Brief August 2022 by The Law Society of Western Australia

INSIDEALSO New Security of Payment Laws YLC Section Events, Mentoring, Case Notes and more VOLUME 49 NUMBER 5 AUGUST 2022 2022 ofOnLawLegalDeterminationsBusinessContentiousCostsProfessionUniform-TheNewCoststheRightsandWrongsUnvaccinatedJurors

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DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Corporate Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Des McKenzie RRP $16.00 incl GST. Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Dianne Caruso, Lucy Clark, Tracy Cole, Megan Cramp, Patricia Femia, Jessica Henderson, Anlee Khuu, Roselina Kruize, The Hon John McKechnie QC, Grace Ritter, Dr Pat Saraceni, Robert Sceales, Eu-Min Teng, Johann Andreas von Altenstadt. Proofreaders: Ingrid Briggs, Sonia Chee, Cassandre Hubert Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au. President: Rebecca Lee Senior Vice President: Ante Golem Junior Vice President & Treasurer: Paula Wilkinson Immediate Past President: Jocelyne Boujos Ordinary Members: Ben Bullock, Rebecca Bunney, Dr Brett Davies, Angie Gimisis, June Kenny, Gary Mack, Judy McLean, Terry Palmer SC, Kellie Woods Country Member: Michael Ryan Junior Members: Thomas Camp, Selina Gates, Hamish Glenister Chief Executive Officer: David Price FOLLOW US lawsocietywa.asn.auLawSocietyWA@LawSocietyWA ARTICLES 40 CONTENTS 2022August|5Number|49Volume 02 President’s Report 04 Editor’s Opinion 51 Ethics Column 55 New Members 61 Member Privileges 62 High Court Judgments 63 Federal Court Judgments 65 Family Law Case Notes 66 Quirky Cases 67 Cartoon 68 Law Council Update 69 Classifieds REGULARS @the_Law_Society_of_Western_Australia 08 Special Feature: Listening to First Nations Voices 32 2022 Contentious Business Determinations 36 Legal Profession Uniform LawThe New Costs 40 New Security of Payment Laws 47 Waiver of Legal Professional Privilege and Associated Material 48 On the Rights and Wrongs of Unvaccinated Jurors 52 Revenge Porn and Sexting: Moments of Indiscretion – a Lifetime of Regret? 54 A Matter of Trust: The High Court’s Scrutiny of Self-Managed Superannuation Fund (SMSF) and Binding Death Benefit Nomination (BDBN) 56 Young Lawyers Committee Section 08 01 New Security of LawsPayment Listening to First Nations Voices LPUL: The New Costs 36

A submission to the review of the Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA)

Reflecting on this transitioning period, we have a special feature, “Listening to First Nations Voices”, with a foreword written by Kelsi Forrest, a proud Wadjak Baladong Mineng Nyungar, who is a Law Society member and sits on the Society’s Indigenous Legal Issues Committee. She points out that we as the legal profession have an important role in acknowledging the impacts of our history and particularly the way in which the law worked as a vehicle for many atrocities to occur. “Listening to First Nations Voices” covers a wide variety of topics which serve to reflect on the past and take learnings from it, but also look to the future for First Nations peoples, as we look to a referendum to decide the Indigenous Voice to Parliament enshrined in the Incidentally,Constitution.the

Rebecca Lee

President, The Law Society of Western Australia

REPORT

We have been pleased to see that our website’s Legal Profession Uniform Law hub has been a useful resource for members. While seasons change, two things remain constant: continuous changes in and to our profession, and the Society’s commitment to keep you informed, prepared and supported.

Although Council did not meet in July, many matters have been progressed at the Committee level and the August Council is set to have an action-packed Agenda. Policy matters which the Society is actively considering include:

Thank you for Renewing your Membership

The system of mediation in estate dispute matters. A number of Committees have also bolstered their membership and leadership with the appointment of new passionate and eminent lawyers as members, Chairs or Deputy Chairs. The Committees do important work, and the time and expertise our members volunteer is much appreciated.

02 | BRIEF AUGUST 2022

Advocacy

Noongar Season Djilba is represented by the colour pink as it symbolises growth of wildflowers and plants, and is also the theme colour of our special feature. In this transitional period, we have an important opportunity for growth, and I hope you find the special feature inspiring and thought-provoking, as we hear, and learn from, brave First Nations’ voices.

To assist practitioners, the Law Society and Law Mutual (WA) have drafted generic templates for Client Engagement Agreements, in the form of a client engagement letter, for litigated and transactional matters that represent good practice management and should also comply with costs disclosure obligations provided they are properly completed, and the practice satisfies itself that the client understands the services it will provide and at what cost. For more information on costs and billing and other important resources, visit the website here This edition of Brief also features an informative article by Kellie Woods, Managing Associate from Dentons Australia, providing helpful tips to reduce the risk of costs assessments, cost disputes and the reductions of fees in the costs assessment and costs dispute process. See page 36 for details.

Prohibitions on Conditional Cost Agreements under the Uniform InadequaciesLaw in Federal Court Cost

The new Spring CPD Programme has recently been released with an extensive range of quality seminars and webinars now available on the Law Society website. Hear from expert presenters such as Alain Musikanth SC, State Coroner Rosalinda Fogliani and Sue Chrysanthou SC, as they discuss matters of interest in their practice areas in the legal field. In addition to substantive law, you can learn how to deliver a meaningful Acknowledgement to Country, or contemplate the future of the criminal trials with new and topical CPD events being organised every week.

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Legal Profession Uniform Law Western Australia joined the national Uniform Law scheme on 1 July 2022. This event was a tremendous milestone in the expansion of the Uniform Law scheme, and a significant step towards the goal of Australia having a national legal profession under a national regulatory regime. The scheme is now operative in respect of 75 per cent of the legal profession in this country.

Welcome to the August edition of Brief In the Noongar seasonal calendar, August is the start of Djilba or “first spring”. It is a transitional time of the year and is considered by Noongar people as the season of conception, or the growing season. It is characterised by some very cold and clear days, along with warmer, rainy and windy days and the occasional sunny day. This transitional quality of the seasons is also reflected in the world around us. A new federal government has come into power, led by Prime Minister Albanese, who recommitted to the Uluru Statement from the Heart during the Welcome to Country ceremony at the beginning of the first day of the 47th Parliament sitting.

The new membership year commenced on 1 July. A strong showing of over 4,000 members having already renewed provides great confidence for the year ahead. The Society will work hard to continue to be a solid supportive association providing you with targeted benefits to help you grow personally and professionally across your career journey. We also have more than 3,500 members with the exclusive added benefit of free CPD, as a result of renewing their membership before or on 31 July 2022. I thank you for your membership renewal and the Society looks forward to supporting you this year. Spring CPD Programme

PRESIDENT'S

Since the last edition of Brief, Committee meetings have continued as per usual, with a mixture of in person and Zoom attendance which has been a hallmark of meetings since the beginning of the COVID-19 pandemic.

Find out more about our committees and advocacy here

A sophisticated night, celebrating inspiring people and creating an impressive social gathering to remember. Friday, 30 September 2022 | 6.30pm to Midnight | Crown Ballroom, Crown Towers, Perth Join the legal profession as we set the stage to recognise others and celebrate with those who make us proud. The evening will feature the announcement of the Lawyer of the Year Awards and the Attorney General’s Community Service Law Awards. Enjoy live entertainment, premium three-course dinner, dancing and much conviviality. Dress code is black tie optional. To register please complete the registration form over the page or visit lawsocietywa.asn.au DINNER 2022 Annual Awards Celebration for the Legal Profession Platinum Sponsor Gold Sponsor Supported by Principal Sponsor

Brief commends Kelsi’s Foreword to readers as, effectively, an editorial upon the First Nations feature. Having an editorial in Brief that is informed, insightful, thoughtprovoking, and coherent will no doubt come as quite a shock to regular readers of Brief As Kelsi notes, the items in the First Nations feature bring into sharp relief the essential role and not-to-be-shirked responsibilities of lawyers (and the law) concerning First Nations issues.

This edition’s First Nations feature is not only timely, given current events, but also reminds us that so many issues affecting First Nations peoples are timeless and ever-present, even if not the subject of prominent publicity and political or legal debate. The issues confronting First Nations peoples operate not only at a broad “macro” level (such as matters of National importance and high policy) but also at an intensely personal “micro” level affecting individuals and their personal experiences, whether with or within the law.

Jason MacLaurin SC Editor, Brief | Barrister, Francis Burt Chambers

We especially and warmly thank Kelsi Forrest for her insightful, interesting and informative Foreword, which introduces the articles and brings together their themes, issues and the controversies, explaining the forces, passions, and emotions involvedand where we stand in regard to the past, the present and the future.

As COVID remains in the news, we have Eli Bernstein’s piece “On the Rights and Wrongs of Unvaccinated Jurors”. We also have Ken Yin on “Revenge Porn and the Internet”. Our regular “A Matter of Trust” item has Grahame Young’s take on The High Court’s Scrutiny of Self-Managed Superannuation Funds and Binding Death Benefit Nomination. The responsibilities and challenges that confront a lawyer can sometimes seem daunting. Lawyers are looked to for guidance inspirationandon all manner of high minded and difficult matters including the rule of law, natural justice, social justice, constitutional and human rights and liberties, whether when he/she went down to Georgia the Devil really lost the violin duel to Johnny or whether it was a biased home town ruling by Charlie Daniels J that should be revisited, the law’s means of preserving the wellbeing of the planet and everybody on it, and who out of Johnny or Amber (and/or Pistol and Boo for that matter) were in the Ifright.only there was someone who had the wherewithal and energy to provide a onestop shop dealing comprehensively and definitively with all these vexing questions. Fortunately, Prince Harry stepped up to the plate with his recent speech at the UN before an audience consisting either of staffers who had to attend the UN equivalent of a school detention, or Spotify executives carrying dictaphones so they could at least get some work-product to convert into podcasts to fulfill the Sussexes’ overdue obligations under their lucrative contract. Prince Harry took on everything, including the constitutions and judicial decisions thereupon of several nations, but principally the USA. It’s possible though that when referencing the 1st, 2nd and 14th amendments, he was referring to alterations to his pre-nuptial agreement, Should the Duke of Sussex continue his sojourn into matters of a constitutional nature, the team at Working Dog Productions could perhaps find it in their hearts (and budgets) to begin work on “The Castle II - Battle Royale” lest we never get the chance to realise our (obviously Photoshopped) vision of a Denuto, Hamill, Kerrigan and Sussex Dream Team.

EDITOR'S OPINION

The balance of this edition fortifies this point that lawyers have, as part of the privileges enjoyed by them, weighty responsibilities, not only as agents of change, reform, defending rights, and explaining the operation of the law and the profession to the community, but also to be engaged and informed about all the changes to the law and the way it is (and is expected to be) practiced. This edition has important updates on 2022 Contentious Business Determinations by Clare Thompson SC, and Kellie Woods on the “Legal Profession Uniform Law: The New Costs”. We also have items on the “New Security of Payment Laws” by Greg Steinepreis and his team at Squire Patton Boggs, Melissa Koo, Rachel Pachacz, Joseph Perkins, Zayna Abu-Geras, Donna Charlesworth, Tenille Kearney, Robert O’Brien and Alix Poole.

Brief thanks all contributors to the First Nations feature for their excellent thoughtprovoking items, which run the gamut of “micro” and “macro” issues; dealing with overarching National level concerns, and those of the individual.

04 | BRIEF AUGUST 2022

Given Unaipon’s legacy as an inventor, it is fitting he is on the $50 note as this year marks the 45th anniversary of Australia being a ground-breaker in the invention and deployment of the polymer bank note (a collaboration between the RBA, CSIRO and University of Melbourne).

As always, we thank all our contributors to Brief, including our much-valued regular contributors and the writers of letters to the Editor. Indeed, such is the nature of the topics covered in this edition we hope and welcome any comments or observations and correspondence on any of the items in this edition. Brief welcomes your thoughts and feedback. Send letters to the editor to brief@lawsocietywa.asn.au Brief encourages open discussion and discourse on matters of importance. The views expressed in many of the articles may not necessarily reflect the position of the Law Society.

On the other side of the $50 note is another tyro, seemed imbued with perpetual motion, the inestimable Edith Cowan. Cowan’s history is well-known to readers, and has been the subject of many articles in Brief, last year being the 100th-year Anniversary of her election to the WA Legislative Assembly and thereby Australia’s first female parliamentarian. Cowan’s achievements were remarkable: establishing King Edward Memorial Hospital, a Justice of the Children’s Court, establishing the Karrakatta Club, and Governor of St Mary’s Church School. She also sat on an amazing array of committees, including the Perth Hospital Board, Red Cross, Child Protection Society, Town Planning Association, Housewives Association, Infant Health Association, Military Nurses, WA Historical Society, General and Provisional Synods of the Church of England, Girl Guides Council and the Women’s Immigration Auxiliary, which is all the more impressive given that she had to do so without Zoom having been invented.

Interestingly, a printing of the $50 note contained an embarrassing error in the microtext of a Cowan speech reproduced therein where the word “responsibility” in the phrase “It is a great responsibility to be the only woman here” is misspelt three times as “responsibilty” (i.e. missing the “i” three times). This is the sort of unforgiveable error one would never find in Bref or any Bref Edtoral (although it might be observed that the omission of as many “i’s” as possible in any speech or written work is, generally speaking, desirable).

The production of The Castle also has lessons for the administration of justice. It was filmed in 11 days on a budget of approximately A$750,000 though it’s takings at the box office exceeded $15,000,000. It shows, as to trial time, what can be achieved when one puts one’s mind to it, in 11 days. And, as to its financial aspects, it is the epitome of “proportionality” as applicable to the question of legal costs vs the amount at stake (both concepts being particularly relevant to some recent legal Whenclashes).lawyers

that hopefully were not drafted by Oprah CelebratingWinfrey. its 25th Anniversary, the great Australian film (and lawyers’ favourite) “The Castle” was responsible for both raising, and in some ways lowering, the bar for lawyers concerning community expectations of what they (and the law) can achieve. It is worth re-watching (and Brief extends a 6 weeks’ grace period to any reader who hasn’t seen The Castle and, while we’re at it, to those who believe the Tom Hardy Mad Max is the original, to see these movies) for its whimsical and endearing portrayal of the hapless Dennis Denuto and the near-deux ex machina entrant Lawrence Hamill QC. The latter, of course, saves the day and gives credence to the comforting belief that ultimately the law will come to the rescue and obtain the just and right result. However, it is important to note that the ultimate victory would not have been possible without the inexhaustible faith the client, Darryl Kerrigan, placed in Denuto.

The Castle was, of course, based around the time-honoured saying that “a man [or insert here appropriate noun or pronoun]’s home is [his] castle” a variation upon this, or a “vibe” like riff, is no doubt being currently developed by lawyers far more expensive and experienced than Denuto, for a submission that “a Mar-a-Lago is (or should be) ones castle.”

25 years later Denuto’s great “vibe” submission is still referred to. It is noteworthy that Denuto, in his search for the essence of his exhortation for right to be done, referrs to Mabo. It is also notable that a quarter of a century later, Denuto’s epic battle with “tray number 3” still rings true for many practitioners with their own printer/photocopier.

The error was picked up by someone examining the microtext of a $50 note with a magnifying glass, the only explanation being that this was someone who seems to have got wildly enthusiastic and carried away after seeing Nicholas Cage’s “National Treasure” and was trying to find the clue to the location of historic documents or treasure like the original copy of the Australian and US Constitutions (so beloved of by Prince Harry) when we all know that they’re most likely at Mar-a-Lago. And, if The Castle is any guide those documents, the treasure, and the secret nuclear weapons documents have all been sent straight to Mar-A-Lago’s pool

Theroom.other concerning point is this: if nobody picks up the spelling errors in this editorial and writes in about them, there is the very real possibility that there are more people examining microtext in Australian currency with a magnifying glass than actually read Bref edtorals.

bemoaning the lack of time, energy or effort involved in fulfilling a worthwhile contribution and making a difference, inspiration comes from our $50 Onnote.one side is the remarkable David Unaipon, a Ngarrindjeri man born 150 years ago. His life and achievements are truly inspirational. He was a writer, public speaker, academic, preacher and, famously, an inventor. He is known as the ‘Australian Leonardo’ or, because today’s generation may assume that an “Australian Leonardo” is some form of Hemsworth, is perhaps better described as the ‘Australian Da Vinci’). He lodged provisional patents for 19 inventions, including anti-gravitational devices, a multi-radial wheel, an innovative sheep shearing hand piece, as well as a helicopter design based upon the principle of the boomerang. His main fascination and much of his research was, aptly, about perpetual motion, which is a fitting description of the dynamo-like energy of the man himself. Sadly, he was also the subject of having works misappropriated (the classic “Myths and Legends of the Australian Aborigines” was initially published under the name of South Australian anthropologist, William Ramsay Smith and only later properly attributed to Unaipon) and his appearance on the $50 note attracted legal threats and claims upon the basis that it was unauthorised by interested parties.

Another anniversary of an Australian invention celebrated this year is that of the Polilight - that famous violet light used worldwide in crime detection and investigation, and which was the result of research by the Australian Federal Police and the ANU. Not only is it a staple in criminal investigations but it is also just as prominently used by Gordon Ramsay (and the basis/justification for his rage-based invectives and tirades) in “Hotel Hell”. Of course, the Polilight is something that probably (ignorance being bliss) should be used cautiously or preferably not at all by anyone planning to stay at a B&B, Airbnb, or indeed, in a measure of absolute equality and as a great leveller, any hotel, regardless of the star-rating, prestige or price, that has not been personally cleaned by or under the supervision of Howard Hughes.

The Committee declined to deal with the remaining complaint on the basis that the complainant did not have standing to make the complaint. I was advised of the above in a letter to me dated 29 July 2022. Excluding the background paragraphs, the 5 issues were dealt with in only 20 paragraphs. In other words, the issues were straightforward and not complex.

I note that the issue of delay by the Committee has (rightly) been recognised by the Court of Appeal as potentially being a relevant consideration in determining the appropriate sanction to impose on a practitioner who has been found to have engaged in unsatisfactory professional conduct or professional misconduct: Young v Legal Profession Complaints Committee [2022] WASC 52, particularly at [245] and [246].

The delay in dealing with the matter is entirely unacceptable and for which no apology has been provided to me. It is a trite proposition that complaints needs to be promptly processed, not only from the point of view of the consumer/complainant, but also from the point of view of the legal practitioner involved. Having unresolved complaints hanging over a practitioner’s head can seriously affect the practitioner’s mental health. It should not have to be endured by the practitioner any longer than reasonably Regrettably,necessary.

In this regard

GAIN LEGALPRACTICALTRAINING WITH CURTIN LAW SCHOOL

By letter dated 12 July 2022, I wrote to the Chairpersons of the Board and the Committee raising this matter and made the following suggestion: “Perhaps some of the extraordinary cash reserve the Board has accumulated (which according to the Annual Report for the year ended 30 June 2021 increased from approximately $14.5 million to approximately $16.4 million) could be used to significantly increase the number and seniority of the Committee’s employees”.

I am aware that there have been significant problems with the day to day operations of the Committee. To be clear, I am not referring to issues of structure or the generous time volunteered by the Committee members themselves.

the delay involved in dealing with the complaint against me is not an isolated case. For a long period I have regularly assisted legal practitioners in their dealings with the Committee. It is not an exaggeration to say that, in numerous of those matters, if the delay occasioned by the Committee in dealing with them was conduct of a legal practitioner in private practice with respect to his or her client’s affairs, serious questions of professional conduct would likely arise.

Curtin’s Practical Legal Training program has a strong emphasis on technical legal skill development, with practical training conducted through the John Curtin Law Clinic. Taught by experienced legal practitioners with extensive legal experience, the program is highly flexible, delivered through a blend of face-to-face teaching and online self-directed learning.

Dear Sir, On 30 November 2016, a party in proceedings in which I acted for an opposing party made a complaint to the Committee then called the Legal Profession Complaints Committee, and now called the Legal Services and Complaints Committee (Committee). I promptly dealt with all correspondence I received from the Committee. The last of my substantive responses was sent on 26 March After2019.repeated letters of complaint to the Committee, a letter of complaint to the Attorney General and a letter of complaint to the Ombudsman, the Committee finally met on 26 July 2022 and dismissed 4 of the 5 Withcomplaints.respect to the 4 complaints which were dismissed, the Committee further found, pursuant to section 435(2)(a) of the Legal Professional Act 2008 (WA), that the complaints were unreasonable.

LETTER TO THE EDITOR

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I requested that my letter be circulated to the members of the Board, stating: “The time has come for the Board to recognise that there are real problems with the Committee and to provide a substantive and long term fix to the problem”.

Yours Sincerely.

Find out more about the Practical Legal Training program or contact the Curtin Law School

I urge the Law Society to actively pursue this issue with the Legal Practice Board (which funds the Committee) with a view to salvaging what I consider to be a quickly sinking ship.

Steven Penglis SC - Barrister 1 August 2022

Preparation for the commencement of the Uniform Law has involved a reassessment of the Board’s and the Committee’s ways of working and a workforce/service model review conducted by the Board (as employer of all staff, and the designated local regulatory agency) in 2021. This resulted in a new organisational structure, and the establishment of properly classified new positions, which commenced in late March 2022. These changes are part of a broader continuous improvement agenda that is centred on driving improvement in quality service provision, compliance, and accountability through the introduction of a single service entity model in response to: the setting of a new strategic direction for the Board and all of its committees as an integrated entity, breaking down old silos; the commencement of the Uniform Law; and efficiency initiatives, including the need to provide greater flexibility and reduce duplication, and to also be proportionate in all activities and outcome focused.

Yours sincerely, Russell Daily Legal Services and Complaints Officer Legal Practice Board of Western Australia

I would like to respond to the letter from Mr Steven Penglis SC to the Editor of Brief, Mr Jason MacLaurin SC, dated 1 August 2022. In his letter, Mr Penglis refers to complaints made against him to the Legal Profession Complaints Committee (since 1 July 2022, the Legal Services and Complaints Committee (Committee)) by a party to proceedings in which Mr Penglis acted for an opposing party.

Improvingindicators. our performance is of paramount importance to ensure we meet the objectives of the Uniform Law and the Board’s strategic direction. The Board itself aims to do all of this while being a prudent financial manager of the funds it receives from the profession, and having an efficient and effective administration. Feedback in all forms is welcome and the Board and the Committee look forward to continuing their collaborative relationship with the Law Society, the profession, and consumers to continuously improve their performance and learn from experience.

Response from the Legal Practice Board of Western Australia 07

Mr Penglis adds that, after having made complaints to the Committee, the Attorney General and to the Ombudsman, on 26 July 2022 the Committee met and dismissed four of the five complaints against him, and declined to deal with a fifth complaint because it considered that the complainant lacked standing to bring it. It is the case that the complaints were made against Mr Penglis on 30 November 2016. An investigation began in relation to the complaint, and a significant volume of hard copy and digital documents were obtained. However, further proceedings were commenced which were seen to be relevant to the complaint. As such, in early 2019 it was decided to defer the investigation of the complaints until all proceedings were concluded. After this occurred the investigation was recommenced in late 2021. At this point further enquiries were made to complete the investigation, and the many documents that had been obtained were then evaluated. The complaint was then brought before the Committee at its meeting on 26 July 2022, when, as Mr Penglis says, it dismissed four of the five complaints and declined to deal with the fifth complaint. It is regrettable that complaints which were made in 2016 were not finalised much earlier. As indicated above, that was because the complaints were made in the course of and in relation to complex legal proceedings and because it was decided at the time to defer the investigation of the complaints until those proceedings were concluded. I readily understand Mr Penglis’ frustration at the Committee taking so long to finalise the complaints and apologise to him for that. Examining the history of the matter it is apparent that a different approach to this complaint could have been taken earlier on, one that would have avoided the complaint remaining unresolved for so long. participating jurisdictions of Victoria and New South Wales. One objective of the Uniform Law is “promoting regulation of the legal profession that is efficient, effective, targeted and proportionate”. It provides for numerous complaint handling efficiencies and improved outcomes for consumers of legal services and lawyers alike. Improving the way complaints are handled in line with those objectives is fundamentally important.

Mr Penglis says that he dealt promptly with all correspondence he received during the handling of the complaint, and that the last of his substantive responses was sent on 26 March 2019. Both of those statements are correct.

With the new structure being established, and new ways of working being put into place, work is also underway to both measure and evaluate the effectiveness of both the outcomes of the work done by the Board and the Committee. This includes both the timeliness and cost

08 | BRIEF AUGUST 2022

It is my pleasure to introduce you to this First Nations Special feature of Brief. It is important to me as a First Nations person to introduce myself, where I am from and acknowledge the land on which I live and work. It is especially important to me to do this in both of my grandmother’s language, the Noongar language, because they were forbidden from speaking it freely for too long. It is often said that we must know where we are from in order to know where we are going and I truly believe it is not only important to know this at an individual level but also as a community and a nation. For too long our shared history of colonisation and the atrocious acts that followed including dispossession of our lands, massacres of our people and the forced removal of our children have been hidden away in the shadows. How are we as a society to move forward from these generational issues and commit to them not happening again if we do acknowledge the long-lasting effects it has on First Nations peoples and our society today? We as the legal profession have an important role in acknowledging the impacts of our history and particularly the way in which the law worked as a vehicle for these atrocities to Thisoccur.edition of Brief covers a wide variety of topics which serve to reflect on the past and take learnings from it but also look to the future for First Nations peoples and our place in Australian society. It is a privilege to introduce articles and interviews from fellow First Nations lawyers, legal academics and a First Nations law student: Chloe De Souza, Emma Garlett, Laila Hughes, Micah Kickett and Juanita King. Their candid personal experiences in life and the law include very important messages for all lawyers to reflect on. If we are to truly move forward together as a nation we need to ensure that First Nations voices are uplifted, particularly in the legal profession. One of the key ways we can rectify the wrongs of the law in the past is to have First Nations leadership and decision making in the highest courts, the highest levels of the private sector, government decision making and particularly in public office. There have been moves across many sectors to increase First Nations participation and decision making however I believe there is still a way to go in the legal profession. This is especially true in Western Australia as reflected in the findings of the 2020 National Profile of Solicitors, in that Western Australia had one of the lowest percentages of Aboriginal and Torres Strait Islander solicitors in the country (0.8% of the profession). We not only need to ensure First Nations lawyers are not a rarity but to ensure First Nations lawyers can feel supported to achieve at the top levels of our profession. So in reading the articles from Chloe (together with Jody Nunn), Emma, Laila, Micah and Juanita it is important to reflect on the ways in which you and your workplace are ensuring there is space for First Nations peoples to feel safe and supported and to thrive.

This Brief includes an update on the Nutha Way project. The Law Society continues its work with capacity building and leadership initiatives for young First Nations People to strengthen their relationships with the broader community, justice system and the police. This programme is an important ‘on the ground’ mechanism that is providing key support to communities in engaging young Aboriginal people and the broader community to form meaningful relationships. It is work such as this which brings about real and lasting change. These types of projects are necessary in ensuring the wrongs of the past are rectified so we can all embark on stronger and respectful relationships into the future and I hope to see its continued growth moving forward.

Listening to First Nations Voices

Foreword by Kelsi Forrest Kaya/Hello, Nganyang kwerl Kelsi Forrest wer ngany Wadjak Baladong Mineng Nyungar. My name is Kelsi Forrest and I am proud Wadjak Baladong Mineng Nyungar Ngany kaaditj nganyang Wadjak Noongar moort wer woma Aboriginal moort, ngalak moolyak nidja boodja-k ali ngany nyin wer warn – Boorloo. Nidja Wadjak Noongar boodja, kalyakoorl.

I acknowledge my Wadjak Noongar family and other Aboriginal people, who are the first of this land that I live and work on – Perth. This is Wadjak Noongar land, always.

This special First Nations feature of Brief also includes insightful articles considering key legal issues which go to the heart of legal issues for First Nations people at a national level including an article about the copyright issues associated with the Aboriginal Flag by Lauren Gore and articles on constitutional recognition and a First Nations Voice by Bertus de Villiers and Greg McIntyre SC. Finally, more than 10 years after constitutional recognition of Indigenous Australians was first considered by the Gillard government, and four years after the Uluru Statement from the Heart was made to the Australian people, the Albanese government have committed to implementing a constitutional change for a First Nations Voice to Parliament. It is the Australian people who will be asked to consider a change to Australia’s founding document and as leaders in the community, lawyers will be asked for their views. If we are to ensure we, the First Nations peoples, are finally heard in our quest for selfdetermination, we need allies to support us on this journey so it is vital for you to consider these proposals and understand the “why” behind this change.

Kelsi Forrest is a Senior Associate in the Indigenous Law Team at Roe Legal Services who works with First Nations groups across Western Australia on native title, corporate governance and heritage matters. Kelsi is also a member of the Law Society’s Indigenous Legal Issues Committee.

Special Feature

(a) What are the objectives that are hoped to be achieved with the Voice?

The current debate about the Voice often loses sight that Australia has had more than 3 decades of experience with Aboriginal advisory bodies. Sad to say, each of those bodies had ended in disillusionment and acrimony. On both sides. But one can and must also learn from those frustrations. Otherwise, we are bound to repeat them.

2. Experience with previous advisory bodies

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I’ll now briefly refer to the three main Aboriginal advisory bodies since the 1970s and recount some of the experiences that those have borne out: National Aboriginal Consultative Committee

(e) How will the opinion of Aboriginal people be engaged by those elected to the Voice?

Bertus de Villiers is a Visiting Professor of the Law School of Curtin University and a member of the State Administrative Tribunal of Western Australia. The content of the article reflects his personal opinion.

The 7 questions are:

The Albanese government is committed to legislate into life, during the current term of Parliament, a Voice for Aboriginal people.1 This is a laudable objective, but lots need to be done to give life to the Voice and to ensure its survival. The consultation and discussions around a Voice have been going on for close to 7 years (or perhaps more than a century depending when you start counting), but many basic questions remain Thereunanswered.isarisk, as was the case with the republican debate, that something that seems obvious and ready for public approval, fails because the detail put people off. The problem is that, since the mechanism for recognition is proposed to be the Constitution, including the Voice in the Constitution would require every Aussie voter to be convinced not only of the merit of the Voice in general, but also the detail of it. That does not bode well, because so many people can develop a gripe about so many issues. Strange bedfellows can find themselves voting ‘no’, but for different reasons. International experiences with referenda show how easy it is for a referendum to develop a life of its own – remember Brexit where opinion polls convinced David Cameron that Brits would overwhelmingly vote to remain in the European Union? Yes, so much for the reliability of opinion surveys… In a previous article in 2018 in Brief I cautioned that the detail – or lack thereof - of the Voice may be fatal to the deal.2 In a follow-up article in 2020 in Brief I suggested that more should be done to involve grass-root Aboriginal communities in the discussions around the Voice. I specifically canvassed for great involvement of native title holding groups, because they have strong statutory and native title rights to land, and if experience is anything to go by, it is not impossible that some level of conflict or disagreement may developed within Aboriginal leadership about priorities for the Voice.3 In this article I refer to the three previous experiences of Australia with Aboriginal advisory bodies (NAC, NACC, ATSIC), to identify 7 essential questions on which answers must be given to the electorate in general, and Aboriginal people in particular, before a referendum can be called. Until and unless these questions are answered, it is unrealistic to expect an informed debate, whilst those propagating a ‘no’ will have a field day.

Adjunct Professor, Curtin University Law School

Prof De Villiers has travelled widely and has undertaken research and lectured on constitutional and political developments in various countries. In recent years he has been invited to Ethiopia, Sudan, Pakistan, the Philippines, Indonesia, and South Sudan to give lectures on constitutional topics. Prof De Villiers has published extensively in a wide range of constitutional matters.

(f) What will be the status of advices given?

The first was the National Aboriginal Consultative Committee (NACC) (1973-1977) which was an advisory body comprised of 41 elected Aboriginal people. The NACC’s principal function was to advise the government on policies that affected Aboriginal people, albeit that there was no statutory list of matters that had to be referred to the NACC for advice. There was also no statutory obligation on government or parliament to consult or negotiate with the NACC, or to seriously consider its advices. Two major questions challenged the designers of the NACC: firstly, how reflective the advices adopted by the NACC should be of their Aboriginal constituents, and secondly, whether the NACC could make inputs about any policy or legislative matter, or whether it was a consultative body of which advices only had to be sought by government on certain policy issues that directly impacted on Aboriginal people. These two questions were never answered. The differences between the NACC and government about the objectives of consultation gave rise to intense disputes which ultimately led to the disbandment of the NACC. Several issues contributed to the failure of the NACC, for example: the demand of the NACC to be at law an effective self-government for Aboriginal people and the rejection by government

(b) Why must the Voice be constitutionallysanctioned?

(d) When will advices be sought and who will decide when to seek it?

Seven questions before the Voice can be heard: Learning from the past

(g) Will policies and laws be judicially reviewable for failure to seek or give effect to advice?

