directions come in, put them into your calendar. Make sure to copy in your managing partner in, and, if you are the managing partner, consider copying in your underlings as well to keep them informed of your busy schedule. That way, they'll know how very important you are and how much you have on your plate.

2. Schedule 15 minutes each day to go through your emails and sort them out.

If your email needs some serious love, then it might be time to start re-organising those inbox folders and filtering out those spam emails.

Aunt Prudence

Hi Aunt Prudence I am terrible at public speaking.

Do I just resign myself to life as a desk jockey, and leave the Court advocacy for lawyers who are more extroverted than me?

Panic! at the Courtroom Hi Panic! at the Courtroom Many of the best advocates did not start out as naturally adept public speakers. The way that they became great was, in part, through experience.

Don't be discouraged if you're not an immediately brilliant public speaker. Public speaking is a skill that can be developed over time, and with practice. Use every opportunity available to you to watch more senior lawyers advocate in your preferred Court of Tribunal. And don’t wait until you think you’re good enough to start appearing before the Court. Start as soon as possible, and improve your skills.

Aunt Prudence

Young Lawyers Committee (YLC)

REGULAR ARTICLES

Hi Aunt Prudence

Dear Aunt Prudence

I am a mature-aged junior lawyer.

I am really struggling to get postadmission experience anywhere that can pay my bills. What can I do?

I am starting a new job at a Top 5 law firm as a graduate lawyer.

Do you have any tips on getting a good start?

Top 5 Grad

Mature Aged Junior Hi Mature Aged Junior Have you tried applying for community legal centres?

Consider exploring quasi-legal roles such as policy roles in smaller organisations, or in a government department. You could try your hand at union work, as this will give you advocacy experience.

Practical experience is highly valued, and time spent developing skills that other lawyers might not have will help you stand out.

Aunt Prudence

Dear Top 5 Grad Here are my top five tips for making a good start: • Proofread everything that you write.

• Do not rush important tasks – take your time making sure that you understand what you are doing.

• Ask questions if you’re not sure about something.

• Treat people fairly.

• Proofread your work again.

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.

37

REGULAR ARTICLES

Quirky Cases

The Tale of the Bag of Money

by John McKechnie KC

I

t was the time of the great depression. Thousands were out of work. The depression hit governments hard as well. New Zealand was forced to limit the export of silver money, especially to Australia where it commanded a premium.

Naturally the temptation to smuggle was alluring. And so begins our story.

Sam Willey, a rigger by trade was lucky. He found work as a boatswain on the SS Paiko, a cargo and passenger ship, part of a fleet owned by the New Zealand Shipping Co. A boatswain is responsible for rigging, equipment and general maintenance. The boatswain is effectively chief of the deck crew.

In 1933, SS Paiko left Newport News, Virginia USA for Melbourne Australia, calling at Dunedin NZ. She carried cargo but no passengers. On the 18th of August 1933, she left Dunedin.

3 days after leaving Dunedin, the boatswain Mr Willey was carrying out a routine inspection when something in the forepeak caught his eye. There was a tarpaulin where no tarpaulin should be. He lifted a flap to discover underneath the tarpaulin, a vegetable bag. Inside the bag were English silver coins totalling 355 pounds and 5 shillings. The boatswain was an honest man. He immediately reported his find to the captain who took the bag and put it in the ship’s safe until they reached port. On arrival in Melbourne, the captain reported the find to the Controller of Customs, Mr Maurice Synan. Mr Synan had joined the Victorian customs service in 1898, the year of Mr Willey’s birth. He transferred to the Commonwealth customs service on Federation and had enjoyed a distinguished career. He decided that the bag of money would be forfeited to the Commonwealth. The shipping company, the government of New Zealand and Mr Willey all lodged claims to the money but after a time the others withdrew, leaving only Mr Willey to pursue his claim.

This was a matter of Federal jurisdiction. There was no Federal Court of Australia, so Mr Willey lodged his claim in the High Court of Australia.

Matters proceeded at a leisurely pace and it wasn’t until 30 October 1936 that the action was heard before Justice Starke.

By this time, two events of significance had occurred. First, Mr Willey, who had been living in Leichardt NSW, returned to England and his new wife. Of course there were no video

38 | BRIEF FEBRUARY 2024

facilities back then such as Zoom or Teams and returning in person was too expensive so Mr Willey was unable to give evidence at the hearing. This was to prove decisive.

The second event was that Mr Synan, after watching a cricket match, suffered a heart attack and died on the 8th January 1936. He was 60.

Unusually then, neither party was present to hear Justice Starke, after a short hearing, dismiss Mr Willey’s claim.

