Brief February Edition

VOLUME 49

NUMBER 1

FEBRUARY 2022

Special Feature:

Human Rights in Focus

Also Inside

Part two of our feature explores WA’s potential next steps

Young Lawyers Committee Section - Novak, Climate Clauses and more

Ethics The Pitfalls of Cutting Corners for Certification Convenience

Understanding “Them” How to plot your course through the pronoun transition

Taxing Matters Capital Gains Tax and its Effect On Values

Extraterritorial Freezing Orders

& bly m e ss

Management

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Volume 49 | Number 1 | February 2022

CONTENTS

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FOLLOW US lawsocietywa.asn.au @the_Law_Society_of_Western_Australia

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LawSocietyWA

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@LawSocietyWA

ARTICLES 06

Council Member Interview: Gary Mack

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Council Member Interview: Judy McLean

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Special Feature: Human Rights in Focus - Part 2

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Extraterritorial Freezing Orders

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Taxing Matters: Capital Gains Tax and its Effect on Values

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YLC Section

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YLC Case Notes

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YLC Climate Clauses

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YLC Netball Wrap-up

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Aunt Prudence Juris

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Summary of Judgment Bolitho v Banksia Securities Ltd (No 18) (remitter)

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Understanding “Them” Pronouns Being Sought by Clients and Courts

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

REGULARS

Submission of articles: Contributions to Brief are always welcome.

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

02

President’s Report

61

Family Law Case Notes

03

Editor’s Opinion

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Member Privileges

47

New Members

63

Quirky Cases

Senior Vice President: Ante Golem

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Ethics Column

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Cartoon

Immediate Past President: Jocelyne Boujos

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WA Case Notes

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Law Council Update

Ordinary Members: Ben Bullock, Rebecca Bunney, Dr Brett Davies, Angie Gimisis, June Kenny, Gary Mack, Judy McLean, Kellie Woods

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High Court Judgments

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Professional Announcements

55

Federal Court Judgments

67

Classifieds

President: Rebecca Lee Junior Vice President & Treasurer: Paula Wilkinson

Junior Members: Thomas Camp, Selina Gates, Hamish Glenister Chief Executive Officer: David Price

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PRESIDENT'S REPORT Rebecca Lee President, The Law Society of Western Australia

Welcome to the first edition of Brief for 2022, and my first President’s Report.

As I commence my term as President, I would like to pay tribute to my predecessor, Jocelyne Boujos. Jocelyne has made an outstanding contribution to our Law Society and much has been achieved under her dedicated leadership over this past year. With her bright personality and quiet determination, she threw herself into every challenge; graciously embraced those moments out of her comfort zone; and led the Law Society with such heartfelt joy and commitment. I look forward to Jocelyne continuing to make a valuable contribution in her role as Immediate Past President.

I am also pleased to be welcoming our 2022 Council at our first meeting in February, and I look forward to working with the team this year.

There are a number of key areas the Society will focus on during 2022, ranging from personal resilience in your legal practice to being a strong leader in your workplace, profession and community.

COVID-19 Protocols and Policies COVID-19 still dominates the news headlines at the beginning of 2022. With the pending opening of our State borders, the Law Society continues to take measures to protect the health and safety of our staff, members and visitors to our office and the Old Court House Law Museum.

As of Monday, 31 January 2022, all visitors to our offices who do not have a medical exemption must be fully vaccinated for COVID-19 if they are over 16 years of age. »Read more here.

Advocacy Update

Given the health risks associated with COVID-19, reasonably practicable steps may need to be taken that reduce the risk of COVID-19 being caught by workers or other persons arising from a business or undertaking.

It is therefore appropriate to have a policy that reflects the requirements of any relevant Public Health Orders. To assist our members, the Law Society has developed a Guide to Assist the

Development of a COVID-19 Vaccination Policy.

COVID-19 Information and Resources Hub As we are living and working in a rapidly changing environment, I would like to remind you of the Law Society’s COVID-19 Information and Resources Hub, for the latest information relating to COVID-19.

LawCare WA As a Law Society member, you have access to our complimentary LawCare WA health and wellbeing service to help you manage your career, life, health and wellbeing. To find out more about the Society’s LawCare WA services, visit lawsocietywa.asn.au/lawcarewa; or call 1300 687 327 to speak with a counsellor or to make an appointment.

CPD Freedom – Do you have all your CPD points yet?

At this time of year, with the 31 March deadline looming, making sure you have all your CPD points is important. We have made this easy for you by offering CPD Freedom to all members, which provides unlimited attendance at live CPD seminars (including webinars), heavily discounted online seminars, seminar papers and discounts to special CPD events.

Over 3,300 CPD Freedom members are enjoying highly engaging and interactive sessions. (CPD Freedom was included as a free membership benefit if you renewed your membership before 31 July 2021.) Our newest programme delivers well regarded speakers and great topics for an outstanding educational experience.

The Law Society has also introduced a new online learning platform, CPD Online. It’s easy to earn your CPD points online with seminars available on-demand, at a time you choose, on your laptop, desktop or mobile device 24/7.

Legal Profession Uniform Law (LPUL) A key issue of importance this year is to take Western Australia forward in the nationalisation of our profession, to achieve uniformity around a cohesive set of rules and regulations for how the Australian legal profession be best run.

Since the December 2021 Issue of Brief the Society finished a busy year of advocacy work led by our Standing Committees.

In December the Law Society Council approved: urgent correspondence suggesting amendments to the Aboriginal Cultural Heritage Bill correspondence to the Attorney-General on the status of Registrars

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submission to the Department of Justice on the reform of sentencing legislation submission to the Department of Mines Industry Regulation and Safety regarding Security of Payment Regulations submission to Legal Services Council on conditional cost agreements under the Uniform Law.

In December 2021, the Law Society wrote an open letter to Members of the Legislative Council in relation to the Legal Profession Uniform Law Application Bill 2021 and Legal Profession Uniform Application (Levy) Bill 2021, as well as the Administration Amendment Bill 2021.

There are only four Parliamentary sitting weeks in 2022 prior to 1 April. Therefore, the Law Society expressed concern as to why, with the support of both the Government and Opposition, these pieces of uncontroversial but important legislation has still not been passed?

Read the open letter here.

Given the uncertainties about the timing of when Parliament may pass the Legal Profession Uniform Law Bill, the Attorney General deferred the proposed 1 January 2022 commencement date. No definite date has yet been given, but the Attorney General will keep the Law Society and profession closely informed.

Once passed, the Uniform Law will create a common legal services market across New South Wales, Victoria and Western Australia, encompassing more than three quarters of Australia’s lawyers.

The Law Society has developed a series of resources and training sessions to support the profession through this change. We will be presenting our LPUL CPD series at the end of February and throughout March, so please keep a look out for more details.

What’s Our Story?

As legal professionals, we need to be challenging sexual harassment in the workplace to change the culture. What’s Our Story? brings you ‘sliding door’ scene re-enactments of what should have happened to highlight best practice behaviours. You will leave better informed about workplace sexual harassment, what to do about it and what the consequences are if a person crosses the line. Don’t miss out on this engaging and enjoyable presentation of a serious issue.

If you missed out on last year’s sold-out performance, you now have chance to be in the audience and experience this event for yourself on Thursday, 24 March. Find out more here.

In January 2022, the Law Society welcomed new Committee members appointed in the 2021 biennial review with an inaugural ‘Committee induction’, explaining the governance of the Law Society and Committee processes and procedures. The Society also convened a working group to consider a submission on the Mental Health Act 2014 statutory review, and in the pipeline are submissions on the contentious business determinations and s.31A of the Evidence Act.

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

Welcome to Brief’s first edition for 2022, which continues our focus from last year’s December edition, on exploring human rights issues and the law.

If this seems a lengthy time gap for parts of a single-themed project, Tarantino’s Kill Bill 1 and Kill Bill 2 were released six months apart (at the time seeming like, as a Kardashian would say, “forevvverrrrr” and comparable to the exquisite agony in awaiting the final series of Ozark.)

The time gap between Harry and Meghan Sussex producing their Spotify podcasts1 is incapable of measurement in anything other than perhaps entitlement and greed,2 as they have produced one: a recounting of their “holiday experiences” with Elton John and James Corden. It can be safely assumed that if those responsible for Brief had holidayed in such circumstances, much more would have been produced.3 The concept of “Human Rights” law is broad and multi-faceted. COVID – in its stubborn “look at me” and “I will not be ignored” way seeks to lay claim to the field.4 Though what the two-part feature editions of Brief hopefully shows is that, while many aspects of the reaction to COVID since our last edition and as 2022 kicks off have brought human rights issues into sharp relief, the virus thankfully does not have exclusive purchase on all important human rights topics.

The “Mad as Hell” Oscar winning performance of Australian Peter Finch as the somewhat deranged TV news presenter Howard Beale inthe 1976 film “Network”.

Joe Feldman, Alyssa Glass and John Southalan author the feature article on the relevance of Human Rights to businesses and WA lawyers. We have a most interesting interview with Mary Anne Kenny, Associate Professor with the College of Law (and past chair of the WALRC) on lawyers and migration agents’ responses to clients’ mental distress.

Curtin Law School’s Dr Jackie MapulangaHulston addresses the crucial issue of effective remedies in Human Rights law and, recognising that any consideration of human rights issues must include consideration of violence against the vulnerable. Aboriginal Family Legal Service’s CEO Corina Martin, and Hamish Glenster’s articles, are essential, if confronting, reading.

Chloe Wood’s engaging article on the path to a Human Rights Act in WA will hopefully result in reader engagement and responses to Brief as this is a serious question that even the Society has yet to reach a settled landing upon. We also have UWA lecturer Aidan Ricciardo and his fellow researchers’ analysis concerning LGBTQI+ law students and HHG Legal Group’s informative summary of significant amendments to the Sex Discrimination and Fair Work (Respect at Work) Act 2021.

As always, Brief offers something for all and we have Michael Douglas and Nilan Ekanayake’s insights into one of the law’s “nuclear weapons”, being Extraterritorial Freezing Orders, and we thank Graham Young from the Law Society’s Tax Committee for his article on CGT and its

effect on values. Legal linguists will also be engaged by the article Understanding “Them”, addressing our constantly evolving language and inclusiveness in the context of the Courts and profession.

Our regular YLC section is a must to read, with a case note on the controversial Djokovic saga and how young lawyers can impact the tackling of climate change.

While COVID ought not rule every current concern, the governmental and societal reactions to COVID, especially recently, cannot be ignored. The Editor didn’t initially recognise key elements of the maelstrom, thinking all the publicity about “Canadian Truckers” was promoting a Discovery Channel show to occupy someone’s time before exercising the fundamental right to prompt and then peaceable, uninterrupted access to the final episodes of Ozark.

Things are getting serious though and people (and those who rule them) seem increasingly capable of nastiness, officiousness and selfishness to each other – something lawyers and the law have to be part of discouraging and resolving as best can be done.

It seems apt to refer to the 50th anniversary of the great Oscar winning performance of Australian Peter Finch (also sadly, the 50th anniversary of his death, Finch being only one of two posthumous acting Oscar winners) as the somewhat deranged TV news presenter Howard Beale in “Network”: specifically, his “I’m as Mad as Hell and I’m not going to take it anymore” (MAH) speech/rant.5

EDITOR’S OPINION Brief hastens to add that the MAH phrase is not, in itself, a statement of official Society policy, nor an appropriate face tattoo upon, or a submission to the Court to be made by, any lawyer (though like many such things, it might look OK on a red cap).

From a human rights perspective it is telling that the fulcrum and spine tingling/ tear jerking part of Beale’s speech preceding the “MAH” part is: “You’ve got to say: ‘I’m a human being, g-d dammit!

My life has value!’.

Lawyers are in a unique (and privileged and onerous) position not only to be able to [putting aside the blasphemous explicative] speak to and give life to this concept, but also most importantly, to do so for and on behalf of others.

Significantly, prior to Beale’s MAH phrase is this: “We know things are bad – worse than bad. They’re crazy. It’s like everything everywhere is going crazy, so we don’t go out anymore. We sit in the house, and slowly the world we are living in is getting smaller, and all we say is: ‘Please, at least leave us alone in our living rooms. Let me have my toaster and my TV and my steelbelted radials and I won’t say anything.

Just leave us alone’ and “I don’t want you to protest. I don’t want you to riot – I don’t want you to write to your congressman, because I wouldn’t know what to tell you to write.”

Only two actors have been awarded posthumous acting Oscars, both Australians. The other is Perth born and raised Heath Ledger,6 for his stunning, dark and complex portrayal of The Joker, another character who, from a very different perspective, has something to say about what happens to a citizenry and ruling elites, when things seem to be on edge.

Perhaps the most famous line from the Ledger’s Joker is not by him but about him (spoken, naturally by Michael Cainewho else!), “Some people just want to see the world burn.”7 Nevertheless, Ledger’s Joker had some eerily prescient statements: “Madness, As You Know, Is Like Gravity. All It Takes Is A Little Push!”, “I’ll show you, when the chips are down, these—ah—”civilised people”? They’ll eat each other. See, I’m not a monster. I’m just ahead of the curve” and, something that might resonate with certain lawyers: “If you’re good at something, never do it for free.”

As for Jokers maintaining that if you’re good at something never do it for free, thought with no claim to the former element, 2002 has already gifted us Stormy Daniel’s former attorney Michael Avanetti, who sacked his legal team and represented himself in unsuccessfully defending charges he stole money from miss Daniels and demonstrating once

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again representing oneself is invariably a poor idea. Some gems from Avanetti’s bizarre cross-examination of Daniels include: Avenatti: “Didn’t you tell the New York Times that watching me work was like watching the Sistine Chapel painted?”

Stormy Daniels: “That’s what you told me to say” and “Didn’t you tell the government I was nice and respectful?”

Daniels: “I was wrong” Avenatti: “Move to strike!!.”

Daniels did get on board with lawyers generally with this Joker like gem: Avenatti: “You know lawyers do not generally work for free?”

Daniels: “I’d be shocked if you did”.

In today’s age serious issues do manifest themselves through somewhat unlikely agents and the important issue of freedom of speech is erupting though most prominently played out in a battle between an ex-UFC commentator and essentially libertarian podcaster who once convinced Elon Musk to smoke a joint on his show, and old rocker Neil Young, seemingly concerning an allegation that Rogan was spreading “dangerous misinformation” about COVID through his podcasts and Young apparently alleging that the only possible use for ivermectin is as a horse de-wormer, with Young threatening to remove his entire catalogue from Spotify, if Spotify did not remove Rogan’s show.

This is all a bit weird, and even more so given that Young’s most famous band was an insane equine, so he possibly could have done with some ivermectin, and that he waxed lyrical about a girl who was apparently injecting herself with cinnamon.

To the extent these references are not recognised by most readers, this may speak as to why Young’s threat to remove his music from Spotify did not have quite the explosive effect anticipated, and also that when Joni Mitchell weighed in threatening to do the same, the threat reached the same sort of proportions as if the Sussexes had threatened to remove their extensive Spotify catalogue.