One can understand if there is, within the midst of Aboriginal people, a reluctance to become overly excited about the current discussion for a Voice. They have been there; they have seen it; and they have experienced the collapse of advisory bodies. And the memories are not pleasant. The risk of another ‘toy telephone’ is real.4

By Bertus de Villiers

1. Introduction

Reflection on past experiences The issues arising from the demise of ATSIC are linked to the fate of its predecessors, the NACC and NAC. Those failures cast an ominous cloud over the proposed Voice.

Aboriginal and Torres Strait Islander Commission

The NAC-government relationship became deadlocked. Some in the Aboriginal community regarded the NAC as nothing more than a “talk shop”; government saw it as exceeding its mandate; internal disputes within the NAC about priorities weakened and undermined its advocacy ability; and the newly formed Aboriginal land councils Aboriginal communities. The NAC was abolished after 8 years.

As Prime Minister Albanese cogitates the wording of the towards his ‘Voice to Parliament’, care might be taken to define the ends before rushing headlong into the Listening to First Nations Voices

weight to be attached to advices of the NACC be it advisory or binding; reluctance on the part of government to give reasons for not accepting NACC advices; and confusing objectives of the NACC and government for the NACC. The NACC was abolished after 4 years. National Aboriginal Conference

The main issues for purposes of my 7 questions were: (a) the elected nature of ATSIC gave rise to expectations of power-sharing and selfgovernment, but those hopes could not be met by its mere advisory and limited administrative powers. There was, in essence, no obligation on government to give serious consideration to advices and no obligation on government

The third attempt to institute an advisory body for Aboriginal people commenced in 1990 (and ended in 2005) with the establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC). This was reflective of the ongoing desire to give effect to the objective of self-determination and advice-giving for Aboriginal people.

The second attempt to establish an advisory body for Aboriginal people commenced in 1977 (and ended in 1985) with the National Aboriginal Conference (NAC). The NAC was an indirectly elected, national body. The NAC comprised 36 members with regional branches. The NAC at law had no other selfgoverning, supervisory, or administrative powers. There was no statutory obligation on parliament, the government, or government departments to refer policies or bills to the NAC for comment, or for advices of the NAC to be considered in good faith. The arrangement between NAC and government was entirely predicated on ministerial discretion and goodwill, but it fell apart on that specific element since good faith was mostly absent. There was also ongoing disagreement within the NAC where its focus should lie – on local issues affecting customary land of Aboriginal people, or on national issues such as treaty and advocacy on wider socio-economic policy issues. To complicate the relationship with government, the NAC sought to pursue an agenda whereby a formal “treaty” to recognise sovereignty would be entered into between Aboriginal people and government. This initiative was rejected by government.

ATSIC is arguably the closest Australia has yet come to a self-governing, selfadministering, and advisory body for Aboriginal people. ATSIC had an elected base with a regional and a national profile; it had an autonomous budget with substantial staff; it had administrative functions to administer certain policies as agent on behalf of government; and it could give advices to government. There was however no statutory list of policy areas that had to be referred to ATSIC for advice, and there was no legal obligation on government or departments to consult in good faith with ATSIC, or to give reasons why advices had not been accepted. The advices of ATSIC were primarily self-initiated or at the sporadic request of government, but the weight attributed to any advice was at the discretion of government. A failure or refusal of government to consult with ATSIC, or a rejection of an advice received from ATSIC was therefore not reviewable or otherwise justiciable. ATSIC’s policy formulation and policy administration functions were quite advanced when compared to other indigenous institutions at the same time in other parts of the world. The reasons for the demise of ATSIC were varied, complex, and it suffered a death by a thousand cuts, but in essence ATSIC experienced opposition from government; ATSIC struggled to generate legitimacy amongst Aboriginal people which is evident in low voter turnout in elections; there was confusion of powers and functions within ATSIC and between ATSIC and the government; and there were repeated concerns about corruption and maladministration within ATSIC. On the other hand, in particular rural areas, ATSIC was accessible to Aboriginal people as a service agency to provide a wide range of practical health, housing, welfare services and employment which were no longer available after its abolition. Its regional representatives and offices commanded some political credibility; they could advocate for general Aboriginal interests; and there was a perception of ATSIC providing services for Aboriginal people by Aboriginal people. ATSIC also played an essential role to develop leadership, administrative and governance skills amongst Aboriginal people. With the benefit of hindsight one can describe ATSIC, regardless of its shortcomings, as a unique, consultative and self-government body that could, with the necessary adjustments and supportive political culture, have become a unique model for other indigenous consultative bodies. There was however no political will to save or improve it. ATSIC was abolished in 2005 after 15 years.

departments to negotiate with ATSIC with the intention to reach agreement; (b) the self-determination powers of ATSIC were complicated by shared functions with other government departments and blurred responsibilities worsened by diminished lack of accountability to ATSIC’s electorate; (c) ATSIC had no reasonable expectation that its advices would be accepted or at least be considered in good faith by government, or that reasons would be given by government as to why advices had not been accepted; (d) the absence of a shared vision between Aboriginal people and government whether social and economic policies should be specifically aimed at Aboriginal people and managed by Aboriginal people (and risk criticism of administrative apartheid?) or whether Aboriginal-type policies should be mainstreamed, eroded confidence of ATSIC in Aboriginal and non-Aboriginal communities; (e) due to the failures of the NACC and NAC, the credibility of ATSIC in Aboriginal and non-Aboriginal communities was low, which in turn impacted on its legitimacy – internally and externally; and (f) the lack of agreement about a common vision and shared priorities amongst Aboriginal people persisted. Ultimately the lack of political will on the part of government to reform ATSIC into a workable self-government and consultative model became a death knell and the only avenue pursued by government was to abolish ATSIC.

3.1 What are the objectives that are hoped to be achieved with the Voice? The objectives of the Voice have not been spelt out. Will it be primarily an advicegiving body, or will it also promote selfdetermination of Aboriginal people by negotiating a treaty or some form of powersharing with government? Even those who agree that the voice of Aboriginal people should be more clearly heard in policy and legislative processes, have not been able to agree on how such a laudable objective is to be achieved. The generalities that have thus far characterised the debate avert the edges of hard questions, but as the electorate we are entitled to answers. All of us. Previous experiences highlight that danger lurks in vagueness; that despair arises from unclear objectives; and that animosity finds fertile ground in competing agendas. If the Voice is primarily an advice-giving body, has anyone calculated on average how many bills or policies per year are directed solely or principally at Aboriginal people? If past experiences are anything to go by, the Voice will seek greater involvement in broader socio-economic government policies, while government will seek to reduce the scope of consultations to the minimum. Therein lies the challenge.

3. Seven questions to answer

Conceptual confusion and lack of clarity about the meaning of words have caused the downfall of many advisory bodies, including the NACC, ATSIC and NAC. Words such as self-determination; sovereignty; treaty; self-government; free, prior and informed consent (FPIC), fall easily from the tongue, but the devil hides in the detail.

There is no agreement in international or municipal law about the practical meaning of these terms. In fact, it appears from international law that ‘consent’ as used in FPIC does not reflect real consensus but rather a sincere attempt to reach consent. The use of the word ‘consent’ unfortunately gives rise to expectations of a veto, whilst this is not born out by law. The experience of the NACC, NAC and ATSIC highlight how government and Aboriginal people had used the same terms – eg selfdetermination, treaty, sovereignty – but with totally different meanings and expectations attached. And that is where the breakdown in relationships started. What started as hugs and a feeling of closeness, ended as distrust, and feelings of having been cheated. The one side wants more, the other side wants to give less. And then they slowly drift apart. Also see how within the context of the implementation of the Native Title Act, the meaning that has been attached to ‘good faith’ negotiations has left many an Aboriginal person disillusioned since good faith is much weaker than had been anticipated by Aboriginal people. If the good faith that has characterised the right to negotiation under native title is going to be the standard of good faith for Voicegovernment consultation, then the outcome is obvious – government will ultimately comply with procedural steps to meet and exchange pleasantries, but it will refuse substantial policies. If the Voice is only going to give non-binding advice, say it plainly and clearly. Don’t use slippery words to create a different perception.

3.2 Why must the Voice constitutionally-sanctioned?be

A constitutional amendment may be an important outcome of the Voice, rather than a precondition for the Voice.

It has not been explained satisfactorily why the Voice should be constitutionally entrenched. Yes, there may be an elevated status to an advisory body that is constitutionally enshrined, but with it goes a risk of failed referendum, or inability to amend or improve the body as time goes by. The past experiences in Australia show that advisory bodies had a lifespan of between 5-15 years. If any of those bodies had been constitutionally entrenched, one can only imagine how complex it would have been to rectify the situation, not even to mention the embarrassment to amend the Constitution to remove an advisory body. Arguably the most well-known indigenous body in the world is that of the Sami Parliament of Finland, and even that body is not constitutionally entrenched. The Constitution of Finland merely provides in section 121 as follows: ‘In their native region, the Sami have linguistic and cultural self-government, as provided by an Act.’ A plausible case can be made for the Voice to be created by statute (with a much higher chance of bipartisan, federal support) and for the Voice, in due course, to make recommendations about what aspects, if any, should be constitutionally entrenched.

Considering the experiences of the three consultative experiments, the following questions call to be answered:

3.3 What is meant by terms such as consult, self-determination, free, prior and informed consent?

The Voice will be subject to the same fault lines as previous advisory bodies. Thus far there is little evidence of the misunderstandings of the past having been acknowledged and addressed this time around.

3.4 When will advices be sought and who will decide when to seek it? It remains unclear when government will seek advices from the Voice, and at whose discretion lies the referral. None of the 3 previous advisory bodies had any legal or policy certainty about when their advices would be sought. They felt sidelined and neglected. Their presence seemed to give credibility to government policies because there was a mirage of consultation, whilst to their own communities they suffered lack of legitimacy because they could not deliver. International experience shows that governments are protective of their sovereignty. Even in the case of the Sami Parliament there has been ongoing criticism by the Sami and the United Nations about the lack of consultation by the government of Finland. After more than 50 years, the Sami Parliament has not been able to secure a clear definition of the “obligation to negotiate” that rests on national government departments; and national departments still don’t have a consistent policy about when and how to consult with the Sami. It is now proposed that in regard to the Voice on those matters that directly impact Aboriginal people there would be an obligation to consult; on matters that are of

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Whilst the proposed categories of consultation bear some logic, international experience and the Australian experience with advisory bodies suggest that disagreement about when consultation must occur about what, is likely to continue since those guidelines are equally open to divergent, and self-serving interpretations.

The reality is that advisory bodies do not bind government. The weight given to their advices is entirely at the discretion of government. Government cannot be bound by any advice it receives. If advices are to become binding, no rational parliament and government would support it.

International Courts 52-80, Brill (Leiden)

3. (2018) “The Recognition Conundrum – is an advisory body for Aboriginal People progress to rectify past injustices or just another ‘toy telephone’ Journal on Ethnopolitics and Minority Issues in Europe 17(1) 24-28.

At the core of consultancy-obligations is the question whether a failure to consult, or a failure to give serious consideration to an advice, can lead to a judicial review of a policy or an act? The rationale for this question is obvious – if the duty to consult does not have any teeth, why would any government regard itself bound by the duty? And this is a good question. Each of the previous bodies failed in part because government was not legally bound to consult or to give serious consideration to advices. This is not unique to Australia. Even the most optimistic interpretation given in international law to the duty of free, prior and informed consent, does not suggest that courts can play the role of arbiter to force governments to accept advices. Of course, there are jurisprudence where courts have found that consultation in regard to a specific project was inadequate, but this does not come close to courts becoming involved to decide if general socio-economic policies were adequately preceded by consultation and whether government should have accepted the advices.

International Journal on Minority and Group Rights (26) 1-21

3 De Villiers, B. (2020) “A new approach to Aboriginal self-government and co-government – grassroots empowerment” Brief February: 10-15.

relevance to Aboriginal people there would be an expectation to be consulted; and on all other matters there would be liberty on government to consult.

Publications by Bertus de Villiers about this topic:

It is most unlikely that the Albanese government would commit itself to allowing some form of judicial review of government policies or laws on the basis of advices received from the Voice. This then leaves the Voice in the same position as the previous advisory bodies: there will be no judicial oversight of the outcome of advices.

4. (2019) “An ancient people struggling to find a modern voice – experiences of Australia’s indigenous people with advisory bodies”

The question is then: If advices of the Voice are purely advisory, how does the Voice differ from the NACC, NAC and ATSIC? Most importantly, why would this round 4 advisory body be workable and to the satisfaction of Aboriginal people?

1. (2017) “An Advisory Body for Aboriginal People in Australia – one step forward and two back?” Verfassung und Recht Ubersee (50) 259-280.

3.5 How will the opinion of Aboriginal people be engaged by those elected to the Voice? The nature of the Voice is likely to have a strong dualist character. On the one hand, it is not intended to be a law-making body and therefore there is no need for its members to be close to their electorate. On the other hand, if the advices are to carry any credibility, the representatives would have to interact with their electorate. The previous advisory bodies, particularly the NACC and NAC, had poor community roots and they could not state with any degree of certainty that they were speaking for their community or electorate. Account must also be taken that the policy-making and law-making processes are complex, and it is not simple to refer any policy or bill back to communities to gauge their opinion and then expect the Voice to formulate a unanimous advice. There will also be disagreements in the Voice about the suitability of proposals.

These 7 questions are not intended to be party-spoilers. I have written many scientific works in which I seek to promote the rights of ethno-cultural minorities and indigenous people. These questions are reality-testers. They hopefully cut through the niceties and vagueness of public statements, and focus the attention on the detail that really matters. Australia cannot afford a 4th failed experiment with Aboriginal consultation. The eyes of all sides must be open. As one of the world’s oldest and leading democracies, it is remarkable that so much debate is directed at what is in essence an advice-giving body. But unless these 7 questions are addressed, the hurdle to success will become higher, and the price of failure more damaging.

End Notes

The members of the Voice seem to be at risk of being set up to fail – on the one hand they will only give advice, but on the other hand they may be expected to liaise with their communities like a member of parliament does but without the support in place.

8. (2022) Using control over access to land to achieve self-government (of some sort): Reflecting on the experiences of Aboriginal people with the right to negotiate in Australia Navigating the Unknown – essays on selected case studies about the rights of minorities (Brill: Leiden) 104-137

9. (2022) Breaking new ground for indigenous non-territorial cultural self-government: The Noongar Settlement in Australia Navigating the Unknown – essays on selected case studies about the rights of minorities (Brill: Leiden) 138-162

3.6 What will be the status of advices given?

4 In a previous article I used the word ‘toy telephone’ to describe the risks of an advisory body. De Villiers, B., (2018) “The Recognition Conundrum – is an advisory body for Aboriginal People progress to rectify past injustices or just another ‘toy telephone’ Journal on Ethnopolitics and Minority Issues in Europe 17(1) 24-28.

2. (2018) “An Advisory Body for Aboriginal Peoples in Australia – the detail may be fatal to the deal” Brief 2018 (March) 7-11.

2 De Villiers, B. (2018) “An Advisory Body for Aboriginal Peoples in Australia – the detail may be fatal to the deal” Brief 2018 (March) 7-11.

The most essential of all questions is what would be the status of advices? This is the single most likely question that can cause the Voice to fail like the case was with previous advisory bodies. The lessons from the past for those who design the Voice are clear: Be honest and open that an advice is an advice. It is not binding. It is not consent. It is not a veto. It is not a treaty with legal effect. It is what the word says – advice. Don’t use words such as selfdetermination, autonomy, and sovereignty of which the meaning is not clear. Don’t create an atmosphere where Aboriginal people expect to be co-decisionmakers, but then they end up with a toy telephone.

Conclusion

3.7 Will policies and laws be judicially reviewable for failure to seek or give effect to advice?

5. (2019) “Electing an Aboriginal Voice in Australia – who will get to vote in elections for the proposed advisory body?” 18 Journal on Ethnopolitics and Minority Issues in Europe 19-41. 6. (2020) “A new approach to Aboriginal selfgovernment and co-government – grassroots empowerment” Brief February: 10-15.

7. (2021) “The elephant in the room – resolving disputes about membership of a minority of indigenous community” in De Villiers, B.; Marko, J.; Palermo, F; and Constantin, S. (eds) Litigating the Rights of Minorities and Indigenous Peoples in Domestic and

Reading:Further

1 I use the term ‘Aboriginal people’ to refer to all the indigenous peoples of Australia. This is the approach most adopted in statutes. I accept that other descriptions may be preferred, for example first peoples, indigenous peoples, or first nations. One of the first questions government may put to the Voice may be for it to recommend a consistent manner in which reference is made to the indigenous people of this country.

Laila, after your time as a Supreme Court Associate you moved to Port Hedland/Marapikurrinya to work at ALS before joining Legal Aid. What has been the biggest difference between working in Perth and working in Port Hedland/Marapikurrinya?

Newman Magistrates Court is held inside Newman Police Station. The people who are listed to appear wait outside for several hours in what tends to be over 40-degree heat with little to no seating or shelter. There is a single office for lawyers and so instructions are often taken in a public setting. I doubt that these conditions would be considered acceptable at any court in Perth/Boorloo. There would be a lack of public confidence in the impartiality of the judiciary if Supreme Court criminal listings were held inside the DPP’s office and the judges shared a lunchroom and toilets with the prosecutors. Sitting outside on the ground with no shelter simply wouldn’t be tolerated and waiting for hours in the heat would be a safety hazard.

Comparing the Magistrates Courts across the Pilbara to the Supreme Court in Perth/Boorloo is like comparing black and white. Having worked in both, it is difficult to fathom that these courts are part of the same legal system.

Do you think it is something any lawyer could do? I don’t think all lawyers are cut out to work in the regions, in the same way that I’m not cut out to work in a big commercial firm. I have seen many lawyers leave Port Hedland/ Marapikurrinya after only a short period of time. I would estimate the average lifespan of a legal career in the Pilbara to be about 18 months. Working in a regional location can be isolating, overwhelming and often leads to burnout. However, despite these challenges, it is also very rewarding from a personal and professional perspective. Are there many cultural sensitivities you needed to be aware of before moving to work in Port Hedland/ Marapikurrinya?

Junior Council Member, Law Society of Western Australia 14 | BRIEF AUGUST 2022

Practising Law in the

At the same time, it is also incredibly difficult to work in a system that so regularly imprisons Aboriginal Elders and their families for matters such as traffic offences or failing to attend court.

It is hard to understand how courts in the North West can continue to operate in this way. One plausible explanation is because they are out of sight of the decision makers in Perth/Boorloo. A further explanation is that the vast majority of people who are subjected to these conditions are Aboriginal people. Non-Indigenous people simply wouldn’t be subjected to this, which is the same reason Roebourne Regional Prison has no air conditioning. What are the highlights of working outside of a capital city? Regional work is often rewarding. For example, I have worked with Aboriginal Elders who first encountered white people when they were young adults. Being able to meet Aboriginal Elders and hear their stories is an immense privilege.

Port Hedland or Marapikurrinya as named by the original inhabitants the Kariyarra people - Australia’s largest bulk export port. Pilbara interview with Laila Hughes and Micah Kickett

By Thomas Camp,

There are many cultural sensitivities that lawyers, magistrates, and judges should be aware of before working with Aboriginal people in the Pilbara. Unfortunately, most people, particularly those who have only lived and worked in Perth/Boorloo, have little understanding of Aboriginal people and the Pilbara prior to working here. Cultural awareness training that is specific to the region should be undertaken before working in the North West. This issue is compounded by the high turnover

rates of lawyers in the Pilbara. That said, cultural awareness training is not enough. It takes a lot of time to develop cultural understanding and local knowledge. I will always be learning in this space. Have you committed any cultural faux pas?

Listening Nations Voices

Laila Hughes, Solicitor, Legal Aid WA, Pilbara Regional Office, in front of a painting by Dawn Sandy, a Yindjibarndi artist from Roebourne Micah Kickett, Micah R.Kickett - Managing Lawyer, Aboriginal Legal Service of Western Australia Limited, inside the Nullagine Court Room

The high incarceration rate of Aboriginal and Torres Strait Islander peoples in Australia is often discussed as a major issue or flaw in the system. Australia’s legal system is not flawed, it is doing exactly what it is intended to do. It is a colonial legal system built on the dispossession and oppression of Indigenous people. There is no single programme that can counteract a system that deliberately discriminates against Indigenous people at every level of the system to maintain colonial control. Are there any initiatives either of you think might help?

“Tough on crime” does not work. Increasing police powers and resources does not work. Mandatory imprisonment does not work. There’s nothing to be gained from a punitive approach; it does not deter crime. We need to look beyond punishment to address crime. It is, after all, a social problem. Most people in prison struggle with housing insecurity, poverty, mental illness, disability and the effects of trauma and colonisation. Too often, the impact of the justice system is to punish and entrench disadvantage, rather than to promote healing. Resources should be directed to areas of Indigenous disadvantage, such as housing, health, education and employment, areas which have all been increasingly defunded over the years. Working within the present system, law reforms that could help to reduce Indigenous incarceration include raising the age of criminal responsibility, legalisation of cannabis and other drugs, amendments to the Bail Act, and removing mandatory sentencing.

I am sure I have committed many a cultural faux pas, some due to my own ignorance and others because the court process demands it. For example, it is not uncommon for Aboriginal clients in the Pilbara to attend cultural obligations instead of court. When a client in this position is arrested on a warrant, I must ask questions about a cultural matter that may be sensitive or restricted to properly advance a bail application. It becomes even more difficult when trying to make submissions to the court about such cultural matters without feeling as though I am being insensitive and speaking on a topic that I have no authority to speak about. I have also committed cultural mistakes within my own culture. One of the complicated things about colonisation is that it encompasses not just politics and economics, but also consciousness to perpetuate Western hegemonic domination. I am in a constant state of unlearning Western ideologies and relearning Indigenous ways of knowing in an effort to decolonise my own mind.

Aboriginal and Torres Strait Islander incarceration is a major issue in Australia, while working in the Courts and with Aboriginal and Torres Strait islanders, have you seen any techniques or programmes which are having a positive impact?

The most effective way to reduce Indigenous incarceration would be to move towards prison abolition and away from the excessive use of criminalisation and imprisonment, the goal being to dismantle the systems that create and continue the ongoing oppression of Indigenous people.

to First

Laila, do you find that there are any matters unique to your experience as a Maori woman which impact your legal practice?

This Brief edition’s theme is on First Nation/Aboriginal and Torres Strait Island Peoples. Laila, do you think that being Maori has helped you in the law? I feel like this question is trying to illicit a positive answer like being Maori has made me resilient, an attribute that has served me well throughout my legal career. Whilst this is true to some extent, I think belonging to a minority group, particularly one that has been colonised, is generally a hindrance to progression in a profession such as law. White people dominate the legal profession. When Indigenous people do make it into this profession, they are rarely promoted to senior positions or need to echo the voices of the coloniser to be accepted and make it further up the ladder. In answering the questions for this article, I had to consider the extent to which I want to tell my whole truth versus the potential career implications of saying something unpalatable to a mostly white conservative audience.

Being the only Maori amongst predominantly white colleagues can be exhausting. I have heard racism and ignorance directed at my people and Aboriginal people numerous times throughout my career. It is always difficult to decide whether to speak up in that moment and to what extent, bearing in mind that what I say may put some colleagues offside and affect the way they treat me. There are times when I do not have the strength to speak up and then feel guilty for not having done so, but ultimately it is not my responsibility, or any Indigenous person’s responsibility, to educate educated people who should already know better.

Being Maori and working predominantly in criminal law with Aboriginal clients, I can often see parts of my own family and the colonial trauma we experience manifesting in many of the clients I work with. I hope this assists me to practice law in a way that is a little more empathetic and understanding of clients. It is also uniquely difficult for Indigenous lawyers to practice in this space. It is painful to watch body worn camera footage of violent police arrests and to see young children in concrete police cells and detention. All lawyers can experience vicarious trauma from exposure to these things, but the trauma is less vicarious and more direct for Indigenous lawyers who can see their own family and parts of themselves in the people they represent.

A further positive change would be Aboriginal sentencing courts (there are none in the Pilbara) and properly funded programs that are designed and implemented by local Aboriginal organisations to better achieve rehabilitation.

Micah, you won the Golden Gavel, did you ever think about retiring from the law while you were on top?

Taking out the national title kick started my legal career in the NT, not to mention that I was the first ever and only person to take out the Golden Gavel from the NT. This gave me the foundation to start doing comedy. I enjoyed telling humorous stories with an Indigenous context allowing both Aboriginal and Non-Aboriginal people to enjoy and laugh at my experiences both in the legal space and non-legal space, depending on the audience.

I really enjoyed working in the Top End. When I commenced working at the North Australian Aboriginal Justice Agency (NAAJA) the Principal Legal Officer was Aboriginal and this really had a great impact on me and on the service in that I was able to learn directly from a local Aboriginal man. He taught me how to speak to clients in the Top End, work in a space where English is a 3rd / 4th language, and to simplify legal concepts in plain English. Sentencing is very tough in the NT. Mandatory sentencing often sees people being sentenced to a term of immediate imprisonment – which is sad as rehabilitation is not considered at the forefront where it should be. At times there was no confidence in a client when they would re-offend, especially with adults. I was lucky enough to have worked in the youth space focusing on juvenile offending. Sometimes it was very difficult, where I wasn’t supported, clients coming before the court with multiple charges and youths would continually be caught up in the criminal justice system where you would often always be dealing with issues beyond the client and their legal problem such as complex family issues, kids in care, having to liaise with other agencies where solutions to problems were not always quickly resolved. Working in the NT was challenging but very rewarding. Being an Aboriginal lawyer in this space allowed me to connect to with my clients on a deeper level, earn their trust and appreciate the level of complexities that are faced by Aboriginal people and communities. There was a sense of pride from my clients in that they would have an Aboriginal lawyer representing them in court and this always motivated me to be a better lawyer. Courthouse

Listening to First Nations Voices 16 | BRIEF AUGUST 2022

Micah Kickett outside the Nullagine

I have thought at times that if the law doesn’t work out, I’d retire and do comedy full time, to explore the craft of comedy and perhaps do law on the side. For now, both are going well, and I don’t prefer the one over the other, but I’ll stick with the legal career for now. Micah, you started your career in the Northern Territory after studying in WA. What was it like working up there? I commenced a graduate law programme with the Department of the Attorney General in the NT. It was great experience to explore different areas of the law, but if I was to become a lawyer, there was nothing else I could think of other than being a criminal defence advocate. I guess this is because I consider myself to be a peoples’ person and, in some ways, being on your feet before a Judge or Magistrate is similar to stand-up comedy in that you need to think on your feet, minus the jokes.

Officer In Charge, Sheryl Jackamarra celebrates the planting at the Coolgardie Police Station with Nutha Way and Millennium Kids friends. The native garden was funded by WA Police Community Grants. Written by the Nutha Way Project Team – Millennium Kids and Media on Mars

Earlier in the year the Coolgardie kids also came down to stay at Camp Leschenaultia, visited the WA Museum Boola Bardip, kayaked on Lake Leschenaultia and the Derbal Yerrigan.

‘There’s a lot of momentum with this programme building positive relationships with the Police. The programme breaks down barriers and is a great template for other communities wanting to build better relationships with young people.’

While we do not have all the answers to the complex social issues Indigenous young people face in small regional towns, we can see that the Nutha Way programme is making steps in the right direction. By partnering with young people and championing their solutions, Nutha Way is making positive change and engaging young people in the journey.

Brenden Ah - Kim – Nutha Way Indigenious Leader

The NAIDOC programme also involved a collaborative native garden project with the Coolgardie Police Station and kids where kids planted out the gardens in the station with local plants. One of the solutions identified by the kids to make their community better was a 4 O’clock Feed programme where a healthy meal is prepared and served for kids in town. Nutha Way has been working tirelessly with kids to activate and attract the funding for a number of programs and we were pleased to announce that the 4 O’clock Feed programme has been funded through a partnership with the Nulungu Research Institute, Notre Dame University and Telethon Kids. The 4 O’clock Feed programme will run 3 days a week and will employ 3 of the older girls involved in the Nutha Way program. Being able to provide a nutritious feed and employment opportunities for young people in town goes a long way to making positive change for young people in Coolgardie.

For NAIDOC week this year the Nutha Way kids participated in an art exhibition in collaboration with Judumul Aboriginal Corporation. They also incorporated some of their work in an Art Wall on one of the main streets outside Judumul. The whole community came out to support the exhibition including representatives from the shire, local media, police, residents and community stakeholders. The kids were extremely proud of their work and were delighted as their artworks sold, inspiring them to get back to the studio to create more artworks.

Nutha Way is an Indigenous youth leadership initiative of the Law Society of Western Australia, Millennium Kids and Media on Mars focused on building better relationships between young people, their community, the justice system and local police. Nutha Way champions the voices of young people and supports kids to pitch their ideas for solutions to the issues they identify, and build community partnerships to facilitate these solutions.

The programme has been funded by Lottery West and the Department of Justice’s Criminal Property Confiscation Grants Program. We are also grateful for additional support that has come from the Rotary Club of Boulder - WA and Rotary Club of Perth City East, Notre Dame University, Nulungu Research Institute and Telethon Kids. If you would like to support the Nutha Way programme or would like more information please visit nuthaway.org.au. Nutha Way is a collaboration between The Law Society of Western Australia, Millennium Kids, Media on Mars and University2Community.

LeadingYoungIndigenousPeopleChange

Taking Action a “Nutha Way”

the establishment of a First Nations Voice enshrined in the MakarrataConstitution.is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and Weself-determination.seekaMakarrata

the Whitlam government introduced the first national body elected by Aboriginal people the National Aboriginal Consultative Committee (NACC) whose main role was advisory only. Australia was divided up into 36 regions and 36 Aboriginal people were elected by their own people to be the Voice to Parliament. It was the subject of two reviews.5

National Aboriginal Conference 1977-85

The Fraser government established the National Aboriginal Conference (NAC) in 1977. On 12 November 1977, members elected 35 representatives throughout AAustralia.6resolution from the Second National Conference in April 1979 requested that a treaty be executed between the Aboriginal nations and the Australian government.

Introduction

First Nations RecognitionConstitutionalVoice

The Prime Minister, Anthony Albanese, in claiming victory in the May 2022 election “Ondeclared:behalf of the Australian Labor Party I commit to The Uluru Statement of the Heart in full”1

The Uluru Statement from the Heart, was signed by 250 Aboriginal and Torres Strait Islander leaders stating that they seek on behalf of Australia’s First Nations “constitutional reforms to empower our people and take a rightful place in our country” at a National Indigenous Constitutional Convention, held at Uluru in Central Australia in April 2017. It stated: We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their Wecountry.callfor

In 1972

Because of the government’s opposition to the word treaty the NAC decided that the agreement should have an Aboriginal name: the Yolgnu word ‘Makarrata’, meaning ‘pay-back killings between families or tribes’.7 The NAC also set up a special committee to ask Aboriginal people what they would like to see in the Makarrata.

2 Makarrata is a Yolngu word “describing a process of conflict resolution, peacemaking and justice”,3 or “a coming together after a struggle”, and delegates to the Uluru Convention said that it “captures our aspirations for a fair and truthful relationship with the people of Australia”, and the Makarrata Commission would “supervise a process of agreementmaking between governments and First Nations”.

Aboriginal and Torres Strait Islander Commission 1990–20058

By Greg McIntyre SC Barrister at Michael Kirby Chambers, Treasurer of the Law Council of Australia, Past President of the Law Society of Western Australia, Convenor, Human Rights and Equal Opportunity Committee of the Law Society

National Aboriginal Consultative Council 1972-77

In 1990 the Australian government of Prime Minister Hawke established the Aboriginal and Torres Strait Islander Commission (ATSIC). The government body formally involved Aboriginal and Torres Strait Islander people in the processes of government affecting their lives. ATSICs objectives were to ensure maximum participation of Aboriginal and Torres Strait Islander people in government policy, to promote Aboriginal selfmanagement and self-sufficiency, to further Aboriginal economic, social and cultural development, and to ensure co-ordination of Commonwealth, state and territory and local government policy affecting Aboriginal people

In order to achieve its objectives, ATSIC wasadviseto governments at all levels on Aboriginal issues, advocate the recognition of Aboriginal rights on behalf of Aboriginal peoples regionally and nationally and internationally, and deliver and monitor some of the Commonwealth government Aboriginal programs and services.9 In March 2005 the Howard government abolished the ATSIC.10

18 | BRIEF AUGUST 2022

History of Indigenous Political Representation

Commission to supervise a process of agreementmaking between governments and First Nations and truth-telling about our history.

Aboriginal Provisional Government 1990 Created on 16 July 1990, the Aboriginal Provisional Government campaigns for Aboriginal sovereignty over Australia. It was formed by elders from several communities across Australia. Its founders include Bob Weatherall, Geoff Clark, Josie Crawshaw, Michael Mansell, Kathy Craigie and other representatives from all states of Australia.11 Council for Aboriginal Reconciliation 1991–2001 – Reconciliation Australia The Council for Aboriginal Reconciliation was established as a result of the 1991 Royal Commission into Aboriginal Deaths in Custody, with a mandate to advance a national process of reconciliation over a 10 year time

2010 – National Congress of Australia’s First Peoples (NCAFP)

The National Congress of Australia’s First Peoples emerged from a series of Aboriginal community meetings throughout the country, peak body talks, a national forum and written submissions.14

The main characteristics of the National Congress of Australia’s First Peoples are: Established as a company, it is independent of the government.