Even though Mr Willey had told the captain he found the bag of money and the captain had told the customs officers, that evidence was inadmissible. There was no direct evidence that Mr Willey had actually found the bag.

Mr Willey fared no better on the appeal which was heard by the High Court in February 1937. Mr Willey had a supporter.

Justice Evatt, always one for the underdog, would have allowed the appeal. But the other judges would not. Justice Dixon noted that the bag of money was not lost. It was stored where the owner or agent could fetch it. Justice Rich had no doubt that the silver was anything but lost.

The embarrassment to the owner had proved sufficient to prevent him from coming forward and claiming the bag.

That did not give Mr Willey possession and anyway the evidence was inadmissible.

So the matter ended. The Commonwealth was enriched by 355 pounds and 5 shillings.

The honest boatswain Mr Willey lived in London for the rest of his days, passing away in 1976 at the age of 77.

On the 18th May 1941, en route from Albany WA to Freetown Sierra Leone, SS Paiko was torpedoed off the coast of Liberia by German U boat 107 with the loss of 10 lives.

In the course of his judgment, Justice Rich noted that “the Commonwealth have the advantage of coming within the apothegm Beati possidentes* which, if is not a legal maxim, embodies a legal truth.”

To which might be added another legal truth: Nunquam inter imperium et sacculum pecuniae.** Adapted from Willey v Synan (1935) 54 CLR 175; Willey v Synan (1937) 57 CLR 201. *Blessed are the possessors. **Never get between the government and a bag of money.■

Ethics Column

REGULAR ARTICLES

“Professional Misconduct” at Common Law — Does It Have a Future?

by Gino Dal Pont

Professor, Faculty of Law, University of Tasmania

• The courts’ disciplinary jurisdiction at common law is the flipside of their jurisdiction to admit “fit and proper” persons to practice.

• This jurisdiction has long been informed by the Allinson formulation of “professional misconduct”.

• New South Wales case law, though, has signalled a shift from the Allinson formulation.

I

s there such a thing as “professional misconduct”? The legal profession legislation draws a distinction between “professional misconduct” and “unsatisfactory professional conduct”, both concepts that receive an inclusive statutory description (more so than a definition). But what about at common law? For almost two centuries, it has been recognised that State Supreme courts’ statutorily-sourced jurisdiction to admit “fit and proper Persons to appear and act as Barristers, Advocates, Proctors, Attorneys and Solicitors”1 carries an implied power to discipline lawyers — typically via striking off or suspension — who are not “fit and proper” to remain on the roll.2 The genesis of the concept of “professional misconduct” at common law awaited the conclusion of the nineteenth century, emerging from the English Court of Appeal’s decision in Allinson v General Council of Medical Education and Registration.3 The question there was whether the appellant, a medical doctor, had engaged in what statute branded “infamous conduct in any professional respect”.4 Each of the judges accepted that conduct of this kind targeted what “would be reasonably regarded as disgraceful or dishonourable by … professional brethren of good repute and competency”.

That the foregoing was an attempt to give meaning to a phrase from an old English statute dealing with doctors has proved no obstacle to its translation into the lawyer discipline sphere as reflective of “professional misconduct” seemingly at “common law”, in both the United Kingdom5 and Australia.6 For a description of a statutory phrase to spawn a common law threshold seems somewhat odd.

Via its 2021 decision in Council of the New South Wales Bar Association v EFA

(a pseudonym),7 it may be that the New South Wales Court of Appeal was seeking to reverse this oddity. Their Honours disagreed with the proposition, though conceding that it could be gleaned from some New South Wales appellate authority, “that there exists in the common law of New South Wales a category of professional misconduct which can be defined by the formulation taken from Allinson, divorced from the ‘fit and proper person’ concept”.8 Rather than amounting to a stand-alone disciplinary threshold, the court located the Allinson formulation as a “useful test in the determination of the fitness of a legal practitioner to remain on the roll”.9 While the remarks in EFA may have come by way of surprise — in the wake of the stream of case authority, in New South Wales and elsewhere, espousing a concept of “professional misconduct” at common law — one can have sympathy with the court’s attempt to redirect disciplinary law to its historical foundation, where the trigger for professional discipline was phrased by reference to “fitness and propriety” and did not rest on a finding of “professional misconduct” as such.