Also of note is that Kim Kardashian has recently passed on her 4th attempt (which must have seemed like “foreverrrr…”) her “Baby Bar Exam” in California. Whatever else might be said about Kim K praise is in order. She chose the law as the vehicle through which she would pursue, not other things, but human rights/social justice issues. She preserved with it, despite initial failures. And Kim K’s human rights and social justice credentials (and efficacy) ought not be dismissed.8 As an advocate for prison rights reform she has had many people released, often by petitioning President Trump (who, lest it be thought is a pushover for such things, did not, despite intense pressure, pardon Joey “Tiger King” Exotic, an observation that perhaps betrays watching way too

much cable TV waiting for Ozark).

There have been some more classical human rights figures that, yes, to address COVID, have had interactions with viruses and quarantines. Abraham Lincoln’s Gettysburgh Address is of course a landmark address with human rights elements to it. A lesser reported fact surrounding that moment was that Lincoln had to then quarantine at the White House for a month, having shown the symptoms of varioloid (a variant?) of smallpox (his lessened symptoms suggesting that he might have been previously exposed to full smallpox). Unfortunately and tragically, Lincoln’s muchl-loved valet William Johnson, a free African American, and someone who Lincoln described as “the most useful member of the presidential party” was not so fortunate . He had accompanied Lincoln to Gettysburg, cared for Lincoln upon his quarantine, yet himself succumbed to smallpox. Lincoln, who had guaranteed the mortgage on Johnson’s house, could do little more than (and did do) pay from his own pocket all Johnson’s funeral and other expenses paid for the discharge of the mortgage over Johnson’s house and it is said insisted he be buried at what is Arlington National Cemetery.9

End notes 1 Reputedly for 30 million pounds.

2 Though who knows, EntitlementGreedCoin might well, so far as the Editor knows, be the newest and hottest brand of Cryptocurrency 3 Hopefully not in the form of excessive CO 2 emissions or, for that matter, INTERPOL warrants.

4 A bizarre combination of Kath & Kim and Glenn Close’s Oscar Winning performance in Fatal Attraction the only other link seemingly being the hairstyles of Kath and Glenn Close.

5 One can view it here as no mere description can do it justice: Watch it here.

6 One humbling additional thought is that both Howard Beale and the Jokers’ unhinged tirades read much better on transcript than an average appearance before the Court of Appeal.

7 Finch was an “English-born” Australian actor, however legitimate claims are made by Australia summarily claims such persons, including, of course, Mel Gibson. Mr Ledger was, of course, Perth-born and bred.

8

See Kim Kardashian; Human Rights Champion & Prison Reform Advocate, R Alshhri, 8/12/21, the daily scrum news

9 https://military-history.fandom.com/wiki/William_ Henry_Johnson_(valet)

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Interview: Law Society Council Member Gary Mack Principal, Abacus Legal & Mediation

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

Would you recommend Council for other practitioners?

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

Both professionally and personally I have benefitted from Law Society Membership. I have developed friendships and mentors. It has also been a vehicle to pursue my interest in Access to Justice, that is that all citizens regardless of means or disability or other attribute have access to legal advice and representation.

My first interaction with the Society was through the Access to Justice committee when Rick Cullen and, then Greg McIntyre were the Convenors. I am now the Convenor and also on the LCA Access to Justice Committee.

Yes, I would. To get a better understanding of the profession and of course to contribute to the profession.

Getting on a committee is a great way to start.

Given that I have a daughter who is entering into the profession, the recent training and enhanced awareness of sexual harassment and bullying is a very welcome development.

What do you most enjoy about being a sole practitioner?

Do you have a favourite part of Brief?

I became a sole practitioner to have more control with my working life so I can make other contributions to the community. Being a sole practitioner has increased risk, so I select my matters very carefully and I am comfortable to saying no to new matters if I don’t have the capacity or capability. I also have a network of colleagues that I can call if I need support or opinions regarding difficult matters.

I like reading the updates and articles on areas of law outside of my area of practice.

To be a good lawyer, I think you need a broad knowledge of the law and not just detailed knowledge of your area of practice.

What has been your experience as a Council Member in 2021?

My experience is that the Law Society and its Council is responsible for many activities for the benefit of the public and profession. These vary from running an insurance scheme to operating a museum. It is far more than an industry association for lawyers.

The Society is a powerful advocate for lawyers and the interests of justice..

You are a Council Member for the Town of Cambridge – have the experiences you’ve had there impacted how you approach the Law Society Council? have found that there are many similarities between Law Society governance and local government administration. The Agenda structure is similar where there is an agenda item with an underlying report from management. The running of Law Society Council meetings is also similar with en-bloc voting.

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What inspired you to complete your course at the Australian Institute of Company Directors?

I would highly recommend the AICD course. It provides excellent governance training which I have applied on the committees and boards that I am on.

Since you began practice, what change in the law/legal profession has been the most positive?

The recent focus on practitioner’s mental health is very important not just for the benefit of the practitioner and their family but also for their clients. Many practitioners who come before the Legal Practice Board or the LPCC do so in my opinion because of underlying mental health issues.

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

This is a very good question. I plan my work day carefully by prioritising tasks and completing tasks in that order. In addition to having an online diary, I also use a “list” app. At home I don’t watch much TV and rarely engage in social media which saves a lot of time. Where possible, I try not to work on weekends and always block out well in advance about six weeks holiday annually.

Do you have any wellbeing tips?

For me good well-being involves a balanced life. For me there is professional life, there is a life of family and friends and then there is community service and involvement with others. I have been an active surf life saver since I was 14 and have made many friends as well as keeping fit through this activity. I love cycling and often cycle to work. I have also found that mindfulness meditation is a calming and relaxing practice that has helped my mental health in a very busy world.

Announcing Our New CPD OnlinePortal

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lin

The Law Society has introduced a new online learning platform, CPD Online, which is now available.

e

CPD Online is an on-demand flexible learning platform allowing you to obtain high quality CPD seminars, at a time you choose, on your laptop, desktop or mobile device 24/7.

On the platform homepage, you will find all the information you need to access online seminars and papers, manage your CPD requirements and other useful related CPD information.

CPD Online complements the Law Society’s full programme of live seminars and webinars scheduled for February and March 2022.

Live seminars and webinars can be viewed here.

Accessing the new portal

02

03

Click on My Membership Click on CPD Online

01 Log on to our

Membership Portal at: members.lawsocietywa.asn.au or click here 7

Interview: Law Society Council Member Judy McLean

Principal Solicitor and Coordinator of the Fremantle Community Legal Centre Why did you decide to run for the Law Society Council?

I decided to run for Law Society Law Council in order to become more engaged in the matters that concern the legal profession. I have had various roles over the years, and in my current role as principal solicitor and coordinator of the Fremantle Community Legal Centre, I felt that I could offer a unique perspective of the ever-changing legal landscape.

What has been your experience as a Council Member in 2021?

I underestimated the voluminous reading materials, but I find the experience rewarding. I get to participate in essential decisions that impact us all. I am always surprised that we get through so many issues in one session, how time management is rarely an issue.

You are the Principal Solicitor at the Fremantle Community Legal Centre – are there any practical challenges as a council member not based in the CBD? Yes, the distance and travel to the City to attend in person is not always practicable as I’m generally busy trying to wrap up at the office. The disadvantage of not getting into the City is not meeting council members face to face or even being able to socialise at the dinner after the meeting. However, as a new member, the online format provides a little cover for my inexperience in these meetings which is not the worst thing when I’m awkwardly flicking through pages of documents, but hopefully I will be able to make the sessions in person.

Would you recommend Council for other practitioners?

I would certainly recommend other practitioners join Council; it is a great way to expand your knowledge across a broader section of the law than just the areas we primarily practice in. It

8 | BRIEF FEBRUARY 2022

introduces us to other practitioners which in turn builds new relationships and creates invaluable networks.

What do you most enjoy about the Community Legal field?

The community legal sector is so different from private practice or working as an inhouse lawyer because the reward is not monetary it’s personal gratification.

I enjoy looking at a myriad of problems and unravelling the knotted challenge one issue at a time with the client until we are able to bring a client through the crisis.

Time is gift to the CLC lawyer and a tool of empowerment to the client.

What inspired you to complete your Masters in Law? I actually enjoy studying and wanted to do subjects that do not align with my daily work, so I did resources, oil and gas and mining law units. Loved it but am never likely to practice in those areas.

But then again, who knows I enjoy a challenge.

Since you began practice, what change in the law/legal profession has been the most positive?

As a family lawyer predominantly, the changes to the court process and the inclusion of attention to FDV and child abuse, including the ability to obtain police reports and DCPFS reports has been pivotal to the increase in more appropriate orders for children who were subject to or exposed to FDV. The progression toward collaborative lawyering and the increase in dispute resolution as a means to settling matters has been timely and beneficial.

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

I would like to change the image of lawyers as predators and piranhas by hoping that the community will be able

to see that behind the billing and the adversarial manner that the majority of lawyers are dedicated people who actually view their profession as a vocation. This change starts with us, and it is why I invest so much time in law students and law graduates because I want to influence how they lawyer in the future.

Do you have a favourite part of Brief?

I enjoy the main articles written around high profile cases or new and emerging legal issues.

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

It took me years to get here but I made the change by changing my attitude toward the work. While I work to serve my clients and support my staff, the most important people in my life are my family and I prioritise them. I still work long hours when required but no longer as a general pattern. I make personal time for myself and book in dates with my family, especially if I am working on a large matter and I may be unavailable for a prolonged period due to the work commitments because they keep me grounded.

Do you have any wellbeing tips?

You need to stay healthy internally and externally. In the context of my work where you deal with clients who have extremely harrowing experiences, whose lives are shattered and their worlds are falling apart, you need to keep mentally well and healthy otherwise we have little to offer our clients. I do this by never taking myself too seriously, making sure I enjoy the little things in life and never taking anything for granted.

What’s Our Story?

Challenging Sexual Harassment in the Workplace to Change the Culture

Presented by Brought to you by Equal Opportunity Specialists (EEO), featuring professional actors and facilitated by Franca Sala Tenna

Our March CPD Event Not to be Missed!

This is a story of one legal workplace, it could be any legal environment, it could be yours.

What’s Our Story? is the scenario of characters Stephanie, the newest addition to the law firm, and Larry, the junior partner and high-achieving litigator. What happens next will provoke, challenge and make us reflect.

Now is your chance to be in the audience and experience this event for yourself.

Informed by last August’s audience feedback, this repeat performance brings you ‘sliding door’ scene reenactments of what should have happened to highlight best practice behaviours. As the drama unfolds, you get to call out bad behaviours, interact with the characters and be drawn into the complexity of how workplace sexual harassment can be allowed to flourish and how it can be addressed.

You will leave better informed about workplace sexual harassment, what to do about it and what the consequences are if a person crosses the line.

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human

rights

in focus

Feature Contents 09

Business and Human Rights: Relevance for WA Lawyers

16

(Why) Aren’t We There Yet? The long and Winding Road to Equal Opportunity in Law

18

Interview with Mary Anne Kenny, Associate Professor of the Discipline of Law

20

The Importance of the Right to an Effective Remedy in Human Rights Legislation

23

Human Rights Obligations to Family and Domestic Violence

25

The Family Violence Provisions: Why they fail some of our most vulnerable migrants

27

The Path to a Human Rights Act for WA

29

Evolving Perspectives - How LGBTQI+ Law Students and Recent Graduates Perceive and Experience the Western Australian Legal Profession

33

Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021

Please Note: on occasion the Law Society provides Brief as a forum for discussion and exploration of differing view points around evolving issues in our profession and community.

As a result, not all of the views expressed within Brief neccessarily align with the Law Society’s official position on some issues.

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.

10 | BRIEF FEBRUARY 2022

In this edition we continue our exploration of human rights and the important role we as legal professionals play in shaping the laws which protect our community.

Business and Human Rights: Relevance for WA Lawyers

By Jo Feldman1, Alyssa Glass2 and John Southalan3

This article is an update to an original article by Southalan published in Brief 46/1 (February 2019) at pages 6–11.

The new additions are solely the work of Feldman and Glass.

The implications of international human rights for businesses are rapidly expanding. Since John Southalan wrote the original version of this article, less than three years ago, the landscape in which businesses operate has continued to evolve apace. The Modern Slavery Act 2018 (Cth) has commenced operation, completed its first reporting cycle, and is almost due for its three-year review.4 The Commonwealth Treasury has strengthened the human rights complaints mechanism under the OECD Guidelines for Multinational Enterprises (OECD Guidelines).5 And recent years have seen growing public focus on government inquiries examining business impacts in areas such as banking, aged-care providers, and the gig-economy.6 Many international standards are enacted as Australian law, for example: prohibiting discrimination on

gender, race, age and other grounds; outlawing corruption and bribery; and criminalising trafficking. Compliance with these regimes is a matter of Australian statutory, administrative and constitutional law. But there are also increasing roles and legal implications of international human rights standards regardless of Australian domestic law. This article summarises the key documents and recent developments.

1 UN Guiding Principles on Business and Human Rights The UN Guiding Principles on Business and Human Rights (UNGPs)7 were adopted by the United Nations in 20118 and have been accepted and endorsed by many businesses.9 The UNGPs have become the predominant framework underlying the current understanding and approach to business and human rights. The UNGPs confirm that human rights obligations on (and of) states remain unchanged10 but, in addition, each business has a “responsibility to respect” human rights. By

“human rights”, the UNGPs include the standards in the 1948 Universal Declaration of Human Rights, plus all the main international human rights treaties which have been developed thereafter – even if the particular treaty has not been adopted by the state in which the company is operating, or that state’s domestic law is inconsistent.11 That is, if the domestic law permits activities below what is specified by international human rights standards, then the company is expected to respect the international standards.12 The “respect” for human rights, as explicated in the UNGPs, comprises three elements: 1

The business should adopt a human rights policy, involving a public commitment to the organisation’s responsibilities and expectations regarding human rights impacts of its work and workers, reflected in operational policies and procedures.13

2

The business needs to conduct human rights due diligence of its operations, which involves

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11

Human Rights Special Feature identifying and preventing potential impacts as well as addressing actual impacts.14 3

Remediation processes should be established for impacts which have occurred or been identified.15 This aspect comprises two areas, depending on the company’s connection with the impact. For impacts the company has caused or contributed to – the business must itself provide for, or cooperate in, remediation. However, for impacts with which the company is “directly linked” (such as harm by a supplier to the company) the business need only use leverage to prevent and mitigate their recurrence but, if unsuccessful, consider ending the relationship.16

1.1 Implementing the UNGPs UNGP processes, or parts thereof, have created legal implications for businesses in four main ways.