Reconciliation Australia was established in 2001 in accordance with recommendations of the final report of the Council for Aboriginal Reconciliation as an independent not-for-profit organisation, with a Board of Indigenous and non-Indigenous people which promotes and facilitates reconciliation by building relationships, respect and trust between the wider Australian community and Aboriginal and Torres Strait Islander peoples.

On 8 June 2011 the National Congress of Australia’s First Peoples first elected a board of 6 directors. The organisation then had 2,300 members,17 in May 2012 In4,000.18May2016, the government abandoned any funding of the Congress,19 affirming again how important independent

A National Executive elected by an annual congress with representatives from key Aboriginal organisations, individuals and Therepresentatives.communityCongresshasaguaranteed equal share of men and women for both office holders and delegates.

The Annual Forum of 120 delegates is organised into 3 chambers (regional, state and national organisations & peak bodies, other organisations, individuals). The Forum makes decisions on policies and issues affecting its members and advises the National Executive on the future direction and priorities.15

Artwork: Wagyl of the Derbarl Yerrigan (Serpent of the Swan River), by Marlia Miyalan Fatnowna, Acrylic on museum quality paper

The Government, the Opposition and the Australian Democrats in the Commonwealth Parliament are represented among the wider community participants.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

The National Congress of Australia’s First Peoples, was incorporated in April 2010 as a Company Limited by Guarantee.13

frame. The Council was also tasked to address Aboriginal disadvantage in areas including employment, health infrastructure and economic Itdevelopment.wasestablished by the Commonwealth Parliament, with unanimous crossparty support, as a statutory body under the Council for Aboriginal Reconciliation Act 1991 . The Council comprises 25 members drawn from the Aboriginal, Torres Strait Islander and wider Australian communities.

The Congress had five primary objectives:16Setthestandard for engagement in Aboriginal and Torres Strait Islander communities; Participate in parliamentary processes; Ensuring the UN Declaration of Rights for Indigenous Peoples is implemented; Harness collective voice and action; Facilitateand the generation of and contribution to knowledge.

Listening to First Nations Voices

In March 2019, after months of community consultations across Australia, the Coalition of Peaks entered an historic formal partnership agreement with the Council of Australian Governments (COAG) on Closing the Gap, a policy introduced in 2008 to improve Aboriginal lives and bring them on par with those of other Australians.27

51A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.

In April 2012 the Australian South Sea Islanders (ASSI) formed a national body to give their community a voice at all levels of government.20

Malcolm Turnbull, who became Prime Minister in 2015, established the Indigenous Policy Committee of Cabinet in 2016, to “support better engagement with Cabinet Ministers, their portfolios and Aboriginal and Torres Strait Islander people, including through collaboration with the Indigenous Advisory Council”.23 He temporarily suspended the IAC at the end of January 2017,24 with its initial terms of reference being wound up on that date.25

PM’s Indigenous Advisory Council

The Coalition of Peaks - 2019 Around 50 Aboriginal communitycontrolled peak organisations came together in 2019 to form the Coalition of Peaks, a representative body to partner with governments on all levels.

History of RecognitionConstitutional Stages of engagement with the Expertissue Panel, 2011 The Expert Panel, appointed on 23 December 2010, made up of Indigenous and community leaders, legal experts and parliamentary members, co-chaired by Professor Patrick Dodson and Mr Mark Leibler AC, was tasked to report to the Government on possible options for constitutional change to give effect to indigenous constitutional recognition, including advice as to the level of support from Indigenous people and the broader community for these options.

20 | BRIEF AUGUST 2022

In 2015 it recommended: that section 25 of the Constitution be repealed; the repeal of section 51(xxvi) and the retention of a person’s power so that the Commonwealth government may legislate for Aboriginal and Torres Strait Islander peoples as per the 1967 referendum result; that the three options, which would retain the persons power, set out as proposed new sections 60A, 80A and 51A & 116A, be considered for referendum. Those options were:

CHAPTER IIIA Aboriginal and Torres Strait Islander Peoples Section 80A Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage; the Parliament shall, subject to this Constitution, have power to make laws with respect to

2012 – National Body for Australian South Sea Islanders

funding is for an Aboriginal representative organisation. The government argued that Congress was not functioning as a representative body and failed to transition away from government funding.

“The first recommendation, that of creating an Indigenous voice to government via “co-design process”, was set in train by the establishment of the Senior Advisory Group (SAG), announced by Minister for Indigenous Australians Ken Wyatt in October 2019.”

The Indigenous Advisory Council (IAC), also known as the Prime Minister’s Indigenous Advisory Council, was established by then Prime Minister of Australia, Tony Abbott.

The Council was created on 25 September 2013, announced on 23 November 2013 and its inaugural meeting was on 5 December 2013.21 Its purpose was stated as “to provide advice to the Government on Indigenous affairs, and will focus on practical changes to improve the lives of Aboriginal and Torres Strait Islander people”. Its size was set at 12 people, comprising both Indigenous and nonIndigenous Australians, who would meet three times each year.22

Six members were appointed for a second term of the Council, announced on 8 February 2017, with a further appointment on 22 May 2017.26

(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group;

2013

Parliamentary Joint Select Committee, 2015 On 2 December 2013, the Parliament agreed that a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition.

National Indigenous Constitutional Convention, Uluru, April 2017

The Final Report also notes that there are other matters of great importance to Australia’s Indigenous peoples that can be more appropriately addressed outside the Constitution, realising the difficulties involved in Constitutional amendments, and recognising the principle of parliamentary supremacy, being: a statement of recognition; the establishment of a Makarrata Commission; a process to facilitate truth telling 30 Joint Select Committee, March 2018

Referendum Council 2015-2017

The proposed Voice which was recommend was the first preference of Aboriginal and Torres Strait Islander delegates to the First Nations Regional Dialogues, and the consensus proposal coming out of the National Constitutional Convention at Uluru in April 2017. Treaty

The pursuit of Treaty and treaties was strongly supported across the Dialogues as a vehicle to achieve self-determination, autonomy and self-government. Truth-telling

Referendum Council Final Report, June 2017

Regional Dialogues

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage;

Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them.

60A Recognition of Aboriginal and Torres Strait Islander Peoples

(1) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples. (2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples.

The Referendum Council held Dialogues of Indigenous Australians around the country between December 2016 and May 2017, with the purpose of reaching broad agreement on whether and, if so, how, to ‘recognise’ Indigenous Australians in the Australian Constitution The Dialogues provided an opportunity for participants to discuss the main options for recognition, combine or modify existing options and rank options in order of priority. The final report of the Referendum Council put forward a single recommendation for constitutional amendment – that a referendum be held to provide in the Australian Constitution for a body that gives Aboriginal and Torres Strait Islander peoples a Voice to the Commonwealth Parliament.

The 16-member Referendum Council was jointly appointed by the Prime Minister, Malcolm Turnbull, and Leader of the Opposition, Bill Shorten, on 7 December 2015. The council was to advise the government on steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. It built on extensive work by the Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. The council was made up of Indigenous and non-Indigenous community leaders.28

The Joint Select Committee on Constitutional Recognition relating to

2. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.

Listening to First Nations Voices WA-LawSociety-QPAug22.indd 1 8/8/2022 15:1921

The Final Report of the Referendum Council handed down on 30 June 2017 contains the following recommendations:29

1. That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

The need for the truth to be told as part of the process of reform emerged from many of the Dialogues. The Dialogues

emphasised that the true history of colonisation must be told and include the stories of how First Nations Peoples have contributed to protecting and building this country.

1. In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends that the Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.

Altering the Constitution

The Australian Constitution may only be altered in accordance with section 128 of the Constitution: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of And…Representatives.ifinamajority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent.

The Senior Advisory Group in the Indigenous Voice Co-design Process Report in July 2021 recommended that the Australian Government:

Alterations

2. Involve all levels of government in Local & Regional Voices and seek to negotiate formal commitments as soon as practical.

In the history of referenda in Australia only 8 out of 44 have been passed. They were: 1906 Senate elections 1910 State Debts 1928 State Debts 1946 Social Services 1967 Aborigines 1977 Casual Vacancies 1977 Territorial Votes 1977 Retirement of Judges

Indigenous Voice Co-design Process Report July 202132

1. Progress an Indigenous Voice by implementing the Local & Regional Voices and National Voice proposals as set out in the Final Report.

Aboriginal and Torres Strait Islander Peoples was appointed in March 2018, co-chaired by Senator Patrick Dodson and Julian Leeser MP and comprising six Lower House and four Upper House representatives. It presented its final report on 29 November 2018. There were four recommendations in the report:

2. The Committee recommends that, following a process of codesign, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish The Voice.

Senior Advisory Group on Co-design process

The first recommendation of the Joint Select Committee on Constitutional Recognition, that of creating an Indigenous voice to government via “co-design process”, was set in train by the establishment of the Senior Advisory Group (SAG), announced by Minister for Indigenous Australians Ken Wyatt in October 2019. The Senior Advisory Group is co-chaired by Professor Tom Calma AO, Chancellor of the University of Canberra, and Professor Dr Marcia Langton, Associate Provost at the University of Melbourne, and comprises a total of 20 leaders and experts from across the country. The government also said it would run a referendum during its present term about recognising Indigenous people in the Constitution “should a consensus be reached and should it be likely to succeed”. By March 2020 (around the beginning of the COVID-19 pandemic in Australia), the two other groups, National and Local and Regional, had been set up and had met at least once.31

Accounting for Constitutional Referenda

Failures

There is much commentary about why particular referenda may have failed.33

The Referendum (constitutional Alteration) Act 1912 (No 2) established a process by which each elector receives a pamphlet from the Chief Electoral Officer containing arguments in favour of, or against, any proposal of the Constitutional amendment. Normally these arguments must be no more than 2000 words in length and authorized by a majority of those parliamentary members who voted for or against the propose law.

Relevantly to the present matter under consideration, a ‘NO’ argument was not produced for the 1967 Referendum question which addressed the removal the words ‘other than the aboriginal race “Relevantly to the present matter under consideration, a ‘NO’ argument was not produced for the 1967 Referendum question which addressed the removal the words ‘other than the aboriginal race in any State’ from s 51(xxvi), having the effect of empower the Commonwealth to enact law with respect to ‘[t]he people of any race’. That Referendum was passed by 90.8% of the Australian population, the highest ever ‘YES’ vote”

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The Referendum (Machinery Provisions) Act 1984, s 11 states that such arguments as are produced must be submitted to each voter ‘not later than 14 days before the voting day for the referendum’.

The views expressed are not verifiable by any objective process and are specific to the matters in issue in each Referendum.

5. Note the support for the enshrinement of the Indigenous Voice in the Constitution that was expressed particularly through the submissions received as part of the consultation process.

3. Provide funding certainty as part of any enabling legislation, including by establishing the National Voice as a new independent Commonwealth entity.

4. Continue to work in partnership to progress implementation.

4. The Committee also recommends that the Australian Government consider the establishment, in Canberra, of a National Resting Place, for Aboriginal and Torres Strait Islander remains which could be a place of commemoration, healing and reflection.

3. The Committee recommends that the Australian Government support the process of truth-telling.

A PROPOSED LAW

Prime Minister Albanese has recommended that the Australian people consider adding three sentences to the Constitution:

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

This has arisen from a proposal by the Indigenous Law Centre of the University of New South Wales which prepared a draft Bill for a Constitution Alteration (First Nations Voice) 2023 to add section 129 to the Constitution in the following terms: Section 129 The First Nations Voice

Are you in favour of establishing a body, to be called the First Nations Voice, that will guarantee Aboriginal and Torres Strait Islander Peoples an institution to provide advice to the Parliament about the development of Commonwealth laws and policies affecting them, as provided in the Constitution Alteration (First Nations Voice) 2023.

Referendum Ballot Question Option 2

Constitutional change

Listening to First Nations Voices in any State’ from s 51(xxvi), having the effect of empowering the Commonwealth to enact law with respect to ‘[t]he people of any race’. That Referendum was passed by 90.8% of the Australian population, the highest ever ‘YES’ vote

Proposed

1. There shall be a body, to be called the First Nations Voice.

3. The Parliament may make laws prescribing the method of choosing members of the First Nations Voice, but so that the method takes account of First Nations views of appropriate representation and without necessity that the method be uniform throughout the Commonwealth.

The Prime Minister has proposed the following question to the put to the people in a Referendum: “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?” 35 Again, this appears to be a much simplified version of the following

2. The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.

To alter the Constitution to recognise Aboriginal and Torres Strait Islander Peoples by establishing a body, to be called the First Nations Voice, that will guarantee Aboriginal and Torres Strait Islander Peoples an institution to provide advice to the Parliament about the development of Commonwealth laws and policies affecting them. Do you approve this proposed alteration?

The Indigenous Law Centre of the University of New South Wales has suggested that its proposed Option 1 question is in a form required by s 25(1)(a) of the Referendum (Machinery Provisions) Act 1984, but that Option 2 would require amendment to that Act. Section 25(1)(a) of that Act provides that 1. Subject to this section, the ballotpapers to be used in a referendum shall:(a) be in accordance with Form B in Schedule 1; Bequests Help Save Cats’ Lives Please Donate, Adopt Foster, Bequeath, Volunteer

Referendum Question

For nearly 60 years, Cat Haven has relied on the generosity of West Australians bequests and donations to keep our doors open for cats in need. We are WA’s premier cat welfare organisation taking in over 8,000 cats a year and rehoming close to 90%. We can assure your clients in the unfortunate situation of them passing away before their much loved companion cat we will rehome it in a similar home as to the one it has come from via our Cat Custodians Program. All we ask is they remember us in their estate after providing for family and friends. For further information please go to our website www.cathaven.com.au or call CEO 9442 3600 for a brochure.

4. The Parliament shall, subject to this Constitution, have power to make laws with respect to the functions, powers and procedures of the First Nations Voice, and matters incidental to the execution of the powers vested by this Constitution in the First Nations Voice.

options for questions which were drafted by the Indigenous Law Centre of the University of New South Wales: Referendum Ballot Question Option 1

2. The First Nations Voice: (a) shall present its views to Parliament and to the Executive Government of the Commonwealth in matters it deems relevant to Aboriginal and Torres Strait Islander Peoples; (b)andmay perform such additional functions as the Parliament provides, including the presentation of views of the Parliament or Executive Government of a State or Territory on the request of that Parliament or Executive Government of a State or Territory].

3. The parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.34

8 Source:Aboriginal

(austlii. edu.au) 13 Source: Aboriginal representative bodies - Creative Spirits, retrieved from bodiesselfdetermination/aboriginal-representative-www.creativespirits.info/aboriginalculture/https:// 14 Ibid 15 Ibid 16 Ibid 17 Ibid 18 Ibid 19 Ibid 20 Ibid 21 Councilen.wikipedia.org/wiki/Indigenous_Advisory_ 22 Indigenous Advisory Council - Wikipedia 23 Ibid 24 Ibid 25 Ibid 26 Ibid 27 Ibid 28 Uluru Statement from the Heart - Wikiwand 29 Ibid 30 Ibid 31 Ibid 32 Indigenous Voice Co-design Process Final Report to the Australian Government (niaa.gov.au) 33 Scott Bennett, Constitutional Referenda in Australia: Parliamentary Library Research Publications , Research Paper 2 1999-2000 34 Albanese Voice Constitutional AmendmentBing News 35 Ibid 36 Constitution should recognise Indigenous people as first Australians, says Noel Pearson (msn.com) 37 Election 2022: Labor says Voice referendum timing depends on Liberals, Greens (afr.com) 38 Interstate Commission Act 1975 (Cth) 39 Industry Commission Act 1989 (Cth), s 48(2) 40 Moens & Trone, Lumb & Moens The Constitution of the commonwealth of Australia (6TH ed), [735] Listening to First Nations Voices Commonwealth of BALLOT-PAPERAustralia [ Here insert name of State or Territory ] Referendum on proposed Constitution alteration DIRECTIONS TO VOTER WRITE “YES” or “NO” in the space provided opposite the question set out below. [ Here set out the title of the proposed law ] DO YOU APPROVE THIS PROPOSED ALTERATION? 24 | BRIEF AUGUST 2022

The Constitution s 128 provides that the Referendum Bill must be passed by an absolute majority of both Houses of Parliament at least 2 months and not more than 6 months prior to the Referendum. Options which are being discussed are a Referendum on Saturday 27 May 2023, the 56th Anniversary of 1967 Referendum, which would require a Referendum Bill to be passed between 27 November 2022 –27 March 2023. An alternative suggested is 27 January 2024, the “day after Invasion day/Australia day”.

It is important to note in this debate, as it progresses, that it will only achieve a positive result if there is good-will on the part of the participating parties.

Conclusion

aboriginal-representative-bodiesaboriginalculture/selfdetermination/https://www.creativespirits.info/ Aboriginal representative bodies - Creative Spirits, retrieved from bodiesselfdetermination/aboriginal-representative-www.creativespirits.info/aboriginalculture/https:// Word’ Treaty - The Value of Historical Insights’, National Unity Government, retrieved 22/6/2016 representative bodies - Creative Spirits, retrieved from bodiesselfdetermination/aboriginal-representative-www.creativespirits.info/aboriginalculture/https:// Provisional Government’, Simple Wikipedia, 21/8/2015Aboriginal_Provisional_Governmentsimple.wikipedia.org/wiki/,retrieved Reconciliation

12 Council for Aboriginal

The proposed Constitutional Amendment, in any of the forms proposed, is a proposal to empower the Parliament, exercising Parliamentary sovereignty. It is not proposed, even if that was possible, to bind the Parliament to empower a Voice to Parliament to operate in accordance with statutory authority or to exist in a particular form.

One only has to refer to the example of Section 101 of the Constitution which empowered the establishment of ‘an Inter-State Commission with such powers of adjudication and administration as the Parliament deems necessary …relating to trade and commerce and all laws made thereunder’. In New South Wales v The Commonwealth (1915) CLR 54 the High Court held that the provision did not authorise the Parliament to constitute the Commission as a Court. It became defunct in 1920. Legislation to reconstitute it with administrative and quasi-judicial powers was enacted in 1975,38 proclaimed in 1983 and repealed in 198939 and there is not currently a functioning Inter-State TheCommission.40advocacyfor progressing the Voice to Parliament by a first step of Constitutional amendment, establishing the power to create the Voice can be readily understood as emerging from the experience of Australia’s First Nations Indigenous Peoples with the history since the 1970s of various forms of political interaction with government which have all-to-readily been dis-banded at the will of the government of the day. It is no doubt thought that a body which is established, after being taken to the public and having received its support in a Referendum and which has a direct communication line to the Parliament, rather than the Executive arm of Government, may have a greater chance of being sustained as something not so readily abandoned as similar to the bodies of the past. promises to bring Australians together, fully commits to Uluru Statement from the Heart — as it happened”. 20 May 2022. Retrieved 21 May 2022 Statement_from_the_Hearthttps://www.wikiwand.com/en/Uluru_ Statement from the Heart - Wikiwand

7 ‘’That

6 Source:

End Notes 1 “Albanese

Form B is as follows: FORM B That is a procedural issue which the Parliament may need to address, depending upon the form of question it proposes to put to the Referendum.

The Government’s proposed question does not adopt the reference to ‘First Nations’ which is advocated for by some, such as Noel Pearson.36

Timing

Referendum

9 Ibid 10 Ibid 11 Aboriginal

ABC News

3 Uluru

4 Ibid 5

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26 | BRIEF AUGUST 2022

Chloe D’Souza with her Master of Laws from Harvard University

When I approached her to co-author this article, we reflected on our journey together. Whilst Reconciliation is often seen at a societal or organisational level, building relationships from the ground up to build a genuine respect and enable deeper understanding is key. Chloe shares our story.

Jody and I met in 2018. We quickly bonded over a shared interest and passion for reconciliation in Australia, and before I knew it Jody and I became valued mentors for one another. I provided support to Jody and her then team at the Australian Institute of Company Directors as they launched their first Reconciliation Action Plan. Fast forward to 2022, Jody and I have continued to mentor each other. Jody supported and encouraged me to take the steps to apply for a Monash Scholarship to study a postgraduate course at Harvard University, where I have just graduated from with a Master of Laws. I encouraged Jody with a huge sense of pride as she stepped into the role of CEO, Reconciliation WA. Through the years, we have continued to take time to listen to one another, share stories, and seek and provide honest advice. Coming from different backgrounds has only helped bring us together and understand each other’s perspectives. We have walked together with mutual respect and will continue to do so moving forward. Though this is just two people, it is an example of the power of Indigenous and non-Indigenous

Reconciliation: The Power of TogetherWalkingLearningListening,and

As National Reconciliation Week and NAIDOC formally conclude for another year, there is an opportunity to ensure these important weeks are acknowledged as a recharge and refocus for the year ahead and why we must stay focused on the reconciliation work still to be done, particularly in the justice arena.

such emerging leader I have had the pleasure of walking alongside for some time is Wilman Noongar woman Chloe D’Souza who I met several years ago and developed a mutual respect for what we could learn from one another. When the opportunity to write this article came about, I wanted to share the opportunity with a strong Aboriginal voice. Chloe was the first Aboriginal Law Graduate from Curtin University and has just graduated with a Master of Laws from Harvard University. Chloe is on the precipice of an exciting future.

By Jody Nunn and Chloe D’Souza

Reconciliation WA advocates that reconciliation is everyone’s business, and we share the responsibility to collectively pay attention to the stubborn statistics and commit to moving them in a positive Onedirection.thing that was evident again this year, was the immense talent and leadership in the Aboriginal community as the next generation build on the tireless work of their Elders and Aboriginalancestors. voices must be central to decisions affecting community. ‘Nothing about us, without us’ is regularly reinforced and the talent shining through is powerful as we walk towards a nation building moment in our history with the Federal Government committing to implementing the Uluru Statement in Onefull.

Australia walking together through the journey of reconciliation with very different lived experiences, but shared goals and aspirations.

Curtin University’s Law School in 2015, and was admitted to the Supreme Court of WA as a Lawyer in 2017. In 2020 she was awarded a Bob Hawke John Monash Scholarship which she used to obtain a Master of Laws at Harvard University.

To find out more contact us on 08 9212 4333 or visit au/getinvolved/a-gift-in-willcancerwa.asn.

Chloe D’Souza is a proud Wilman Noongar woman who grew up on Whadjuk Boodjar (Perth, Western Australia). Chloe was the first Aboriginal person to graduate from

The 2022 National Reconciliation Week theme ‘Be Brave Make Change’ encouraged all Australians to act as we continue to walk together towards a reconciled Australia. It’s important that every Australian person sees their role in this space. We need to look internally and challenge our own knowledge and understanding of what reconciliation means for Australia. Reconciliation is one person’s epiphany at a time, and we are seeing a ground swell of interest.

When I think of cited moments in Australian history such as the 1967 referendum, the Racial Discrimination Act, and Mabo , I think about the Aboriginal and Torres Strait Islander people that tirelessly campaigned for change, despite living through trauma, exclusion, dispossession, and oppression. It also took support and advocacy from non-Indigenous Australians to help bring these changes into effect and understand their significance. Whilst we recognise the importance of these moments in history and what they achieved, we must remember that they were overdue and have not alone been a marker of equality in Australia. When we walk back through history, it’s important to take note of both action and inaction. Calls for treaty, platforms for Indigenous voices, and the recognition and protection of the right to self-determination for Indigenous peoples and communities have been ignored. Reconciliation cannot be achieved by one law or policy alone. It will take an ongoing collective effort of all Australians coming together to hold ourselves, each other, and our government accountable for making change that can actively start to work towards a reconciled nation. Being brave and making change can be daunting, but change happens when people step outside of their comfort zones. For some, it is starting by understanding your own knowledge and reflecting on whether you think you need to self-educate. Research and read articles and books written by Indigenous people rather than asking your Indigenous peers to educate you.

For those that sit on a Reconciliation Action Plan Working Group, think about innovative and unique ways to expand action items and to increase participation and accountability across the organisation, particularly for leaders and managers. Consider also how you can take your engagement in the reconciliation space outside of your work, and into your community. Think about how you can elevate Aboriginal voices around you. Talk to the people in your different circles and listen with an open heart and an open mind. Be understanding of the different lived experiences of those around you but recognise where there could be an opportunity to speak up. Our conversations both in and outside of work can be an extremely useful tool to not just further educate ourselves, but also those around us. If you are already very active in the reconciliation space, think of ways to step further outside of your comfort zone. Reconciliation at its core is about achieving a more united and equal Australia moving forwards. To get there, we need to be able to critically reflect internally and challenge to do better, and to do more.

Jody Nunn has been the CEO of Reconciliation WA since February 2021 and was born and raised on Noongar Boodja. Her previous role was the State Manager at the Australian Institute of Company Directors. Jody is a graduate of the AICD Company Directors Course, holds an MBA from UWA, and a Bachelor of Arts from WAAPA. However, her greatest lessons are just emerging as she seeks to deeply understand the governance and leadership systems and the deep respect for country that have been in existence and thriving for over 60,000 years by our First Nations people in the country we now call Australia.

Listening to First Nations Voices How are we going to achieve this?

When writing a Will for a client please ask them to consider a charitable gift. By funding researchersworld-class here in WA. By empowering healthier lifestyles and shaping public policies for West Australians to reduce their risk of cancer. By providing support from the point of diagnosis through to treatment and beyond. Gifts in Wills help us get closer to our vision of a cancer free future for our community.

Cancer Council Western Australia (Inc). Level 1, 420 Bagot Road, Subiaco WA 6008 ABN: 15 190 821 561 For further information on Reconciliation WA –www.reconciliation.wa.org.auvisit 27

When you are an Aboriginal or Torres Strait Islander (ATSI) Person with a Disability (ATSIPwD), you do not see yourself as a Person with a Disability (PwD) because society does not view you as a PwD. I have witnessed this cognitive dissonance extend into public policy and although ATSI activists and disability causes have championed for self-determination using the phrase ‘Nothing about us without us’, for ATSIPwDs it can leave us to feel that there is ‘Something about us, without us’.1 Whether it is in relation to the United Nations Declaration on the Rights of Indigenous People (UNDRIP), the Convention on the Rights of Persons with Disabilities (CRPD), any Commonwealth collated statistics or academic literature, the lack of visibility of ATSIPwDs is both glaring and Foundingdamning.

To adopt both identities to become an ATSIPwD automatically doubles the disadvantage of an ATSIPwD, leading to a life that is ultimately determined by others. Paternalism

TheCensusABS itself has stated that the Census only collects limited information on disability and is focused more on the care needs of populations, regardless of whether these care needs arise due to age, chronic health conditions or disability.10 The 2021 Census followed this line of enquiry and did not include any qualifying questions that asked whether the ATSI census participant identified as having a disability,11 yet the ABS represents

The Intersect Between Aboriginal and Torres Strait Islander People, Disability and the Pursuit for Self Determination

By Juanita King Indigenous Legal Issues Committee and Human Rights and Equal Opportunities Committee, The Law Society of Western Australia

28 | BRIEF AUGUST 2022

Statistics Inconsistency in ATSIPwD data As of 28 June 2022, Australia’s population stood at 25.9 million,6 of which 4.4 million are reported to be people living with a disability,7 and approximately 518,000 people living with a disability are participants of the National Disability Insurance Scheme (NDIS).8 The 2021 Census reports that 812,728 people identify as ATSI.9 These figures are not contested, however there appears to be a myriad of inconsistencies in the statistics relating to ATSIPwDs. There are three main surveys that are referred to for ATSIPwD statistics: Australian Bureau of Statistics (ABS)

The root cause of systemic racism

ATSI and Disability

The western concept of disability is fundamentally exclusionary of ATSIPwDs.

ATSI people continue to face systemic racism fuelled by CIP, and this is only amplified, should an ATSI person be faced with identifying as a person with a disability. The inequality faced by ATSIPwDs continues to be overlooked at all levels of policy and despite the Uluru Statement from the Heart calling for justice and selfdetermination in the “coming together after a struggle”,3 it raises a query whether the struggle has indeed ended.

Something About Us, Without Us

Paternalism within the disability sector is rife however that same paternalism has colonial origins, that enables and justifies racial discrimination to remain a common experience for ATSIPwDs.

Recent developments that raise the possible implementation of the UNDRIP, have seen discussions arise surrounding consistency between current legislative commitments and the UNDRIP. However, any imminent intersect between the UNDRIP and the CRPD has not been acknowledged. This lack of consideration could be due to the misaligned timing of the drafting of the UNDRIP and CRPD created a segregation in rights that has been referred to as the sole reason behind the “siloing of rights of Indigenous persons with disabilities”.4 Though the need for ATSIPwD specific laws and policies is evident, and despite a recommendation for a specific ATSIPwD Closing the Gap target,5 there is yet to be any dedicated legislative response. This lack of response could be driven by a commonly held assumption that ATSIPwDs, as a cohort, are not statistically a priority.

Intersectionality

I believe that CIP is the primary driver behind every single injustice and systemic failure that has caused irreparable damage to generations of ATSI communities; past, present and emerging. The identity of disability that has been corporately manufactured in Australia is one that has been shaped through the lenses of CIP, which can lead to racial discrimination on a wider scale. CIP can also impact other minority and intersectional groups such as Culturally and Linguistically Diverse (CaLD)PwDs. CIP also arises in the form of lateral violence that can occur both within or between minority or intersectional groups. CIP continues to produce negative outcomes for, and endorsing destructive behaviours towards minority and intersectional groups, whilst permitting the lack of acknowledgment of any negative impacts of CIP. This is due to the prevailing belief that any act of paternalism is done with ‘good intentions’ which justifies the evasion of accountability. The original dynamic between ATSIPwDs and CIP must be addressed, to be able to attempt to cease such a salient and complex form of discrimination that has invaded our governing systems and our society.

Colonially Infused Paternalism (CIP) occurs when an individual is in a position of authority that allows for the discrimination and neglect of other individuals in society who do not conform to the eligibility criteria, policies and societal expectations, that are the result of CIP being the default engagement approach since colonisation.

What began as a clinical categorisation, has since developed into an industry where commercialism positively re– enforces the adoption of disability as an identity, and that identity is regularly marketed as being one that will be rewarded with enduring access to funding and services leading to a dignified life, steered by selfdetermination. In contrast, the concept of adding the additional identity of disability to Indigeneity, and that identity leading to more engagement with services that have historically and catastrophically intervened on the self–determination of ATSI people, serves as a negative re–enforcement.

member of the First Peoples Disability Network (FPDN) Uncle Lester Bostock was the first to describe the concept of double disadvantage: “If you’re an Aboriginal in Australia, it’s a disadvantage, but if you’re an Aboriginal person with a disability, it’s a double disadvantage.”2

7. Australian Institute of Health and Welfare. People with disability in Australia [Internet]. Australian Government; [updated 2020 Oct 2; cited 2022 Jul 1].

20. Human Rights Watch. “He’s Never Coming Back” People with Disabilities Dying in Western Australia’s Prisons. Human Rights Watch; Sep, 2020. p 23.

26. National Disability Insurance Agency. Data Downloads–Aboriginal and Torres Strait Islander Participants. National Disability Insurance Agency; 31 Mar, 2022. 27. National Disability Insurance Agency. Data Downloads–People with a psychosocial disability in the NDIS. National Disability Insurance Agency; 30 Jun 2019, p 7. 28. National Disability Insurance Agency. Data Downloads–People with an intellectual disability in the NDIS. National Disability Insurance Agency; 31 Dec 2019, p 9. 29. National Disability Insurance Agency. Data Downloads–Participants with acquired brain injury, cerebral palsy or spinal cord injury in the NDIS. National Disability Insurance Agency; 31 Dec 2020, p 14. 30. National Disability Insurance Agency. Data Downloads–Participants with sensory disabilities in the NDIS. National Disability Insurance Agency; 31 Mar 2021, p 15. 31. National Disability Insurance Agency. Data Downloads–Young People in the NDIS. National Disability Insurance Agency; 30 Jun 2020, p 11. 32. National Disability Insurance Agency. Data Downloads–Young adults in the NDIS. National Disability Insurance Agency; 30 Jun 2021, p 10. 33. Dudgeon P, et al. Mental health and well-being of Aboriginal and Torres Strait Islander peoples in Australia during COVID-19. Australian Journal of Social Issues 2021, Vol. 56(4), p 495. 34. United Nations Expert Mechanism on the Rights of Indigenous Peoples. A/HRC/48/74 Study of the Expert Mechanism on the Rights of Indigenous Peoples. United Nations Office of the High Commissioner for Human Rights; 2021 Aug 9, p 18 [6]. 29

21. Department of Health. National Aboriginal and Torres Strait Islander Health Plan 2021–2023. Australian Government; 2021. p 63. 22. Refer to Note 16. 23. Department of Health. National Aboriginal and Torres Strait Islander Health Plan 2021–2023. Australian Government; 2021. p 59. 24. National Disability Insurance Agency. Aboriginal and Torres Strait Islander Report [Internet]. National Disability Insurance Agency; [updated 2019 Jun 30; cited 2022 Jul 1]. 25. Australian Institute of Health and Welfare. Aboriginal and Torres Strait Islander Health Performance Framework 1.14 Disability [Internet]. Australian Government; [updated 2021 Mar 28; cited 2022 Jul 1].