Putting the language of “professional misconduct” at common law to one side avoids the need to probe whether it is confined to wrongdoing in a professional capacity. It seems so. After all, the two leading High Court cases involving “personal misconduct” sounding in criminal convictions — Ziems v Prothonotary of the Supreme Court of New South Wales10 (motor manslaughter) and A Solicitor v Council of the Law Society of New South Wales11 (aggravated sexual assault) — saw their Honours eschew reference to “professional misconduct” while nonetheless envisaging scope for a protective disciplinary order.

a person “fit and proper” to remain in practice, as distinct from whether he or she has engaged in “professional misconduct” in the Allinson sense, also obviates drawing what can sometimes prove a difficult line between “personal” and “professional” misconduct. That legislators conceive statutory “professional misconduct” to encompass conduct “occurring otherwise than in connection with the practice of law”, tied to a finding that the lawyer is not a “fit and proper” person to engage in legal practice,12 suggests an intentional shift from what, because of Allinson, might have seemed the position at common law.

The position in Western Australia to date appears otherwise, favouring the Allinson approach as a separate and distinct test for “professional misconduct”, in addition to its statutory counterpart.13 The EFA approach, as well as the statutory formulations of misconduct, are in any event not without their difficulties, as I shall elaborate in the next column. ■

EndNotes 1. Charter of Justice 1823, cl X. 2. Re the Justices of Antigua (1830) 1 Knapp’s 267; 12 ER 321, adopted in Re Davis (1947) 75 CLR 409.

3. [1894] 1 QB 750.

4. Medical Act 1886 (UK) s 29 (since repealed).

5. See Re A Solicitor [1912] 1 KB 302 at 311–12 per Darling J; Myers v Elman [1940] AC 282 at 288–9 per Viscount Maugham.

6. See, for example, Re Veron [1966] 1 NSWR 511; Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145.

7. (2021) 106 NSWLR 383.

8. Ibid at [149].

9. Ibid at [156].

10. (1957) 97 CLR 279.

11. (2004) 216 CLR 253.

12. Legal Profession Uniform Law, s 297(1)(b).

13. See Goldsmith v Legal Profession Complaints Committee [2023] WASCA 136 at [53]–[56] per Mazza and Mitchell JJA.

Inquiring into whether wrongdoing renders

39

REGULAR ARTICLES

40 | BRIEF FEBRUARY 2024

Law Council Update

REGULAR ARTICLES

Law Council Update Evidence does not support wholesale changes to merger regime

Council’s Business Law Section provide a detailed review of the evidence. They conclude that the case has not been made for these changes. It is essential that careful consideration is given to the views of all stakeholders before further proceeding”.

The Law Council of Australia has challenged the contention that mergers always lead to an increase in prices and a reduction in productivity and that therefore radical reform of Australia’s merger regime is urgently needed.

Suspended death sentence of Dr Yang Hengjun

“The Competition Review Taskforce has undertaken consultation on Australia’s merger review processes,” Law Council of Australia President, Mr Greg McIntyre SC said.

The Law Council of Australia is alarmed by reports that Chinese Australian Dr Yang Hengjun has been handed a suspended death sentence by a Chinese court.

“The Law Council, through its Business Law Section, has made two submissions to this review. In its main submission, it recommended that while improvements to the merger regime can and should be made, the current model has proven over several decades to largely strike the right balance.

“This week it made a supplementary submission in response to late input to the review provided by the Australian Competition and Consumer Commission (ACCC), which reiterated calls for significant reforms which in the Law Council’s view are not supported by robust evidence.

“The Law Council, led by its Business Law Section, is concerned that taken as a package, the ACCC’s proposals are unbalanced and would have a chilling effect on investment in Australia and increase the regulatory burden and transaction costs for deals that are productivity-enhancing.

“The result of the ACCC’s proposals would be to remove the checks and balances that currently underpin our merger regime. Over time, this lower, subjective threshold and lack of oversight could erode the quality and rigour of merger decision making by the ACCC. “The submissions made by the Law

family and friends.”

The Law Council continues to hold grave concerns for Dr Yang’s health, which has deteriorated significantly in the five years he has been detained.

“The Law Council urges the Australian Government to pursue every avenue to support Dr Yang’s further appeals and to advocate to the Chinese Government for his release, and in the meantime, to ensure that he receives effective consular and legal assistance as well as proper medical care in accordance with international minimum standards.” ■

“The Law Council has consistently expressed concerns that Dr Yang’s trial for alleged espionage offences took place behind closed doors following protracted pre-charge and pre-trial detention, and has highlighted Dr Yang’s rights to consular assistance and independent legal counsel at all stages of his detention and trial,” Law Council of Australia President, Mr Greg McIntyre SC said.

“The Law Council absolutely and unreservedly opposes the use of the death penalty in all circumstances for all people.