The first is national or regional regulation, like France’s Due Diligence Law, California’s Transparency in Supply Chains Act, and the EU’s Directive on Disclosures of NonFinancial Information. Australia’s Modern Slavery Act is another example of this, and is examined further in Section 4 below.

The second way in which the UNGPs have legal implications is through contractual obligations, particularly prevalent in membership and certification requirements such as those involved in the International Council on Mining and Metals, the Roundtable on Sustainable Palm Oil, and the International Code of Conduct for Private Security Service Providers.

There are increasing examples of such contractual obligations within procurement contracts from large entities like the Dutch Government and FIFA. Financier requirements is the third way in which UNGP compliance arises, as is the case for certain types of projects and financial assistance from the World Bank (through the IFC Performance Standards on Environmental and Social Sustainability) and Equator Principles banks, which in Australia includes the ‘big four’. Financial requirements relevant to human rights and the UNGPs also arise in stock exchange listing obligations like the UK’s Strategic Report and Directors’

12 | BRIEF FEBRUARY 2022

Report Regulations 2013, South Africa’s Companies Regulations 2011 (r 43), and conflict minerals reporting for listing on the US Stock Exchange, under the US Dodd-Frank Act. The fourth way in which UNGP compliance may arise for companies is through general procedures, involving reporting or complaints investigation – such as the International Labour Organization and UN initiatives17 – the broadest of which is the OECD Guidelines.18

1.2 UNGP statements and Australian laws on misleading conduct The UNGPs – and related reporting obligations such as modern slavery laws – have expanded corporate publications about human rights, which will give increased relevance to the regulation of statements under the Australian Consumer Law. The prohibition on false / misleading statements19 was not envisaged as addressing human rights reporting but can extend to corporate statements which occur in the context of the UNGPs.20 While this has not yet arisen in Australia, corporate liability for human rights and related statements has occurred in other jurisdictions.21 The area will likely mirror the manner in which regulation responded to corporate environmental statements – where companies face civil action and regulator prosecutions if they make unsubstantiated claims about their products or services.22

National Contact Points, for complaints about company compliance with the content of the OECD Guidelines (which, since 2011, has included the UNGPs).

Like the UNGPs, the OECD Guidelines emphasise that where domestic law falls below international human rights standards, a company is expected to ensure compliance with the international standards. If domestic law actually prohibits conduct which complies with the international standards, then the OECD Guidelines would not require a company to breach the domestic law.26 However, in many cases, the domestic law will simply enable company rights or actions without the level of protection of rights that international standards specify, and so the domestic law does not prevent a company from meeting the (higher) international standards while acting consistently with domestic law.

The OECD Guidelines are the only current international mechanism (with government, business and labour endorsement) which examines UNGP compliance at a case level, so the OECD Guidelines are an important and increasing area of attention. The majority of complaints since 2011 have been about corporate non-compliance with human rights.27 The ‘complaint’ process under the OECD Guidelines essentially involves the following stages.

1

Any party can make a ‘complaint’ (i.e. there is no need for standing or any connection with the matter or the alleged victim28). The complaint is formally termed a “specific instance” under the OECD Guidelines.29 It is lodged with the NCP of the country where the impact occurred or where the company is registered, and frequently a complaint is lodged with both ‘host’ and ‘home’ country NCPs. A complaint must identify those parts of the OECD Guidelines alleged to have been breached. Where it is related to human rights, a complaint normally alleges some deficiency of the company regarding a human rights policy, due diligence, or remediation (those concepts being framed by the UNGPs).

2

The NCP conducts an initial assessment. The National Contact Point decides whether a bona fide case has been demonstrated30 (if not, then the NCP refuses to proceed with the matter31). This should occur within three months of receipt of the complaint.

2 OECD Guidelines for Multinational Enterprises The widest application of the UNGPs is through the OECD Guidelines,23 which are an internationally agreed code for responsible business, featuring a complaints mechanism and implementation bodies (‘National Contact Points’ or NCPs). The OECD Guidelines apply to any multinational company (but also to state-owned entities and even NGOs24) from an “adhering country”, which includes Australia, and therefore any Australian company operating overseas as well as multinationals operating in Australia.

The OECD Guidelines cover much more than just human rights,25 also outlining expected standards regarding “Employment and Industrial Relations”, “Environment”, “Competition”, and “Taxation”.

The OECD Guidelines establish a complaint-mediation process, through

humanrightsinfocus On 3 November 2021, ANZ adopted a precedentsetting Human Rights Grievance Mechanism to evaluate and report on complaints of adverse human rights impacts associated with its institutional or corporate lending customers.35

3

4

If a NCP considers a bona fide case exists, then the NCP can facilitate mediation between the parties. This is formally termed the NCP “offer[ing] good offices to help the parties involved to resolve the issues”,32 and there is no time limit on these processes. This stage can also involve the NCP commissioning independent inquiries and reports.

The NCP issues a final statement, which should be less than three months after any mediation finishes.

The final statement is effectively the NCP’s decision or report on the process and: -

wherever possible, any statement and outcomes are agreed by the parties;

-

the final statement may include the NCP’s recommendations for the company, and observations on company non-compliance (or compliance) with the OECD Guidelines; and

-

the final statement may presage the NCP undertaking future review of the matter and following up with statements on compliance.

The published decisions of NCPs are a relatively young ‘jurisprudence’, and somewhat uneven (some NCPs are well-resourced and active, but others do little to promote the OECD Guidelines and compliance therewith33). However, NCP decisions provide an important guide on UNGP implementation, and will be an

increasing forum of disputation, as illustrated by some Australian NCP final statements of recent years.

In February 2020, the Australian NCP issued a Follow Up Statement regarding a complaint submitted

by NGOs on behalf of Cambodian families, against ANZ. The parties had ongoing contact following the 2018 Final Statement, and requested the Australian NCP to facilitate a dialogue through its “good offices” process. The Australian NCP noted that ANZ had acknowledged that “its initial due diligence, before making this loan, was inadequate” and had “committed to review and strengthen its human rights policies and grievance mechanisms”.34 On 3 November 2021, ANZ adopted a precedent-setting Human Rights Grievance Mechanism to evaluate and report on complaints of adverse human rights impacts associated with its institutional or corporate lending customers.35 In June 2021, the Australian NCP issued a Final Statement about a complaint regarding ElectraNet Pty Ltd, which alleged that ElectraNet’s construction of electricity facilities in South Australia had damaged Aboriginal heritage sites (for which the complainants, the Starkeys, have traditional custodial responsibilities).36 ElectraNet was unwilling to engage in good offices, and so the complaint was independently reviewed and assessed. The Final Statement noted that most of the affected sites

were subject to an agreement with the relevant indigenous bodies, and those bodies had given no indication of concerns with the agreements nor with ElectraNet’s actions.

Accordingly, the complaint was not accepted in respect of those sites.

Regarding the one site outside those areas, nothing was provided to the Independent Examiner indicating ElectraNet engaged with the Starkeys consistently with the expectations of the OECD Guidelines. The Final Statement referred to expectations under international standards and the OECD Guidelines regarding free, prior and informed consent (FPIC),37 and recommended that ElectraNet engage in dialogue with the Starkeys to resolve the complaint in respect of the relevant site.

In September 2021, a community association submitted a complaint regarding BHP, in which the association alleged that BHP’s industrial emissions were “causing dangerous health risks to community”.38 After engaging with the parties from February to June 2021, the Australian NCP rejected the complaint as inadmissible, in part because BHP’s existing measures appeared to be “consistent with much of the Guidelines’ expectations regarding environmental management”.39 In declaring the complaint inadmissible, the NCP also took into account that the association had other “ongoing opportunities and procedures” available to it to engage with BHP and government agencies

13

Human Rights Special Feature in respect of many of its concerns, including through “WA regulations and industry and BHP procedures”, which already “provide much of the engagement expected by ‘grievance mechanisms’ under the OECD Guidelines”.40 These examples illustrate the range of outcomes possible under the NCPs’ processes. While companies may be found to have breached the OECD Guidelines, many complaints are summarily rejected or, when examined and mediated, result in confirmation that the company has not breached the OECD Guidelines.

2.1 Australian National Contact Point for OECD Guidelines The AusNCP is the Australian Government body (within Commonwealth Treasury) which oversees the implementation of the OECD Guidelines in Australia. The AusNCP can receive, and mediate, complaints that Australian companies have breached the OECD Guidelines. It has operated for nearly 20 years, with variable effect. Some cases have seen outcomes reducing Australian company impacts on human rights,41 but there have also been less positive results.42 In 2017, an independent review identified many deficiencies in the AusNCP’s work and procedures, particularly related to inadequate resources.43 In November 2018, the Commonwealth Treasury committed to improvements and greater resourcing;44 and recent AusNCP cases and statements herald increased AusNCP involvement in companies and human rights issues.45

2.2 Due diligence guidelines The OECD (sometimes partnering with other international organisations) has produced a range of ‘due diligence’ guidance to assist businesses in understanding their human rights responsibilities and conducting due diligence. Some of these OECD documents are then used and referenced by international and domestic laws and standards in identifying appropriate corporate conduct,46 as well as in NCP decisions. These OECD guidance documents include a general guide (2018)47 but also particular guides for sectors or actors with higher prevalence of human rights impacts or specific issues to consider in due diligence. These include the following:

14 | BRIEF FEBRUARY 2022

Responsible Agricultural Supply Chains (2016);48

the Porgera mine site in Papua New Guinea.55

Responsible Supply Chains of Minerals (2016);49

Observations and decisions from treaty bodies (being the committees established to oversee implementation of each human rights treaty and monitor national compliance). These committee publications sometimes address corporate responsibility in theory56 but have even greater relevance (in raising flags for companies’ attention) where they address specific cases. For example, in its 2012 observations on Australia, the Committee on the Rights of the Child made the following statement.

Meaningful Stakeholder Engagement in the Extractives Sector (2017);50 Institutional Investors (2017);51 and Responsible Supply Chains in the Garment and Footwear Sector (2018).52

3 UN and international developments The UN Human Rights Council continues to debate the role and content of a possible treaty about business and human rights. The contemplated treaty is not proposed to effect any changes to human rights standards.

Rather, it envisages more mechanisms, and stronger obligations on states and companies, than those which currently exist under the UNGPs and associated structures. The third revised draft of the proposed treaty was released in August 2021 by a working group of the UN Human Rights Council.53 The direction of development of the proposed treaty remains uncertain and, even at its highest, the treaty still envisages a state-based mechanism, directed at states to enforce (through courts or other national initiatives), with the usual treaty-monitoring committee (comprising members chosen by states parties). As such, in the absence of state action, this provides no current implications for corporate observance of human rights, and little change in the foreseeable future.54 However there are already existing processes at the international level – through the UN and elsewhere – which consider compliance by companies with international human rights law.

There are various UN bodies and groups which produce materials addressing companies and human rights. These materials can focus on a specific company or state, or on the issue more generally (e.g. by expounding how the UNGP processes should work).

They provide important information on how a company should implement its ‘responsibility’ for human rights.

Examples include: Statements and reports from the Office of the High Commissioner for Human Rights. For example, the Commissioner provided observations on remediation initiatives relating to

27. The Committee is concerned at reports on Australian mining companies’ participation and complicity in serious violations of human rights in countries such as the Democratic Republic of the Congo, the Philippines, Indonesia and Fiji …

28. In light of Human Rights Council resolutions … adopting the … [UNGPs], in which it is noted that the rights of the child should be included when exploring the relationship between business and human rights, the Committee recommends that the State party [ie. the Australian Government]: (a) Examine and adapt its legislative framework (civil, criminal and administrative) to ensure the legal accountability of Australian companies and their subsidiaries regarding abuses to human rights, especially child rights, committed in the territory of the State party or overseas and establish monitoring mechanisms, investigation, and redress of such abuses, with a view to improving accountability, transparency and prevention of violations…57 Inquiries and recommendations of UN bodies and officials, examples of which include the recent statement on Corporate Human Rights Due Diligence,58 the Human Rights Council’s recommendations to Australia,59 and observations of various Special Rapporteurs.60 While many of these recommendations are explicitly directed at states, they still

humanrightsinfocus have relevance for companies. The identification, in a UN document, of human rights impacts and deficiencies in a state’s responses, should be red flags to a company operating in that environment: extra attention will be needed in the company’s due diligence and remediation processes under the UNGPs.

4 Australian Modern Slavery laws The Modern Slavery Act commenced at the start of 2019.61 The Modern Slavery Act requires entities based or operating in Australia with annual revenue of at least $100 million to report annually on “the risks of modern slavery in their operations and supply chains, and actions to address those risks”.62 The first full cycle of reporting under the Modern Slavery Act ended on 30 June 2021, with close to 2,500 modern slavery statements submitted, covering more than 4,400 reporting entities.63 A review of statements lodged by top ASX companies under the Modern Slavery Act, published by the Australian Council of Superannuation Investors (ACSI), found that most

companies have complied with the minimum requirements of modern slavery reporting, with “clear groups of leaders and laggards”.64 In ACSI’s analysis, the majority of statements have appeared to follow a “race to the middle approach”, seeking to satisfy the legal requirements of the Modern Slavery Act without disclosing more than key peers.65 ACSI identified key opportunities for companies to improve, by: deepening disclosure on operational risks; providing more detail about how policies, risk assessments and training are being implemented; collaborating with suppliers and other stakeholders to address their modern slavery risks; strengthening grievance mechanisms to manage modern slavery complaints; and outlining how the effectiveness of actions to address modern slavery risks is measured and assessed.66 The next 12 months will be critical to strengthening and broadening companies’

risk management and reporting processes.

The Modern Slavery Act is scheduled for a statutory review in January 2022,67 and it remains to be seen what reforms, if any, will be recommended.68

5 Relevance for WA practitioners The main implication from the above, for WA lawyers, is that advising and representing clients involves more than just the relevant ‘domestic’ law (be that Western Australian or Commonwealth). Lawyers therefore need to understand whether international human rights standards indicate further requirements beyond the Australian law relevant to the particular events or transaction on which the lawyer is advising. Perhaps discomfortingly, the High Court is not the arbiter of international human rights standards and has acknowledged that Australian law – including its pronouncements – may interpret obligations differently to international bodies.69 It is those international standards which reign in this field.

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Human Rights Special Feature protections, and companies are, of course, entitled to rely on these. However, there are areas where Australian law does not ensure international human rights standards, and additional attention would be prudent in these situations, such as the extractives sector (mining, oil, gas); issues regarding native title and respect for traditional cultural heritage and sacred sites; investment contracts with governments; and operators in conflict-prone or failing states.70 The key question for WA lawyers, in determining the content of a company’s responsibility to “respect human rights” is: if the Australian domestic law and practice is insufficient to meet international standards, what more is required from the company (e.g. to ensure it is compliant with the OECD Guidelines)?