Recently, the UN addressed the rights of Indigenous children in respect to the UNDRIP:34 States should take measures to ensure free and equitable access to social services for all indigenous children, paying particular attention to the rights and special needs of girls, lesbian, gay, bisexual, transgender, intersex and two-spirit children, children with disabilities and those in remote or nomadic settlements and urban settings, and take measures to address discrimination against them, including through public information campaigns.

End Notes

9. Australian Bureau of Statistics. Aboriginal and Torres Strait Islander People: Census 2021 [Internet]. Australian Government; [updated 2022 Jun 28; cited 2022 Jul 1].

11. Australian Bureau of Statistics. Disability and Carers Census 2021 Summary. Australian Government; 2021, Table 2 Core Activity need for assistance by Indigenous status.

13. Australian Bureau of Statistics. Disability, Ageing and Carers, Australia: Summary of findings methodology 2018 [Internet]. Australian Government; [updated 2019 Oct 24; cited 2022 Jul 1].

The NATSIHS was an Indigenous specific survey which was more inclusive of locations than the SDAC.17, 18 This survey reported a figure of 248,100 ATSIPwDs.19 From this figure: One in four ATSI people have a ‘mental or behavioural Twocondition’20thirdsof Stolen Generation survivors were living with a disabling condition21 The AIHW makes an inference to the NATSIHS producing a figure of 433,600 ATSIPwDs.22 NDIS data is an emerging source of ATSIPwD statistics, that highlights one in five ATSI children are ATSIPwDs.23 In 2019, the NDIA reported 16,417 NDIS participants as being ATSIPwDs,24 of which 65% of these participants were under the age of twenty five.25 Recent figures from 2022 suggest that the estimated total number of NDIS ATSIPwD participants as being 37,325.26 ATSIPwD are statistically over represented in respect to NDIS data,27, 28, 29, 30 especially ATSIPwD children31 and youth.32 Policy The impacts of inconsistent ATSIPwD data

Listening to First Nations Voices this data on their website under the title of ‘Disability and Carers’.12

14. Australian Bureau of Statistics. Aboriginal and Torres Strait Islander people with disability [Internet]. Australian Government; [updated 2021 Jun 11; cited 2022 Jul 1].

In order to ethically enact the Uluru Statement from the Heart’s vision of a just and self-determined future for ATSI children, the recognition of ATSI intersectionality is critical to ensure consistency between the UNDRIP and CRPD, with Indigenous data sovereignty safeguarding the process. Such steps could lead to the cessation of the siloing of the rights of ATSI people, giving rise to a holistic representation of the humanity of ATSI people in policy, data and literature, to allow the intergenerational wound that is the gap to be given a chance to close and heal.

1. Harpur P, Stein MA. Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?. International Human Rights Law Review 2018; Vol.7, p 173. 2. NDSP Plan Managers. Creating Lasting Change for Indigenous Australians with Disability [Internet]. NDS Plan Managers; [updated 31 Aug, 2021; cited 2022 Jun 30].

3. Uluru Statement from the Heart. Self titled. 2017. 4. Refer Note 1, p 170, 199.

10. Australian Bureau of Statistics. National Aboriginal and Torres Strait Islander Health Survey methodology 2018–2019 [Internet]. Australian Government; 2019 Dec 11; cited 2022 Jul 1].

8. Wright E, Edmonds C, Young E. Concern Millions of Australian with disability not on the NDIS have been ‘forgotten’ [Internet]. ABC News; [updated 2022 May 18; cited 2022 Jul 1].

ABS National ATSI Health Survey 2018–2019 (NATSIHS)

5. Australian Law Reform Commission. Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. Australian Government. Report, 133 [Internet]; [2.38]. [Cited 2022 Jun 30].

12. Australian Bureau of Statistics. Disability and Carers: Census [Internet]. Australian Government; [updated 2022 Jun 28; cited 2022 Jul 1].

The lack of consideration of the intersect between the UNDRIP and the CRPD, the double disadvantage imposed on ATSIPwDs and inconsistency in ATSIPwDs statistics, have all amalgamated to create the illusion that ATSIPwDs are not a priority. This illustrates the influence and extent of CIP within our modern society. It is crucial that any ATSIPwD related data, statistics and literature are correctly recorded and reported, to ensure anyone in a position of authority is making decisions that are responsive to resolving the inequalities faced by ATSIPwDs. A call for the principles of Indigenous data sovereignty to be applied to national data storage has been made by ATSI academics,33 which could serve as a safeguarding mechanism to protect the integrity of ATSI information, especially where intersectionality is concerned.

6. Australian Bureau of Statistics. Population Clock [Internet]. Australian Government; [updated 2022 Jun 28; cited 2022 Jul 1].

ABS Survey of Disability, Ageing and Carers 2018 (SDAC) The SDAC limited the locations that were surveyed, with many locations that would be familiar to ATSI community members being excluded.13 This survey reported a figure of 139,700 ATSIPwDs.14 From these statistics: 53.5% of ATSIPwDs were aged over fifty-five and were 39.2% more likely to have a physical However,disability.15theAustralian Institute of Health and Welfare (AIHW) refers to the SDAC reporting a figure of 374,200 ATSIPwDs.16

15. Ibid. 16. Australian Institute of Health and Welfare. Disability support for Indigenous Australians. Australian Government [Internet]. 16 Sep, 2021 [Cited 2022 Jul 1].

17. Ibid. 18. Australian Bureau of Statistics. National Aboriginal and Torres Strait Islander Health Survey methodology 2018–2019 [Internet]. Australian Government; 2019 Dec 11; cited 2022 Jul 1].

19. Australian Institute of Health and Welfare. Aboriginal and Torres Strait Islander Health Performance Framework 1.14 Disability [Internet]. Australian Government; [updated 2021 Mar 28; cited 2022 Jul 1].

Some of the people who have made significant contributions to society have come from all age groups, from young children to people of an age where they have come out of retirement to make a difference. Some of our First Nations leaders are young and others are not so young. Age should not limit impact.

Listening to First Nations Voices

How did you become interested in law?

I come from humble beginnings. I grew up in the regions of Western Australia. I am a bush girl at heart and that will always be the case. As a child, I saw in my small hometown the power, injustice and force of the unjust law being applied to many Aboriginal people. As a child I put it down to pure racism. As an adult reflecting, I would still say that many of the actions were driven by racism.

A major motivation for my interest in the law was to combat some of the issues described above. I realised many of those issues were likely because western law doesn’t include any First Nations lore; the ideologies in which the two are based is inherently different. I wanted to work to integrate the two as I see this as a way we can work towards reconciliation and a better future together.

Q&A – August 2022

Another milestone moment was the Federal government’s promise to implement the Uluru Statement from the Heart Both events will make the law better for First Nations peoples.

In Conversation

We also need to ensure the voices and prominence of the old people are given weight and respected.

It is my view that being racist is a form of intergenerational trauma itself. Acts of racism today seem to be perpetuated from the laws, policies, ideologies and perspectives in the past before the enactment of the Racial Discrimination Act I have always been proud of my heritage and strong in my culture. As a 7-year-old I was told my culture and identity were not important and it should have been bred out – there was an unwavering importance placed on Eurocentric values and perspectives in my hometown. I wanted my people, culture, and history to be valued, celebrated, and included. I saw the effect intergenerational trauma had on my people, and many unhealed members of my community selfImedicating.wasexposed to issues such as an abuse of power by police, covert control, discretionary decision making which did not benefit First Nations people, and other issues such as apparent nepotism and the fact many institutions are based on philosophical ideologies which excluded First Nations people.

The Uluru Statement is a means to combat systemic racism in the law. The Voice to Parliament is a mechanism to include First Nations peoples’ perspectives in developing or reforming law, especially where such laws would disproportionately affect First Nations people and communities. First Nations youth must be on the Voice to Parliament. They are our future and must be included – succession planning is vital. I have met many young First Nations people from across Australia who are bright, think deeply and critically, and who create knowledge. Our youth must have the right to be heard. Is there anything you would like to change about the legal profession? We as a nation inherited the British with Emma Garlett

30 | BRIEF AUGUST 2022

There is still much work to do, but what changes relating to Indigenous issues within the law and legal profession have been positive and impactful in recent years?

Emma Garlett is a First Nations leader in the resources sector who holds and has held roles in the private sector, minerals industry, legal services, and academia. Emma is also an Industry Fellow at the Centre for Social Responsibility in Mining (CSRM) at the University of EmmaQueensland.isamember of the Law Society of Western Australia’s Commercial Law Committee. She is also a member of the Australian Institute of Company Directors. Previously, Emma practised as a solicitor in planning and environmental law at a top-tier law firm in Perth.

In a relatively short time, you have built a very successful career. Does your youth advantage or disadvantage you – or both? Success to me will be when racism is eliminated, and when there is legal and structural equality and justice for First Nations people. Until then, my work is not done.

I think the main takeaway is to always have a vision and aspiration. Don’t let anyone stop you and protect your mind and thought process to avoid becoming institutionalised.

I also wanted to answer questions like: how can we achieve justice for First Nations people? How can we ensure we value and place weight on First Nations perspectives in decision making? Should we rely on government policy, law reform or advance social policy through private enterprises? How can we include First Nations people in economic opportunities such as the rise of digital finance, blockchain technology and renewable energy? For me to answer these questions, I needed to study law to understand the current legal framework which we are operating in to determine how to navigate the space to improve the future.

I hope people would not judge me based on my age. Ageism and even reverse ageism should be eliminated as it puts red tape on innovation, and it will limit the development of society if barriers are constructed based on age. We need to encourage our youth and facilitate their development as they are our future.

An important moment for the legal profession and First Nations people was the appointment of Justice Lincoln Crowley as Australia’s first Indigenous Supreme Court judge.

Despite the media reporting that the flag is ‘free to use’ by all Australians, there remain certain conditions around its use. These conditions of use are highlighted below:2 Mr Thomas remains the owner of the moral rights in the flag, being nonassignable personal rights that connect the author of an artistic work to their work, and which subsist until copyright ceases to subsist in the work. This means that Mr Thomas retains the right to be identified as the author of the flag, the right not to have the work subject to derogative treatment and the right not to have authorship of the work falsely attributed.

Lauren Gore 31

Thank you for offering to help. It is a huge job, so thank you for walking alongside First Nations peoples in this journey. It takes courage, bravery, and leadership to join both myself and my community on this journey. If it isn’t too much to ask, I would like the Law Society to support the case for codifying the the United Nations Declaration on the Rights of Indigenous Peoples into law in Australia. We have access to an abundance of resources and highly skilled people who are experts in this space. If Canada can do it, then what excuse do we have?

In line with the requirements for the Australian National Flag, reproduction and communication should be of the Australian Aboriginal flag in its complete and accurate form and done in a respectful and dignified way. The right of adaptation has been reserved for the Commonwealth, such that parts of the flag should not be reproduced and the flag should not be obscured by, for example illustrations or words, in any way.

A s widely reported in the media of late, copyright in the Australian Aboriginal flag has been acquired from its owner, Aboriginal artist Harold Thomas, by the Commonwealth Government as part of a $20,000,000 Mrtransaction.Thomas,

The Aboriginal Parameters Around Freedom to Use by

common law system from the colonisation of Australia. The current Westminster system and development of the law excluded Aboriginal people on purpose. Due to this, the law is systemically racist, and many current laws need significant reform as they do not provide an avenue to consider First Nations interests.

The exclusive rights conferred by the Copyright Act 1968 (Cth) to reproduce the work in a material format and to communicate to the public (meaning to make available online or electronically transmit) have now become open to the public to be exercised.

The transfer of ownership of copyright in the Australian Aboriginal flag to the Commonwealth Government has been widely celebrated as a positive outcome for the Aboriginal peoples of Australia. Nevertheless, users of the flag, and the Torres Strait Islander flag, should remain cognisant of the conditions of use to ensure the authors and present owners’ rights, and importantly the flags themselves, remain respected.

The Torres Strait Islander flag, which is often represented together with the Aboriginal flag has somewhat of a different history. The flag was designed by the late Bernard Namok of Thursday Island, following a competition held by the Island Coordinating Council (as it then was). Accordingly, copyright in the flag is owned by the Torres Strait Island Regional Council, and as such, it has a different set of conditions associated with its reproduction. Permission in writing must be obtained from the Torres Strait Island Regional Council, prior to any reproduction, where appropriate recognition/attribution must be given to the late Bernard Namok, and the original colours must be used.3

the son of a Luritja woman and Wombai man, born in Alice Springs and member of the Stolen Generation, created the flag in Adelaide in 1971 ahead of the NADOC (National Aboriginal Day Observation Committee) Day march, initially through Mr Thomas’ design, which eventually was produced as a physical flag. Since its creation, the flag was proclaimed a national flag on 14 July 1995 under the Flags Act 1976 (Cth) as the flag of the Aboriginal peoples of Australia and has been widely used as a unifying symbol of the Aboriginal people.1

1 Thomas v Brown and Another [1997] FCA 215.

Flag:

The manufacture of physical flags, banners, pennants and bunting bearing the flag for commercial use is not permitted, unless such manufacture is by or with the authority of Flagworld who have retained the exclusive license to reproduce the copyright in the flag for those purposes. Nevertheless, Flagword’s royalty payments will be directed by the Commonwealth Government to support the ongoing work of the NAIDOC Committee, and individuals are still permitted to create their own physical flag, provided such creation is for personal use.

End Notes

Author: Lauren Gore - Committee Member of the Intellectual Property and Technology Committee of the Law Society of Western Australia, with thanks to my colleagues for their assistance and contributions.

2 Free use of Aboriginal Flag Secured for all Australians –Media Release. Australia: Prime Minister and Minister for Indigenous Affairs; 25 January 2022. Available from https://www.pm.gov.au/media/free-use-aboriginalflag-secured-all-australians; Commercial use of the Australian National flag. Australia: Department of the Prime Minister and Cabinet. Available from: https:// www.pmc.gov.au/government/australian-national-flag/ commercial-use-australian-national-flag

As a member of the Law Society, how do you think the Society can support you in your work and the important causes you stand for?

3 ‘Torres Strait Flag’, Torres Strait Regional https://www.tsra.gov.au/the-torres-strait/torres-strait-Council, flag

The concern I have with the practice of law and the legal profession from a First Nations perspective is that legal advice is based on the current law – which in most cases, unless reform has taken place, fails to recognise or include First Nations perspectives, interests, and aspirations in decisions. This perpetuates Indigenous disadvantage and widens the gap between Indigenous and non-Indigenous Ipeoples.wouldlike to see the profession become an advocate for law reform which benefits First Nations people. More so, I would like lawyers to consider the impact of their legal advice on First Nations people and raise those concerns to their client. We all need to play a part in reconciliation. We as individuals must also go on our own journey of self-reflection to identify any perceived barriers to participating in reconciliation. It will be tough, but it is needed, we all must band together for a better, reconciled Australia.

By Clare Thompson SC Chair, Legal Costs Committee

The Legal Costs Committee is required to review each determination it makes within 2 years of it being published. The interested in hearing of practitioners’ experiences of COVID-19 measures and the impact on their business costs.

Contentious2022 DeterminationsBusiness

The review process

The major items arising from the 2022 reviews are: a general rate increase of about 5%, the first across the board increase since 2014; increasing the allowances for pleadings; changes to discovery and inspection; an additional 10 hours for preparation of case; and lifting of certain limits for work done in historical child sexual abuse matters.

As always, the notes in the first several pages of the determinations form part of the determination and should be read in conjunction with the various tables or scales. The notes explain in more detail how various items in the scale work and how charges are to be calculated, as well as providing some background on why lead to an increase in wages in the next period, particularly for support staff. Whilst the general rise was calculated on the basis of a 5% increase, the actual change in each individual rate in the determinations varies from this because of the application of the policy of having rates which are divisible by 11, so as to account for the GST component. This means that some rates are rounded up and some are rounded down.

There is also a variation in the increases in different categories of practitioner, in particular, we have increased Counsel rates by proportionally more than Senior Counsel and Senior Practitioner rates, so as to continue closing the gap between Counsel rates and these other rates. This is discussed further in the following pages.

The Committee also held meetings with practitioners who undertake historical child sexual abuse cases, so as to gain a clearer insight into the work required to bring this type of claim to a conclusion. We are indebted to the practitioners who met with us and assisted in our enquiries so that we were able to gain an informed insight into the work they do.

32 | BRIEF AUGUST 2022

The table below sets out the changes in the relative rates of Senior Counsel, Counsel and Senior Practitioner over the past three reviews, and compares these to 2014. It shows that since the Committee consciously started closing the gaps, this has been able to be achieved without substantial disruption to the scheme of the determinations.

The following tables set out the changes over the past five reviews since

of the rate changes over time. Counsel fees Supreme, District and Family Court hourly rates inclusive of GST Absolute and percentage increases in practitioner categories over the period 2014 to 2022: Magistrates court and SAT hourly rates inclusive of GST 2014 2016 2018 2020 2022 Senior Counsel 671 682 682 682 693 Counsel 385 396 418 451 473 PractitionerSenior 473 484 495 495 506 PractitionerJunior 330 341 352 352 374 PractitionerRestricted2 n/a 297 297 297 319 Clerk/paralegal 231 231 231 231 242 Supreme, District and Family Courts Magistrates Court and SAT Senior Counsel $22 3.27% $22 4% Counsel $88 22.85% $66 20.69% Senior Practitioner $33 3.43% $33 8.33% Junior Practitioner $44 13.33% $44 14.81% PractitionerRestricted3 $22 7.4% $11 4.76% Clerk/paralegal $11 4.76% $22 15.38% Supreme, District and Family Courts Magistrates Court and SAT 2014 2018 2020 2022 2014 2018 2020 2022 Counsel as a % of Senior Counsel 57.38 61.29 66.13 68.25 60.42 63.27 67.35 70.00 Counsel as a % of Senior Practitioner 81.4 84.4 91.12 93.48 80.55 81.57 86.84 89.74 2014 2016 2018 2020 2022 Senior Counsel 528 539 539 539 550 Counsel 319 330 341 363 385 PractitionerSenior 396 407 418 418 429 PractitionerJunior 297 308 319 319 341 PractitionerRestricted n/a 231 231 231 242 Clerk/paralegal 143 154 154 154 165 It is important to keep in mind that the increases are intended to cover the increased administrative costs associated with practicing law in Western Australia, including for example, the cost of providing COVID safe practices, including RATs, masks, sanitiser and additional cleaning. The Committee is of the view these types of items should not be charged as disbursements to clients. 33

It is clear that the changes made to rates over the past several reviews have led to a gradual and disproportionate increase in Counsel rates, which has been a deliberate policy of the Committee so as to address concerns raised by the profession.

The Committee has been working to reduce the gaps between Counsel and Senior Counsel, and between Counsel and Senior Practitioner, over the past three reviews. This has been done in direct response to concerns raised with the Committee regarding the relative levels of the rates, particularly the gap between Counsel and Senior Practitioner.

In making these changes

the Committee was mindful of the fact that, regardless of who does a court appearance, all court appearances by a lawyer in the amalgam or independent counsel at the bar, other than Senior Counsel, are to be charged at a maximum of the Counsel rate, which is lower than the Senior Practitioner rate. If a lawyer who appears in fact charges less than the Counsel rate, e.g. if they are a Junior Practitioner, they cannot “up-grade” to a higher rate under the Determination. If a lawyer wants to contract out of this limitation imposed by the Determination, the Committee’s view is that it must be specifically and clearly disclosed in a costs agreement .4 The Committee has continued with its policy of narrowing the gaps for the third straight review, however it is of the view that the relativities between the more senior levels of practitioner are now probably about right. 2014

The rates for Counsel have historically always been lower than for Senior Practitioner and substantially lower than for Senior Counsel. The Committee’s view has been, and remains, that the cost of practice is lower for barristers than those in the amalgam and hence there is proper reason for the differential in the rates between Senior Practitioner and Counsel.

The second change is to introduce a new item 1(d), which adds an additional hour of time for each additional defendant against whom a separate case is pleaded and separate relief claimed. This item is not claimable if the defendants’ interests are co-extensive, e.g. if they are all the partners of a partnership being sued for negligence, or all the mortgagors of land in a claim for possession by a lender, or if they are all the owners of land in a claim under section 126 Property Law Act. In these examples there is no requirement for a separate case to be pleaded against each separate defendant, so the additional work allowed for by item 1(d) does not arise.

Discovery and inspection

Historical child sexual abuse claims

The Committee accepts that there are particular issues with these types of claims which mean that they are more complex than regular personal injuries claims to prepare. In particular, the events underlying the claim are often a very long time ago and involve multiple defendants, the events are deeply traumatic, so that particular care and attention is required in taking instructions from clients and in proofing them, causation in these cases poses particular challenges especially when the abuse suffered is multi factorial, and the damage suffered by the plaintiff is unlike the damage suffered in more typical personal injuries cases.

The additional costs associated with having a separate defendant named in the action is already reflected in item 1(b). Similarly, no separate allowance has been made for pleading separate defences for different defendants. This is because if the defendants’ interests are not co-extensive, they could not properly be represented by the same lawyer, and so each separate defence filed by a separate lawyer would itself come under item 3. If the interests of the defendants are coextensive, there is no additional cost associated with the pleading of the defence.

Alignment with Federal Court costs scales A submission was made to the Committee that we should consider moving to a model that is similar to or in alignment with the Federal Court of Australia scale. The Committee looked at this proposal in some detail and ultimately decided not to take that path. There are numerous differences between the approaches of the two jurisdictions to costs. These include:

In July 2018 changes to the Civil Liability Act commenced which removed the limitation period on claims for child sexual abuse. This was in direct response to recommendation 85 of the Royal sought submissions on whether any special measures should be considered to account for any additional or special work required to run these types of cases. The Committee received very helpful submissions from Australian Lawyers Alliance and legal practitioners working in the area, which led the Committee to remove some of the limits in items 18, 19 and 22 of the Supreme and District Court Determination

Keeping in mind the high use of electronic document management tools, plus the fact that discovery and inspection on the whole remains work done by the most junior lawyers, graduates and paralegals, the Committee decided to provide that these items should be recoverable at no more than Junior Practitioner rates, but on the justify that the claim is reasonable. The mere fact that a large amount of time was spent, or a large number of documents were discovered, does not of itself mean that the fees charged or claimed were Itreasonable.isworthwhile keeping in mind the use of the word “reasonable”. This is deliberate and speaks of proportionality5 as well as the level of experience of the person undertaking the work, the real issues in question, and the use of technology. For example, it is not reasonable to spend 100 hours doing discovery for a $1,000,000 claim with only 1 or 2 real issues. There is a lot of case law on reasonableness in respect to costs; you should be familiar with it and be careful.

Given that the Parliament has limited the right of lawyers to contract out of the Determination in these matters, the Committee has decided that the upper limit in some items should be removed to enable lawyers working in this area to receive more appropriate remuneration for the considerable work they do. Whilst the submission was made to us that market forces operate to ensure there are sufficient lawyers doing this work, that rather misses the point. The changes recognise the additional burden that every lawyer working in this field shoulders.

Discovery and inspection practices have dramatically changed in the years since automated document management systems became common. The use of email and the development of the Cloud have also had dramatic impacts on the sheer volume of documents considered for discovery purposes in most litigation. The Committee is conscious of these developments and of the efforts the courts have made to limit excesses in discovery.

The Committee is also mindful of the need to reduce satellite litigation around costs, including applications for special costs orders. An increase from 120 to 130 hours will go some way to reducing those applications, particularly in cases where the threshold of “unusual difficulty, complexity or importance” in section 280 of the Legal Profession Act, which is retained in the Uniform Law, may not be reached and there is no basis to seek an indemnity order.

The increase reflects changes in litigation practice since this item was last increased including the growth of the Commercial and Managed Cases List, civil e-trials and other initiatives which have increased work for practitioners in preparing cases for trial.

increase in the number of hours allowed for a pleading.

Preparation of case In recognition of the increased complexity of litigation, the maximum allowance for item 19, preparation of case, formerly known as getting up, has been increased from 120 hours to 130 hours. The amount was increased to 120 hours in 2010, up from 100 hours which had been the maximum allowance since 1996.

34 | BRIEF AUGUST 2022

In preparation for this, Craig McKie was appointed to the Committee for a 3 year term commencing on 1 January 2022. This change was made as a result of a request from the Committee which was concerned to ensure that there was sufficient breadth of knowledge on the Committee. Craig joins us, along with two new nonlawyer members, accountant and academic Annette Morgan from Curtin University and Greg Rickie, a retired public servant. Check out the profiles of all the members on our Wewebpage.areparticularly grateful to our retiring committee members Angela Gaffney, an accountant who served on the committee since the mid 1990s, Marcus Cocker, who served on the Committee for over 15 years, and Brendan Ashdown, a legal member between 2016 and 2021.

We were delighted that in doing the 2022 review we were able to advertise on the Supreme Court and Family Court websites and the SAT website. We will also continue to engage with the legal profession through the various representative bodies, including the Law Society of WA, the WA Bar Association and other relevant bodies. We are also happy to receive submissions from practitioners at any time.

Publication of the Determinations

The Committee launched its new website in late 2021. Copies of all Determinations, including superseded ones dating back as far as 1996, are available on it under the “publications” heading. The new website provides much more information, in more accessible and more easily searchable format, and can be easily and quickly Weupdated.canbe found at au/organisation/legal-costs-committeehttps://www.wa.gov.

the WA Determinations are, in the main, event based, meaning they relate to specific identifiable steps in the standard civil litigation process, whereas the Federal Court scales are activity based, focusing on activities lawyers do like reading, writing and document management; the Federal Court scale explicitly recognises 6 minute units, the WA Determinations expressly state that they are not intended to be calculated in 6 minute units; in the Federal Court documents produced are charged for at a rate per 100 words, a practice which was abandoned some years ago in the WA Determinations as it was felt it encouraged prolixity and padding; the Federal Court scales include a wide range of hourly rates chargeable by different levels of counsel, e.g. the range for Senior Counsel is $425-$740 per hour, but there are no similar rates for practitioners in the amalgam, where the bulk of litigation work is done.

In making a submission to the 2021 Joint Costs Advisory Committee, the Law Council of Australia made the submission that the 2021 inquiry provides an opportunity to ensure that parties awarded costs are, as much as possible, not out of pocket following resolution of their legal matter in a federal court.6

The Determinations play an important benchmark role, they are the independently determined reasonable rates, something that a consumer of legal services can consider when agreeing to enter into a costs agreement.

The Committee has as its guiding principle that the Determinations are a consumer protection mechanism, designed to provide for reasonable costs, in the absence of an effective costs agreement. This is not the basis on which the Federal Court scales are Theset. desirability of maintaining a consumer protection mechanism for legal consumers in this State was reinforced by the continuation of the Legal Costs Committee and its role in making legal costs determinations under the newly established Uniform Laws scheme which came into effect on 1 July 2022.

Uniform Law

Another change arising from the new Act is that we will no longer publish advertisements for our reviews in the West Australian newspaper. Instead, advertisements will be published on our website and on other appropriate websites.

The Committee understands the frustration and inconvenience arising from the change. We publish the Determinations in the Government Gazette towards the end of June, or otherwise when changes are made, and we publish them on the Committee’s website, along with all the superseded ones, so that the full history is available there. Some Determinations are also available in the commercially available loose-leaf services.

2 This rate was first introduced in the 2016 reviews.

The commencement of the Uniform Law will make a number of changes to the Legal Costs Committee. The most significant of the changes is the requirement that the Committee have at least 1 civil litigation lawyer and 1 commercial lawyer, i.e. nonlitigation lawyer, amongst its membership.

End Notes

2022 Contentious Business Determinations 35

This submission reflects the view that is taken by the Law Council of Australia of the role of the Federal Court scales, being, in effect, to ensure that cost recovery by a successful party is as close as possible to indemnification of a successful party’s costs by the unsuccessful party. This is an entirely different focus to the way in which the WA Determinations are approached.7

3 Comparison between 2016 and 2022 4 The recent NSW case of Todorovska v Brydens Lawyers Pty Ltd [2022] NSWCA 47 is an excellent illustration of poor costs disclosure and very pertinent given the change in the regulation of the profession brought about by WA’s entry into the Uniform Law scheme.

The Federal Court scales do not play the same role and do not come from the perspective of consumer protection.

Putting aside these structural differences, there is a fundamental philosophical difference in the approach to costs taken by the Federal Court and the Committee.

The Determinations are no longer available on the State Government’s Legislation webpage. This change was made without consultation with the Committee, and apparently as a result of the Legislation page now being administered by Parliamentary Counsel, rather than by the Government Printer.

1 With the exception of the Legal Profession (Magistrates Court) (Civil) Determination (No. 2) 2020, which commenced on 1 November 2020.

The WA Determinations also play a key role in the regulation of the profession in this State by providing maximum rates chargeable by a lawyer to their client, unless an effective costs agreement is in place. In some areas of the law, e.g. historic child sex abuse and motor vehicle claims, they are the absolute maximum rates which may be charged because lawyers cannot contract out of the Determinations. They are frequently referred to in consideration of whether a legal practitioner has overcharged for their services even in circumstances where there is an enforceable costs agreement.

5 See RSC Orders 1 rule 4B and Order 66 6 Law Council of Australia submission to the 2021 Inquiry into Legal Practitioners’ Scales of Costs at para [2] 7 Notably the Law Council submission appeared to have no WA input at all

The committee membership remains at 6, comprising 3 lawyers and 3 non-lawyers of whom 1 must be an accountant. We have been fortunate to have excellent community members with wide ranging experience and skills who bring important insights to the work we do. Our legal members should properly reflect the breadth of practice of the legal profession: non-contentious work, civil litigation, family law, and criminal law are all significant areas of practice the Determinations cover.

New website

The Supreme Court of Western Australia Consolidated Practice Directions have been updated to reflect the new regime for an application for a costs assessments under the LPUL.19

However, the Supreme Court has the jurisdiction to extend the time for the client or third party payer to make application for costs assessment if fair and just for the application to be dealt with outside of time.13 In considering what is “fair and just” the Court will consider the following factors: (a) the length of the client or third party payer’s delay and the prejudice to the law practice in allowing an extension of time;14 (b) the reasons for the delay;15 (c) the client or third party payer’s knowledge of the right to seek a costs assessment. However, this is unlikely to be a significant factor because the legal costs disclosure regime under the LPUL requires law practices to notify clients and third party payers about those rights;16 (d) any evidence suggesting that legal costs charged might be excessive, which is an important factor to be weighed in balance, but is not decisive;17 and (e) the law practice’s reasons for opposing an application for an extension of time.18

T he introduction of the Legal Profession Uniform Law Application Act 2022 (WA)1 in Western Australia harmonises the regulation of the legal profession and legal practice in New South Wales, Victoria and Western Australia allowing for consistency between those jurisdictions.2 That harmonisation is particularly advantageous to practitioners or law practices that provide services across multiple jurisdictions.

The Applicant can only apply for a costs assessment under the LPUL if the legal costs are the subject of a costs dispute under Chapter 5 of the LPUL, if the LPB: (a) is unable to resolve the dispute (provided the dispute is within the scope of its authority); and (b) has notified the parties that they are now entitled to apply for a costs assessment.11

by Kellie DentonsManagingWoods,Associate,Australia 36 | BRIEF AUGUST 2022

UniformProfessionLaw

Legal

Solicitor and Client Costs Assessments Under the LPUL a client, third party payer8, a law practice or another law practice where that other law practice is liable for the law practice provider’s legal costs (Applicant) can apply for a costs assessment of the whole or part of legal costs charged by a law practice.9

Any application to the Supreme Court by the Applicant for a costs assessment under the LPUL must be made within 12 months:

(a) from when the law practice gives the bill to the client, third party payer or other law practice, or the request for payment of legal fees was made to the client, third party payer or other law practice; or (b) from when legal costs were paid by the client, third party payer or other law practice, if the law practice neither issues a bill or makes a request for the payment of its legal costs.12

A “third party payer” can be an associated third party payer or a non-associated third party payer. An associated third party payer is not a client of the law practice but is a third party under a legal obligation owed to the law practice to pay the legal fees. A non-associated third party payer is not a client of the law practice but is under a legal obligation owed to the client or another person to pay the law practice’s bills and that obligation is not owed to the law practice.10

The New Costs

The LPAA incorporates the Legal Profession Uniform Law3 (LPUL) and provides a new regulatory framework in Western Australia for, amongst other things: (a) costs disclosure;4 (b) the assessment of legal costs by a Registrar of the Supreme Court of Western Australia, being a “costs assessor” (as defined in the LPAA), on a solicitor and client basis;5 and (c) the resolution of some legal costs disputes by the Legal Practice Board (LPB), being the designated local regulatory authority.6

The objectives of the legal costs provisions of the LPUL are to ensure that clients can make informed choices, prevent law practices from charging more than what is fair and reasonable and to provide a framework for costs assessments.