It does not accept that whether and in what circumstances the death penalty may lawfully be imposed is a matter that each State is free to determine by itself, without reference to international laws and standards.

“Dr Yang’s sentence falls far short of international standards regarding the imposition of the death penalty, including that in those places where it remains an available penalty, it may only be imposed for crimes of extreme gravity involving intentional killing, and pursuant to a fair and public hearing by a competent, independent and impartial tribunal established by law.

“This sentence is extremely distressing and brings renewed uncertainty to Dr Yang, his 41

New Members

New members joining the Law Society (December 2023 and January 2024)

Associate Member

Ordinary Member

Luke Spadano

Michael Spivak

Nisali Pallewela Jade Quinlan Andre Hoogenbozem Mitchell Wells Amanda Balakrishnan Law Student Member Jerry Toh

Restricted Practitioner Member Alyx Akroyd Rita Pereira Hannah Orloff Paul Hyun Matthew Reen Rebecca Barrett

Alicia Sec

Annabelle Lee

Amber Fabry

Charlotte O'Hare

Branka Vukas

Sophia Parkins

Classifieds FOR SALE

Coastal Rural Legal Practice Want to live in a beautiful part of W.A. or expand your current firm?

Well-established sole practice with plenty of opportunity to expand services and grow the client-base. Primary areas of work – Wills, EPA’s, probate and other estate law, succession law, commercial law, and farming-related leases. Large number of safe custody packets containing Wills and other documents.

Missing Will

Missing Will

Any person knowing the existence or whereabouts of the last Will made by Letitia Sheridan also previously known as Doreen Letitia Tayler, previously of 124 Sixty Eight Road, Baldivis in the State of Western Australia, born 21/09/1942 and died on 01/12/2023. Please contact Caroline Cavanagh, Probate Portal on 1300 897 765 or email service@jubileelegal.com.au within one (1) month of the date of the publication of this notice.

JOHN DESMOND ELDER of no fixed address, Tasmania, Registered Nurse, deceased, formerly of Western Australia.

Any person or firm holding or knowing the whereabouts of a Will or other testamentary document of JOHN DESMOND ELDER born on 29 December 1963 who died on 20 November 2023 please contact Walsh Day Mihal Bassett, Barristers and Solicitors of 18 King Edward Street, Ulverstone TAS 7315, (03) 6425 2077 or mail@walshday.com.au.

Please send expressions of interest to the ‘Principal Lawyer’ at yargxis@gmail.com.

Missing Will For advertising opportunities in Brief please contact: Maryka Mensink

Manager Events & Business Development T: (08) 9324 8638 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

42 | BRIEF FEBRUARY 2024

WYNDHAM JOHN MORGAN late of Coolibah Care, Mandurah, Western Australia, died on 13 September 2023. Could any person knowing the existence or location of a will made by the said deceased persons please contact Terrence East of HFM Legal on 9328 6226 or by email at terrence@hfmlegal.com.au.

Member Extras

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 extras please click here.

Special Members Discount on Accommodation at The Ritz-Carlton, Perth Cutting a striking silhouette along the Swan River, The Ritz-Carlton, Perth evokes timeless luxury and the joy of discovery. Set within a stunning building on Elizabeth Quay, the 205 elegantly appointed guest rooms and suites overlook the river, skyline and urban parks with floor-to-ceiling windows offering pristine views. Enjoy high end culinary experiences highlighting local ingredients, a river-view infinity pool and a luxury spa featuring bespoke treatments at your Perth stay-cation.

Law Society members receive an exclusive discount on accommodation bookings for stays until 31 December 2024.

To redeem this offer, visit the Ritz-Carlton website and enter the discount code LS6 when making a reservation.

Please visit the Members Only Extra page (password protected) to view the full offer details and terms & conditions.

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.

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/ContinuingProfessional-Development

Practitioners in Western Australia can earn up to five CPD points per CPD year by writing a legal article and having it published in Brief. The amount of CPD points

To submit material for Brief, please send it via email to brief@lawsocietywa.asn.au

43

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

Info Sheet

Domestic and Family Violence Helpline:

Telephone 1300 338 465

LGBTIQ helpline:

Telephone 1300 542 874

Info Sheet Info Sheet

Practitioner Advice

CoronaCare

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

LawCare WA now includes a suite of dedicated support programmes called ‘CoronaCare’ to help support you and your organisation manage through the uncertainty that we are all experiencing as a result of the emergence of COVID-19 (Coronavirus). Visit our website to find out more.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

Service provided by Converge International

Phone: 1300 687 327 For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

This service is only for a Law Society member who is an individual employee (not an employer). Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.