Lawyers need familiarity with this area to properly advise and assist clients (and perhaps even avoid liability for professional negligence71) – whether the client is corporate, government or a third-party affected by company activities. Useful materials include: IBA and Law Council of Australia materials and training;72 OECD guidance documents (see Section 2.2 above); the UN’s 2012 Interpretive Guide73 and more recent publications;74 and publications of the Parliamentary Joint Committee on Human Rights.75

Endnotes 1 Special Counsel (Norton Rose Fulbright). Jo Feldman and Alyssa Glass are grateful for the input of Chris Owen, Partner and National Pro Bono Head of Practice (Norton Rose Fulbright).

2 Associate (Norton Rose Fulbright).

3 Barrister (WA Bar Association); Adjunct Academic (University of Dundee, UWA, Murdoch, Curtin). Dislcosure: John Southalan commenced as Independent Examiner of the AusNCP in August 2019, after the original article was published. He had no responsibility in the updating of this article.

4 The Modern Slavery Act 2018 (Cth) is discussed in Section 4 of this article.

5

The OECD Guidelines and the Australian National Contact Point thereunder are discussed in Section 2 of this article.

6 The government inquiries are: The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. See Commissioner Hayne, Final Report: Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, Australian Government, 4 February 2019. In the interim report, Commissioner Hayne noted, “[t]he more complicated the law, the easier it is for compliance to be seen as asking ‘Can I do this?’ and answering that question by ticking boxes instead of asking ‘Should I do this? What is the right thing to do?’”: Commissioner Hayne, Interim Report: Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, Australian Government, 28 September 2018, page 290.

The Royal Commission into Aged Care Quality and Safety, a national inquiry examining how “aged care services ... meet the needs of the people accessing them ... including mistreatment and all forms of abuse ... and any actions that should be taken in response”: Letters Patent Establishing the Royal Commission into Aged Care Quality and Safety, Australian Government, 6 December 2018, para (a). See Commissioners Pagone and Briggs,

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Final Report: Care, Dignity and Respect, Australian Government, 1 March 2021.

The Inquiry into the Victorian On-Demand Workforce, which reported in July 2020 on working conditions in the ‘on-demand’ economy: Chairperson James, Report of the Inquiry into the Victorian On-Demand Workforce, Victorian Government, July 2020. For further background, see also: Chapter 8, ‘The Gig Economy: Hyper Flexibility or Sham Contracting?’, in Senate Standing Committee on Education and Employment, Corporate Avoidance of the Fair Work Act, Australian Parliament, 6 September 2017.

7 UN (Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises), Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Annex to UN Doc A/HRC/17/31 (United Nations Human Rights Council, 21 March 2011) (UNGPs).

8 UN (Human Rights Council), Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc A/HRC/RES/17/4 (United Nations, 6 June 2011).

9 Prominent international examples are BP, BT, Cisco, Ericsson, H&M, Nestlé, Newmont and Unilever. In Australia, examples include BHP Billiton (pages 18–19 of BHP Billiton, Our Code of Conduct: The Guide to Bringing Our Charter Values to Life, August 2018), Commonwealth Bank (Chairman, Human Rights Position Statement, Commonwealth Bank of Australia, 2015), and Wesfarmers (Managing Director, 2018 Modern Slavery Statement for Wesfarmers, 13 September 2018).

10 UNGPs, Guiding Principle 1. This principle confirms the existing international law and structures which oblige states to respect and protect human rights (through laws, policies and measures) and fulfil human rights (ensuring remedies where these human rights are violated). Further detail is provided in Guiding Principles 2–10. The obligations arise under existing treaty and UN processes (see e.g.: Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/ Rev.1/Add.13, 26 May 2004, [4]–[8]; see more generally: R.K.M. Smith, Textbook on International Human Rights (OUP 2012) Chapter 10.

11 UNGPs, Guiding Principle 12 and its accompanying Commentary, which explicitly identifies some standards of the UN and the International Labour Organization but also incorporates “additional standards … depending on the circumstances”, which has been understood to include subsequent human rights treaties and declarations. See e.g.: UN (Office of the UN High Commissioner for Human Rights), The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, UN Doc HR/PUB/12/02 (United Nations, June 2012) (UNGPs Interpretive Guide) pages 11–12.

12 UNGPs, Guiding Principle 23.

13 UNGPs, Guiding Principle 16.

14 UNGPs, Guiding Principles 17–21.

15 UNGPs, Guiding Principles 13 (distinguishing between the three instances of cause, contribute and linkage through a business relationship), 22, and 31.

and earlier decisions against Lloyds and Sanyo. The latter court orders are summarised in Australian Competition and Consumer Commission statements: Environmental Bag Claims ‘Misleading’ (Release No. MR 087/04, 25 May 2004) and Federal Court Finds “Green” Claims to be Misleading (Release No. MR 235/03, 11 November 2003).

23 OECD (Adhering Governments), OECD Guidelines for Multinational Enterprises (Organisation for Economic Co-operation and Development, 25 May 2011) (OECD Guidelines).

24 See e.g.: OECD (Secretary-General), Annual Report on the OECD Guidelines for Multinational Enterprises 2017 (OECD, 19 June 2018) (OECD 2017 Annual Report) page 18 (describing cases under the OECD Guidelines involving state-owned entities and “a non-profit organisation involved in commercial activity (World Wildlife Federation)”).

25 The OECD Guidelines were originally adopted in 1976 but have been amended various times and their latest format (dating to 2011) incorporates UNGP frameworks.

26 OECD Guidelines, Part I, [2]. The actual wording is: “in countries where domestic laws and regulations conflict with the principles and standards of the Guidelines, enterprises should seek ways to honour such principles and standards to the fullest extent which does not place them in violation of domestic law”.

27 OECD (Secretary-General), Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015 (OECD, 21 June 2016) (OECD (2016)) page 40; OECD 2017 Annual Report, page 23.

28 NCPs have accepted complaints lodged by parties impacted, unions, companies, local government, politicians, community groups, lawyers, and others.

29 Although the OECD Guidelines formally use the terms “specific instance” (rather than “complaint” to an NCP) and “statement” (rather than “decision” of an NCP), they are nonetheless developing a forum of “determinations” on “cases” – both those terms are used by the OECD Secretariat in recent annual reports (rather than “statements” on “specific instances”), see e.g.: OECD 2017 Annual Report, pages 8 (“cases”) and 19 (“determinations”).

30 OECD Guidelines, Part II, Commentary, [27]. In assessing “bona fide” and whether to continue with the matter, “the NCP will take into account: - the identity of the party concerned and its interest in the matter; - whether the issue is material and substantiated; - whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance; - the relevance of applicable law and procedures, including court rulings; - how similar issues have been, or are being, treated in other domestic or international proceedings[;] [and] - whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines”: OECD Guidelines, Part II, Commentary, [25].

16 The concepts of “directly linked” and “leverage” are further explicated in UNGPs Interpretive Guide, pages 46–51.

31 And 20–50% of complaints resolve in this manner: OECD (2016), pages 32–34; OECD 2017 Annual Report, page 13.

17 See Section 3 of this article.

32 OECD Guidelines, Part II, Procedural Guidance C [2].

18 The OECD Guidelines are examined in Section 2 of this article.

33 See, more generally, about the OECD Guidelines and NCP decisions: OECD Watch (Secretariat), Effective NCPs Now! Remedy is the Reason (Centre for Research on Multinational Corporations [SOMO], November 2017); OECD Watch (Secretariat), Calling for Corporate Accountability: A Guide to the 2011 OECD Guidelines for Multinational Enterprises (Centre for Research on Multinational Corporations [SOMO], October 2017); OECD, OECD Guidelines for Multinational Enterprises: A Glass Half Full – Liber Amicorum for Roel Nieuwenkamp (OECD, 20 June 2018).

19 See e.g.: Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) s 18; Australian Securities and Investments Commission Act 2001 (Cth) s 12DA; Corporations Act 2001 (Cth) s 1309.

20 J. Southalan, ‘Say what? The Regulation of Company Statements Arising from UNGP Processes’ (2017) 1(1) Human Rights Law Committee News 51.

21 For example, there was US litigation against Nike regarding its statements about its factory conditions.

These proceedings settled after a 2003 US Supreme Court decision (Nike Inc v Kasky, 539 U.S 654, dismissing an appeal and directing the proceeding to continue).

However, similar court proceedings continue to arise in the United States: see C. Myers, ‘What’s the Legal Definition of PR?: An Analysis of Commercial Speech and Public Relations’ (2016) 42(5) Public Relations Review 821.

22 Relevant concepts are summarised in Australian Competition and Consumer Commission, Green Marketing and the Australian Consumer Law, ACCC 03/11_30681_292 (Australian Government, 11 March 2011); and cases include Australian Competition and Consumer Commission v Holden Ltd [2008] FCA 1428

34 AUS NCP (Australian National Contact Point), Follow Up Statement Regarding Complaint Submitted by Equitable Cambodia and Inclusive Development International on behalf of Cambodian Families (Department of Treasury, 27 February 2020) [5].

35 ANZ, ANZ Human Rights Grievance Mechanism Framework (ANZ, November 2021).

36 AUS NCP (Australian National Contact Point), Final Statement: Complaint by Andrew Starkey and Robert Starkey Regarding ElectraNet Pty Ltd (Department of Treasury, 9 June 2021).

37 See also, in this regard, the recently released final report on the destruction of indigenous heritage sites at Juukan

humanrightsinfocus Gorge, which recommended “[e]mbedding FPIC in Australia’s legislative and regulatory frameworks”: Parliament of the Commonwealth of Australia, A Way Forward: Final Report into the Destruction of Indigenous Cultural Heritage Sites at Juukan Gorge (Joint Standing Committee on Northern Australia, October 2021) Part 7, [7.47]–[7.53] and Recommendation 3.

38 AUS NCP (Australian National Contact Point), Final Statement: Complaint by Port Hedland Community Progress Association Regarding BHP (Department of Treasury, 1 September 2021).

39 AUS NCP (Australian National Contact Point), Final Statement: Complaint by Port Hedland Community Progress Association Regarding BHP (Department of Treasury, 1 September 2021) page 16.

40 AUS NCP (Australian National Contact Point), Final Statement: Complaint by Port Hedland Community Progress Association Regarding BHP (Department of Treasury, 1 September 2021) pages 21–22.

41 See e.g.: AUS NCP (Australian National Contact Point), Statement on GSL Australia Specific Instance (Department of Treasury, 6 April 2006) [10]; AUS NCP (Australian National Contact Point), Statement on BHP Billiton – Cerrejon Coal Specific Instance (Department of Treasury, 12 June 2009) [15]–[17].

42 See, broadly: K. Zornada (Non-Judicial Human Rights Redress Mechanisms Project), The Australian OECD National Contact Point: How It Can Be Reformed (Corporate Accountability Research, 12 June 2017).

43 Department of Treasury, Independent Review: Australian National Contact Point under the OECD Guidelines for Multinational Enterprises (Australian Government, 26 September 2017) pages 11, 44–45.

44 Department of Treasury, Treasury Response to the 2017 AusNCP Independent Review (Australian Government, November 2018).

45 See e.g.: AUS NCP (Australian National Contact Point), Final Statement: IndustriALL Global Union on Behalf of the Free Trade Zones and General Services Employee Union (FTZGSEU) of Sri Lanka and the National Union of Employees in Companies Manufacturing Rubber Products (NUECMRP) of Malaysia, against Ansell Limited (Department of Treasury, June 2017) page 9; AUS NCP (Australian National Contact Point), Final Statement: Specific Instance by Equitable Cambodia and Inclusive Development International Regarding ANZ Group (Department of Treasury, 27 June 2018) [30], [37], [46]–[48].

46 For example, the OECD Due Diligence Guidance for Responsible Mineral Supply Chains is referenced in a range of international declarations, regulations and initiatives, including: - the Mosi-oa-Tunya Declaration, adopted on 13 September 2018 at the International Conference on Artisanal and Small-scale Mining and Quarrying; - the European Union’s Regulation (EU) 2017/821, adopted in May 2017, which lays down supply chain due diligence obligations for EU importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas; - the Chinese Due Diligence Guidelines; - the US Dodd-Frank Act (s 1502), reflecting recognition by the US Securities and Exchange Commission in 2012 that the OECD Guidance is an international framework for due diligence measures by companies that are required to file a conflict minerals report; - the Lusaka Declaration, signed by eleven Heads of State of the International Conference on the Great Lakes

Region (ICGLR) in December 2010; and - UN Security Council Resolution 1952 (2010), which supports taking forward the due diligence recommendations put forward by the UN Group of Experts on the Democratic Republic of the Congo.

47 OECD (OECD Council), Due Diligence Guidance for Responsible Business Conduct (OECD 2018).

48 OECD (OECD Investment Committee, OECD Committee for Agriculture, Cabinet of FAO Director-General), OECDFAO Guidance for Responsible Agricultural Supply Chains (OECD, 11 March 2016).

49 OECD (Secretariat), Due Diligence Guidance for Responsible Supply Chains of Minerals from ConflictAffected and High-Risk Areas (3rd edn, OECD, April 2016).

Note that, despite the title, this 2016 “updated edition now clarifies that the Guidance provides a framework for detailed due diligence as a basis for responsible supply chain management of all minerals”: page 4 (emphasis added).

50 OECD (OECD Secretariat), Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractives Sector (OECD, 2 February 2017).

51 OECD (Secretary-General), Responsible Business Conduct for Institutional Investors: Key Considerations for Due Diligence under the OECD Guidelines for Multinational Enterprises (OECD, 28 March 2017).

52 OECD (Secretary-General), Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector (OECD, 7 March 2018).

53 UN (Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights), Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, Third Revised Draft (UN Human Rights Council, 17 August 2021). The Working Group’s seventh session took place from 25 to 29 October 2021, with the report on that session currently available in draft form: UN Human Rights Council, Draft Report: Report on the Seventh Session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights, UN Doc A/HRC/49/[XX] (UN Human Rights Council, draft form, due for distribution January 2022).

54 A large collation of opinions and blogs about the draft, and the general potential for a business-human rights treaty, is accessible at: <https://www.business-humanrights.org/en/ binding-treaty/statements-initiatives-commentaries>.

55 UN (OHCHR), Opinion Regarding the Porgera Remediation Framework (United Nations, July 2013).

56 See e.g.: Committee on Economic Social and Cultural Rights, General Comment No. 24 on State Obligations in the Context of Business Activities, UN Doc E/C.12/GC/24 (United Nations, 10 August 2017).

57 Committee on the Rights of the Child, Concluding Observations: Australia, UN Doc CRC/C/AUS/CO/4 (United Nations, 28 August 2012).

We can assure your clients in the unfortunate situation of them passing away before their much loved

61 Modern Slavery Act 2018 (Cth). See also: Department of Home Affairs, Commonwealth Modern Slavery Act 2018: Guidance for Reporting Entities, accessible at <https:// www.homeaffairs.gov.au/criminal-justice/files/modernslavery-reporting-entities.pdf>.

62 Modern Slavery Act 2018 (Cth) s 3.

63 See: Australian Border Force, Online Register for Modern Slavery Statements, accessible at <https:// modernslaveryregister.gov.au/>.

