Editor’s Opinion

Jason MacLaurin SC

Editor, Brief | Barrister, Francis Burt Chambers

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.

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.

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 involved - and where we stand in regard to the past, the present and the future.

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.

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.

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 and inspiration on 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 right.

If 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.

Celebrating 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.

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 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.”

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 clashes).

When lawyers bemoaning the lack of time, energy or effort involved in fulfilling a worthwhile contribution and making a difference, inspiration comes from our $50 note.

On 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.

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 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 room.

The 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.

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).

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.

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.

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 2019. After 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 complaints. With 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. 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. 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 necessary. Regrettably, 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. In this regard 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]. 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. 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 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”. 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. Yours Sincerely.

Steven Penglis SC - Barrister 1 August 2022

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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. 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. 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. Also in his letter, Mr Penglis says that the Committee’s delay in dealing with the complaints against him is not an isolated case. In that regard, I accept that there are other investigations which have involved delays which should have been avoided. However, the Committee and the Legal Practice Board (Board), which supports the Committee to perform its functions, are both working to ensure that such delays are eliminated in the future. On 1 July 2022, pursuant to the Legal Profession Uniform Law Application Act 2022 (WA), Western Australia became part of the Uniform Law Scheme (Uniform Law), joining the other 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. 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. 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 of complaint handling under the new structure and the Uniform Law, and the identification of new key performance indicators. Improving 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. Yours sincerely, Russell Daily Legal Services and Complaints Officer Legal Practice Board of Western Australia