If the first instructions given to a law practice by the client or other law practice occur on or after 1 July 2022 then either:20 (a) the LPB can deal with a costs dispute in accordance with Chapter 5 of the LPUL (as below referred to); or (b) an application can be made to the Court for a costs assessment under the LPUL. In practice, the Supreme Court process in applying for a costs assessment under the LPUL is largely the same as the previous costs assessment process under the Legal Profession Act 2008 (WA), including the requirement that the Applicant confer with the other party to the costs assessment proceedings before the commencement of the proceedings21 and the Court’s assessment about whether the matter is suitable for a provisional costs assessment.

Based on that recent case law, it appears that a Registrar’s assessment in any costs assessment under the LPUL of what legal costs charged by a law practice are: (a) “reasonable” is an objective test having regard to subjective means based on the Registrar’s opinion or perspective; and (b) “proportionate” and must look to whether the amount of legal fees charged are proportionate having regard to the work completed at the relevant time and taking into account such things as the quantum of any dispute the subject of litigation, the complexity of the matter or the work completed and the importance of the issues to the parties to the proceedings and not the outcome of the work.29

LEGAL PROFESSION UNIFORM LAW 37

What are fair and reasonable legal costs?

The principles applicable to conferral under Order 59, Rule 9 of the Rules of the Supreme Court equally apply to an application for an assessment of costs and the requirement for parties to meaningfully confer (including verbally) is a fundamental component of the principles of modern case management in the Supreme Court.22 If the parties fail to confer before making an application for a costs assessment, the Applicant risks the Court making an adverse costs Order against the InApplicant.23anyassessment of costs the Registrar (a)will:not necessarily conduct a line-by-line item assessment of the Bill filed in the costs assessment proceedings and the assessment of costs process is not considered to follow the same rigorous process as a taxation of costs;24 and (b) will assess whether the legal costs charged by the law practice are “fair and reasonable”.

In Lissenden v Dellios [2021] VSC 520 the Supreme Court of Victoria stated that:

Costs Disputes under the LPUL

Whilst the concept of what is “fair and reasonable” is not new,26 the formal introduction by the LPUL of the concepts of “proportionately and reasonably incurred” and “proportionate and reasonable in amount”27 in the assessment of whether legal costs charged are “fair and reasonable” are new. In assessing whether legal costs are “fair and reasonable” the factors the Registrar is to take into account are set out in section 172(2) of the LPUL.

In any costs assessment under the LPUL, the Registrar has a discretion to make a costs Order either for or against the Applicant in the proceedings. Further, if the law practice has failed to give proper disclosure to a client or the law practice’s legal costs claimed are reduced by 15% or more that failure can result in the law practice not receiving its costs of the costs assessment.

30 In addition to the risk of an unfavourable costs Order or the law practice not receiving a costs Order in its favour, the other potential consequence of a costs assessment and the reduction of the amounts claimed from the “payer”, includes a referral by the Registrar to the LPB for disciplinary action against the billing practitioner under section 202 of the LPUL.

The LPUL introduces the concept of: “costs disputes” which are a “consumer matter” and the power for the LPB to assist in resolution of a “costs dispute” and to make a binding costs determination on the parties. The LPB can assist parties in attempting to resolve costs disputes under the LPUL provided that: (a) in the opinion of the LPB, the parties have made a reasonable attempt to resolve the costs dispute that

The Macquarie Dictionary28 defines “reasonable” as: “agreeable to reason or sound judgement” and “proportionate” as: “proportioned; being in due proportion; proportional”.

(a) “fairness and reasonableness are discrete concepts, with fairness relating to the method of obtaining the agreement and reasonableness relating to quantum”: [30]; (b) “an assessment of proportionality is not a mere mathematical exercise and requires an examination of the surrounding circumstances”: [33]; and (c) “the power of the Court to deal with the plaintiff’s legal costs arises [in that] proceeding from the Court’s inherent jurisdiction to do justice by parties to litigation by ensuring that solicitors, as officers of the Court, are remunerated properly, but no more, for their work as solicitors. This inherent jurisdiction to supervise and regulate the costs of solicitors arises independently of a complaint”: [47].

However, other than section 172 of the LPUL, the LPUL does not provide any guidance of what is meant by the terms “fair and reasonable” or “proportionate and reasonable”.

To reduce those risks practitioners or the law practice should obtain impartial independent advice about the costs assessment process and the legal costs charged.

In Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194 the Federal Court stated that: “Proportionality looks to the expected realistic return at the time the work being charged for was performed, not the known return at a time remote from when the work was performed; at the later time, circumstances may have changed to alter the calculus, but that would not deny that the work performed and its cost was proportionate at the time it was performed. Perhaps the costs claimed can be compared with the known return, but such a comparison ought not to be confused with a true proportionality analysis.”: [45]. And in Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 the Supreme Court of Victoria stated that: (a) “to determine whether costs are reasonable, it is critical to review the file and examine the work product referable to the fees charged.”: [655]; (b) the assessor ought have regard to contemporaneous records, including print outs from the law practice’s accounting system: [662]; and (c) in charging costs solicitors have a strict, positive obligation to ensure that legal costs are properly incurred, reasonable and proportionate: [1526].

has been unsuccessful or it would be unreasonable to expect the complainant to be involved in the attempt to resolve the dispute;31 and (b) the total bill for legal costs is less than $100,000 (indexed); or 32 (c) the total bill for legal costs equals or is more than $100,000 (indexed) payable in respect of any one matter, but the total amount in dispute is less than $10,000 (indexed).

Kellie Woods is a Managing Associate at Dentons Australia.

End Notes 1 LPAA. 2 Section 6 of the LPAA defines the Legal Profession Uniform Law as the Legal Profession Uniform Law as set out in the Legal Profession Uniform Law Application Act 2014 (Vic), Schedule 1 (LPUL). 3 LPUL, section 3. 4 LPUL, Chapter 4, Part 4.3, Division 3. 5 LPUL, Chapter 4, Part 4.3, Division 7. The Taxing Officer of the Supreme Court is defined as a “costs assessor”: LPUL, section 19 of the LPAA. 6 LPUL, Chapter 5, Part 5.3. The designated local regulatory authority is Legal Practice Board, section 20 LPAA. 7 LPUL, section 169. 8 Section 171 of the LPUL provides the definition of a “third party payer”. 9 LPUL, section 198. 10 LPUL, section 171. To determine whether a third party payer is liable for the law practice’s bills the identity of the third party payer and the legal obligations giving rise to the obligation of the third party to pay the law practice’s bills should be identified in pre-engagement meetings.

The LPB can also grant the client, third party payer or law practice an additional 4 month extension of time to make a “costs dispute” if suitable reasons are provided by the client, third party payer or law practice provided it is just and fair to do so having regard to the reasons for the Thedelay.35LPB’s assistance to resolve a “costs dispute” must be an “attempt to resolve a consumer matter by informal means” and the LPB can require the parties to attend at a mediation “in good faith”.36

33 However, the LPB only has the power to make a binding determination about a “costs dispute” where the total legal costs in dispute are less than $10,000 (indexed).

It is always recommended that practitioners obtain independent and impartial legal advice about the costs assessment process, whether costs are “fair and reasonable” and the extent to which legal costs charged to a client are recoverable.

11 Chapter 5 of the LPUL gives the Legal Practice Board authority to assist with costs disputes. The threshold for the designated regulatory authority is to assist with the resolution of a dispute by informal means or Mediation and where the total legal costs are up to $100,000 (indexed) and the LPB has authority to make a binding determination about the amount of costs payable if the costs in dispute are less than $10,000 (indexed): LPUL section 292. A pre-condition for the exercise of the LPB’s power is that at least one of the parties having made a reasonable attempt to resolve the dispute. 12 LPUL, section 198(3). 13 LPUL, section 198(4). Note that section 198(4) does not allow a law practice or a commercial or government client to apply for an extension of time.

E: P:(08)kellie.woods@dentons.com93230907

In addition the LPB’s powers extend to documenting settlement agreements which after filing with a court can be enforced as an Order of the Court.37

WASC 216, [26]. 24 LM -v- K Lawyers [2015] WASC 244, [27]. 25 Section 301 of the Legal Profession Act 2008 (WA); section 172 of the LPUL. 26 Section 301 of the Legal Profession Act 2008 (WA). 27 LPUL, section 172. 28 https://www.macquariedictionary.com.au/features/word/search/?search_word_type=Dictionary&word 29 Kennedy v Schwarcz (as Executors of the Will of Jabe, (dec’d)) [2021] VSC 106. 30 LPUL, section 204 31 LPUL, section 286 32 LPUL, section 291 33 LPUL, section 291 34 https://www.supremecourt.wa.gov.au/_files/ Consolidated_Practice_Directions.pdf, 4.7.4 35 LPUL, 272(3) and https://www.supremecourt.wa.gov. au/_files/Consolidated_Practice_Directions.pdf, 4.7.2 36 LPUL, sections 287 and 288. 37 LPUL, 289. 38 | BRIEF AUGUST 2022

There is no doubt that issues will arise with the meaning and interpretation of various sections of the LPUL in relation to the costs dispute, costs assessment and costs dispute regime which will cause divergence of opinion amongst the However,profession.to reduce the risk of costs assessments, cost disputes and the reductions of fees in the costs assessment and costs dispute process, some helpful tips include ensuring: (a) compliance with the costs disclosure and costs agreement sections of the LPUL; (b) that legal work is properly billable and properly recorded, which includes making time entries detailed, clear and concise; and (c) that contemporaneous records of work completed are available and on the client files, beyond the “time sheet” record.

Key Tips The introduction of the LPUL is clearly aimed at consumer protection and ensuring that clients are aware of their legal rights. It imposes substantial obligations on lawyers to ensure compliance with the costs disclosure regimes and that lawyers are “remunerated properly, but no more”.

A client, third party payer or law practice must make any complaint to the LPB within 60 days after the legal costs become payable or where an itemised bill has been requested within 30 days of the law practice providing the itemised bill.34

14 Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112; Tomasevic v Carbone [2015] VSC 302. 15 Frigger v Murfett Legal Pty Ltd [2012] WASC 447; Tomasevic v Carbone [2015] VSC 302. 16 LPUL, 174(2). 17 Lewis Blyth and Hooper v Dennis [2007] WASC 177 18 Frigger v Murfett Legal Pty Ltd [2012] WASC 447. 19 https://www.supremecourt.wa.gov.au/_files/ Consolidated_Practice_Directions.pdf, 4.7.4. 20 https://www.supremecourt.wa.gov.au/_files/ Consolidated_Practice_Directions.pdf, 4.7.4. Supreme Court Consolidated Practice Directions, 4.3.2. 22 Insurance Commission of Western Australia -v- Antony Leslie John Woodings as Liquidator Of The Bell Group Ltd (In Liq) [No 3] [2018] WASC 44 (S), [11]. Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161. 23 Buywick.com Ltd v Foxgold Pty Ltd [2000]

https://www.lawsocietywa.asn.au/event/gala-dinner-2022information:

Further event

Emerging Lawyer of the Year (less than five years’ experience) For full criteria and further information, please visit www.lawsocietywa.asn.au/wa-lawyer-of-the-year-awards Nominations close 5.00pm Friday, 26 August 2022.

DINNER 2022

This year, the Lawyer of the Year Awards will be presented at a Gala Dinner on Friday, 30 September. The event will also feature the announcement of the Attorney General’s Community Service Awards to create a wonderful evening of public recognition and legal profession celebration.

The Law Society’s Lawyer of the Year Awards acknowledges practitioners who have made a noteworthy contribution to the Western Australian legal profession, over and above their paid employment.

of the 2022 Recognising the Western Australian Legal Profession

Law Society members are encouraged to nominate a worthy recipient in the following categories: Lawyer of the Year (more than five years’ experience)

2. Stage 2 will come into effect on 1 February 2023, introducing a retention trust scheme for construction contracts over $1 million; and

3. Stage 3 will come into effect on 1 February 2024 and will expand the scope of the retention trust scheme to include construction contracts over $20,000 and further introduce offences for persons who contravene certain requirements of the retention trust scheme. Stage 1 Stage 1 of SOPA will apply to any construction contract entered into after 1 August 2022. The Construction Contracts Act 2004 (WA) (CCA) will continue to apply to construction contracts entered into before 1 August 2022.6

1. Stage 1 with effect from 1 August 2022, dealing with unfair terms and introducing the new statutory payment regime and changes to the adjudication process;

By Melissa Koo, Rachel Pachacz, Joseph Perkins, Zayna Abu-Geras

The State Government’s action plan outlines the major changes in SOPA and introduces a three-stage phased implementation roadmap for commencement of its operative parts. On 25 June 2021, sections in Parts 1 and 5 of SOPA came into effect. The remaining operative provisions are staged.5 The stages are:

Background

State Government’s Action for Reform

1. Overview Pg 40 2. Unfair Time Bars Voided Pg 42 3. Changes to the Pg 44 Adjudication Process 4. Drafting Implications Pg 45 Thanks

New Security ofPayment Laws to the team at Squire Patton Boggs for their work on this comprehensive seven page exploration of the new security of payment laws. L-R: Partners Gregory Steinepreis and Melissa Koo, Donna Charlesworth; Of Counsel Rob O’Brien; Senior Associates Tenille Kearney and Rachel Pachacz; Associates Joseph Perkins and Alix Poole; Law Graduate Zayna Abu-Geras.

Overview of the New Security of Payment Laws in WA

The object of SOPA is to provide an effective and fair process for securing payments to parties who carry out construction work, or supply related goods and services, in the Western Australian building and construction industry. SOPA seeks to achieve that object by: 1. giving those persons a statutory entitlement to progress payments; 2. establishing an expedited procedure for making claims for progress payments, for responding to those claims and for the adjudication of disputed claims; 3. ensuring money is held on trust if it has been retained to secure the performance of the contractual obligations of those persons; and 4. giving those persons other statutory entitlements, including the right to suspend work or supply if not paid and to access retained money by substituting a performance bond. Under SOPA, a ‘construction contract’ is referred to as any contract, agreement or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party, within Western Australia.4 The term has been broadly defined to ensure the laws apply to most contracts entered into the construction industry.

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Following years of review, the WA Parliament passed the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA) on 22 June 2021. The Minister for Commerce/Attorney-General categorized SOPA as part of the WA Government’s ‘bold’ reform agenda, a ‘game changer’ for security of payment.1 SOPA received Royal Assent on 25 June 2021. SOPA adopts many of the recommendations of the 2018 Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry (Fiocco Review),2 which in turn followed many of the recommendations of the Commonwealth Government’s national review in 2017 –Review of Security of Payment Laws: Building Trust and Harmony (Murray Report).3

Persons who contravene certain requirements of the retention trust scheme could be liable to significant fines and penalties. A principal or contractor could seek to manage this risk by removing from the contract the option for the contractor or subcontractor to provide security in the form of retention monies.

Unfair time bars voided SOPA empowers adjudicators (including review adjudicators), the court, arbitrators and expert determiners7 to declare a notice-based time bar provision within a construction contract unfair, and therefore void in regard to a particular entitlement in the proceedings, if compliance with the provision in that particular case is not reasonably possible8 or would be unreasonably onerous.9

‘Mining exclusion’ narrowed

SOPA introduces a new statutory payment regime that provides for an entitlement to progress payments, which operates separately and additionally to any entitlement to payment under the contract. SOPA also sets new time limits on being paid, responding to payment claims and applying for adjudication.

Changes to adjudication

Under SOPA, there are substantial changes to adjudication timeframes and a new review adjudication process. These changes are the subject of a separate article.

https://www.commerce.wa.gov.au/sites/default/ files/atoms/files/final_report_-_security_of_payment_ industry.pdfreform_in_the_wa_building_and_construction_ 3 https://www.ag.gov.au/sites/default/files/2020-03/ review_of_security_of_payment_laws_-_final_report_ published.pdf 4 Section

Stage 2

A separate article outlines this power in more detail.

The ‘mining exclusion’ has been narrowed under SOPA to now capture contracts which had previously been excluded under the CCA. Specifically, the fabrication and assembly of items of plant used for extracting or processing oil, natural gas or any derivative of natural gas, or any mineral bearing or other substance (excluded under the CCA) is not excluded from the definition of construction work.

First Phase of the Retention Trust Scheme

Further, adjudication documents may be served by email or electronic lock box.21 Those documents will be taken to be received:inthe case of an email – in accordance with section 14 of the Electronic Transactions Act 2011 (WA); and in the case of an electronic lock box –when the document is uploaded to the electronic lock box.

Payment claims may be made on or after the last day of each month during the project, unless the contract provides for earlier timing. A new requirement is that the payment claim must state it is made under SOPA.11

Unless the contract prescribes an earlier date, payment will be due within 20 business days after a payment claim is made by a head contractor to a principal and 25 business days after a payment claim is made by a subcontractor.17

Drafting Implications

End

Some of the drafting implications that arise from SOPA are covered in a separate article.

The holder of retention monies or cash security (the ‘trustee’) will be obliged to hold the monies or cash security in a dedicated trust account with a recognised financial institution for the benefit of the party who provided the money (the “beneficiary”). Withdrawals can only be made when there is a contractual entitlement to do so. Trustees are subject to fairly onerous account keeping obligations. General law remedies are available to beneficiaries should a trustee fail to fulfil their duties.

New Statutory Payment Regime

Building contractors with a history of insolvency or not paying court-ordered or adjudication debts could be dealt with under new governmental powers involving disciplinary action and removal of registration. Stage 3 Second Phase of the Retention Trust Scheme Stage 3 will extend the scope of the retention trust scheme to include construction contracts over $20,000.

6 Section 9(1) SOPA. 7 Section 16 SOPA. 8 Section 16(2)(a) SOPA. 9 Section 16(2)(b) SOPA. 10 Section 23 SOPA. 11 Section 24(1)(d) SOPA. 12 Section 25(1) SOPA. 13 Section 25(2) SOPA. 14 Section 27(1) (a) SOPA. 15 Section 34(1) SOPA. 16 Section 27 SOPA. 17 Section 20 SOPA. 18 Section 28(2)(b) SOPA. 19 Section 14 SOPA. 20 Section 6(3) SOPA. 21 Regs 22 and 23 Regulations. 22 Section 27(2) SOPA; Regulation 5 of the Building and Construction Industry (Security of Payment) Regulations 2022 (Regulations). SOPA: Overview The following pages expand further on aspects of SOPA including unfair time bars voided, changes to the adjudication process and drafting implications. 41

New prohibition on dispute resolution precondition A provision of a contract cannot require a person to engage in a dispute resolution process as a precondition to making a payment claim or making an adjudication application or exercising any other right under SOPA.22

The scheme is designed to ring-fence retention monies so that they are available to creditors if the other party to the construction contract becomes insolvent.

Concluding Observations

A payment schedule is a condition precedent to the respondent’s ability to respond to any application for adjudication.15 The respondent’s adjudication response is limited to the reasons set out in its payment schedule.16

A respondent may respond to a payment claim by giving a payment schedule.12 The payment schedule must identify the amount to be paid and the reasons for disputing the claim.13 While issuing a payment schedule is not mandatory, if a respondent fails to provide a payment schedule within 15 business days of receiving a payment claim, it will become liable to pay the claimed amount on the date for payment.14

Further, SOPA prohibits a party to a construction contract from having recourse to performance security under the contract unless that party has given the other party 5 business days’ written notice of its intention of have recourse.18 SOPA also expands the prohibition on pay when paid provisions.19

WA’s security of payment law has been made more consistent with the east coast model, which is based on New South Wales legislation. Greater national legal consistency should result in greater certainty. For lawyers practising in WA, existing east coast case law should assist in advising on SOPA. However, WA has yet again done it in its own way. There are some significant and important differences between SOPA and the east coast model. Care needs to be taken in too readily applying east coast experience to SOPA. Notes Western Australia, Parliamentary Debates, Legislative Assembly, 23 September 2020 (John Quigley, Minister for Commerce 6353. 2 5 of Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA). Section 2 SOPA.

Notice-based time bar provisions are common in construction contracts. They typically require a party to serve detailed notice of an event within a strict timeframe following its occurrence, as a precondition to claiming an entitlement to time or payment. The objective of a time bar is to ensure the contracting parties and the superintendent are aware of any issues and potential cost and time impacts on the project as soon as practicable, so the issues can be investigated and steps can be taken to mitigate their impact on the project.

Background to Section 16 Section 16 of the SOPA appears to have been introduced in response to the Federal Government’s Review of Security of Payment Laws in 2017 (Murray Report)9 and the 2018 Review on Security of Payment Reform in the WA Building and Construction Industry (Fiocco Review).10

Notice-based Time Bars

The Murray Report acknowledged existing statutory restrictions on unfair contract terms. It was noted that Australian Consumer Law16 and the Australian Securities and Investment Commission Act 2001 (Cth) enabled small businesses to challenge a term which is unfair. However, the protection was too limited in scope (given the ambit of a ‘small business’) and would not have wide application to the construction industry, and it was ‘far from clear’ that an adjudicator would have jurisdiction to make the declarations.17

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The stated need for this recommendation was the increasingly unequal bargaining power of the parties down the pyramidal contracting chain, resulting in unfairly onerous back-to-back terms that severely affect the entitlement to claim payment or extension of time.12 The Murray Report considered it was necessary to balance freedom of contract with the need to protect a vulnerable party from unfair contract terms.

The Murray Report recommended that time bar clauses affecting the right to claim or receive payment or claim an extension of time be declared void where compliance with the notice requirements would: a) not be reasonably possible; or b) be unreasonably onerous; or c) serve no useful commercial purpose.11

However, the Fiocco Review did not recommend the adoption of the third criteria or ‘test’, recommended by the Murray Report, of ‘serving no commercial purpose’ on the basis that the test would involve unnecessary complexity. Instead, the Fiocco Review recommended adoption of the Murray Report recommendation, with element c) amended to ‘non-compliance would result in prejudice to the other party’. This substituted element was to ‘provide a higher level of certainty as to when the prohibition on such terms should be Inenlivened’.18theendresult, the Government adopted the recommendations of the Murray Report and the Fiocco Review omitting element (c) of each

The Fiocco Review stated in section 6.11.2: Due to the significant level of stakeholder support for the proposal, I recommend that legislation prohibits unreasonable time bar clauses in WA. … If one accepts that parties higher in the contractual chain present contracts to subcontractors on a ‘take it or leave it’ basis, then government intervention is warranted to “protect the weak from the strong”.

Unfair Time Bars Voided

The Murray Report acknowledged that the issue whether a notice-based time bar was unfair and should be void would depend on the circumstances of each case. However, the report contained the following statement to illustrate what would be unreasonable and unduly onerous: Clearly a provision requiring a party to give notice within 3 business days of an event happening together with full details of the cost and time implications would not only not be reasonably possible, but be regarded as unduly onerous. However, a longer time period, of say 30 days, might be reasonable and not unduly onerous. Clearly much will depend on the circumstances relating to a particular event but, for the main, most fairminded people would agree that a party should not be deprived of its significant rights merely because of its failure to provide notice within a tight timeframe, or where the timeframe was both not reasonably possible to comply with and where little detriment has been suffered by the other party.

The Murray Report noted that a contract clause that required a party to give notice as a precondition to making a payment claim was held not to have contravened the ‘no contracting out’ provision of the applicable security of payment Itlegislation.13appearsthe invalidity criteria a) to c) above recommended by the Murray Report were derived in part from cases that considered the operation of the ‘no contracting out’ provisions of East Coast security of payment legislation.14

However, sometimes notice-based time bars are not only used as a risk management tool, but as a ‘weapon’ in the arsenals of principals and head contractors to defeat claims from head contractors and subcontractors. Noticebased time bars have been strictly enforced by courts, even if they appear to be harsh or onerous, where strict compliance has been clearly expressed in the contract.6

The effectiveness of notice-based time bars is set to change by reason of section 16 of the SOPA.

By Greg Steinepreis, Donna Charlesworth, Tenille Kearney & Zayna Abu-Geras Overview Disputes concerning notice-based time bars in construction contracts may be set for a sharp increase and the drafting of such bars may come under greater scrutiny due to the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA).

Under the SOPA, adjudicators, arbitrators, expert determiners and courts will have the power to make a notice-based time bar effectively inoperative in a particular Bycase.1section 16, a notice-based time bar provision of a construction contract entered into after 1 August 2022 may be declared unfair in circumstances where compliance with the provision in that case: (a) is not reasonably possible;2 or (b) would be unreasonably onerous.3 A notice-based time bar that is declared to be unfair has no effect in the case of the particular entitlement that is the subject of the proceedings.4 But the provision continues to have effect in other circumstances or challenges arising out of the same or a related contract.5 This is not just new to Western Australia, it is also novel nationally as a similar section does not exist in any other security of payment legislation in Australia.

It is unclear whether any factors other than the above mandatory factors (such as detriment or prejudice) may be taken into account by the decision-maker in determining whether a notice-based time bar is unfair.

Inrecommendation.theExplanatory Memorandum to the 2020 SOPA Bill, there is little elaboration on section 16 and no reason is given for not adopting element (c) of each recommendation. However, reference is made to the general purpose of section 16: The purpose of clause 16 is to ensure a better balance is struck between upholding the contractual rights and interests of the relevant parties to the contract, but at the same time not permitting one party to use its position to deny an entitlement under the contract on the basis of an unreasonably short, or otherwise unnecessarily onerous (in form or effect) notice requirement.

14 The

The reference to the form of the notice requirement as unnecessarily onerous, not just its effect, is noteworthy.

The onus of establishing that a noticebased time bar provision is unfair lies on the party alleging unfairness.19

1. when the party required to give notice would reasonably have become aware of the relevant event or circumstance, having regard to the last day on which notice could have been given;

5. the rebuttable presumption that the party required to give notice possesses the commercial and technical competence of a reasonably competent contractor;

Conclusion Section 16 of the SOPA is a new and novel feature of the SOPA legislation. Time will tell what impact this will have on the construction industry and construction contracts entered into in Western Australia from 1 August 2022. In the meantime, it is suggested that construction industry participants should review, and if necessary, consider amending any notice-based time bar provisions that they suspect may be susceptible to being challenged and declared as unfair. Sections 16(3) and 16(4) SOPA. Section 16(2)(a) SOPA. Section 16(2)(b) SOPA. Section 16(4) SOPA. Section 16(4) SOPA. CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 6] [2015] WASC 217, at [272] and [375]. Sections 16(2) and 16(3) SOPA. Section 16(4) SOPA. of Security of Payment Laws (Murray Report) chapter 16. Murray Report [16.1]. John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798, although His Honour left open the question whether he would have arrived at a different conclusion if the clause could not possibly or reasonably be complied with (at [83]). other part appears to be industry submissions to the Murray enquiry. Murray Report 288-289. Schedule 2 of the Competition and Consumer Act 2010 (Cth). Murray Report [16.4]. Fiocco Review [6.11.2]. Section 16(5) SOPA. Section 16(6) SOPA. The current Regulations under the Act have not prescribed any other matter. Section 16(7) SOPA. Murray Report [16.5].

While there is no definition of ‘related contract’, this restriction may make it difficult for a head contractor to defend a notice-based time bar in a subcontract on the sole basis that it is subject to a similar notice-based time bar imposed on it under the head contract.

2017

There is also no guidance as to what weight is to be attributed to the above factors. It seems that the issue of weight is one for the decision-maker.

The decision-maker (adjudicator, arbitrator, expert or Court) must consider the following factors before declaring a notice-based time bar unfair:20

6. if compliance with the provision is alleged to be unreasonably onerous — whether the matters set out in the notice are final and binding; 7. any matter prescribed by the Regulations.21

2. when and how notice was required to be given; 3. the relative bargaining power of each party in entering into the construction contract; 4. the irrebuttable presumption that the parties have read and understood the terms of the construction contract;

It is possible to envisage situations where the same notice-based time bar provision is declared unfair in one contract by one decision-maker, but upheld as fair when challenged in like circumstances under another contract by a different decisionmaker. The legislative intention is to allow for declarations of unfairness on a case by case basis, but the industry would no doubt welcome some general guidance.

9 https://www.ag.gov.au/sites/default/files/2020-03/ review_of_security_of_payment_laws_-_final_report_ published.pdf 10 https://www.commerce.wa.gov.au/sites/default/ files/atoms/files/final_report_-_security_of_payment_ industry.pdfreform_in_the_wa_building_and_construction_ 11 Review

End Notes 1

The decision-maker cannot take into account the provisions of any ‘related contract’ or ‘the things that happened’ under any related contract, in deciding to declare a notice-based time bar unfair.22

Accordingly, we expect many construction industry participants will be eagerly awaiting Court decisions under or regarding section 16 of the SOPA to understand how this section will operate in practice, and what sorts of notice-based time bars will generally be considered unfair or fair. As a body of jurisprudence grows in relation to unfair contract terms under other legislation, this may assist in considering the operation of section 16 of the SOPA. Additionally, it may assist to examine existing case law regarding what is ‘not reasonably possible’ and ‘unreasonably onerous’, some of which is referred to in the discussion of void contractual terms in the Murray Report.23

recommendation 84

The Second Reading speech does not further elucidate on section 16.

Key features of section 16 As mentioned above, by section 16 a notice-based time bar provision of a construction contract may be declared unfair in circumstances where compliance is not reasonably possible or would be unreasonably onerous, and such a declaration would render the provision of no effect in respect of the entitlement in the relevant proceedings.

By Greg Steinepreis

New Adjudication Review Process

The application must be made quickly –within 5 business days.18 The applicant for review can choose the nominating authority.19 Both applicants and respondents to the original application can seek adjudication review, subject to limitations.20 However, a respondent cannot seek review unless it gave a payment schedule and an adjudication response in time.21

Not all adjudications can be the subject of this process. A respondent to the original application cannot seek a review of a determination that there was jurisdiction.22 There are also monetary thresholds.23

A respondent cannot make an adjudication review application unless it has paid the undisputed amount to the claimant and the adjudicated amount that is disputed into trust.24

Adjudication response

Changes to ProcessAdjudicationthe

Adjudication determination

Judicial review remains although a respondent seeking review must pay the adjudicated amount into court.27

It seems a claimant is not entitled to raise new issues in the adjudication application, but can rely on new evidence.8

Section 29. 8 Minister for Commerce v Contrax Plumbing [2004] NSWSC 823; Leighton v Arogen [2012] NSWSC 1323. 9 Section 37. 10 Section 34(3). 11 Section 37(2). The period is from the date of the response or when the response could have been properly given, or where no payment schedule was provided then the date of appointment of the adjudicator. Section 37(3). Section 37(6). Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWSC 69. Adjudication estoppel applies to the current legislation (the CCA): Salini-Impregilo SPA v Francis [2020] WASC 72. Sections 39-48. It seems this is based on the process in Singapore. The qualifications of a review adjudicator/’senior’ adjudicator are set out in the Building and Construction Industry (Security of Payment) published.pdf at Chapter 13, section 13.5. Section 42. Section 39(5). Section 41. 20 Section 39(1), (2) and (3). Section 39(3). Section 39(3). Regulation 8, Building and Construction Industry (Security of Payment) Regulations . In general, the thresholds are a minimum of $200,000 difference in and $50,000 where jurisdiction only is under review. Section 40(1). Section 27(2). Section 27(2) Note 2. Section 54(6).

There is a new process of review – by a ‘senior’ adjudicator.15 This process was recommended by the Murray Review.16

A claimant has an alternative to seeking adjudication for its payment dispute where no payment schedule is given or the scheduled amount is unpaid.

There are some changes to the process of adjudication under the Building and Construction Industry (Security of Payment Act) 2021 (WA) (SOPA), although the process is similar to that under the Construction Contracts Act 2004 (WA) (CCA). The fundamentals and basic structure of the adjudication process remain: the process is rapid and essentially documents only, with a binding but not final determination by an independent adjudicator. However, there are new timeframes and a new review process.

Section 28(4). 2 Section 27(2), 28(1). 3 Section 27(2). 4 Section 28(2). 5 Section 28(3). 6 Section 28(2) and (3).

The most significant timeframe change is the time for making adjudication applications and there is a new procedural step where a payment schedule is not provided in response to a payment claim. If a payment schedule has been provided, in place of the CCA’s 90 business day period (from the date of the payment dispute) for the making of the adjudication application, the new period is 20 business days from the time the claimant first becomes entitled to apply.1 A claimant will be entitled to apply from the due date of payment or receipt of the payment schedule (as relevant).2 If a payment schedule has not been provided, the claimant may opt to adjudicate (rather than seek summary judgement in a court).3 Where the claimant opts to adjudicate, the claimant must give a notice, within 20 business days after the due date for payment, of intention to apply.4

The respondent then has a 5 business day ‘further opportunity’ to supply a payment schedule.5 The claimant has 20 business days to make an application after becoming entitled to do so.6

The latest time for a response is 10 business days from service of the application.9 There is an express prohibition on a respondent raising any reasons not included in a payment schedule.10 Supplemental submissions based on the original reasons and additional evidence consistent with the original reasons likely can be provided in the response.