64 ACSI, Moving from Paper to Practice: ASX200 Reporting under Australia’s Modern Slavery Act (July 2021), accessible at <https://acsi.org.au/wp-content/ uploads/2021/07/ACSI_ModernSlavery_July2021.pdf> (ACSI Report) page 6.

65 ACSI Report, page 6.

66 ACSI Report, page 4.

67 See: Modern Slavery Act 2018 (Cth) s 24.

68 See e.g. the discussion around reforms to the United Kingdom’s Modern Slavery Act 2015 (UK) in: Norton Rose Fulbright, UK Government Proposals to Strengthen the Modern Slavery Act (September 2020), accessible at <https://www.nortonrosefulbright.com/en/knowledge/ publications/50d846fe/uk-government-proposals-tostrengthen-the-modern-slavery-act>. In New South Wales, reforms have just passed the NSW Parliament, with the result that the Modern Slavery Amendment Act 2021 (NSW) will come into effect on 1 January 2022.

69 See e.g. Maloney v R (2013) 252 CLR 163; [2013] HCA 28, [15] and [23] (French CJ), acknowledging the possibility of divergence between the domestic law enforced by Australian courts, on the one hand, and the treaty bodies’ statements and jurisprudence regarding contemporary international obligations, on the other hand. See also: Western Australia v Commonwealth (1995) 183 CLR 373, 453 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), holding that inconsistency with human rights protections does not invalidate legislation; Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, [956]– [963] (Callinan J).

70 The specific issues, and relevant guidance material, are discussed further in: J. Southalan, ‘Human Rights and Business Lawyers: The 2011 Watershed’ (2016) 90(12) Australian Law Journal 889 (Southalan (2016)), pages 901–904.

71 See: Southalan (2016), pages 905–906.

72 See e.g.: IBA, Handbook for Lawyers on Business and Human Rights (IBA Legal Policy and Research Unit, September 2017).

73 UNGPs Interpretive Guide.

58 UN (Working Group on Business and Human Rights), Corporate Human Rights Due Diligence – Getting Started, Emerging Practices, Tools and Resources, Companion Note II to 2018 Report to the General Assembly (United Nations, 16 October 2018).

74 See e.g.: UN (Castan Centre for Human Rights Law), Human Rights Translated 2.0: A Business Reference Guide, UN Doc HR/PUB/17/1 (Monash University, 20 June 2016); UN (OHCHR), Frequently Asked Questions about the Guiding Principles on Business and Human Rights, UN Doc HR/PUB/14/3 (United Nations, October 2014).

59 UN (Working Group on the Universal Periodic Review), Report on Australia, UN Doc A/HRC/31/14 (Human Rights Council, 13 January 2016) [130] and [136].

75 Particularly: Parliamentary Joint Committee on Human Rights, Guide to Human Rights (Department of the Senate, June 2015).

60 See e.g.: UN (Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management

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humanrightsinterview

Mary Anne Kenny Associate Professor in the Discipline of Law within the College of Arts, Business, Law and Social Science at Murdoch University

Interview conducted by: Daniela Ion from the Joint Law Society/Women Lawyers Committee, lawyer and migration agent and FDRP

I

n addition to her tenure at Murdoch University, Mary Anne Kenny was the Programme Manager of the Graduate Certificate in Australian Migration Law and Practice as well as the Chair of the Law Reform Commission of Western Australia between 2014-2016 and a member of the Law Reform Commission from 2012-2016.

Could you please tell us why you wanted to study law and how your journey from a law student to the Chair of the Law Reform Commission of Western Australia and Associate Professor at Murdoch University was?

I studied law at the UWA. I had previously been quite science focused but changed degrees because I thought law would be more “people focused”.

After I finished my law degree, I was lucky enough to complete articles

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at Legal Aid WA and I really enjoyed it. I was fortunate to work in the first permanent duty lawyer service at the Central Law Courts which gave me a lot of experience in court advocacy. I also worked on cases involving asylum seekers who had arrived by boat who were detained in Port Hedland.

I had a long standing interest in human rights and social justice and throughout university I had done volunteer work with Amnesty International. After working at Legal Aid for a couple of years I did a Masters Degree in International Law, with a focus on human rights and in particular refugee law at the University of Iowa in the US. When I returned to Australia I worked again at Legal Aid, this time in the Youth Law Unit and then for Youth Legal Service, where I did policy work on the rights of children.

In 1997 a position came up at Murdoch University establishing the clinical community education (CLE)program at SCALES (Southern Communities Advocacy Legal and Education Service).

I was involved in establishing the CLE program and CLC in Rockingham, with Guy Walker and Michael Hovane. This was a really fulfilling time to be able to work in an educational environment that

focused on teaching and working with clients in a CLC, it brought together my interest in social justice and academic study.

While at SCALES I was able to start working with cases involving asylum seekers in detention and in the community. At that time there was no other CLC in WA doing that work.

I established the first immigration law clinic in Australia similar to immigration clinics in the United States.

Working with others we established a specialised Case for Refugees in 2002 which became The Humanitarian Group and now Circle Green.

I took a year off work after my son was born and then commenced work as a part-time Commissioner on the Law Reform Commission of WA (LRCWA).

Interestingly at that time in 2012, was the first time that all 3 Commissioners were women. I was the first academic appointed to the LRCWA. After 3 years I became the Chair of the Law Reform Commission of WA. During that time I was at the Commission, we had many references that were very broad in scope looking at issues to do with aboriginal customary law, the law of homicide and the coronial process.

What inspired or motivated you to work towards your goals?

This is an interesting question. I think as a law student doing work with Amnesty International and meeting other likeminded people motivated me to do more because at that time law at UWA felt quite conservative and the strong expectation was to work at a commercial firm. Amnesty International gave me a link to other students outside of law interested in human rights. I was lucky enough to be able to work at Legal Aid which was a really vibrant and diverse environment with people who were committed to making a difference for their clients. One of the greatest motivations in this work are the clients I have worked with including children and young people, people from refugee and migrant communities. Working with them helps me to be a better practitioner. It was a great inspiration working with those clients and communities.

In terms of what I do now, I still do some pro bono migration work, but I am working more in the law reform and policy area. I worked 6 years as an independent advisor to the Minister for Immigration on refugee and detention issues. This involved regularly visiting detention centres in Australia and Nauru and providing advice with other experts on ways to improve or change laws and policies.

While Novak Djokovic has been removed, the case sets a concerning precedent for anyone attempting to enter the country.

Article 19 of the Universal Declaration of Human Rights says that “ Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

The notion that a person can have their visa cancelled because their views might affect the health, safety or good order of the Australian community raises issues for freedom of expression. What is your opinion on the implications this may cause in the future?

Regarding freedom of expression: we have two issues here: people entering and people who are here and have their visa cancelled. The Government already has the power to refuse the entry of the people on the basis of their particular views under the character powers in the Migration Act. It is not clear to me that Novak Djokovic’s case is a precedent for anything harsher and I think those powers were already there. There is a possible expansion of

cases where the Minister refused visas on the basis of extreme views in relation to religion or politics, whereas in this case the cancellation was based on how other people perceived his views-which is quite broad. However, it is clear that the Minister’s personal powers are very broad which is of ongoing concern.

According to a 2017 Report of the Liberty Victoria Rights Advocacy Project, the immigration minister is granted more personal discretion than any other minister by an “overwhelming margin”.

Are you able to give some insight into why this is and if this ‘power’ can be reduced?

The executive power the Minister of Immigration currently has is enormous and has grown overtime and I think it is not good for our system which is supposed to be based on the rule of law and the separation of powers. The issue is the minster’s power cannot be reviewed by the courts.

The minister’s power is not a new concern, either. Wide ranging discretionary powers have been part of Australia’s immigration system since the Immigration Restriction Act was passed in 1901 and the subsequent Migration Act came into effect in 1958. Both of these laws gave wide discretion to the minister to grant or refuse visas.

In 1989, the then-immigration minister, Robert Ray, tried to amend the Migration Act to remove ministerial discretion from all immigration matters, out of concern that wide ranging personal discretion could be perceived as “arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases”.

The move was blocked, however, and the minister’s extremely broad powers have remained ever since.

The increase in Ministerial power has particularly grown in the area of character cancellations and in respect of asylum seekers who arrive by boat. The application of the law in all of these cases has very serious consequences. For those who have their visa cancelled they can lose their permanent residence status and face being removed from Australia, potentially a place they have spent the majority of their whole life, have family and community connections and never be able to return.

For asylum seekers, decisions around their cases can lead to years of limbo both in the community or in detention and possibly removal to a place where their life is in danger. Given the issues at play we should

The executive power the Minister of Immigration currently has is enormous and has grown overtime and I think it is not good for our system which is, supposed to be based on the rule of law and the separation of powers. have a system that is robust in terms of allowing proper merits and judicial review.

In your opinion, what will be the future of the legal profession in a globalised world?

I think the pandemic has shown us we are truly connected globally. Everyone, including us in universities and the legal profession, has had to learn to work remotely. Being in the most isolated city in the world we have long had to deal with trying to connect across Australia and globally to try to stay in touch with development in the law. The rapid uptake of technology over the last 2 years by everyone has certainly shifted everyone’s thinking in practice and in the courts. But it has not been universally easy and we have to be conscious that this increases disadvantage to people who are already vulnerable and marginalised, so the legal profession has to be conscious of how to ensure that they can still reach those groups.

What are your plans for the future? What are your hobbies?

I am currently working on a research project of how lawyers and migration agents identify and respond to clients who are experiencing mental distress. The research is specifically looking at lawyers working with asylum seekers in the fast track assessment caseload. This year I should be publishing the research and I hope to do some training with lawyers and migration agents about how they can work with clients in a trauma informed way.

My hobbies: I enjoy spending time with my family and cats. Maybe I will become a crazy cat lady when I am older, if not already. I enjoy walking and want to do a long walk this year the Cape to Cape. I also enjoy travelling and I hope to be able to do that again soon.

I would like to improve my French and the best way to improve is to be in a French speaking country and I can test how well I can order all the different cheese possible.

19

The Importance of the Right to an Effective Remedy in Human Rights Legislation Dr Jackie Mapulanga-Hulston Lecturer, Curtin Law School

Introduction It is a well-known fact that Australia does not have a national charter of human rights. States have, as a result, passed legislative bills of rights in order to provide human rights protections where there has been an obvious gap in rights’ protection. The significance of this move is seemingly an acknowledgement by states that the existing laws, at both state and Commonwealth levels, are insufficient to effectively and comprehensively protect the human rights of Australians.

While these enactments have been a huge step in an attempt to respect and protect people’s rights, this paper emphasises the importance of ensuring the right to an effective remedy for human rights violations in any human rights legislation. This is because this right is a crucial part of the process of rights’ protection. Most human rights instruments include some form of remedy, the substantive nature of such a remedy is what makes it relevant to the realisation of rights. This also embodies the principle of equal protection before the law.

Brief Overview of the Human Rights Legislation in Australia Australia’s first legislative bill of rights was passed in 2004 by the Australian Capital Territory (ACT), namely, the Human Rights Act 2004 (ACT). A notable inclusion in this Act was the provision for the consideration of international law and the judgments of foreign and international courts and tribunals in the interpretation of human rights. A couple of years later, the Victorian Parliament passed the Charter of Human Rights and Responsibilities 2006 (Vic). The most recent state human rights legislation, the

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Human Rights Act 2019 (Qld) has been applauded for its ability to extend beyond the ACT and Victorian Acts as it is more broad reaching and accessible. Notably, the Human Rights Act 2019 (Qld) protects economic, social and cultural rights to education and healthcare and also establishes a human rights complaints process to the Queensland Human Rights Commission.

Understanding the Content of the Right to an Effective Remedy for Human Rights Violations The right to an effective remedy is embodied in the International Convention on Civil and Political Rights (ICCPR) to which Australia is a State Party. Article 2(3) provides for all State Parties to the Covenant to…. …ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity1 Apart from the ICCPR, there are other core international human rights instruments which also provide for the right to an effective remedy. In 2006 the United Nations (UN) gave recognition, through a General Assembly resolution, to the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law (the Basic Principles and Guidelines).2 This Resolution had a number of objectives, including affirming the importance of addressing the question of remedies and reparation for victims of human rights violations ‘in a systematic and thorough way at the national and international levels.’ This would allow victims of human

rights and humanitarian violations to not only have the right to legal recourse, but to a process which recognises the rights of victims to appropriate remedies and also acknowledges their right to benefit from those remedies.

The extent to which people understand the content of the right to an effective remedy in human rights law is critical for the process of rights protection. Notably, victims of rights violations must be provided equal and effective access to justice,3 adequate, effective and prompt reparation for harms suffered,4 and access to relevant information concerning violations and reparation mechanisms.5 The effectiveness of a remedy therefore ‘manifests itself in the sense of preventing the alleged violation of law or its continuation, or in providing adequate redress for any violation that had already occurred.’6 In order to provide an effective remedy, this right consists of two aspects, namely, the substantive aspect and the procedural aspect.

The Procedural and Substantive Aspects of the Right to an Effective Remedy International and domestic human rights instruments usually tend to provide a remedy for human rights violations.

As stated, in order to be effective, there is a dual application to the right, namely, substantive and procedural. In instances where the substantive and procedural aspects do not correlate or are ineffectively implemented, this could possibly lead to not just a denial of the victims’ right to an effective remedy but could also lead to a miscarriage of justice.

The substantive rights aspect of the right to an effective remedy requires an understanding of the content of rights and

humanrightsinfocus rights violations. A good understanding or knowledge of human rights including the basic principles associated with human rights, is important. The universality, interdependency and inalienability of rights are core to the human rights ideal as are the principles of human dignity, equality and non-discrimination. So basically, there is a right to the substance of being human such as life or liberty. While there are various definitions or descriptions of human rights, most of them tend to embody these core principles. Henkin’s definition human rights tends to combine both aspects of the right: Human rights are rights of individuals of society…Every human being has legitimate, valid, justified claims upon his or her society to various ‘goods’ and benefits…They are defined particular claims listed in international instruments deemed essential for individual wellbeing, dignity, and fulfilment, that reflect a common sense of justice, fairness, and decency.7 The procedural aspect of the right to an effective remedy protects individuals suffering harm, injury or loss from the unlawful conduct by the state and others.

This procedural aspect deals mainly with

the formal process of litigating human rights violations while abiding by the relevant rules and procedures of the process. As such, the procedural aspect of the right to an effective remedy is concerned with the enforcement of the law rather than how the various contents of the law are defined, as is the case with the substantive aspect of the right.

The right to pursue an effective remedy for human rights violations is significant because, similar to rights provided in the ICCPR and other instruments, this right is also a substantive right which means it has corresponding duties and obligations. State Parties are required to adopt and implement legislative, judicial and other measures to give effect to the substantive right. The obligations to respect, promote, protect and fulfil human rights are placed on the states and this means the state must not interfere directly with people realising their rights. The state must protect people’s rights from being interfered with or violated by others. It can do so by building the required legislation, institutions and norms to realise the right.

In the performance of its duty in relation to the right to effective remedy, the state must take practical and meaningful steps

and show its commitment to ensuring the substance of this right is not being violated. This would mean the state is not to discriminate in meeting its obligations and must be able to show that the rate at which progress is occurring shows a strong commitment on its part. Victims of human rights violations should be able to have their matters heard by an impartial and independent court, tribunal or forum because the right to seek redress or obtain an effective remedy is key to the protection and enjoyment of all human rights.

This right therefore has a huge bearing on other substantive human rights as it recognizes the legal right of every person to an effective remedy. The allowance of this statutory independence should guarantee impartiality and objectivity in adjudicating matters. The right to an effective remedy also entails both enforceability and justiciability. In order to provide an effective human rights system, human rights legislation must be enforceable. This means the legislators must create an identity with relevant entitlements and duties which must be maintained and be capable of execution.

The concept of justiciability presupposes the existence of a review mechanism and

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Human Rights Special Feature The state must protect people’s rights from being interfered with or violated by others. It can do so by building the required legislation, institutions and norms to realise the right. is therefore essential to the process of rights protection as it can deal with issues of non-compliance with obligations.

It is not easy to provide a definite guide as to what ‘effectiveness’ means in relation to the right to effective remedy. In a European Court of Justice case, the answer to what effectiveness means was that the remedy should not be illusory. States are responsible for protecting basic rights while ensuring compliance, and providing procedural guarantees.8 The effectiveness

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of a remedy should therefore be seen in tangible results and the prevention of alleged violations or the continuation of violations. An effective remedy or outcome to human rights violations will take various forms depending on the harm suffered and can include compensation, restitution, and/ or guarantees of non-repetition.

Concluding Remarks Understanding the concept of effectiveness in a legal system is important, in both procedural law as well as in the system of legal remedies. The right to an effective remedy for violations of human rights through human rights litigation in Australian states and territories is a progressive move to the realisation of rights which would otherwise have not been dealt with by the existing laws. While the ACT and Victoria were the first to legislate in this area, some aspects of the right to an effective remedy were ‘improved’ upon by the Queensland legislation. The challenge for the remaining states, including Western Australia, is to draft a bill which takes this important right into account. This will undoubtedly require the willingness by the legislators to be bound by the corresponding human

rights obligations contained in the bill.

States must realise their duty to respect, protect and fulfil rights requires taking measure to ensure that all individuals are able to exercise the full measure of rights as set forth in international human rights instruments. They should then work to find ways to make the right to effective remedy a practical reality.

Endnotes 1 United Nations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, 171.

2 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law : resolution / adopted by the General Assembly, 21 March 2006, A/ RES/60/147.

3 Principle VIII, Basic Principles and Guidelines.

4 Principle IX, Basic Principles and Guidelines.

5 Principle X, Basic Principles and Guidelines.

6 Wojciech Piatek, ‘The Right to an Effective Remedy in European Law: Significance, Content and Interaction’ (2019) 6 China-EU Law Journal 163–174, 163.

7 Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990) 2.

8 European Court of Justice, dec. of 8 November 2016, app. no C 243/15, Lesoochranárske zoskupenie VLK v.

Obvodný úrad Trencín, para. 65.

Human Rights Obligations to Family and Domestic Violence

By Corina Martin CEO, Aboriginal Family Legal Services

Family and domestic violence is one of the most pervasive and contemptible human rights violations in Australia and globally.

There were 145 victims of family and domestic violence related homicide recorded in Australia in 2020, an increase of 12% from the previous year.1 Nationally, almost two in five homicide and related offences recorded by state and territory police were family and domestic violence related. In Western Australia, crime statistics for the 2020-21 financial year recorded: 23,909 Assaults (Family) 3,519 Threatening Behaviour (Family) 12,134 Breaches of Violence Restraining Orders.2 Particularly concerning is the disproportionate prevalence and severity of violence experienced by Aboriginal women in Australia. Nationally, Aboriginal women are: 32 times more likely to be hospitalised due to family violence than nonAboriginal women3 10 times more likely to die due to assault than non-Aboriginal women4 45 times more likely to be victims of violence than non-Aboriginal women.5 An understanding of violence in Aboriginal communities cannot be separated from an understanding of the historical experiences of Aboriginal people, families, and communities, whose basic human rights were violated from the onset of colonisation. The National Aboriginal and Torres Strait Islander Women’s Alliance (2014) stated that:

The nature, history and context of family violence in Aboriginal and Torres Strait Islander communities is different to domestic violence experienced in mainstream communities and populations. Aboriginal and Torres Strait Islander people continue to suffer the intergenerational effects of past welfare practices including the forced removal of their children and dislocation from their communities, country, and culture, as well as experiencing higher levels of poverty and social disadvantage compared to other Australians. The combined effects of past practices and current disadvantages present extreme challenges to families.6 In Australia and the world, consistent violation of the United Nations Declaration on the Rights of Indigenous People, including the fundamental rights to self-determination, governance, and sovereignty, demonstrate how discrimination against Aboriginal people remains entrenched in contemporary, mainstream societies. The contravention of these rights, which encompass the rights to safety, well-being, justice, health, and for Aboriginal people to make their own decisions on how, why, where, and the way in which they choose to live, are significant contributing factors towards violence. Combined with other factors related to colonization, including dispossession, dislocation, forced removal and racism, which continues to be a daily experience for most, if not all, Aboriginal people, these factors make understanding violence within Aboriginal communities far more complex.7

We must now ask - is violence a symptom of long-standing human rights violations?

If we look at the status of human rights for Aboriginal people in Australia today,

nothing much has changed. Widespread homelessness, the over representation of Aboriginal people in the criminal justice and child protection systems, lower levels of education and reduced employment opportunities, cultural practices frowned upon, family structures broken by removal of children, poverty, dislocation from culture, and violence; these human rights related issues continue to pervade Aboriginal communities across the entire continent of Australia.

There is no excuse for violence against Aboriginal women and children in their communities, but there is also no excuse for the continued violation of Aboriginal people’s human rights.

Family and domestic violence has now become a normal practice in some households and communities, and many of the Aboriginal people you may know or see have likely been directly affected by violence at some point in their life.

I personally had to see my mother beaten by her partner. As children, many Aboriginal people grew up having to take on responsibilities to look after our siblings and care for our mothers, who at times were so beaten they couldn’t get out of bed. Where is the right to live free from violence?

The cycle of disadvantage, vulnerability and violation of rights is then perpetuated, with child protection authorities removing children from their homes and putting them into State care. I personally watched as my mother was held back by a policeman while I was taken by a white man with long socks and put into a car, all the while screaming, crying and scared.

Where was my mother’s right to be free from torture and from cruel, inhumane, or degrading treatment or punishment?

Because watching your child get taken from you can only be one of the cruellest, inhumane, degrading, and painful punishments a mother can endure.

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...only Queensland and the Australian Capital Territory have dedicated Human Rights Acts. Other States have Acts that purport to cover human rights, such as the Equal Opportunity and Racial Discrimination Acts in Western Australia.

In the United States, a 2011 decision by the Inter-American Commission on Human Rights found that the failure of the responsible authorities to protect a woman and her three daughters from her estranged husband, who had violated a restraining order and kidnapped the children, was a human rights violation. The Commission decided that the United States was responsible for violating the women and her daughters’ human rights, specifically: American Declaration on the Rights and Duties of Man Article 1: Right to life, liberty and security of person Article 2: Right to equal protection under the law without discrimination

Where was my right to grow up with my family and in my culture? And who speaks for children and families, like me and mine, and advocates for our rights after they have been removed?

The forced removal of children breaches not only human and Indigenous rights, but also the United Nation’s Convention on the rights of a child. Where is the assistance for our mothers, like those who we still see today, having their infants removed from them at birth in our maternity hospitals, to prevent that situation?

These are the realities of life for too many Aboriginal people: reactive measures from our Governments, rather than proactive and preventative support.

International human rights laws do require governments to take effective measures to prevent, investigate, punish, and remedy domestic violence.

Under international human rights law, gender-based violence such as domestic and family violence is recognized as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.8 The Australian Government has an obligation to respect, protect and fulfil human rights, having signed a range of treaties and therefore committing to fully implementing the principles stated in these international agreements. This includes: Universal Declaration of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child

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Convention on the Elimination of All Forms of Discrimination against Women

Article 7: Right to special protection for mothers and children

Convention on the Elimination of All Forms of Racial Discrimination

Article 18: Right to judicial protection

Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Declaration on the Elimination of Violence Against Women.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) offers the most comprehensive coverage of women’s rights; whilst it does not contain an explicit reference to violence against women, the CEDAW Committee has issued a recommendation stating that violence against a woman, because she is a woman, or violence that affects women disproportionately, is recognized and addressed as discrimination under CEDAW.9 Despite these obligations on the Australian Government to protect women against family and domestic violence, only Queensland and the Australian Capital Territory have dedicated Human Rights Acts. Other States have Acts that purport to cover human rights, such as the Equal Opportunity and Racial Discrimination Acts in Western Australia.

The Australian Human Rights Commission is calling for changes to several Federal legislations to incorporate domestic and family violence as grounds for discrimination within those Federal Acts, including the Sex Discrimination Act 1984 (Cth), Disability Act 1992 (Cth) and Fairwork Act 2009 (Cth).10 I firmly believe that all States and Territories must have their own Human Rights Acts, which entrench protections against family and domestic violence.

According to the Commission, member states had an obligation to act with due diligence and take necessary measures to protect victims from private actors.11 Until Australia has similar legislative processes in place and entrenches the Government and the community’s obligations to protect human rights, Australian society will continue to be impacted by family and domestic violence, and families may not be supported to prevent the issues that contribute to violence. Until then, we will be unable to openly and fully challenge the violations that Aboriginal people have suffered.

Endnotes 1 https://www.abs.gov.au/statistics/people/crime-andjustice/recorded-crime-victims/latest-release#westernaustralia 2 https://www.police.wa.gov.au/crime/crimestatistics#/ 3 Australian Human Rights Commission (2020), Wiyi Yani U Thangani (Women’s Voices): Securing Our Rights, Securing Our Future Report, AHRC, Sydney.

4 Al-Yaman, F, Van Doeland, M, and Wallis, M, Family violence among Aboriginal and Torres Strait Islander peoples, AIHW, Canberra, 2006, cat. no. IHW 17.

5 Goulding D, The Role of Socio-Economic and Familial Factors in the Pursuit of Final Violence Restraining Orders For Women Subjected to Family and Domestic Violence, Centre for Social and Community Research, Murdoch University, Perth, 2007, p. v.

6 National Aboriginal and Torres Strait Islander Women’s Alliance, Submission to the Finance and Public Administration Committee Inquiry Into Domestic Violence in Australia, National Aboriginal and Torres Strait Islander Women’s Alliance, New South Wales, 31 July 2014, p. 4 7 Gripps. K. (2006) Understanding Indigenous Family Violence in the context of human rights agenda – Article at Austlii.edu.au p1.

8 Australian Human Rights Commission - Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue – P4, Para 4 9 The Women’s Centre (2019), ‘My Rights, Your Rights, Our Rights, Women’s Rights’, The Women’s Centre, Queensland, P6.

10 Australian Human Rights Commission - Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue – P4, Para 4 11 Jessica Lenahan (Gonzales) v U.S.A., Case No. 12.626, Inter-Am. C.H.R., 80/11 (2011)

The Family Violence Provisions: Why they fail some of our most vulnerable migrants

By Hamish Glenister

T

he family violence provisions provide a mechanism by which partner visa applicants1 can be granted a partner visa notwithstanding that their relationship with their sponsoring partner has ceased. The obvious purpose of these provisions is to prevent vulnerable migrants from staying in abusive relationships out of fear of losing their visa and losing their ability to stay in Australia. This commendable purpose seems to be too often thwarted by the way in which the family violence provisions are interpreted and applied by decision-makers in determining partner visa applications.

Legislative framework For a person to be granted any visa, a decision-maker must be satisfied that all the criteria for that visa have been met.2 For partner visas, the main criterion is whether the applicant is in a married or de facto relationship with the sponsoring partner (who is normally an Australian citizen or permanent resident). Married relationship and de facto relationship are both defined almost identically in the Act, both requiring that there (1) be a genuine and continuing relationship between the applicant and the sponsor, (2) that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others and (3) that the applicant and the sponsor not live separately or permanently apart.3 In assessing whether a married or de facto relationship meets these requirements,

decision-makers must have regard to 15 mandatory considerations which are divided up into 4 groups (financial aspects of the relationship, nature of the household, social aspects of the relationship and nature of the commitment).4 Under normal circumstances, a decision-maker will have to be satisfied that the applicant and the sponsor are in a married or de facto relationship both at the time the visa application is made and the time the visa application is decided. However, where the relationship has broken down between the time of application and the time of decision,5 there are alternative pathways to the grant of the visa – one of which is provided by the family violence provisions.

“Family violence provisions” is my shorthand reference for, firstly, Division 1.5 of the Migration Regulations 1994 (Cth) (which is entitled Special provisions relating to family violence) and, secondly, to the family violence related partner visa criteria6 contained in Schedule 2 of the Regulations.7 Division 1.5 contains provisions which define family violence,8 determine when family violence is taken to have occurred9 and set out how a claim of family violence is to be proved,10 all of which are used in the assessment of whether the family violence related partner visa criteria are satisfied.

In cases where there is no relevant

Court order (such as a restraining order, notice of conviction or injunction which are considered conclusive of family violence), the Regulations require decision-makers if not otherwise satisfied that an applicant suffered family violence to refer that applicant to an independent expert to assess whether family violence occurred. The opinion of the independent expert is conclusive.11 In order to be satisfied, the family violence related partner visa criteria require the following elements to be met:12 the applicant would be the spouse or de facto partner of the sponsoring partner except that the relationship between the applicant and the sponsoring partner has ceased; and the applicant or a dependent child (of either the applicant, the sponsor or both of them) has suffered family violence committed by the sponsoring partner.

So what’s the problem? The problem is in how the family violence related partner visa criteria are assessed.

In essence, decision-makers have developed a practice whereby they will assess whether there was a married or de facto relationship (at the material times) prior to considering whether any family violence has occurred. It will often, consistent with policy,13 be explicitly stated by the decision-maker in the course of providing reasons for

25

humanrightsinfocus Ultimately, failing to consider claims of family violence in the assessment of whether there was a married or de facto relationship, at the material times, fails to confront the real circumstances in which vulnerable applicants find themselves. refusing a partner visa application that the applicant’s claims of family violence were not considered at all. Failing to consider those claims is undesirable for at least two interrelated reasons.