Timeframe and procedural changes

The adjudicator has 10 business days to make a determination.11 The parties can agree to extend that period up to an aggregate maximum of 20 business Thedays.12adjudicator may give an earlier determination (even before the response) if satisfied there is no jurisdiction or the application is frivolous or vexatious or too complex in the timeframe.13

Court alternative

The unpaid portion of the claimed or scheduled amount is a debt due to the claimant and the claimant can go to court to seek summary judgement.25 However, a claimant cannot go to court on this basis if no payment is proposed in a payment schedule.26

Regulations 2022 16 https://www.ag.gov.au/sites/default/files/2020-03/ review_of_security_of_payment_laws_-_final_report_

2022

An adjudicator has no general discretion (as under the CCA) to allow additional Issuematerial.estoppel and abuse of process will apply to the adjudication process.14

End Notes

outcomes,

The application must be made to the person nominated in the contract as adjudicator (if there is one), but need not be made to the nominating body in the contract (if there is one).7

Introduction

There is no right of a claimant to apply to the State Administrative Tribunal as exists under the CCA. It is for the application to be considered anew by the review adjudicator, but based on the material before the original adjudicator, plus some supplementary submissions (but no new reasons).17

Making an application

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None of these provisions necessarily require amendment to the construction contract, however: a principal or head contractor may want to consider including its requirements for an approved form of payment claim as many of the requirements of section 24 of the CCA do not apply under the SOPA. For example, a requirement that the payment claim: be addressed to the party to which the claim is made; state the name of the claimant and the date of the claim; and be given to the party to whom the claim is made, and it is essential for contractors and subcontractors to ensure payment claim forms include words to the effect that “This is a payment claim made pursuant to the Building and Construction Industry (Security of Payment) Act 2021”. Otherwise, the payment claim will not be a valid payment claim under the SOPA and the claimant will not be able to avail itself of the rights and remedies under the SOPA. At a practical level, a SOPA endorsement on a payment claim serves to alert a principal or head contractor that it must serve a payment schedule within 15 business days or be liable for the full amount claimed, and that the payment schedule must set out all reasons for non-payment of any amount provided in the payment claim.

ImplicationsDrafting of The New Security of Payment Laws

A threshold question for principals and contractors to consider is whether, in circumstances where there are inconsistencies between the contract terms and the statutory entitlement to progress payments under the SOPA, the contract should be: amended for consistency with the SOPA; or not amended, so that contract terms that are more favorable than the SOPA provisions can be relied on in the event the statutory regime is not enforced by the other party.

By Donna Charlesworth, Robert O’Brien, Alix Poole

2. Should Inconsistent Construction Contract Terms Be Amended To Align With The SOPA?

The introduction of the SOPA means there are now two parallel payment regimes in play under which different rules concerning what is claimable and when it may be claimed may apply. The interrelationship between the contractual and statutory progress payment claim regimes was discussed by the High Court in Probuild Constructions 1 In that case, the Court considered the Building and Construction Industry Security of Payment Act 1999 (NSW), and in particular section 34 of that Act which prohibits ‘contracting out’ of that Act. As the plurality put it, The statutory entitlement to a progress payment and the procedure for recovery of a progress payment are separate from, and in addition to, a contractor’s entitlement under a construction contract to receive payment for completed work. The statutory entitlement is predicated upon the existence of a construction contract, but the entitlement and the means available for its enforcement stand apart from the parties’ rights under the contract. Indeed, the Security of Payment Act has effect despite any contractual provision to the contrary: any purported derogation is void.

Similar to the NSW legislation, section 111 of the SOPA also provides that a provision of any contract is void to the extent that it is inconsistent with the SOPA, or purports to exclude, modify or restrict the operation of the SOPA.

For principals and contractors operating nationally, it may be considered ‘efficient’ to not amend template construction contracts to align with the SOPA for work being performed in WA. However, this invites disaster as the parties to the contract may unwittingly (until the contract moves into dispute resolution or adjudication) be operating in accordance with contract terms that are void by operation of the SOPA. Accordingly, it would be prudent for principals and contractors alike to ensure that their construction contract templates do align with the SOPA. This provides certainty to both parties and their contract managers that they are operating under valid and enforceable contract terms.

1. Overview The Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA) has introduced a statutory payment regime that significantly alters parties’ rights to make payment claims, respond to payment claims and the timeframes for doing both. Principals and contractors should review their construction contracts to identify whether the contract terms are consistent with the new statutory regime and, if not, considerinconsistentwhether:construction contract terms should be amended to align with the SOPA; changes to payment and notice protocols are required; amendments are required to ensure responses to payment claims meet the requirements of a payment schedule under the SOPA; and other contractual risk management mechanisms should be included in their contracts.

3.2 Time to provide payment schedule Under section 25 of the SOPA, the respondent to a payment claim must give a payment schedule to the claimant within 15 business days after the payment claim is made (unless an earlier time is provided in the contract). This is longer than the 14 days to respond to a payment claim required under the implied terms in Division 5 clause 7 of the CCA and, therefore a contract that complied with this requirement of the CCA will not fall foul of the time to respond under the SOPA.

3.1 Payment claim content and time for issue Under section 24 of the SOPA, payment claims:must be in writing and in the approved form; may only be made on or after the last day of each month during the project, unless the contract expressly provides for earlier timing; must “describe the items and quantities of construction work or related goods and services”; must state that they are a ‘payment claim’ made under the SOPA. This is a new requirement that was not a requirement of the Construction Contracts Act WA (2004) (CCA).

3. Some Drafting Implications

3.5 Prohibition on unfair time bars SOPA empowers adjudicators (including review adjudicators), the court, arbitrators and expert determiners to declare a notice-based time bar provision within a construction contract unfair, and therefore void in regard to a particular entitlement in the proceedings, if compliance with the provision in a particular case is not reasonably possible or would be unreasonably onerous.

It is imperative that a payment schedule complies with the requirements of section 25 and ‘indicates’: the payment claim to which it relates; the amount of the proposed payment; and why the scheduled amount is less than the amount ‘proposed’ by the contractor.

3.4 Notice of intention to make a call on security Section 57 of the SOPA provides that a party is not entitled to have recourse to performance security unless it has given at least 5 business days’ notice to the other party that it intends to have Therecourse.intent of this provision is to give the contractor time to take steps to remedy the alleged breach which has given rise to the right to call on the security. However, in reality it is likely to provide a contractor with the opportunity to seek an injunction to put a stop to the call on Anysecurity.provisions in a contract that state the principal is not required to give notice before having recourse to the security will be in conflict with this provision of the SOPA.

3.6 Prohibition on dispute resolution as a condition precedent to making a SOPA claim Contract drafters should review construction contracts to ensure they do not offend Regulation 5 of the Building and Construction Industry (Security of Payment) Regulations 2022, which prohibits any terms in a construction contract that require a party to engage in a dispute resolution process as a precondition to making any of the following claims pursuant to the SOPA: the making of a payment claim by the person; the making of an adjudication application or an adjudication review application; or the exercise of any other right or discharge of any obligation under the SOPA.

3.3 Payment times Under section 20 of the SOPA, the maximum time for payment of a payment claim is: (a) 20 business days after a payment claim is made by a head contractor to a principal; or (b) 25 business days after a payment claim is made by a subcontractor. This is likely to be one of the key areas where amendment of template contracts will be required, as under the CCA the maximum time for payment of a payment claim was 42 days.

4. Conclusion Principals and contractors should review their construction contracts to avoid provisions that will be void or open to challenge under the SOPA. In parallel to considering the drafting implications, it is suggested that parties encourage the education of suppliers and contractors, and ensure the necessary internal administration adjustments are made to ensure payment claims are made and responded to in compliance with the new legislation.

A separate article outlines this power in more Contractdetail.drafters should review construction contracts for time bars and consider whether that time bar is at risk of being considered unfair, taking into account the circumstances set out in section 16(6) of the SOPA. A more generous notice-based time bar provision may be preferable to none at all.

Contracts should also be reviewed and if necessary amended to reflect the new statutory timeframes to avoid the following repercussions: if a contract provides for longer time to provide a payment schedule, the principal will become liable to pay the claimed amount on the date for payment and will be barred from providing a response to any future adjudication; and a respondent is limited in any adjudication response to the matters raised by it in the payment schedule, as the reason for withholding payment.

End Notes 1 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 (Probuild). 2 Probuild,16 [38] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). Security of Payment Laws LASTING LEGACY HOMELESS LEAVING A WILL HELP DOGS IN WA LASTING LEGACY 46 | BRIEF AUGUST 2022

In both Zantran Pty Ltd v Crown Resorts Ltd [No 2] [2020] FCA 1024 (‘Zantran’) and Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342 (‘Perth Airport’), it was argued that there was a waiver of associated material as described by Young J in AWB. Together, these decisions are helpful in understanding whether there exists an ‘associated material waiver’, and the relationship between the inconsistency principle and associated material. This case note first discusses O’Callaghan J’s decision on a point of law in Zantran, before considering its application by Le Miere J in Perth Airport. Zantran Pty Ltd v Crown Resorts Ltd [No 2] [2020] FCA 1024 In Zantran, O’Callaghan J was required to determine whether there exists a recognised species of waiver called ‘associated material waiver’. Counsel for Zantran argued that passages from Young J’s judgment in AWB stood for the proposition that ‘a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material’ and that ‘[t]he test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject-matter’. As put by O’Callaghan J in Zantran, it was submitted that ‘the voluntary provision of one privileged communication gives rise to a waiver of legal professional privilege over all other privileged communications relevant to the same issue or subject matter as the communication voluntarily provided’ (at [30]–[31]).

Justice Le Miere applied O’Callaghan J’s decision in Zantran, stating that ‘[t]he extent of any waiver is to be determined in accordance with the principles expounded in Mann v Carnell’ (at [32]). Accordingly, whilst Le Miere J noted that Perth Airport might be required to produce documents which are necessary to understand certain advice it received, this did not extend beyond the principles in Mann. For example, if Perth Airport had documents evidencing the knowledge and experience of Mr Houston (of Houston Kemp), it would not be inconsistent for Perth Airport to maintain confidentiality over those documents even though that knowledge and experience would no doubt underpin and influence the analysis he provided (at [33]–[35]).

The principle in Mann v Carnell (1999) 201 CLR 1 (‘Mann’) is that legal professional privilege over a communication is impliedly waived where disclosure and use of the communication is inconsistent with maintaining the confidentiality provided by the privilege. However, in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (‘AWB’) – another leading case on implied waiver – Young J devoted several paragraphs to discussing waiver of ‘associated material’ relating to other waived communications (at [164]–[176]).

Counsel for Zantran relied on the following passage from AWB (inter alia): ‘Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter’ (at [164] of AWB). Counsel for Crown argued that the only guiding principle for the waiver of legal professional privilege at common law is the inconsistency principle stated in JusticeMann.O’Callaghan noted that the difference between the two submissions might be ‘more apparent than real’, but that ‘[i]n either case, the critical anterior question is to identify the relevant issue or subject matter’ (at [41]). His Honour said that when there is an express waiver, ‘an issue arises about whether and to what extent privilege has also been waived with respect to “related” non-disclosed documents’, which might be described as ‘associated material’. However, O’Callaghan J rejected the submission that Young J’s judgment in AWB establishes a separate species of waiver relating to ‘associated material’ which expands the Mann principles (at [42]–[45]).

In relation to the scope of the order for production, Qantas also sought production of any material necessary to understand that analysis or which underpinned or influenced it, and any documents referred to in particular documents containing the analysis (at [28]). That is, Qantas submitted that the waiver extended to ‘associated material’ as discussed by Young J in AWB.

Comment Together, Zantran and Perth Airport make it clear that the inconsistency principle from Mann is the sole principle relevant to determining whether legal professional privilege has been impliedly waived at common law. Whilst it may, in some instances, be inconsistent to retain confidentiality over certain documents associated with other waived communications, this will not always be so. Accordingly, Young J’s decision in AWB cannot be regarded as establishing a separate ‘associated material waiver’.

Aidan

Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342 Zantran was recently applied by Le Miere J in Perth Airport. In that case, Qantas sought production for inspection certain documents which record analysis and advice by Houston Kemp (an economic consulting firm) and Dr Mundy (an adviser). Perth Airport claimed legal professional privilege on the grounds that the documents were communications between the advisers and Perth Airport or their solicitor that were prepared for the dominant purpose of giving or obtaining legal advice (at [9]). Justice Le Miere ultimately found that Perth Airport had, during negotiations with Qantas and other airlines, waived legal professional privilege in respect of certain advice from Houston Kemp, and that production of documents communicating that relevant analysis was necessary for disposing fairly of the proceeding (at [19], [27], [33]–[34]).

Background

Waiver of Legal Professional Privilege AND ASSOCIATED MATERIAL

In relation to any documents recording analysis undertaken by Dr Mundy, Le Miere J found that Perth Airport had not waived its privilege as it was not inconsistent for Perth Airport to state the Houston Kemp advice in negotiations yet maintain confidentiality over the separate analysis by Dr Mundy (at [36]).

By Ricciardo Lecturer at the University of Western Australia Law School

While unvaccinated jurors are not a homogenous group, they are nonetheless made up of distinct groups by Eli Bernstein Senior Associate at Nakamoto Legal and member of the Access to Justice committee of the Law Society of WA. The views expressed in this article are his own.

The effect of this was that as of 5 March 2022, a person who is “a court and tribunal worker” (defined so broadly to include paralegals, journalists and potential jurors) must not enter, or remain at, a court or tribunal site if they are not fully vaccinated. When read in conjunction with the Booster Vaccination (Restrictions on Access) Directions (No 2)) issued on 7 January 2022, any person who is eligible for a booster who has not yet been boosted is deemed not to be fully vaccinated and would therefore be unable to serve on a jury.

On the Rights and Wrongs UnvaccinatedofJurors 48 | BRIEF AUGUST 2022

2. Do unvaccinated jurors pose a disproportionate and unacceptable risk of harm to others by serving on a jury?

3. To the extent a risk of transmission exists, could the court mitigate that risk in any other way?

L ast month the Supreme Court of WA heard a challenge by Senior Constable Ben Falconer to the mandatory vaccination requirements directed by the State’s Chief Medical Officer Dr Andrew Robertson as imposed on the WA Police Force through its then Commissioner (now Governor of Western Australia), Chris Dawson APM, resulting in Officer Falconer, alongside forty-eight police officers and staff, being stood down from active service. While the mandates have since been withdrawn, those stood down have not been allowed to return to work and some like Falconer now face disciplinary action. Falconer sought a judicial review on the grounds that such direction was irrational. Following a threeday trial, Justice Allanson has reserved his does not seek to analyse that case or second guess its outcome, but instead seeks to explore a related issue, the impact of those same directions on our jury Twenty-twosystem.months after a state of emergency was made on 23 March 2020, and pursuant to those extraordinary powers, Dr Robertson issued the Court and Tribunal Worker (Restrictions on Access) Directions2 (Directions). A public notice3 was followed shortly thereafter by the Supreme Court on the same day in which His Honour Chief Justice Quinlan stated the effect of the Directions as follows: In addition to judicial officers and all court and tribunal support staff, a ‘court or tribunal worker’ is defined to include any person who attends a court or tribunal site for court or tribunal work-related purposes. Importantly, this includes legal practitioners (and their support staff), journalists and media court reporters. Court or tribunal workers is also defined to include persons summoned as part of a jury pool, who must also comply with the vaccination requirements in the Directions to enter a court site.4

Thisjudgment.1article

1. What is the impact of these directions on the makeup of the jury pool?

There are a number of issues at stake that ought to be considered:

Even to the extent that a risk of transmission does exist (or may exist in future variants) by the mere presence of an unvaccinated person, no restrictions on unvaccinated jurors should apply if such a risk could be mitigated through other measures, such as: Mandatory masking, including provision by the court of the highly effective N95 masks; Well-ventilated court and jury rooms, or if required, an outdoor courtroom; Limiting the maximum juror age to 70 (such age discrimination being borne out by medical evidence18 and not affecting all political groups, racial groups and sexes proportionally);

12 It would appear that these are the reasons behind the Directions and Public Notice.13 However, while this premise was true for the Alpha variant of COVID-19, it is questionable for the Delta variant and mostly untrue for the Omicron variant.

In the recent New Zealand High Court decision in Yardley v Minister for Workplace Relations and Safety & Anors,16 the court upheld a judicial review challenge against vaccine mandates for police officers, finding that the Order imposed an unjustified limitation on the applicants’ rights, and that the limit was not demonstrably justified, with Cooke J stating: I take it from this evidence that vaccination may still have some effects in limiting infection and transmission, but at a significantly lower levels than was the case with the earlier variants. It is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant. It is equally clear that it does still provide protection from serious illness and death, although this effect wains after the second dose, and seems to wain in a similar way after the booster. I accept on the basis of Dr Town’s evidence that vaccination might contribute to preventing contracting and spreading the Delta and Omicron variants to some extent, although not nearly as much as it did against the original versions of COVID-19.

that can be categorised politically and racially. In a recent US case, US District Court Judge Polster reversed his earlier decision banning unvaccinated jurors after finding that such a ban would undermine the “fair cross section of the community” standard for jury trials, noting key differences between the statewide vaccinated and unvaccinated populations along gender, racial, age, income, education level, geographic and political lines. In Australia, vaccination status is a proxy for politically held views. This holds true for both fringes of the political left and right. An article by ABC News titled “Australian attitudes on the COVID-19 vaccine differ on political lines”5 cited a recent survey by Professor Julie Leask6 which found that “19 per cent on the right are now saying they’re “very unlikely” to take the vaccine. That compares to 8 per cent of those identifying with the centre and 4 per cent for those on the left.” Arguably, even among the left and centre, the unvaccinated are a distinct sub-category made up of the naturalist left (who generally oppose vaccines) and libertarian centrists (who oppose mandates rather than vaccines). It is common knowledge that the unvaccinated are likelier to vote for minor Vaccinationparties.status may also be considered a proxy for race. While 68.7% of eligible Australians and 86.3% of eligible West Australians at the time had received their booster shots, only 52.5% of the Indigenous population has done so.7 The net effect of the Directions would mean that Indigenous West Australians would therefore be further underrepresented on WA juries, exacerbating an existing problem identified by the Law Reform Commission of Western Australia8 and other studies on the subject that have found that “Indigenous people are significantly overrepresented as defendants in criminal trials and in prisons and yet vastly underrepresented on juries in criminal trials in Australia…”.9

3. Could the court mitigate that risk rather than exclude potential jurors?

The risk posed by the unvaccinated is a core issue in question in the Falconer case in determining the rationality or otherwise of the Directions. A full analysis of the merits of such directions is beyond the scope of this article. However, even if the court held that the unvaccinated pose an unacceptable risk and that the Directions in relation to police officers was rational, considering the impact on the jury system, we must first determine whether no better alternative is available before undermining the representative nature of the jury system.

Any exclusion based on vaccination status would therefore have the unintended consequence of altering the racial and political makeup of our jury system. This in turn undermines the representative nature of the jury system as noted by Deane J stated in Brown v The Queen:10 . . . guilt or innocence of a serious offence should be determined by a panel of ordinary and anonymous citizens, assembled as representatives of the general community, at whose hands neither the powerful nor the weak should expect or fear special discriminatory treatment. The essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached.11

Clearly, such an undermining of the jury system should not take place unless and until there is a clear and present danger that cannot be mitigated in any other way – which brings us to the next point of inquiry:

2. Do unvaccinated jurors pose a disproportionate and unacceptable risk of harm to others?

In the case of Omicron, the scientific consensus emerging is that “vaccinated cases seem to have the same transmission capacity [as] non-vaccinated people.”

In relation to the Delta variant, evidence has emerged challenging the effectiveness of the vaccination in preventing spread of COVID-19, with a recent study published in The Lancet finding that: Vaccination reduces the risk of delta variant infection and accelerates viral clearance. Nonetheless, fully vaccinated individuals with breakthrough infections have peak viral load similar to unvaccinated cases and can efficiently transmit infection in household settings, including to fully vaccinated contacts.

The current reality is such that vaccinated jurors pose a greater threat to unvaccinated jurors than vice versa, since the two groups have a similar capacity to spread Omicron but the impact on the unvaccinated is significantly higher.

There have been a number of US cases on the subject, mainly from the era or the Alpha covid variants, based on the premise that “an unvaccinated juror would be considerably more likely to contract COVID-19 and to spread it to other jurors.”

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First and paramount, the legal system must bend to no other principle but the fair administration of justice. Second, the exclusion of jurors for policy ends is dangerous as it has no logical end. (Should we exclude smokers and the morbidly obese? What of those with unpaid fines or overdue taxes?) Third, the court need not interfere with this voluntary assumption of risk, in much the same way as the court does not discriminate between jurors who arrive to court riding public transport and those arriving on motorcycles. Finally, the reality is that to the extent that such a policy may motivate vaccination behaviour, it is far likelier that people will delay booster shots to avoid jury duty than get fully vaccinated in order to serve on a Therejury.are a number of issues beyond the scope of this article that the Directions give rise to, among them: Whether the separation of power doctrine is observed when the Judiciary is subjected to orders from the Executive branch that ultimately determine the make-up of the court’s arbiters of fact; Whether in rubber-stamping the Directions made by the Chief Medical Officer, the court opened itself to an apprehension of bias in any case challenging the government’s mandates (such as the Falconer case); Whetherand classifying jurors as ‘court and tribunal workers’ may affect a juror’s (or society’s) perception about the independent nature of the jury Whilesystem.theDirections in question have since been withdrawn, the issue at stake may become pertinent yet again. The landscape around this is changing rapidly, both in terms of the virus and in terms of society’s response to it. There is unlikely to be a ‘one size fits all’ policy that could be applied. Regardless of the nature of the virus and the best policy and medical response to it, the sacrosanct role of the jury must not be tampered with unnecessarily.

The exclusion of unvaccinated from the jury pool by classifying jurors as ‘Court and Tribunal Workers’ undermines the representative nature of the jury and society’s confidence in the jury system, and should therefore only be considered where there is a clear and present danger that is incapable of being effectively mitigated. After all, “equal opportunity to participate in the fair administration of justice is fundamental to our democratic system.”

19 End Notes

One may argue a utilitarian argument that the exclusion of jurors may promote vaccination and that such a policy is highly beneficial to society at large (e.g. by reducing the load on the medical system), we say that government must refrain from using the jury system as cudgel to promote public health objectives. However, this argument is spurious for the following reasons.

2 “Court and Tribunal Worker (Restrictions on Access) Directions,” WA Government (31 January 2022) Available at access-directionspublications/court-and-tribunal-worker-restrictions-<https://www.wa.gov.au/government/>

1 ABC News, “WA police officer Ben Falconer’s fight against ‘irrational’ COVID-19 jab mandate goes to trial (13 July 2022) Available at < https://www.abc.net. au/news/2022-07-13/wa-police-officer-ben-falconercovid-vaccine-mandate-trial/101232376>

5 Nick Sas, “Australian attitudes on the COVID-19 vaccine differ on political lines but the vast majority are still keen for the jab”, ABC News (5 Mar 2021) Available at 05/australia-covid-vaccine-survey/13203170<https://www.abc.net.au/news/2021-03-> Professor, Sydney Nursing School, Faculty of Medicine and Health; Adjunct Professor, School of Public Health; Visiting Fellow, National Centre for Immunisation Research and Surveillance; World Health Organization advisor. 7 COVID-19 Vaccine Roll-out, Commonwealth Department of Health (10 April 2022) Available at: < <https://www.health.gov.au/sites/default/files/ 10-april-2022.pdfdocuments/2022/04/covid-19-vaccine-rollout-update-> Hands T, Williams V and Davies D (2006) Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture: Final Report Project No. 94. Perth, Western Australia: Law Reform Commission of Western Australia Available at <www.lrc.justice.wa.gov.au/_files/p94_fr.pdf> 9 Anthony T and Longman C (2017) Blinded by the white: A comparative analysis of jury challenges on racial grounds. International Journal for Crime, Justice and Social Democracy 6(3):25-46 at 2. DOI:10.5204/ ijcjsd.v6i3.419. 10 Brown v The Queen (1986) 160 CLR 171 11 Ibid at 202 12 Joffe v. King & Spalding LLP, No. 1:2017cv03392Document 354 (S.D.N.Y. 2021) 13 as indicated by the Directions citing World Health Organization’s declaration as of 11 March 2020, at the peak of the Alpha wave. 14 Anika Singanayagam, Seran Hakki, Jake Dunning et al, Community transmission and viral load kinetics of the SARS-CoV-2 delta (B.1.617.2) variant in vaccinated and unvaccinated individuals in the UK: a prospective, longitudinal, cohort study The Lancet VOLUME 22, ISSUE 2, P183-195, FEBRUARY 01, 2022 15 Javier Del Águila-Mejía, Reinhard Wallmann, Jorge Calvo-Montes et al, Secondary Attack Rates, Transmission, Incubation and Serial Interval Periods of first SARS-CoV-2 Omicron variant cases in a northern region of Spain. (2022, https://doi. org/10.21203/rs.3.rs-1279005/v1) 16 [2022] NZHC 291 17 Ibid at [91] per Cooke J 18 For instance, a 70+ year old double vaccinated with AstraZeneca (2nd dose 4 to 6 months ago) is over 100 times likelier to die from Covid as an unvaccinated 3039 year old. (Risk of Dying From Covid-19, Estimated deaths per 10,000 COVID-19 cases by age, sex, and vaccination status Immunisation Coalition Australia (January 2022 Version 2.0) Available at: 19immunisationcoalition.org.au/diseases/covid-19<https://www./> J.E.B. v. Alabama, 511 U.S. 127, 145 (1994).

4 Ibid 2

Attendance via video conferencing; or Other measures the court may see fit to reduce the risk of infection. 4. Other considerations and concluding remarks

3 “Public Notice COVID-19,” Court and Tribunal Worker (Restrictions on Access) Directions, Supreme Court of WA (31 January 2022) Available at < https://www. supremecourt.wa.gov.au/_files/Media/2022/Court-an notice31January2022.pdfdTribunalWorkerrestrictionsonaccessdirectionspublic>

5 None of these indicators surfaced on the facts in issue.

The second point targets the qualification “unless released by the recipient or by a court of competent jurisdiction”. Assuming that the recipient in this context is fully informed and not unduly pressured in this regard, there is nothing to preclude him or her from releasing the lawyer from the undertaking. As the text of the rule envisages, there are occasions where the court can effectuate such a release. Cases where compliance proves impossible (as distinct from inconvenient) may justify this, but without prejudice to the court ordering compensation in lieu.6 But in cases where non-compliance is excusable — say, because the lawyer cannot be seen to be at fault7 — release may be plenary.

6 Commissioner of Inland Revenue v Bhanabhai [2006] 1 NZLR 797 at [165] per Laurenson J.

End Notes 1 Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR 629 at 640 per Wylie J. 2 Rule 6.1. 3 (2021) 392 ALR 154 at [140] per Gleeson JA, with whom Basten and McCallum JJA concurred. 4 [2021] 3 WLR 598. 5 Ibid at [105].

The importance of solicitors honouring their professional undertakings cannot be downplayed.

At the same time, not every undertaking falls within the scope of the court’s

In so ruling, their Lordships accepted that “common and relevant indicators” of what can be construed as a solicitor’s undertaking is that “it is given in connection with a transaction involving a client or if it is given to the court or to a third party”, adding that “[o]ther such indicators are whether the solicitor is acting on instructions and whether the solicitor is acting in a personal or business capacity rather than a professional capacity”.

The first is the reference to the undertaking being “given … in the course of legal practice”. In view of the mischief underscoring the rule, it is unsurprising that what is “in the course of legal practice” admits no limited interpretation. In Hartnell v Birketu Pty Ltd,3 for instance, the informality of the occasion at which the alleged undertaking was proffered (at a “nonworking lunch”) did not, according to the New South Wales Court of Appeal, detract from the context in which the principal of a law practice gave the undertaking, being to reassure the client that it would not be out of pocket by reason of a fraud perpetrated by a solicitor employed by the practice.

Gino Dal Pont

It is accordingly unsurprising that the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, soon (at the time of writing) scheduled to enter into force in Western Australia, prescribe that “[a] solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure [its] timely and effective performance … unless released by the recipient or by a court of competent jurisdiction”.2 The text of this rule, which reflects the general law, merits at least two points by way of elaboration, which function to acknowledge that the obligation in question is not entirely open-ended.

Professor, Faculty of Law, University of Tasmania

undertakings.laxhowever,boundariesjurisdictionThatenforcementsummaryjurisdiction.thecourt’sherehasshouldnot,encourageaapproachtogiving 51

7 Law Society of New South Wales v Waterhouse [2002] NSWADT 204 at [17] (where the solicitor’s failure to comply with an undertaking was explained on the ground that he had been deceived into giving the undertaking).

Ethics Column

The upshot of the foregoing is that not every undertaking given by a person with legal qualifications is a solicitor’s undertaking, with the consequences that may ensue from such a characterisation (which is just as well, one may imagine, for lawyer-politicians). Nor are solicitors’ undertakings invariably enforced. It cannot be forgotten, though, that any such tempering of the scope of lawyer undertakings functions against the primary rule informed by strict adherence. In any case, even outside the rule’s parameters, the spectre of an Australian lawyer whose word proves other than their bond hardly promotes confidence in lawyers as a collective.

My previous column, titled “The Lawyer Undertaker”, targeted the need to comply with lawyer undertakings. The significance of such compliance is not confined to scope for liability in contract; noncompliance can sound in disciplinary sanction. Moreover, in a longstanding initiative unique to lawyers, courts have assumed a summary jurisdiction to enforce lawyer undertakings — independent of any contractual claim — based on an inherent right to require officers of the court to observe a high standard of conduct.1 As an alternative to specific enforcement, the jurisdiction can be utilised as a vehicle to require a defaulting lawyer to compensate a person who has suffered from the lawyer’s non-compliance.

At the same time, the “in the course of practice” threshold can have a limiting effect as to the courts’ summary jurisdiction (as distinct from an available claim in contract). Occasions might arise where, despite the author of the undertaking being qualified as a lawyer, such an undertaking is not given “in the course of practice” or, expressed in another way, in a “professional capacity”.

The 2021 decision of the United Kingdom Supreme Court in Harcus Sinclair LLP v Your Lawyers Ltd 4 presents as a case in point. It involved one law practice undertaking to another practice not to accept instructions from claimants in group (class action) litigation. It was held that the undertaking was not given in a professional capacity, for which reason it was not amenable to the court’s inherent supervisory jurisdiction over solicitors.

The Lawyer Undertaker (Again)

The parties in that case were FIFO workers who, during a romantic relationship, sent intimate images to each other via their mobiles. The defendant also without the plaintiff’s consent sent himself videos of her from her phone. After the relationship ended, the defendant posted some of those images and videos on his Facebook page. Many of the defendant’s Facebook friends were co-workers of both the plaintiff and defendant who could download them. This had a severe effect on the defendant; it affected her sleep, and she undertook counselling for anxiety and distress. She recovered damages for the humiliation, anxiety and distress caused by the

The question itself of whether victims have redress against those who distribute private communications and images however is not novel. The celebrated case of the Duke and Duchess of Argyll6 is arguably the progenitor of revenge porn.

It is now settled law that a breach of confidence could give rise to injunctive Therelief.11next phase in the evolution of revenge porn law was Giller v Procopets.12 Whilst it was accepted that a breach of confidence could give rise to injunctive relief and that a private image could constitute confidential information,13 the unresolved question was whether that cause of action could give rise to a right to compensation. Giller resolved conclusively that an ex-partner can seek compensation for pain and suffering caused by revenge porn.

Revenge Porn and Sexting: Moments of indiscretion – a lifetime of regret?

The defendant videotaped sexual activity between the plaintiff and him and after the relationship ended showed them to third parties without the plaintiff’s consent.

Legal consequences for perpetrating revenge porn Wiki defines ‘revenge porn’ as: ‘…the distribution of sexually explicit images or videos of individuals without their consent. The material may have been made by a partner in an intimate relationship with the knowledge and consent of the subject at the time, or it may have been made without their knowledge.’4

The plaintiff recovered compensation for emotional distress caused by the exposure of private information on the grounds that the disclosure of the tapes without her consent amounted to a breach of confidence. In Western Australia, it was confirmed in Wilson v Ferguson14 that a plaintiff had a right to damages for breach of confidence arising from the dissemination of revenge porn, in this case sexting.

By Kenneth Yin Retired Barrister, Francis Burt Chambers, now lecturer in law at the School of Business and Law, Edith Cowan University.

Subsequently, the Duchess, fearing the Duke would disclose ‘secrets .. relating to her private life, personal affairs or private conduct communicated to the Duke in confidence during the subsistence of their marriage’,9 sought an interlocutory injunction to restrain him from doing so.

When granting the Duchess an interlocutory injunction, the Court noted that ‘with the object of preserving the marital relationship, it was the policy of the law that communications between husband and wife should be protected against breaches of confidence’.10

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The two were married in 1951 and a decree of dissolution of their marriage was made in 1963 following divorce proceedings described as ‘incredibly toxic’.7 During the trial, the Duke produced ‘a Polaroid picture of the Duchess wearing nothing but a string of pearls, with a mystery man in her Mayfair flat’.

Revenge porn and the internet The internet makes revenge porn easy.

Arguably, the most prevalent form of revenge porn is ‘sexting’, which Wiki defines as ‘…sending, receiving, or forwarding sexually explicit messages, photographs, or videos, primarily between mobile phones, of oneself to others. It may also include the use of a computer or any digital device.’5

ABC News stated in 2019 that 1,400 cases of ‘revenge porn abuse’ were reported across Australia1 and The Conversation that a survey revealed that ‘1 in 5 Australians is a victim of “revenge porn”, despite new laws to prevent it’.2 A letter beginning: ‘Hey Bestie: How can I stop my ex from using my sexts against me?’ published in a Perth Now agony column on 28 January 20223 speaks eloquently of the torment caused by having sexts disclosed.

The word ‘revenge porn’ is clearly a relatively recent creation since the references in Wiki to ‘images’ and ‘videos’ are to dissemination via relatively recent technology; even more recent is sexting, as the use of mobile phones and computers or any digital device to send and receive messages and photographs only became possible when mobile phones and computers began to have that capability.

Giller was a classic revenge porn case.

Besides, if the offending publication has already been distributed, the injunction might be too late as the horses would have Abolted.victim could also institute proceedings for compensation. The plaintiff might recover significant damages or thereby achieve a favourable settlement, but, conversely, if confronted with a difficult defendant, might face lengthy and expensive proceedings. The difficulties in establishing proof of psychological damage in Wilson were earlier noted.29

There is no one-size-fits-all legal remedy for a victim of revenge porn.

The final significant development in the Western Australian evolution of revenge porn law is the recent enactment of the 2019 Criminal Law Amendment (Intimate Images) Act (‘the Act’) which amends the Criminal Code Act Compilation Act 1913 (WA) s 5 (‘the Criminal Code’). That Act makes it an offence to distribute an intimate image without the consent of the person in the image.19 An ‘intimate image’ can include an image of the person in a state of undress, using the toilet or showering or engaged in a sexual act.20

The Act provides for a ‘summary’ conviction carrying a fine of $18,000 and imprisonment for 18 months; or imprisonment for 3 years.21 The latter, more serious, type of case is dealt with by the District Court rather than ‘summarily’, by a magistrate. The Court can also make orders for the defendant to remove or destroy the image.22

One might, like the Duchess of Argyll, seek an interlocutory injunction to restrain a breach of confidence but this is expensive and itself confers no right to compensation.

First, the information must be ‘confidential’:15 in the usual revenge porn scenario, this should usually not be difficult to establish since intimate texts or images would likely have the required quality of ‘confidentiality’.

Under the principles outlined in Wilson, the following requirements must be satisfied to recover compensation for what essentially is revenge porn:

27 Although the media reports do not specifically mention it, it is likely that Magistrate Langdon was there alluding to s221BD(4) of the Criminal Code28 which provides: Nothing in subsection (2) makes it an offence…for a member or officer of a law enforcement agency or their agents to distribute an intimate image when acting in the course of their official duties.

The first defendant charged under the Act distributed intimate images of his exgirlfriend by posting them on Instagram without her consent and in July 2019 was penalised with a 12-month intensive supervision order, avoiding jail.23 He reportedly posted the images as a form of retribution after the relationship broke down and was suicidal. The magistrate considered that this was not at the worst end of the scale and that the act was done

Moreimpulsively.24egregious was the conduct of a man who following the breakdown of a relationship sent intimate photographs of his ex-girlfriend to a pornographic website and ‘bombarded’ her with abusive and threatening messages. The judge described his conduct as ‘planned and vicious’ and in August 2020 sentenced him to twenty months’ jail under the Act.25

The third person to be charged under the Act was a policewoman who showed images of a partially-naked woman to three colleagues.26 She pleaded not guilty and was acquitted, with Magistrate Elizabeth Langdon noting that ‘the circumstances of this case are very different to those envisaged by the Attorney-General’ and that the disclosure was both relevant and inextricably linked to her work as a police officer.

Judicial guidance as to the scope of the Act has been somewhat limited till now; so far as is known, two of the accused who were charged under the Act pleaded guilty, and the third pleaded not guilty and was acquitted before a Magistrate.

Last, the plaintiff must establish that they were injured by the publication:17 underlining the potentially troublesome nature of this enquiry, a significant part of Wilson was taken up analysing the psychological evidence to establish the plaintiff’s distress.

On the other hand, making a complaint of criminal behaviour under the Act costs little. But victims who suffered already will enjoy little comfort if a defendant ultimately is handed a relatively light penalty such as an intensive supervision order.30 Also, the police might not lay charges if they think the evidence does not support the charge or that there is a good Fordefence.victims of revenge porn, the admonishment to ‘be more vigilant next time’ is glib and unpropitious. It is more useful to provide them assurance they do have remedies, and to advise them to seek legal advice promptly to explore which combination of actions is most appropriate for them.

Second, the information must be received in circumstances importing an obligation of confidence and must involve an unauthorised use of the information: potential question marks might arise if say the plaintiff suggested they had ‘no problem’ with other parties seeing those images or by their conduct have suggested as such, for example by sharing the images to the same audience.16

The avenue to a just outcome

defendant’s breaches of the obligation of confidence owed to her.

End Notes 1 ‘1,400 cases of ‘revenge porn’ abuse reported across Australia’: ABC News, news/2019-09-11/revenge-porn-report/11499522https://www.abc.net.au/ 2 it-117838victim-of-revenge-porn-despite-new-laws-to-prevent-https://theconversation.com/1-in-5-australians-is-a3 against-me--c-5469233hey-bestie-how-can-i-stop-my-ex-from-using-my-sexts-https://www.perthnow.com.au/lifestyle/hey-bestie/ https://en.wikipedia.org/wiki/Revenge_porn https://en.wikipedia.org/wiki/Sexting 6 Duchess of Argyll v Duke of Argyll (1967) 1 Ch 302 (‘Duchess of Argyll v Duke of Argyll’). ‘Margaret Duchess of Argyll’s real life vs A Very British Scandal’: The Cosmopolitan photos/com/uk/reports/a38566318/margaret-duchess-argyll-https://www.cosmopolitan. As luridly reported in The Sun: ‘”BRAZEN NYMPHO” Duchess of Argyll was first-ever victim of revenge porn, says A Very British Scandal star Claire Foy’: https:// www.thesun.co.uk/tv/16925323/dirty-duchess-firstrevenge-porn-victim-claire-foy/ 9 Duchess of Argyll v Duke of Argyll (n 6). Ibid 304. 11 Australian Broadcasting v Lenah Game Meats (208) CLR 199 (‘Australian Broadcasting v Lenah Game Meats’). Giller v Procopets (2008) VSC 113 (‘Giller v Procopets’). Giller v Procopets (n 11). Ibid [395]. 14 Wilson v Ferguson (2015) WASC 15 (‘Wilson v Ferguson’). Ibid [11]-[12]. Ibid. 17 Ibid. 18 Ibid [98]-[103]. 19 S 3 of the Act which inserted S 221BD(2) of the Criminal Code. 20 S221BA of the Criminal Code, inserted by s4 of the Act. 21 S221BD(2) of the Criminal Code, inserted by s4 of the Act. 22 S221BE(2) of the Criminal Code, inserted by s4 of the Act. 23 ‘First person convicted under new WA ‘revenge porn’ laws avoids jail sentence’ ABC News https://www.abc. net.au/news/2019-07-22/mitchell-brindley-first-personin-wa-sentenced-for-revenge-porn/11331022 Ibid. 25 As reported in ‘Married father of two jailed for revenge porn offence against lover’: ABC News singh-jailed-for-revenge-porn/12607492net.au/news/2020-08-28/married-man-armandeep-https://www.abc. frey/11976076trial-semi-naked-photo-woman-broome-christine-https://www.abc.net.au/news/2020-02-19/wa-policeIbid. 28 Inserted under s4 of the Act. 29 See n18 above. 30 See n 23 above.

A BDBN should not be treated as a tick the box exercise or filling in a standard form.

Whilst the logic is unchallengeable, and noting the High Court’s comment that the Court of Appeal ought to have reached the conclusion itself rather than adopting the conclusion reached by another intermediate appellate court, what hope has the lay administrator in navigating through this legislative labyrinth?2

The High Court’s Scrutiny of Self-Managed Superannuation Fund (SMSF) and Binding Death Benefit Nomination (BDBN) A Matter of Trust

By Grahame Young FTI, TEP, Barrister, Francis Burt Chambers

Practical application

A member’s superannuation benefits can be substantial compared to personally owned assets that will pass by their Will. A BDBN is not a Will, but in many respects it has the same consequence of determining entitlement to an asset after death.

Even if the instructions are simply to make or update a BDBN, I suggest a solicitor should follow the same procedures as for a Will, by being satisfied as to capacity,

No matter how desirable it would be that the legislative regime for SMSF’s could be rescued from this morass of incomprehensibility, the writer sees little or no hope of that in his lifetime, only increasing complexity.

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path leading to that conclusion involves the following steps of reasoning taken under the Superannuation Industry (Supervision) Act and Regulations:

Famously, but not at all relevantly to this article, a TLA is itself a threeletter acronym.1 SMSF and BDBN are four-letter acronyms for Self Managed Superannuation Fund and Binding Death Benefit Nomination which terms have been the subject of recent scrutiny by the High Court in Hill v Zuda [2022] HCA 21. Coincidentally the names of both parties are also of four letters. This article is in two parts: those seeking guidance as to the practical application of the decision should proceed directly to the second part and ignore the cri de coeur in the first. The legislation As noted by the High Court, an SMSF is by definition a superannuation fund that is managed by its members. That fact might give rise to an expectation that the legislative regime should be readily understandable and accessible by those laymen tasked with administering the fund. And this is especially so given that the value of funds held by SMSF’s in Australia approaches a trillion dollars and non-compliance can have severely adverse taxation and other consequences.

Sections 31 and 32 provide for standards to be prescribed by regulations made under section 353; Section 55A deals with cashing member benefits after death of a member; Subsection 59(1), subject to subsection (1A), provides that the governing rules of a superannuation entity other than an SMSF must not permit a discretion to be exercised by a person other than the trustee unless certain conditions are satisfied; Subsection 59(1A) provides that despite subsection (1) the governing rules may, subject to complying with any conditions in the regulations, permit a member to require the trustee to provide a member’s death benefits to the legal personal representative or a dependant or dependants of the member; Regulation 16.17(1) provides for the purposes of subsections 31(1) and 32(1) that the standards set out in regulation 6.17(2) are applicable to all superannuation funds; The standard in regulation 16.17(2) (a)(i) permits benefits to be cashed in accordance with Division 6.3 of the Regulations including Regulations 6.21 and 6.22; Subregulation 6.17A(1) provides for subsections 31(1) and 32(1) that the standard set out in subregulation (4) is applicable to the operation of all regulated superannuation funds; Subregulation 6.17A(2) provides for subsection 59(1A) that a member may require death benefits to be paid to the legal personal representative or a dependant of the member if the trustee gives the member information under subregulation (3); Subregulation (4) sets out conditions to be satisfied in respect of a notice given under subsection (2) including witnessing requirements; Subregulation (7) provides a notice given under subregulation (4) ceases to have effect after 3 years.

Alas, that is not so. The decision in Hill v Zuda is that for an SMSF, a BDBN does not expire after 3 years as they do for other regulated Thefunds.legislative

The court noted that there was no dispute that subregulation 6.17A(2) is referable solely to section 59(1A) and that neither of subregulations 6.17A(2) or (3) has application to an SMSF.

Since subregulation 6.17A(2) has no application to an SMSF, neither does subregulation (4). And since subregulation (4) has no application to an SMSF, neither does subregulation (1) (despite its apparently unqualified operation).

The first and most essential task is to obtain and read the governing documents. That may entail finding the original deed, any amendments and the latest rules adopted.

The documents need careful consideration to determine if BDBN’s are permitted, and, if so, what formalities are prescribed? These may require adherence to a prescribed form, witnessing requirements and service, and acknowledgement of receipt or approval by the trustee.4 Mere filing with other fund documents may be insufficient.

And, just like a Will, challenges to the validity of a BDBN can and do happen.3

Whether or not witnessing is required, it is suggested that it would be unwise5 not to have the nomination independently Anywitnessed.6solicitor taking instructions for a Will, enduring power of attorney or guardianship or a succession plan ought satisfy themselves whether a BDBN has been made, is valid and whether and how it may be replaced if needed.

The court found that the substantive question whether subregulation 6.17A(4), including the 3-year lapsing provision, applies to an SMSF was to be answered by the preferable interpretation of subregulation 6.17A(1) being that it makes the standard set out in subregulation (4) applicable only to the funds to which that subregulation is in terms applicable, those being that the governing rules permit a member to provide benefits in accordance with subregulation 6.17A(2).

including contemporaneous medical evidence if there is doubt, absence of undue influence, ensuring all formalities are observed, preparing and keeping a comprehensive file note and retaining a file copy in safe keeping. It should go without saying that, as for a Will, the solicitor should take instructions direct from the member and not from a third party, let alone someone who may benefit from the nomination.

4 In Munro v Munro [2015] QSC 61 it was held a nomination in favour of “the Trustee of my estate” was not valid because the deed required the nomination to be in favour of the member’s legal personal representative.

Grahame Young is a member of STEP, the Society of Trust and Estate Practitioners, a multi-disciplinary group with branches worldwide, including in Western Australia.

For further information concerning STEP visit https://stepaustralia.com 2022 & 2022)

New Members New members joining the Law Society (June

2 Noting also that the Income Tax Assessment Acts are also applicable. In Re Narumon Pty Ltd [2018] QSC 185, at [44] Bowskill J stated “both s 59(1A) and reg 16.17A(1) are unnecessarily and unhelpfully ambiguous”.

End Notes 1 Some authorities insist that an acronym must be able to be pronounced as a word, such as scuba or NATO, and those that can’t, should be called initialisms. Such pedantry will be ignored in this article.

3 There are many examples including Wooster v Morris [2013] VSC 594, but in a local context reference may be made to Ioppolo v Conti [2015] WASCA 45.

July

5 A prominent practitioner in the field prefers “batshit crazy”. 6 Although witnessing may not be required for the nomination to be binding, the perils of an unwitnessed signature are graphically portrayed in Celtic Capital Pty Ltd v Ceccon [2022] WASC 205.

Associate Membership Ms Sarah Ceric AGH Law Miss Jade Campbell Ashurst Australia Miss Tahlia Briggs Butlers Lawyers & Notaries Mr Thomas Hudson Charles Sturt University Ms Isabella Fiolo Clayton Utz Mr Hasan Gilani Clayton Utz Miss Sally Gilfallan Clayton Utz Mr Matthew Ledger Clayton Utz Mr Daniel Martinez Clayton Utz Ms Emma Young Clayton Utz Mr Will Goyder Corrs Chambers Westgarth Ms Carla Hawgood Corrs Chambers Westgarth Ms Brenna Varcoe Corrs Chambers Westgarth Ms Sophia Spadanuda Curtin University Mrs Valentina Mihailova Edith Cowan University Mr Timothy Wrathall Jackson McDonald Miss Rachel Moody Kerr Fels Divorce & Family Lawyers Ms Madeleine Shehade Loukas Law Ms Thilini Kotuwegoda MDC Legal Mr Stefan Chung Murdoch University Mr Steven Thiele Murdoch University Ms Sandra Fedele Southern Cross University Ms Isabella Darch State Solicitor’s Office Mrs Souzi Clifford The University of Notre Dame Australia Miss Natalie Krsticevic The University of Western Australia Ms Shelby Robinson The University of Western Australia Ms Ruby Wang The University of Western Australia Miss Jess Watson The University of Western Australia Mr Dylan Williams The University of Western Australia Miss Cong Zhao The University of Western Australia Ms Rochelle Conway University of Notre Dame Australia Mr David UniversityFurnessofNotre Dame Australia Mr Tom UniversityOliverofNotre Dame Australia Mr Saad UniversityOmariofNotre Dame Australia Ms Lucas UniversitySpicerofNotre Dame Australia Mr Zachary Bailey Ms Andrea Tokaji Ordinary Membership Ms Jacqueline Leggett Clayton Utz Ms Sheila Begg State Solicitor’s Office Part Time Membership Ms Judith Taseff State Solicitor’s Office Ms Susan Parker K&L Gates Miss Emma Owen State Solicitor’s Office Ms Ilse Van Wijngaarden State Solicitor’s Office Mrs Jaqueline Brockman Restricted Practitioner Mr Milo WraysMrMinterEllisonMrHerbertMsAustwideMsStephenMsPhilipoffMsPaulMsHerbertMrHerbertMrHerbertMsHerbertMsHerbertMsHerbertMsHerbertMrHerbertMrFoglianiBronleighLawyersEdwinBothaSmithFreehillsJackBromleySmithFreehillsRachelChanSmithFreehillsSamanthaCookeSmithFreehillsJessicaKnoxSmithFreehillsJessicaRapanaSmithFreehillsBraydonRyanSmithFreehillsJulianSandersSmithFreehillsSageAdamsCatalanoLegalYiLiangLegalEllenHungerfordBrowneLawyersElizabethKamaraLegalPtyLtdKimberleyShepherdSmithFreehillsPrevotVanderMerweEdwardChanLawyersPtyLtd 55

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

Welcome...

The Law Society’s Young Lawyers Committee encourages the profession to consider a colleague who has a passion for the law and is deserving of recognition.

The Emerging Lawyer of the Year category is specific to those with less than five years’ experience. The recipient of the 2021 award, Kendra Turner, was proudly nominated by the Young Lawyers Committee. We know there are outstanding young lawyers in the WA profession, and it is so important to highlight those that inspire us and make a difference!

Nominate a remarkable young lawyer!

The annual Lawyer of the Year Awards recognise practitioners who have made a noteworthy contribution to the Western Australian legal profession, over and above their paid role to contribute to the profession or community.

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Pictured left: 2021 Emerging Lawyer of the Year (less than five years’ experience) Kendra Turner, Corrs Chambers Westgarth

You can submit a nomination online here, nominations close Friday, 26 August. of the

Demi Swain Deputy Chair, Young Lawyers Committee

he Law Society’s Young Lawyers Committee (YLC) hosted an End of Financial Year Sundowner on Wednesday 29 June, filled with friendly vibes and good company. YLC Sundowners are always a fun night, and this event was no exception. The sell-out crowd escaped the winter chill and enjoyed a night of networking, drinks, and delicious Italian inspired canapes in the warm surrounds of the popular venue, Lalla ThereRookh.was a great representation of young lawyers, graduates, and students from all over Perth and it was amazing to see everyone in such good spirits and enjoying the chance to catch up with colleagues and make new connections.

This edition of Brief marks my last month as Chair of the YLC, and my three years on the Committee. What a time it has been. Since 2021 we have brought back the Young Lawyers Black-Tie Ball, brought together the junior profession through our sundowners, careers evenings, mentoring programme and social sports, and hosted our Ritz-y-est Golden Gavel ever. We have dedicated ourselves to advocating for students, graduates and junior lawyers who have faced a profoundly uncertain time. From underpayments, to harassment, to the joys and hardships of flexible working, the YLC and Law Society have listened and spoken with a clear voice. That will continue, as will all the other fantastic events and initiatives run by the YLC and the Law Society. I am grateful to have been part of them, and look forward to continuing to enjoy and benefit from them once my time with the Committee ends. All that is left for me to do is to say thank you to my Committee and the Law Society, and to particularly thank Maryka Mensink and her team, and the YLC’s Leaders — Aleks Miller, Briony Whyte, Demi Swain, Lyle Swithenbank, Anthony Dique and Thomas Coltrona. You have all made the last two years such a success. And, finally, for one last time I invite you all to enjoy our remaining events for 2022 — we have a great line-up coming before the end of the year, including our social netball competition. Make sure to follow the YLC on Instagram @ylc.wa to get involved.

Chris Burch, Chair Chris Burch Chair, Young Lawyers Committee

Our event sponsor Leo Cussen Centre for Law generously provided a $50 Coles Myer voucher door prize which went to one lucky winner on the night. Thanks to everyone who attended and made it memorable night. We look forward to seeing everyone again soon! Thank you to Leo Cussen for their valued support of this event.

YLC Sundowner: Creating Connection

McElwaine J criticised the involvement of the instructing solicitors in briefing Ms

This case is illustrative of the grave consequences of not appropriately briefing experts so as to maintain the independence and impartiality of their Instructingevidence.

Criticisms of how the expert was briefed

3. During cross examination, Ms Chen admitted to having conversations with, and sending drafts of her report, to the instructing solicitors for comment.6

A recent Federal Court decision serves as an important reminder to instructing solicitors on how best to brief experts, so as to ensure impartiality and independence of the expert’s evidence. New Aim Pty Ltd v Leung [2022] FCA 722 concerned the alleged use of confidential information by former employees of New Aim Pty Ltd (New Aim).

2. The letter of instruction from New Aim’s solicitors was found to be misleading, as it implied that Ms Chen prospectively consider the issues. In fact, New Aim’s solicitors had already prepared a draft report prior to issuing the letter of instruction and therefore knew not only of what the answers to the issues would be, but also the form of the opinion.5

4. Ms Chen also admitted that her report was a ‘collaboration’ between her and the instructing solicitors7 and that she could not confirm that ‘every word of every sentence was 100% written by McElwaineher.’8 J found the involvement of New Aim’s instructing solicitors went far beyond the scope of what was permissible.9 This conduct was “most concerning as it strikes at the very heart of the paramount and overriding duty that an independent expert has to assist the court impartially on matters relevant to the area of expertise of the witness”.

End

Case Notes New

The Court ultimately rejected Ms Chen’s evidence in its entirety.3

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There are some circumstances in which an expert can agree words that have been put to them, without detracting from the independence and reliability of their expert report.14 However, such instances must be fully and frankly disclosed in any Newreport.Aim’s instructing solicitors failed to disclose their methodology and the fact that a substantial portion of the expert’s final report had been prepared by them.15 Not only was this information withheld, but only ascertained during the course of cross-examination of Ms Chen. By not disclosing the methodology of preparing the expert’s report, the requirement of impartiality was substantially undermined16 and was held to be grossly unsatisfactory.17

Impartiality

At trial, New Aim relied on evidence obtained from an expert, Ms Fangyun (Lindy) Chen.1 The extent of Ms Chen’s independence was called into question during cross examination.2

The role of instructing solicitors in briefing experts In briefing experts, the Court also considered, inter alia, the following factors instructing solicitors should take into 1.account:theguiding principle that “care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert”;11 2. the consultation between instructing solicitors and experts must not “distort the substance of the witness’s opinion so that it loses its essential character as an independent report unaffected as to form or content by the exigencies of litigation”; 12 and 3. it is legitimate for instructing solicitors to “identify the real issues for the expert, to indicate when the report fails to direct itself to the real issues, to point out the obscurities and gaps in the reasoning, to indicate that the report fails to distinguish between the assumed facts and the opinion which is supposed to be based on them, and to indicate that the report does not explain how the opinion is substantially based on the expert’s specialised knowledge.”

Implications

solicitors should be cautious not to have inappropriate communications when retaining or instructing an independent expert, or be substantially involved in any drafting of the expert’s opinion. As concluded by McElwaine J; ‘what occurred in this case should not be repeated’.18 Notes New Aim Pty Ltd v Leung [2022] FCA 722 (New Aim) at [28]. 2 New Aim at [45]. 3 New Aim at [77]. 4 New Aim at [47]. 5 New Aim at [74]. 6 New Aim at [48]. 7 New Aim at [60]. 8 New Aim at [49]. 9 New Aim at [45]. 10 New Aim at [74]. 11 New Aim at [65] citing Phosphate Co-operative Co of Aust Pty Ltd [1989] VR 665 at 683. 12 New Aim at [68] citing Cross on Evidence (Electronic Version, LexisNexis, current to March 2022) at [29080]. Ibid. 14 New Aim at [61] citing Harrington-Smith on Behalf of the Wongatha People v Western Australia (No 7) (2003) 3 FCR 424 at [18]-[19]. New Aim at [70]-[72]. Ibid. 17 New Aim at [71]. 18 New Aim at [76]. Demi Swain is the Deputy Chair of the Young Lawyers Committee and an Associate at Bennett Litigation and Commercial Law. Laura Cohn is a Graduate at Bennett Bennett Litigation and Commercial Law. Aim Pty Ltd v Leung [2022] FCA 722 and Independence in Expert Evidence Demi Swain & Laura Cohn

1.Critically:Chen.MsChen produced her report within only 24 hours of receiving her letter of instruction from New Aim’s solicitors.4

Advice to Young Lawyers

Potential Pitfalls in Engaging an Independent Expert by Anthony Dique Member, Young Lawyers Committee

It is important that the expert does not stray (or be seen to stray) into the position of an advocate. For example, asking an expert to assist you by preparing specific cross-examination questions for the other side’s experts is not likely appropriate. It is not appropriate to rehearse a witness (ie rehearse with them what they will say), but it is prudent to prepare the witness (ie by practising their evidence-in-chief and addressing likely questions they will face in cross-examination).

The preference is for key aspects of the instruction to be in writing because written communication can be carefully constructed and controlled.

All dealings with a potential expert should be structured and approached in a conservative way. This will help to avoid an assertion that a lawyer has been exerting influence over an expert.

The instructions need to be clear and: (a) identify the issues which need to be addressed; (b) where necessary provide the relevant information that the expert should have regard to; (c) should not be replete with legal terminology; (d) should be accessible and focused; (e) not include an absurd amount of detail but include enough information to enable the expert to understand their task and answer the questions asked; and (f) the questions to the expert should be posed in a neutral way so the expert is not being led in a particular direction.

When setting out the instructions it is important to: (a) set out the applicable legal test (refer to legislation or case law where necessary); (b) avoid being unduly technical and ensure that the test is set out in a way that is incontestably correct so the other side cannot argue that the expert has been provided with the wrong basis by which to form an opinion; and (c) provide clear instructions so that the expert does not go off course, and so it is clear what the basis is for the opinions they are expressing.

Lawyers must be very careful about asking for changes to be made to a draft version of a report. If there is anything that is substantially problematic, the expert may need to be commissioned to prepare a second Meetingreport.withan expert to discuss their draft report can be done however there are some risks (what extra questions were asked, what extra material was provided, what pressure was exerted, etc) so it could lead to a solicitor being called as a Manywitness.drafts of the report should not be required because the instructions to the expert should be clear. If further drafting is required, written communication is preferable over an in person meeting because it is more transparent.

It is vital to select and commission the right expert in the right way in compliance with the rules of the court or tribunal and the applicable codes of conduct that apply to Expertsexperts.need to understand when their evidence is likely to be admissible and to appreciate and comply with the expectations of courts and tribunals Non-adherence to the relevant code of conduct and the rules of the court or tribunal can provide a fertile source for cross examination.

In light of the decision in New Aim Pty Ltd v Leung [2022] FCA 722, it seems to be an appropriate time to revisit the potential pitfalls to be considered in engaging an independent expert, based on recommendations by Dr Ian Freckelton AO QC.

1.1 General notes on admissibility

1.4 Crafting our instructions to the expert

Lawyers can have a conference with an expert before they are commissioned but it is all on the record. Be wary because such conversations can be misinterpreted and be the subject of cross-examination.

A lack of independence is not a ground for inadmissibility, but it is a potent opportunity to question the probative value of the evidence and to suggest that the expert has been influenced. It is generally preferable to allow the report to be admitted and then attack its probative value.

1.3 Assessing the fortitude of the expert When engaging an expert, lawyers need to do their research. The easy part is finding someone with the requisite specialised Theknowledge.stepsthat should be followed when engaging an expert are: (a) research whether the proposed expert has an informed perspective on a particular area (they should have a background in performing well in a forensic environment); (b) interrogate whether they are capable of expressing themselves coherently in writing; (c) make sure the expert is not alienating and are able to be reasonably articulate; (d) ask others about the expert and talk to them; and (e) assess their ability to explain complex technical issues and to withstand questions as to their technique and reasoning processes.

1.2 Experts can give evidence in a variety of ways: (a) Fact (experts often have a trained appreciation to identify things that the rest of us may not be so attuned to); (b) Opinion (drawing of inferences from (generally) proven facts); (c) Conjecture (experts have an informed perspective on what may have occurred).

1.5 Instructing the expert (oral conferences and written documents) From the moment that anyone is approached to be an expert, it is essential to proceed on the basis that everything said to that person (in writing or orally) could be disclosed in court.

1.6 Draft reports

Draft reports inevitably raise issues regarding the interactions and communications that have taken place between the lawyer and the expert, and whether any influence has been exerted.

1.7 Substantive expert (‘clean expert’) and trial preparation

1.8 Concerns about independence of opponent’s expert

Law Student Mentoring Programme Meet the Mentor & Mentee

Mentor, Dora van der Westhuyzen, member of the Law Society’s Young Lawyers Committee, and her Mentee, Kristina Joseph, at the Suncorp Super Netball Grand Final.

Why did you choose to participate in the Mentoring Programme?

I think mentoring is even more important in your first few years or leading up to becoming a practitioner. Many law students, graduates and newly admitted practitioners know plenty about the law itself but almost nothing about getting their careers up and running, navigating the day-to-day life as a practitioner and the foreign concepts of soft skills, business - and life skills - something most of us are not taught at university. A mentor can help them understand these concepts and how they affect every day practice, together with setting professional goals, steering them toward career-boosting opportunities and giving them access to influential people and networks.

Why do you think mentoring is important to the profession? Mentoring is critical to the profession as a whole. Not only does it offer an outside and experienced or alternative perspective to your career and progression as a practitioner (no matter what stage of your career), but it can also offer an objective perspective on some of the common stresses practitioners face – stresses that can, in the heat of things, feel overwhelming.

Mentee: Kristina Joseph, Murdoch University

How often do you meet up with your mentee? We aim to meet every few weeks and at a minimum once a month. Sometimes we grab a quick coffee until we can schedule a proper catch up that suits both our schedules. Why do you feel your mentee was a good match for you? My mentee and I have plenty in common. Not only our interest in obscure or contentious points in law but also outside of the law. We instantly bonded over our mutual love for netball and as soon as we found out that the Suncorp Super Netball Grand Final will be held in Perth, we booked our tickets! We had the best time!

As we are halfway through this year’s Law Student Mentoring Programme, we spoke with Mentor Dora van der Westhuyzen, Hall & Wilcox and her Mentee, Kristina Joseph, Murdoch University to hear about their experience in the programme so far.

There are a few reasons for why I chose to participate in the Mentoring Programme.

Firstly, as a law student I have accumulated a wealth of information. At times this can be overwhelming as it can be difficult to determine how to utilise such information. Having a mentor guide you through the process and share their experiences enables a smoother transition. This pairing allows you to gain helpful insight and first-hand knowledge into what it is like to transition from university to full time working as a graduate. Secondly, a mentor can assist you in growing your legal and support network. This is crucial as it allows you to diversify and meet people who share the same career passion as you. Additionally, what appeals to me the most is that the Mentoring Programme specifically hosts various networking events to provide a platform for law students to meet professionals and hear their experiences in the legal field. What has been the highlight of the Programme so far? The Programme encourages the mentee to take initiative and periodically meet with their mentor. The highlight of the Programme for me has been when my Mentor and I attended the Suncorp Super Netball Grand Final together. The event itself was spectacular, however, it was more enjoyable as my mentor and I were able to bond over commonalities asides from law. I am grateful for this experience as it allowed us to exchange our thoughts on relevant topics such as the importance of female participation in sports. Resultantly, these discussions allowed us to reflect on the inequalities in our society and how we could be advocates for these causes through our legal careers. Why do you feel your mentor was a good match for you? I feel that my mentor is a good match for me as she encourages me to pursue new challenges and instils her confidence in my ability to reach my goals. My mentor shares her invaluable time by providing constructive feedback to help me grow and develop as an emerging professional. Her vibrancy and people-centric nature makes her very approachable, and this is something I value tremendously in a mentorship. Asides from her profound legal knowledge, she is also a very real and relatable person. Our conversations are balanced with discussions about law related topics, but also about our mutual passion for sport and politics. Most importantly, my mentor has created an environment where I feel comfortable to ask questions and share my opinions without the fear of judgement.

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Mentor: Dora van der Westhuyzen, Hall & Wilcox

Prudence Juris

Mindful that appraisal season is around the corner, you should also make sure to virtually check in with your supervisor to see how they are, given their advanced age and obviously unhealthy lifestyle. Wellness wishes coming your way! - Aunt Prudence. Dear Aunt Prudence, It’s clerkship season and I’m no longer the most junior person in the team.

Thankfully, I’ve been building up a list of tasks that can be delegated to an unsuspecting clerk. How else can I make the most of clerkship season? - Delegating Donna Dear Delegating Donna, What a time to be alive!

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Many a lavish cheeseboard will you enjoy at the excessive “Meet the Clerks” events you will be forced encouraged to attend over the next three weeks. Feeling like you can’t possibly make any more small talk? I know what you mean. Trust me, this Aunty’s worked through her fair share of awkward FNDs in her time. To burn off those extra calories, you’ll need to make sure you make an appearance at your firm’s social netball competition…unless there’s already seven agile clerks on the court. If your body just isn’t moving like it used to – just remember, age, like your CPD target, is just a number.

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Dear Aunt Prudence, My supervising Partner has tested positive to COVID-19 and will be away for the next week. Thankfully, I tested negative but I am now in the office alone – I’ve never had so much freedom in my life! What do I do?