Firstly, the partner visa application process contemplates that evidence of the relationship will be available and provided from both the applicant and the sponsor. Where the relationship has broken down and family violence may have been involved, much of that evidence will become unavailable or could even be destroyed. For instance, a sponsor’s friends and family, who may be the only people in a position to provide an opinion on the nature of the relationship (one of the mandatory considerations), are unlikely to provide this evidence to the applicant where there

has been a breakdown in the relationship and allegations of family violence.

Similarly, if a sponsor is in control of bank statements, the lease, photos, utility bills, itineraries, these common forms of relationship evidence will become difficult if not impossible for the applicant to obtain. If there is a dearth of evidence about the relationship available, and no explanation for why that might be, then the decision-maker will not be satisfied that there was the requisite married or de facto relationship.

Secondly, the assessment of whether there was a de facto or married relationship (as defined) is influenced by the context in which that relationship existed. For instance, in the context of an arranged marriage, it would not be rational and reasonable to look for evidence of cohabitation prior to that marriage. It is now well known that conduct constituting family violence comes in many forms, such as physical abuse, economic abuse and social abuse, but that a central feature of it is that it features coercive and controlling behaviour by the perpetrator over the victim.14 Divorced from this consideration, a decision-maker may well be perfectly entitled to reason that due to a paucity of evidence showing the applicant as contributing to day-to-day financial decisions, socializing with their partner and with other people, or taking an otherwise active role in the relationship, that there was no de facto or married relationship as defined in the Act. Ultimately, failing to consider claims of family violence in the assessment of whether there was a married or de facto

LEAVING A

relationship, at the material times, fails to confront the real circumstances in which vulnerable applicants find themselves.

These applicants are often women, often have no supports or contacts in the community other than their sponsoring partner and often come from places with different cultures and languages; they are plainly among the most vulnerable in our community. If it becomes known that fleeing from an abusive relationship and making claims of family violence is a road fraught with difficulty and one likely to lead to exclusion from Australia, the purpose of the family violence provisions will be defeated.

Endnotes 1 Applicants for Child (Subclass 445) visas and Global Talent (Subclass 858) visas can also in certain circumstances avail themselves of family violence provisions.

2 Migration Act 1958 (Cth) s 65.

3 Ibid ss 5CB, 5F. 4

Migration Regulations 1994 (Cth) regs 1.09A, 1.15A.

5 The exception to this is if the applicant first arrived on a Prospective Marriage (subclass 300) visa then the applicant could still be eligible to apply for a Partner (Subclass 820) visa notwithstanding that their relationship with the sponsor has ceased.

6 As pertaining to the following partner visas: Partner (Subclass 820), Partner (Subclass 801) and Partner (Subclass 100).

7 See for example Migration Regulations 1994 (Cth) Sch 2 100.221(4), 801.221(6), 820.211(8), 820.221(3).

8 Migration Regulations 1994 (Cth) regs 1.21, 1.22.

9 Ibid reg 1.23.

10 Ibid regs 1.24, 1.25.

11 Ibid reg 1.23.

12 There are additional elements immaterial to this article that may have to be met depending on the type of partner visa being applied for.

13 PAM3: Instruction on Regulations Division 1.5 ‘Special provisions relating to family violence’ [16].

14 Family Violence – A National Legal Response (ALRC Report 114), 11 November 2010, [5.9].

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

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The Path to a Human Rights Act for WA

By Chloe Wood on behalf of the WA for a Human Rights Act Coalition, co-convened by the Aboriginal Legal Service of Western Australia Limited and Australian Lawyers for Human Rights.

H

uman Rights are essential in a democratic and inclusive society that recognises the dignity and worth of all people. Yet, many marginalised and disadvantaged groups in Western Australia face ongoing battles to be treated fairly and equally, such as First Nations peoples, refugees and asylum seekers, people with disabilities, culturally and linguistically diverse peoples, children and the LGBTIQA+ community. The ongoing challenges of the COVID-19 pandemic have also shone a spotlight on our human rights to health, safety, freedom of movement, access to work and education and further exposed existing underlying structural and systemic inequities in our community. Articulating and protecting our fundamental rights and freedoms in legislation is a critical step to providing a legal framework through which rights can be balanced and issues around fair and equal treatment, particularly those related to systemic inequities, can be addressed. This article will examine why we need a Human Rights Act in WA, what the Act might look like, the benefits the Act will provide, and the importance of acting now to call on the WA Government to introduce a Human Rights Act.

Why do we need a Human Rights Act? Australia is the only Western Liberal Democracy without a federal Human Rights Act or Bill of Rights. In Western Australia our existing legislative frameworks provide only very piecemeal, inconsistent and highly selective protection of rights. While many people take the enjoyment of certain freedoms as a given, assuming they are protected in our liberal democracy, the reality is that very few of the human rights that Australia is obliged to uphold under the core United Nations human rights

treaties are incorporated into domestic legislation. Many people in WA simply do not experience rights and freedoms as part of their everyday lives. Moreover, the lack of a legal human rights framework in WA means that our government is not even required to consider our human rights when it drafts legislation, formulates policy, introduces regulations or delivers services to us.

It is a hallmark of a mature democratic society that there is an accessible, transparent legal framework in place to scrutinise and hold the government accountable for unjustified or disproportionate interferences with our human rights. Equally, it is only through creating such a framework that we can develop a culture of respect for human rights within the government and its agencies in order to prevent human rights violations before they occur.

The current Western Australian system provides very limited avenues for individuals to review or challenge government decisions or actions which appear to interfere with those rights and freedoms intrinsically associated with liberal democracies and recognised in international law. The absence of a clear and accessible human rights framework also means that decisionmakers are bereft of a point of reference through which different and important societal interests can be identified and proportionately balanced.

Three Australian states and territories have introduced their own Human Rights Acts which articulate and protect rights and freedoms. In 2004 the ACT introduced the Human Rights Act, followed by Victoria in 2006 with the introduction of the Charter of Rights

and Responsibilities Act. Most recently, Queensland introduced its Human Rights Act in 2019.

Capitalising on the momentum in the ACT and Victoria, in 2007 the WA Government conducted a consultation into a proposed Human Rights Act for WA. The consultation was led by an independent committee which conducted numerous public forums and meetings and received 377 written submissions.

The Committee’s final report found that there was strong majority support in the community for a Human Rights Act, and the Committee recommended the enactment of a WA Human Rights Act with strong protections for a broad range of civil and political and economic, social and cultural rights.

Unfortunately, this recommendation was not taken up and no state government since that time has reconsidered the matter. However, the last several years have seen significant momentum build towards legislative protection of human rights. The Queensland Human Rights Act was introduced following a highly successful grassroots community campaign. Similar campaigns have now been established to advocate for the introduction of a Federal Charter of Rights , a NSW Human Rights Act, and a Tasmanian Human Rights Act. There has also been discussion around introducing a Human Rights Act in South Australia, through the introduction of a Private Member’s Bill. It is against this backdrop that the Western Australia for a Human Rights Act Coalition (WA4HRA) was formed in 2020. The overarching goal of WA4HRA is to build on the 2007 consultation and obtain a commitment from the WA Government to introduce a Human Rights Act for WA.

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humanrightsinfocus What would a Human Rights Act look like?

The Human Rights Acts enacted in other Australian jurisdictions, as well as in overseas jurisdictions such as the United Kingdom and New Zealand, are all examples of the ‘dialogue model’ of human rights legislation. The objective of this model of legislation is to ensure that each level of government must consider human rights in all of their interactions with individuals.

The key features of this kind of model can include:

1

Legal articulation and protection for a broad range of civil and political rights and economic, social and cultural rights.

2

A requirement that parliament review new laws against the Human Rights Act before they are passed, with inconsistencies transparently noted and considered.

Importantly, there are also balancing mechanisms built into each of the Acts in other jurisdictions which recognise that the rights protected are not absolute and may be subject to reasonable and justifiable limitations such as in order to protect life, health and safety or prevent discrimination. Each of the Acts also confers a range of powers on the Human Rights Commission in each jurisdiction to perform functions which include reviewing existing legislation for human rights compliance, providing reports to government, and educating public authorities and the community on human rights issues. The Queensland Human Rights Commission also has a dispute resolution role and is able to receive individual human rights complaints.

The benefits of a Human Rights Act There are many legal, social and cultural benefits attached to the introduction of human rights legislation. Other Australian jurisdictions have reported significant improvements in how human rights are now being considered at each level of government decision making and service delivery. These improvements are evident at both an individual and systemic level.

At the parliamentary level, reviews of the ACT Human Rights Act and the Victorian Charter have shown that there has been robust dialogue about the potential human rights impacts of bills between the legislature, the scrutiny of bills committee and the human rights commissions which has improved the quality of law-making.

At the executive level, human rights have become part of the everyday business

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3

A requirement that public authorities act consistently with human rights and consider human rights in making decisions and delivering services.

4

A requirement that courts interpret legislation consistently with human rights if it is possible to do so.

of government and are incorporated into key policies, guidelines and initiatives of different government agencies. At the judicial level, there is now a growing body of case law in each of the jurisdictions which demonstrates how legislation can be interpreted consistently with human rights and how legislation that is incompatible with human rights should be revisited. These developments attest to the way that legislated human rights frameworks can create a culture of human rights and embed transparency and consistency into all levels of decisionmaking.

Finally, many members of the community have received tangible benefits through the implementation of human rights legislation. Individuals have relied on these protections to successfully advocate for their rights when dealing with government agencies. For example, people in Victoria, the ACT and QLD have been able to challenge the expulsion or exclusion of children living with disabilities from childcare or school. They have also been able to challenge evictions on cultural grounds, have been able to ensure a teenager in youth detention could have a birthday video call with his family and have improved wheelchair access on public transport and in government buildings.

Individuals have also instigated legal actions resulting in important court rulings.

One such example is the successful challenge to a decision of the Victorian Government to move children from a youth detention centre to a maximumsecurity adult prison. All of these outcomes demonstrate the important role

5

An ability of courts to declare legislation incompatible with the Human Rights Act.

6

Recourse to remedies for individuals seeking redress for violation of their rights, such as through a complaints mechanism and through legal causes of action in courts.

that a legislated human rights framework can play in protecting the most vulnerable members of WA society.

Act now and join the Western Australia for a Human Rights Act Campaign Western Australians deserve the same protection for their rights that people in the ACT, Victoria and Queensland enjoy. Momentum is building for greater legislative protection of our human rights throughout Australia. We can do so much better than a patchwork approach to human rights that selectively protects rights for some while ignoring others.

There is no better time to campaign for the introduction of our own Human Rights Act so that we can take concrete steps to protect our rights and ensure different and important societal, individual and collective interests are appropriately balanced in government decision-making processes.

The Western Australia for a Human Rights Act Coalition (WA4HRA) was formed in February 2020 as a coalition of legal, social services and human rights organisations who have come together to support the call for a Human Rights Act for WA. We are seeking a commitment from the WA Government to introduce a Human Rights Act modelled on the human rights legislation already protecting people in other Australian jurisdictions.

If you would like to find out more about WA4HRA, please visit wa4hra.com.au.

Now is the time to come together to create a Human Rights Act for all of us.

Evolving Perspectives How LGBTQI+ Law Students and Recent Graduates Perceive and Experience the Western Australian Legal Profession This study provides a snapshot of the evolving perceptions of inclusivity in the legal profession in Western Australia With funding provided by the Public Purposes Trust, the study was conducted

by Aidan Ricciardo (Lecturer at the UWA Law School), Professor Natalie Skead (Dean and Head of School at the UWA Law School), Dr Shane Rogers (Lecturer at the School of Arts and Humanities (Psychology), ECU), Stephen Puttick (Barrister at 7 Wentworth Selborne, Sydney), Stella Tarrant (Associate Professor at the UWA Law School) and Melville Thomas (Lecturer at the School of Indigenous Studies, UWA).

The study and its context The legal profession is becoming increasingly diverse.1 Professional bodies now acknowledge the importance of embracing diversity,2 including in relation to LGBTQI+ people.3 However, some research indicates that Australian legal professionals do not consider the profession to be truly inclusive of LGBTQI+ people. In 2017, a Thomson Reuters survey of 653 Australian lawyers found that an overwhelming majority of LGBTQI+ respondents believed the profession as a whole must do more to improve diversity and inclusion for LGBTQI+ people.4 This finding was replicated in a Lawyers Weekly survey in 2020. That survey also found that ‘legal professionals believe that broader Australian society is performing better than the profession itself when it comes to LGBTQI+ inclusion’.5

With this landscape in mind, there are real questions about how the next generation of lawyers – law students and recent graduates – perceive and experience LGBTQI+ diversity in the profession. We received a grant from the Law Society of Western Australia’s Public Purposes Trust which enabled us to explore these issues via an empirical study involving the collection of both qualitative and quantitative data.6 First, we conducted semi-structured interviews with 23 LGBTQI+ current law students and recent law graduates in Western Australia.7 The interview transcripts were analysed using interpretative phenomenological analysis.8 The findings from the interviews informed the design of a survey instrument, with which we surveyed 253 law students from Western Australian universities.9 Fortythree per cent of respondents identified as LGBTQI+, and 57 per cent did not.

Our findings are discussed below, using pseudonyms in place of the participants’ actual names.

Findings Perceptions of acceptance Whilst some interviewees thought the legal profession was accepting of LGBTQI+ people, others did not. Many interviewees spoke of an ‘old guard’ that influences attitudes and cultures within the profession: I’d still say it’s a very conservative profession. I wouldn’t say, of all the industries, I’d feel the most accepted.

I think it has a long way to go… the older generation. [Wendy, student]

I think that there’s an impression of the industry that I get that it’s quite conservative or maybe a little bit old fashioned. I don’t know if that’s the reality or if that’s just my perception from things that I’ve heard. [Jon, student] There was more optimism amongst those interviewees who had worked in the profession or knew people who did: I have a couple of friends who have studied and worked in law. From what they’ve told me it almost seems a little bit irrelevant, your identification, it’s more, can you do your job … that’s all cool, we’ll support you absolutely.

What comes first is, can you do your job? [Nate, student] More and more, it’s not being seen as something that’s an issue or is a big deal. It’s part of who someone is but that doesn’t affect how good a lawyer they are. That’s what firms are looking at now, they’re realising, or they have realised that it doesn’t affect what product they can do. At the end of the day they want to make money.

As long as it doesn’t affect how they make money, they don’t mind. [Quinn, graduate] However, several interviewees were somewhat cynical, and perceived the profession as falling short of genuine acceptance: It’s not so much as that they understand and they accept, and they support LGBT people as much as they tolerate it… like, ‘You can be gay, but don’t shove it down my throat.’