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For the next few weeks, you’ll be flexing the phrase, “Can I get a receipt for that?” on numerous coffee trips with clerks. You’ll certainly be well caffeinated – but only a few risk-takers will be bold enough to include a Community cinnamon scroll in the expense request.

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HCA 21 (15 June 2022) the High Court was required to determine, as a matter of statutory construction, whether reg 6.17A, of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (Regulations) – made under the Superannuation Industry (Supervision) Act 1993 (Cth) (Supervision Act) – applied to a self-managed superannuation fund Zuda(SMSF).Pty Ltd (Zuda) is the trustee of an SMSF known as the Holly Superannuation Fund (Fund) which was created by a trust deed dated 14 June 2000 (Trust Deed). Alec Sodhy and his de facto partner Jennifer Murray were each a member of the Fund and a director of Zuda. The applicant (Hill) is the only child of Mr Sodhy. In 2011 the Trust Deed was amended to insert a clause described as a “binding death benefit nomination” (BDBN). The BDBN provides that if either Mr Sodhy or Ms Murray died, Zuda was required to distribute the whole of the deceased member’s balance in the Fund to the surviving member. Mr Sodhy died in 2016. Hill commenced proceedings in the Supreme Court of Western Australia seeking declaratory and injunctive relief against Zuda on the basis that the BDBN failed to comply with reg 6.17Aof the TheRegulations.Supreme Court (Sanderson M) held that reg 6.17A did not apply to an SMSF and dismissed Hill’s application. Hill appealed, without success, to the Court of Appeal of the Supreme Court of Western Australia (Buss P, Murphy and Mitchell JJA). The Court of Appeal also held that reg 6.17A did not apply to an SMSF and dismissed Hill’s appeal. In reaching this conclusion, the Court of Appeal relied on the decision of the Full Court of the Supreme Court of South Australia in Cantor Management Services Pty Ltd v Booth (2017) 16 ASTLR 489. The Court of Appeal noted that the Full Court had in “seriously considered dicta” expressed the view that reg 6.17A did not apply to an SMSF. The Court of Appeal, citing the reasoning in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, considered that it was bound to follow the Full Court’s view unless convinced that the view was “plainly wrong” which it was not.

The appellants then appealed to the High Court – this time with mixed success. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) reached a unanimous decision and set out its reasons in a single judgment.

The High Court unanimously dismissed Hill’s appeal and delivered its reasons in a single judgment. The High Court, at [4], held that the Court of Appeal was right to decide that reg 6.17A did not apply to an SMSF but considered that the Court of Appeal could have reached that conclusion by construing the legislation for itself. The High Court, at [25] and [26], set out the decision-making principles enunciated in Farah Constructions. The High Court, at [26], held that intermediate appellate courts are not bound to follow the obiter dicta of other intermediate appellate courts “although they would ordinarily be expected to give great weight to them”. As to the substantive question, the High Court observed, at [27]-[33], that the relevant parts of reg 6.17A – regs 6.17A(2) and 6.17A(4) – were made for the purposes of s59(1A) of the Supervision Act. And s59(1A) of the Supervision Act, the High Court noted at [12], operated as an exception to s59(1) and s59(1) expressly provides that it does not apply to a SMSF.

In Hill v Zuda Pty Ltd as Trustee for the Holly Superannuation Fund & Ors [2022]

Both primary judges also considered that the willingness to control sexual desires was, essentially, a threshold question that had to be satisfied before the Court could consider the imposition of conditions on release. Both appellants appealed unsuccessfully to the Court of Appeal of the Supreme Court of South Australia (Kelly P, Lovell and Bleby JJA).

The appellants advanced two broad arguments.

Second, the appellants argued that “willingness” depends on the circumstances in which the opportunity to commit a relevant offence may arise. And the appellants argued that these circumstances may include the conditions

First, the appellants argued that “willing” should be given its ordinary meaning –which is to signify a subjective state of mind on the part of the detainee. The appellants argued that the definition contained in s57(1) of the Sentancing Act applies only to s57. The High Court dismissed this argument. The High Court, at [48]-[49], observed that the appellants’ argument could not be reconciled with other sections of the Sentencing Act which required the Supreme Court to obtain medical reports on whether the person, applying for release, is either incapable of controlling his or her sexual instincts or is at significant risk of failing to control those instincts if given the opportunity to commit a relevant offence. The High Court noted, at [50], that the “unmistakeable” intention of the Sentencing Act is that the question of a person’s willingness is not to be resolved by “uncritical acceptance of the person’s expressed inclination to control . . . his or her sexual desires”.

Dr Michelle Sharpe Castan Chambers, Melbourne Superannuation

Self-managed superannuation fund

Both appellants are subject to an order for detention under the predecessor to s57 of the Sentencing Act. Both appellants applied for, and were refused, release on licence pursuant to s59 (Kourakis CJ in respect of Wichen and Hughes J in respect of Hore). Both primary judges held that, on a proper construction of s59(1a)(a), the term “willing” means the opposite of “unwilling” as defined in s57(1) of the Sentencing Act. And, in each case, the primary judge was not satisfied that the appellant was “willing” to control his sexual desires.

HIGH COURT JUDGMENTS 62 | BRIEF AUGUST 2022

Criminal Law Sentencing In Hore v The Queen; Wichen v The Queen [2022] HCA 22 (15 June 2022) the High Court was required to consider the operation of s59 of the Sentencing Act 2017 (SA) (Sentencing Act). Under s57 of the Sentencing Act the Supreme Court of South Australia may order that a person who has been convicted of certain sexual offences may be detained in custody until further order. Section 59(1) of the Sentencing Act provides that the Supreme Court may authorise a person who has been detained in custody, under s57, to be released subject to certain conditions that is “on licence”. Section 59(1a) (a) provides that people applying for release on licence cannot be released unless they satisfy the Supreme Court that they are “both capable of controlling and willing to control . . . (their) sexual instincts”. The term “willing” is not defined in the Sentencing Act. But s57(1) provides that a person, to whom s57 applies, will be regarded as “unwilling to control [his or her] sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person’s sexual instincts”.

Industrial Relations Allegations of contraventions of ss45, 323, 325, 343 and 345 and “serious contraventions” under s557A of the Fair Work Act 2009 (Cth) - where employees had been granted or sought sponsorship for work visas

In Basi v Namitha Nakul Pty Ltd [2022] FCA 712 (21 June 2022) Mr Basi and Mr Haider (applicants) alleged that their former employer, the first respondent, Namitha Nakul Pty Ltd (Namitha Nakul) contravened the Fair Work Act 2009 (Cth) (Act) and that its sole director and shareholder, the second respondent (Mr Usha), was involved in those contraventions and personally contravened the Act. The case involved application of s557A of the Act, which provides that a contravention of a civil remedy provision by a person is a serious contravention if the person knowingly contravened the provision and the conduct was part of a systemic pattern of conduct relating to one or more other persons. Section 557A has not previously been the subject of detailed consideration by the Federal Court. Namitha Nakul operated two Indian restaurants in NSW. The applicants contended that throughout their employment as cooks by Namitha Nakul they were required to work excessive

The High Court considered, at [58]-[59], that there was nothing in the text of s59 of the Sentencing Act that required the Supreme Court to disregard the conditions of release in evaluating a person’s willingness to control his or her sexual desires. The High Court, at [64], also had regard to the purpose of s59(1a)(a) as set out in the Second Reading speech. The High Court, at [66], found that the amendments, introducing s59(1a), were not concerned to deny the possibility of finding that a person has the required willingness to exercise appropriate self-control on the basis that the person’s conditions of release may help strengthen that self-control.

Multiplicity of proceedings – whether “no win, no fee” model more likely to be in the interests of group members

By Shanta Martin Representative Proceedings

The High Court made orders setting aside the order of the Court of Appeal and decisions of the primary judge in each matter and remitted each of the appellant’s application for release on licence to the primary judge to be determined according to law. Dr Michelle Sharpe is a Victorian barrister practicing in general commercial, real property, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com. au. The full version of these judgments can be found at www.austlii.edu.au.

of release. The High Court accepted this argument. The High Court, at [56], recognised that the conditions of release may have a bearing on the Supreme Court’s assessment of a person’s commitment to exercising appropriate self-control.

In Kosen-Rufu Pty Ltd v Dixon Advisory and Superannuation Services Ltd [2022] FCA 573 (18 May 2022) the Court considered applications from solicitors acting in two class actions that had been commenced, raising overlapping but not identical claims against overlapping but not identical respondents. The proceedings concern retail clients of the financial advisory business, Dixon Advisory and Superannuation Services Ltd (DASS), and investments in the property investment fund known as the US Masters Residential Property Fund.

Piper Alderman, acting for applicants in the Kosen-Rufu class action, sought orders consolidating the two proceedings.

FEDERAL

Shine Lawyers, acting for applicants in the Watson class action, sought orders staying the Kosen-Rufu proceeding or, if no stay was to be ordered, consolidating the two Theproceedings.Courtwas required to determine what would be in the best interests of group members, specifically whether consolidating the proceedings or staying the Kosen-Rufu proceedings would be in the best interests of group members.

The Watson proceeding was funded by Shine Lawyers on a “no win, no fee” basis, with a 25 per cent uplift on costs in the event of success. The Kosen-Rufu proceeding was funded by a litigation funder, which proposed charging commission at a rate of 12.5 per cent or 15 per cent. Shine Lawyers proposed that in the event of consolidation, a cooperation protocol be put in place that quarantined to Piper Alderman’s signed-up group members any obligation to contribute to a funder’s commission. Piper Alderman’s position was that all group members should contribute to the litigation funder’s Thawleycommission.Jaccepted

submissions for Watson that the “no win, no fee” structure with 25 per cent uplift on costs is likely to be lower than the litigation funder’s 12.5 per cent to 15 per cent commission on damages. That arrangement was, on balance, more likely to result in a greater recovery to group members. Shine Lawyers’ funding model was, therefore, in the best interests of group members. The Court was not persuaded that supervision by a litigation funder can lead to better overall supervision of cost and ensures that the proceedings are conducted expeditiously. Other factors considered by the Court were neutral or not significant. His Honour concluded that it was in the better interests of group members to stay the Kosen-Rufu proceeding rather than consolidate the two proceedings because: (1) most importantly, the “no win, no fee” model was likely to result in a better return to all group members and likely to be less expensive than the payment of a commission on damages; (2) less significantly, if the proceedings were consolidated group members would be likely to nominate participating on the terms offered by Shine Lawyers; and (3) the complexity and additional cost and delay which was likely to result from a consolidated proceeding on the basis proposed by Piper Alderman.

JUDGMENTSCOURT

Jagot J also raised concerns about Mr Kelly’s capacity to comply with the mandatory order, noting “if a court wishes to order a person to do a particular thing, then care must be taken to ensure that the person, in fact, can do the thing that is required in accordance with the order” (at [10]). The AEC proposed a more restricted order by which Mr Kelly would be required by 7am the next day to procure removal of the relevant signs erected in the vicinity of two specific polling stations. While Jagot J was satisfied that there was a prima facie case or serious question to be tried, her Honour remained concerned about the respondent’s ability to comply with the proposed order in circumstances where it was by this time 10:18pm and where the words of the order were ambiguous and no provision was made to place a sticker on the signs rather than removing them. Her Honour was not persuaded that it was in the interests of justice to make the order on the grounds of the likely practicality and utility of the order (at [17]). Jagot J also considered it relevant that the alleged non-compliance had been known about for three weeks and the application was being brought the evening before the election. The application was dismissed.

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J was especially critical of the second respondent, Mr Usha, describing him as “not impressive” and “frequently provid[ing] long winded, self-serving and argumentative responses . . . [that] had the effect of obfuscating, rather than illuminating, critical issues” (at [56]). Much of Mr Usha’s evidence was found to be implausible and reflected very poorly on his credit (at [57]). His Honour was highly critical of an attempt by Mr Usha to discredit one of the applicants by seeking a false statement from the other applicant (at Halley[61]).Jfound that the respondents had breached s45 of the Act by failing to abide by the Restaurant Industry Award 2010 in arranging hours of work, failing to pay weekend holiday rates, and failing to pay the amounts due and payable to the applicants. Significantly, his Honour found that the first respondent through Mr Usha had contravened ss323 and 325 of the Act, which impose an obligation on the employer to pay amounts payable to an employee and not to impose unreasonable requirements on the employee to pay or spend money. The provisions were contravened by paying an ostensibly lawful rate and then coercing payments back in cash. His Honour found that Mr Usha made demands for payment of money to cover tax liabilities and visa sponsorship costs in breach of s325, and contrary to ss343, 343 and 345 of the Act which prohibit coercion, undue influence and misrepresentations. Mr Usha engaged in threats to Mr Basi’s employment and visa status so as to make Mr Basi compliant and forego his workplace rights (at [453] and [466]). His Honour also found that Mr Usha had demanded Mr Haider make a payment towards the cost of sponsorship for his visa, in breach of s325 of the Act (at [494]-[495]).

Halley J found that the contraventions of ss45 and 323 of the Act amounted to “serious contraventions” for the purposes of s557A of the Act, as the respondents knowingly contravened the provisions and their conduct was part of a systemic pattern of conduct relating to both applicants (at [426] and [428]). Mr Usha was found to be knowingly involved in these serious Thecontraventions.Courtalsofound that, contrary to the case of the respondents, Mr Haider had worked for the first respondent for several months and was entitled to a quantum meruit payment (at [202]).

FEDERAL JUDGMENTSCOURT

By Shanta Martin hours without any formal breaks, they were not paid their award entitlements, and they were unlawfully required to pay a significant proportion of their wages back to the respondents as either repayments of alleged loans made to them by Mr Usha or to cover tax liabilities on their wages and visa application costs.

Public Administration

Urgent mandatory injunction sought by Australian Electoral Commission for removal of non-compliant election signs.

The Court noted particular difficulties in the evidence. One such difficulty was that the evidence advanced by all parties exposed them to contraventions of the Migration Act 1958 (Cth) (at [20]). Although certificates were provided under s128 of the Evidence Act 1995 as a result of the potential for self-incrimination, witnesses tended to give self-serving and conflicting testimonial recollections, which had to be assessed against the apparent logic of events and objectively established facts.

In Australian Electoral Commission v Kelly [2022] FCA 628 (20 May 2022) the Australian Electoral Commission (AEC), on the eve of the federal election, sought an urgent injunction against Craig Kelly pursuant to s383 of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) and/or s23 of the Federal Court of Australia Act 1976 (Cth). The AEC sought an order restraining Mr Kelly from communicating electoral information in the form of a sign that it alleged did not include authorisation particulars legible at a distance, in breach of s321 D of the Electoral Act (restraining order). The AEC also sought an order compelling Mr Kelly on five occasions between midnight and 4pm on the day of the election to inspect a 100 metre circumference around 42 polling places in the electorate of Hughes for non-compliant signs and remove or rectify them (mandatory order). The AEC contended that the evidence established to a prima facie standard that the signs did not have the name and address of the person authorising the communications at all or in a sufficiently legible form.

Shanta Martin is a barrister at the Victorian Bar, ph (03) 9225 7222 or email shanta. martin@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.

The AEC’s position was that although the restraining order was negative in form, the effect of the order would be to require Mr Kelly to immediately remove all existing non-compliance signage. This would have had the effect of placing Mr Kelly immediately in breach of the order if made (at [8]). The proposed order also had no geographical limitation.

Halley J found that there were aspects of the evidence of each of the applicants that could not be accepted, particularly regarding claims that they had worked 12 hour days, six days a week. His Honour concluded that it was also not established that the applicants had worked overtime hours or had worked for more than five hours on any given day without a break (at [17(d)]). This finding was made notwithstanding that under s557C of the Act, the burden was on the respondents to disprove those allegations due to their failure to keep adequate records (at [206]Halley[218]).

of The Family Law Book FAMILY LAW CASE NOTES

Accredited family law specialists and co-editor

By Craig Nicol and Keleigh Robinson

Children – Contravention – Mother’s “titfor-tat” withholding of child to make-up for father’s earlier non-compliance is not a “reasonable excuse”

The appeal was dismissed and orders made for submissions as to costs.

Wilson J said (from [73]): “ … [It] seems to me that according to existing statements of principle of the High Court, the equitable choses in action of due consideration and due administration under a discretionary trust … are in fact and in law ‘property’ within the meaning of s 4 and s 79 of the Act. I say that for several reasons. In each of the four trusts, the husband retained power permissibly exercised over a certain thing … He held what certain of the authorities describe as a ‘bundle of rights’. The husband enjoys a position of considerable influence and historically the husband has received distributions of approximately $15 million. He also has the ability to block. To my way of thinking the husband enjoys a legally endorsed concentration of power over things or resources … “ ( … [112]) … [I]n my view, not only should the debate in this litigation about whether the husband’s rights are property be fully ventilated at trial but the value of those rights should also be fully ventilated at trial. I am not willing to hold at this interlocutory juncture in this litigation that [the husband’s expert valuer] … is necessarily correct when he asserts that the husband’s rights cannot be valued … [I]n my view, the husband’s contention that no arguable case can be advanced about the ability to value the husband’s equitable choses in action have not been made out, at least not on this application. The case, and that issue in particular, must go to trial.” His Honour determined that the husband’s interests under the trusts were property as defined in s 4(1) of the Act and were capable of valuation.

In Bircher [2022] FedCFamC1A 59 (11 May 2022) the Full Court (Aldridge, Bennett & Howard JJ) considered a decision where the mother had contravened parenting orders in relation to a 13 year old child “C”. The mother argued that the father had withheld the child during her holiday time, such that she was entitled to make up time.

Children – Unilateral relocation allowed where child’s connection with her Aboriginal culture best maintained by living with mother

[27] It is conceivable that a reasonable excuse may involve a reasonable belief … concerning the effect of the other party’s failure to comply … However … we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing … To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of children.

The Full Court said (from [25]): “Whether the father’s retention of C for the first week of the school holidays was appropriate is attended with some doubt ( … [26])

… [T]he father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household … [T]he consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled Superficially, it was a titfor-tat exercise as between the parents. In substance … the disruption and deprivation was doubled for C … On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts …” The appeal was dismissed.

In Childers and Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened … that lack of compliance … does not entitle the mother … to over-hold C … It is not for one party to take these matters into their own hands and engage in self-help.

Property – Husband’s rights under four discretionary trusts “property” – Right to due consideration and due administration capable of valuation

Editor

In Pascoe & Larsen [2022] FedCFamC1A 64 (13 May 2022) McClelland DCJ heard a father’s appeal from an interim decision dismissing an application for the return of the mother and child after the mother unilaterally relocated from City A to City B. The mother and child were Aboriginal and the trial judge concluded that the connection to the child’s culture was best maintained by the child living with the mother McClelland([15]).DCJ said (at [30]-[31]): “ … [H]is Honour states that it is important for the child to live with her mother ‘in order to maintain and promote her connection with her Aboriginal culture’ … His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s 60CC(3)(h) of the Act. [His Honour] … also took into consideration the [mother’s] evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter …” McClelland DCJ continued (from [57]): “… [I]t was entirely proper and, indeed, consistent with his Honour’s obligation … to have regard to the child’s right to enjoy her Aboriginal culture ‘with other people who share that culture.’ It was unnecessary for the primary judge to make findings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. … ( … [64]) … [W]hat his Honour [found] was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the [mother] … [65] Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned … in circumstances where it would detrimentally impact upon the [mother] in terms of her employment and her new relationship. Having regard to those matters … his Honour rejected the [father’s] submission that orders should be made that resulted in that detrimental impact upon the [mother].”

In Woodcock (No 2) [2022] FedCFamC1F 173 (30 March 2022) Wilson J heard a wife’s application for determination of a preliminary issue: whether the husband’s interests in a collection of discretionary trusts was “property” and capable of Thevaluation.husband argued that his interests under the trusts amounted to no more than rights with respect to due administration and consideration of the relevant trusts and such rights were incapable of valuation ([2]).

…

Martin Chemnitz Kriewaldt was, like Mr Namatjira, a Lutheran. He was the sole judge in the Northern Territory for almost the whole of the 1950’s. Respected as a benchmark of fairness and justice, he promoted a policy of assimilation. He generally tried to be fair and merciful although displaying the same sort of condescension characterized by many of his generation.

Mr Namatjira had with him a bottle of rum. Mr Raberaba asked for a drink. Mr Namatjira responded that he could not do so. It was against the law. However he could give Mr Raberaba a pannikan. Now for those of you who are city types, a pannikan is an enamel coated metal drinking mug without which no bushman would be properly equipped. How else can you drink Billy tea?

On the 26th of August 1958, Mr Namatjira was travelling home in a taxi, accompanied by another artist, Mr Henoch Raberaba, a ward of the State.

The artist was Albert Namatjira, a Western Arrernte man from Hermannsberg. Greatly admired in his day, he was patronizingly accorded what might be described as honorary white status. In 1957 he was awarded British subject hood and Australian citizenship which carried with them freedom from restrictions on purchasing or possessing alcohol. It would be another 10 years before a referendum changed the Constitution to enable aborigines to exercise such rights as they had including citizenship.

Alas, too late for Mr Namatjura - as was the postage stamp issued in his honour in 1968. So Mr Namatjura was allowed to buy alcohol. However his adult children and many of his friends were still wards of the State. Selling or giving alcohol to a ward was forbidden under the Northern Territory Licensing InOrdinance.1957,Mr Namatjura, his wife and considerable family were living just out of Hermannsberg, then a Lutheran Mission west of Alice Springs. He was supporting up to 600 people through the proceeds of his art.

66 | BRIEF AUGUST 2022

The Tale of Pannikan to Prison

An example appears in the course of the judgment:

Having lent Mr Raberaba his pannikan, Mr Namatjira called on the driver to stop, whereupon Mr Namatjira got out of the taxi for a while. This happened several times on the journey. Mr Namatjira did not see what happened but it is easy to guess. Each time Mr Namatjira got out, Mr Raberaba helped himself to a generous slug of rum, courtesy of the Thispannikan.mildruse was quickly discovered and Mr Namatjira was arrested and charged with supplying liquor to a Onward.the 7th of October 1958 he was convicted after trial in the Alice Springs Magistrates Court and sentenced to 6 months hard labour. He immediately appealed against both his conviction and sentence before Justice Kriewaldt.

For much of the 20th century there were few middle class homes that did not have a print of ghost gums or blue grey hills hanging on the wall.

Adapted from Namatjira v Raabe (1958) NTJ 608).

“Even before I came to the Territory I was an admirer of the art of the Appellant. Two pictures by one of his sons have graced the walls of my living room for some years. All my life the duty of Christians towards heathens and the duty of the more fortunate towards the less fortunate have been impressed on me.”

Mr Namatjira was represented on appeal by the highly respected Maurice Ashkenasy QC who ingeniously argued a number of constitutional and interpretation grounds which the judge easily dispatched. Perhaps Mr Ashkanasy recognized that on the facts, it was a pretty open and shut case against Mr Namatjira, and so that proved to be. He had slightly more success on the sentence. The judge took into account as mitigation that all his life Mr Namatjira habitually shared his belongings with his friends making it more difficult, though not impossible, to resist Mr Raberaba than it would be for a person not similarly accustomed to share. (Remember the 600 people he was supporting). The sentence was reduced to 3 months. An application for special leave to the High Court was unsuccessful. Within 2 years both Albert Namatjira, 58 and Martin Kriewaldt, 60 passed away.

The episode is best summed up by the author, journalist, and activist Len Fox Here is a man, who with his glowing art, Gave us the beauty of our country’s heart; Here is a man whose skin was coloured brown And so we spurned his gifts and trod him down. Here is a man whom we said with love We make you equal under heaven above; And now as final proof we love him well The key turns slowly in his prison cell.

By The Hon John McKechnie QC

“As recommended by the ALRC, this body would also play a critical role in supporting judicial impartiality and public confidence in the administration of justice.”

“The Law Council has advocated for national harmonisation regarding a definition of family violence and to recognise that it includes coercive control. We look forward to contributing to the planned consultation on National Principles to Address Coercive Control.

68 | BRIEF AUGUST 2022

“We reiterate our position that the minimum age of criminal responsibility should be 14 and there should be no carve outs.

“The Law Council also strongly supports the report’s recommendations aimed at increasing transparency in the judicial appointment process, promoting diversity in the judiciary and improving cultural competency.

Classifieds

FREDERICK ERROL HAYMES (also known as Frederick HAYMES) formerly of 115 Crawford Street, East Cannington, Western Australia and 115 Nettleton Road, Byford, Western Australia, late of Amana Living, Lefroy Care Centre, 22-28 Lefroy Road, Bull Creek, Western Australia, died on 8 April 2022. Would any person holding a Will and Testament of FREDERICK ERROL HAYMES (also known as Frederick HAYMES) or knowing the whereabouts of such Will and Testament please contact the Public Trustee in writing at GPO Box M946 PERTH WA 6843 or by telephone on (08) 9222 6750 within one (1) month of the date of publication of this advertisement quoting reference DE19973037 EM113. Brian PublicRocheTrustee PTO_9974 Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of JONATHON ROSS FENWICK, 6 January 1986, late of 13 Connelly Street, Little Grove, Western Australia, who was found deceased on 20 June 2022, please contact Joss Legal (Addr) Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 (Tel) (08) 6559 7480 (Eml) lawyers@josslegal.com.au Missing Will

“First Nations people fare worse at every stage of the criminal justice process. They are much more likely to be questioned by police; charged by police with a criminal offence; arrested than proceeded against by summons; held on remand in prison than given bail; convicted at trial; and sentenced to imprisonment.

“We look forward to further considering Recommendation 6 and working with the Council of Chief Justices of Australia and New Zealand to review relevant rules and guidance on conduct in light of the High Court of Australia’s decision in Charisteas v Charisteas [2021] HCA 29.”

“This report calls for some significant changes that the Law Council has long been advocating for,” Law Council of Australia President, Mr Tass Liveris said. “In particular, we support the ALRC’s call for the establishment of a Federal Judicial “SinceCommission.2006,the Law Council has advocated for the creation of a standalone Federal Judicial Commission to provide a clear and structured framework for responding to complaints directed to the judiciary.

The ALRC report notes that establishing a Federal Judicial Commission would be a significant reform which requires its own policy development process, including further broad consultation. The Law Council calls for the Government to support the establishment of a Federal Judicial Commission, to establish a consultation process regarding its design, and to ensure that it is adequately resourced to enable it to carry out its functions efficiently and effectively.

MAG prioritises key issues of concern

“The Model Defamation Provisions review into the liability of internet intermediaries has been a substantial and in-depth process and it has the potential to ensure that reforms to the law of defamation in Australia are developed in a way which is comprehensive, complementary, certain and clear.

The Law Council also notes the ALRC’s recommendations relating to improved procedures and guidance to assist federal courts and parties to address potential bias issues as they arise. This is an important step in fostering confidence in the independence of the judiciary.

“It is critical that there be clarity and transparency on procedures relating to bias, to assure court users that such issues can be dealt with in a fair and effective manner,” Mr Liveris said.

The Law Council of Australia is pleased the Meeting of Attorneys-General agreed work priorities for 2022 and beyond include improving Indigenous justice outcomes, addressing coercive control, sexual assault and harassment, raising the age of minimum criminal responsibility, and model defamation “Eachreform.of these issues must be addressed without undue delay and we welcome the commitments stemming from Friday’s MAG,” Law Council of Australia President, Mr Tass Liveris said.

“It was also encouraging to see the Attorneys throw their support behind the Stage 2 Review of the Model Defamation Provisions. The Law Council has previously called for governments to see this review through to completion.

Judicial impartiality critical to procedural fairness

The Law Council of Australia welcomes the recommendations contained in the Australian Law Reform Commission’s report ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias’ which was publicly released today.

“Particularly welcome from the MAG is the decision to make improving Indigenous justice outcomes a standing agenda item.

“We hope to see the nation’s AttorneysGeneral make substantive progress towards addressing these important issues when they meet again in three months under the banner of the Standing Council of Attorneys-General.”

Law Council Update

Piper Alderman

ShaneLaurenMarcheseEvansEntriken,Meriel

Professional Announcements

In addition to holding a First Class Honours Degree in Law, Meriel is a Graduate of the Australian Institute of Company Directors’ Company Directors course. Commenting on her decision to join Piper Alderman, Meriel said: “Piper Alderman, as a highly regarded national law firm, which is part of an international network of law firms, offers great opportunities to expand and grow my practice. I am very much looking forward to providing clients with a complete and comprehensive full service offering from a competitive and collegiate firm.”

Julie

Pragma Lawyers Pragma Lawyers is pleased to announce three appointments within their team.

Piper Alderman welcomes dispute resolution and litigation partner in Perth office

Lauren has spent over a decade working as a property lawyer, practising in top tier national and international firms and acting on matters spanning across all Australian jurisdictions.

Dirk Branford

Dirk Branford Special Counsel, Disputes and Litigation

Meriel is an internationally recognised dispute resolution lawyer with expertise in domestic and international arbitrations, mediations and expert Asdeterminations.aleadingadvisor in the energy, mining and life sciences and healthcare sectors, she has also worked in London, the Caribbean and is highly experienced in the Australian court system having practised in both Sydney and Perth.

Dirk is an experienced senior litigation and international arbitration practitioner with experience gained in private practice and in-house roles, internationally and in Australia.

Meriel holds a number of board positions including Director of the Australian British Chamber of Commerce (WA Branch), Director of Telethon Community Cinemas and Director of Australia-Africa Minerals & Energy Group (AAMEG). She is also a mentor with Mentor Walks and an active member of Business Women Australia and the British Business Network.

Julie Marchese Special Counsel, Employment Law Julie was admitted to practice in the Supreme Court of Western Australia in 2004. She is also admitted to practice in New South Wales and New Zealand.

Dirk advises on complex litigation, arbitration, contentious commercial and regulatory matters and represents clients in both state and federal courts.

Julie has represented and advised multinational companies, small businesses, unions and individuals on a wide range of employment, industrial relations and occupational health and safety issues. She offers clients individualised, practical and commercial advice.

Since graduating in 2001 with a Bachelor of Laws and a Bachelor of Commerce, Julie has worked in international law firms with top tier employment practices in Australia, New Zealand and Hong Kong. She has also worked as a Human Resources Manager, in-house Employee Relations Lawyer, and the Director of Employment and Industrial Relations for a large Hong Kong based industrial association.

Julie joined Pragma Lawyers as Special Counsel, Employment Law on 1 August 2022.

Lauren has experience across a broad range of property and real estate matters, including due diligence; contract review and preparation; agricultural, commercial, industrial, port and retail leasing; the sale and purchase of land, including office buildings, shopping centres, agricultural land, interests in Crown land and residential land; government projects; land developments and access rights including easements and licences. Due to the nature of property work, Lauren also has experience with business sales, FIRB applications and requirements, planning and environment related issues including native title and contamination, and GST and transfer duty laws and requirements as they relate to property transactions.

Having worked on a number of largescale transactions and projects, including the purchase of iconic landmarks such as the Old Swan Brewery and large cattle stations across Western Australia and the Northern Territory, Lauren understands the need to provide clear, pragmatic and commercially minded advice to her clients with a focus on the bigger picture, while still ensuring impeccable attention to Laurendetail.joined Pragma Lawyers as Special Counsel, Property Law on 18 July 2022.

Piper Alderman’s national Managing Partner, Tony Britten-Jones, commented on Meriel joining the firm: “Opening the Perth office in July 2021 was only the start for our presence in WA, as we finish FY22 with our Perth office exceeding expectations for its first year. We are delighted to welcome Meriel, who is a highly respected lawyer and active member of the business and legal communities in Perth.” Meriel joins the Perth office’s founding partners, Shane Entriken and Paul Sartori.

A graduate of the University of Pretoria, South Africa with a Bachelor of Laws and a Masters of Law (Corporate Law). After practising as solicitor and barrister in South Africa, Dirk relocated to Australia and has most recently spent 9 years at a major international law firm as counsel with a particular focus on disputes within the energy and resources industry.

With over 20 years’ experience in commercial dispute resolution and commercial litigation, Meriel Steadman joins Piper Alderman from the 1st of August in its Perth office.

Dirk joined Pragma Lawyers as Special Counsel, Disputes and Litigation on 1 August 2022.

Lauren Evans Special Counsel, Property Law Lauren is a Special Counsel at Pragma Lawyers, specialising in property and real estate Laurentransactions.graduatedfrom the University of Notre Dame Australia with a Bachelor of Laws and Bachelor of Arts in 2010, and was admitted to practice in the Supreme Court of Western Australia in 2011.

Steadman and Paul Sartori For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Corporate Communications T: (08) 9324 8650 E: lawsocietywa.asn.auadvertising@lawsocietywa.asn.au 69

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Brief August 2022

Articles inside

Federal Court Judgments

Law Council Update

Member Privileges

New Members

A Matter of Trust: The High Court’s Scrutiny of Self-Managed Superannuation Fund (SMSF)

Revenge Porn and Sexting Moments of Indiscretion – a Lifetime of Regret?

Special Feature: Listening to First Nations Voices

Ethics Column

Legal Profession Uniform Law The New Costs

Waiver of Legal Professional Privilege and Associated Material

On the Rights and Wrongs of Unvaccinated Jurors

2022 Contentious Business Determinations

President’s Report

Editor’s Opinion