[Emma, student]

29

Human Rights Special Feature Employment in the profession In our survey, we asked respondents about their sources of stress whilst at law school. ‘Finding employment after law school’ was rated as one of the top stressors, with 83 per cent of respondents finding it at least ‘moderately’ stressful.10 Many interviewees also reported experiencing stress about obtaining employment in the profession: I think there’s a lot of stress coming out of the pressure to find a job and that is itself a huge source of stress for students, probably the biggest source of stress. [Paul, graduate] I truly think it just comes down to the fact that there’s so many law students, but there’s not enough offers and jobs... [Ara, student] The interviewees acknowledged, however, that this is not an issue peculiar to LGBTQI+ people. Indeed, our survey did not find any statistically significant differences between LGBTQI+ and non-LGBTQI+ students in this regard.

Interestingly, some interviewees felt that their LGBTQI+ identity might actually be helpful in obtaining employment: I feel like I can have somewhat of an advantage being LGBTQI. I feel like dropping that in an interview actually increases my chances. I think because firms, in order to attract clients, need to be able to show that they are diverse and that they are taking these issues seriously. In order to diversify, they need to actively recruit diverse people. [Roman, graduate] One interviewee, who considered their LGBTQI+ identity as potentially helpful in hiring processes, wondered if being open about their identity in interviews might be misinterpreted:

Sometimes you feel like, if you do bring it up, if there’s no real reason for you to bring it up, the worry that maybe this person’s going to try and see it as you trying to get a favour point, like a brownie card. [Fanya, student] It is interesting that some interviewees continued to perceive of the profession as unaccepting despite their perceptions of diversity hiring. It may be that those interviewees thought that these attitudes and practices exist within different pockets of the profession. For example, research from England and Wales has found that the Bar is relatively unaccepting of LGBTQI+ people,11 whereas interviewees tended to associate diversity hiring with large corporate firms.

Different treatment for different LGBTQI+ identities Many interviewees commented on the importance of seeing people in the profession who are ‘like you’. In this regard, several interviewees perceived that cisgender gay men are the most accepted and visible LGBTQI+ identity in the profession: Everyone that I know, I can’t think of any lesbian women or trans people that I know that are working in big law firms. They are all gay men but yes, I don’t know if that’s like a cause and effect thing or if that’s just how it is.

[Toni, graduate]

for example, or any other … I think that I’m very lucky to look like the established norm beforehand but be slightly different so that I count as a diversity hire. [Sam, student]

Positive change in the profession There was a general sense of optimism amongst interviewees that the profession is changing and becoming more inclusive of LGBTQI+ people. Some interviewees perceived this as a ‘top down’ change being driven by leaders in the profession: It feels like from my impression of law firms and stuff, that there’s movement of things and there’s already people in the generations above that have done that movement… Michael Kirby is an example of that in terms of gay men, but also in terms of women and female partners and all that stuff happening. It’s happening slow, but it’s certainly happening and the people that have been pushing for it for a long period of time have just got to the top where they can start to make the bigger changes… [Sam, student] Other interviewees thought the change was coming from the ‘bottom up’: With more younger people, they’re able to change the attitudes of older professionals. I think the older professionals are just experiencing, some of them, probably experiencing this for the first time. I think the legal profession is changing for the better.

[Olly, student]

Similarly, several interviewees thought that the legal profession has probably developed to become quite accepting of cisgender gay men, but doubt that this is so for other LGBTQI+ people:

However, some interviewees thought that cultural change, whilst inevitable, will take some time:

I think definitely that the experience for a gay man would be very different to someone who is transgender,

I think that the profession will change and the best kind of lawyers will not be a suit-wearing part in the middle of

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humanrightsinfocus These findings about selfcensorship are significant.

Research indicates that working in an organisation which is perceived as unsafe or unwelcoming can negatively affect LGBTQI+ employee wellbeing, organisational culture and productivity.15

the head white man, but I think at the moment, that’s what people expect the best kind of lawyer to be and to get over that initial hurdle is difficult for people. [Umar, graduate] Even the interviewees who felt optimistic about growing acceptance still felt that more could and should be done to support LGBTQI+ diversity and inclusion in the profession. Considering the Thomson Reuters and Lawyers Weekly surveys mentioned earlier in this article, the interviewees’ sentiments appear to be consistent with the views of those within the profession. In the 2017 Thomson Reuters survey, 66 per cent of lawyers felt that the profession as a whole must do more to improve diversity and inclusion for LGBTQI+ people. Among LGBTQI+ respondents, 89 per cent thought more needed to be done. That survey also found that less than half of the LGBTQI+ respondents thought that their employers went beyond ‘tokenism’ in their inclusion efforts.12 However, the 2020 Lawyers Weekly survey found that, while roughly the same proportion of LGBTQI+ lawyers (86 per cent) said the profession needed to do more, 70 per cent of LGBTQI+ respondents thought their employer’s efforts had a ‘positive’ or ‘very positive’ impact.13 This indicates that the optimism expressed by interviewees in our study is justified and is shared amongst many in the profession.

themselves at work. Our survey asked respondents whether they self-censor aspects of their identity in various contexts, including at work. Of those contexts, the LGBTQI+ respondents reported self-censoring the most at work, with 59 per cent doing so at least ‘often’.

By comparison, only 32 per cent of nonLGBTQI+ respondents reported selfcensoring at least ‘often’ at work.14 Though it is unclear from the survey results whether respondents were referring to workplaces within the legal profession, the interview responses indicate that this is the case for at least some. Several interviewees felt the need to self-censor their gender identity and/or sexuality whilst at work: I think if I get to a stage where I’m really comfortable or if I confidently believe that it’s not going to affect my career or if I were to get into academia or anything else like that, if the circumstances made it so, I absolutely would [be out at work] because it’s something that I feel very comfortable with, but as things land, I don’t think I can be out. [Valeria, student]

Being open at work

At my firm currently, I haven’t talked, nobody senior knows. Nobody other than the secretary who I sit with, knows. I guess I can’t say it’s super important, but I guess long-term it’s important for me that I work in a place that I can do that, yes. [Wendy, student]

Our study indicates that many LGBTQI+ law students and recent graduates are not confident that they can truly be

I guess in the professional environment, I often feel like I have to be a little bit less queer-presenting

and more centred and less camp or whatever it is. [Sam, student] These findings about self-censorship are significant. Research indicates that working in an organisation which is perceived as unsafe or unwelcoming can negatively affect LGBTQI+ employee well-being, organisational culture and productivity.15 A number of interviewees discussed the importance of working in a safe and inclusive organisation in which they do not feel a need to self-censor: I don’t think I could probably function and do my job properly if I wasn’t [openly out] because it’s such a big part of myself. In that sense, this is very important because I guess if I wasn’t, I’d probably feel restricted, probably unable to fulfil what I need to do to the best of my ability, probably feel I’d be constantly like, ‘Oh, what happens if they find out?’ Whereas, I guess, being out in the workplace, it just takes all that pressure away and it’s like, ‘That’s cool’... [Nate, student] Of course, self-censorship is not peculiar to the legal profession. Australian research has found that many LGBTQI+ people choose not to disclose their sexuality or gender identity when at work (39 per cent),16 with young people aged 16 to 24 most likely not to do so.17

Limitations Our study is limited in a number of ways, including in its ability to provide meaningful insights into the diversity of LGBTQI+ people, identities, and experiences as the survey data

31

Human Rights Special Feature ... the ALLY programme at the University of Western Australia aims to create a more inclusive campus by promoting greater visibility and awareness of LGBTQI+ issues through diversity training for staff that instils awareness of the lived experiences, challenges and needs of LGBTQI+ staff and students. necessitated analysing the experiences of LGBTQI+ people as a collective group only. Similarly, the study only reflects limited appreciation for intersectionality as we did not materially engage with the complexity and uniqueness of overlapping and interdependent identities (including race, socioeconomic status, gender, and those individual identities within the LGBTQI+ community). Further, the perspectives and experiences presented in this article may not be broadly representative of the cohort across Western Australia. This is because selection bias may be present as participation was voluntary, and participants self-selected. The interviews and survey responses were also limited in number.

Recommendations Despite its limitations, our study provides important insights into how LGBTQI+ law students and recent graduates perceive and experience the Western Australian legal profession. A number of our findings are positive, with many interviewees experiencing acceptance and inclusion within the profession. However, many still believe that there is much work to be done. Although many law firms already make considerable efforts to promote LGBTQI+ diversity and inclusion, employers might consider developing a greater range of visible and tangible strategies to ensure a safe, inclusive workplace in which all employees can feel safe and succeed.

Those within the legal profession might consider developing and expanding initiatives such as mentoring opportunities for junior LGBTQI+ lawyers and law students with senior members of the profession. Initiatives similar to the ALLY

32 | BRIEF FEBRUARY 2022

programme run in Australian universities and some Australian law firms could also be implemented. For example, the ALLY programme at the University of Western Australia aims to create a more inclusive campus by promoting greater visibility and awareness of LGBTQI+ issues through diversity training for staff that instils awareness of the lived experiences, challenges and needs of LGBTQI+ staff and students.18 Employees who have undergone training can place a rainbow ALLY sticker on their office door and in their email signature to provide a visible sign of support for LGBTQI+ students and colleagues. Participants in our study reported that ALLY programmes and paraphernalia at their universities made them feel safe and accepted, whilst also providing a visible indication of persons to whom LGBTQI+ people can turn for support if required.19 Many participants in our study felt that the profession should do more to include all LGBTQI+ identities and individuals – not just cisgender gay men. To address these perceptions, it would be appropriate for employers to demonstrate engagement with all LGBTQI+ identities in recruitment activities across all sectors of the profession. Further steps could also be taken to remain conscious, particularly in hiring processes, to provide opportunities for all LGBTQI+ identities so as to dismantle recruitment ‘mirroring’ whereby new hires often reflect the demographics of those already within the profession.

Some firms use recruitment tools like the Rare Contextual Recruitment System which use Big Data to factor cleavages of disadvantage into the selection process.20 Whilst we do not necessarily recommend these tools, which raise complex issues relating to intersectionality, we suggest implementing a careful, considered and deliberative approach to recruitment and promotion that recognises latent potential that may have been masked by systemic and structural disadvantage.

Community engagement is another outlet through which law firms can demonstrate tangible support for LGBTQI+ people. As the Law Council of Australia recommends, practices can sponsor community LGBTQI+ initiatives, support employees to participate in those initiatives, and provide pro bono services to support LGBTQI+ rights.21 Our study does not provide evidencebased support for any particular strategy.

However, adopting strategies such as these, in conjunction with existing efforts, might help to make more LGBTQI+ law students and recent graduates feel

accepted, respected and safe to be themselves as valued members of the Western Australian legal profession.

Endnotes 1

See, eg, Law Society of New South Wales, 2020 National Profile of Solicitors (Report, July 2021).

2

See, eg, The Law Society of New South Wales, Diversity and Inclusion in the Legal Profession: The Business Case (Report, 2017).

3

This acronym includes lesbian (L), gay (G), bisexual (B), transgender (T), queer/questioning (Q), and intersex (I) people, as well as other people who do not identify as cisgender and/or heterosexual (+).

4

Thomson Reuters, LGBTQI Inclusion and Diversity Among Legal Professionals (Report, February 2018).

5

Jerome Doraisamy, ‘Perceptions on LGBTQI+ Inclusion Efforts Differ Depending on Sexual Orientation’, Lawyers Weekly (13 December 2020) https://www.lawyersweekly. com.au/biglaw/30266-perceptions-on-lgbtqi-inclusionefforts-differ-depending-on-sexual-orientation; Jerome Doraisamy, ‘How #Auslaw is Faring with LGBTQI+ Inclusion’, Lawyers Weekly (7 December 2020) https:// www.lawyersweekly.com.au/biglaw/30202-revealedhow-auslaw-is-faring-with-lgbtqi-inclusion.

6

Participation in the study was voluntary and participants gave informed consent prior to their participation. Institutional ethics approval for the study was obtained from the UWA Human Research Ethics Office (RA/4/20/5525).

7

In the interviews, twelve participants were from UWA, four from ECU, and seven from Curtin. Eight were Juris Doctor students, ten were Bachelor of Laws students, and five had recently graduated from law school.

8

See generally Carla Willig, Introducing Qualitative Research in Psychology (Open University Press, 3rd ed, 2013).

9

In the survey, 102 participants were from Murdoch, 86 from UWA, 33 from ECU, and 32 from Curtin. The vast majority were completing a Bachelor of Laws or Juris Doctor degree.

10 Aidan Ricciardo et al, ‘Understanding, Promoting and Supporting LGBTQI+ Diversity in Legal Education’ (2021) The Law Teacher (published online in advance of press) https://doi.org/gz5d.

11 Marc Mason and Steven Vaughan, Sexuality at the Bar: An Empirical Exploration into the Experiences of LGBT+ Barristers in England & Wales (Report, University College London Centre for Ethics and Law, 2017).

12 Thomson Reuters (n 4).

13 Doraisamy (n 5).

14 Ricciardo et al (n 10).

15 Leah P Hollis and Scott A McCalla, ‘Bullied Back in the Closet: Disengagement of LGBT Employees Facing Workplace Bullying’ (2013) 4(2) Journal of Psychological Issues in Organizational Culture 6, 6–8.

16 William Leonard et al, Private Lives 2: The Second National Survey of the Health and Wellbeing of GLBT Australians (Report, Australian Research Centre in Sex, Health and Society at La Trobe University, 2012) 47.

17 Ibid.

18 See generally Duc Dau and Penelope Strauss, The Experience of Lesbian, Gay, Bisexual, and Trans Students at The University of Western Australia (Report, The University of Western Australia, 2016) 7.

19 Ricciardo et al (n 10).

20 Rare Contextual Recruitment System, What We Do (Web Page) https://au.contextualrecruitment.com.

21 Law Council of Australia, Making your Legal Practice LGBTI+ Friendly (Web Page) https://www.lawcouncil. asn.au/policy-agenda/advancing-the-profession/equalopportunities-in-the-law/making-your-legal-practicelgbti-friendly.

humanrightsinfocus Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 - A Summary

By Murray Thornhill and Blair Campbell Murray Thornhill Director, HHG Legal Group

A

significant issue confronting our society is discrimination in the workplace and the preservation of a safe working environment for all employees, particularly women who feel unsafe or unheard at work.

The perception that many workplaces have a male dominated culture and a “boys club” mentality has led to a view that there has been a failure to adequately support female victims or punish the men who perpetrate this culture. This was finally brought to a very public head in Federal Parliament with the fallout from the saga surrounding the alleged rape of Brittany Higgins last year.

On 2 September 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (“the Act”) was passed by both Houses of Parliament and came into effect on 10 September 2021. The Act will impact businesses Australia wide.

The purpose of the Act is to ‘strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace’. In particular, the reforms are aimed at advancing women’s safety and economic security in the workplace.

Introductions and Amendments The Act implements several recommendations of the Australian Human Rights Commission’s 2018 report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces by amending the Australian Human Rights Commission Act 1986, the Fair Work Act 2009, and the Sex Discrimination Act 1984.

person’s sex that meets the threshold of ‘offensive, humiliating or intimidating’. As a result, it may not capture some of the less overt forms of sexual harassment.

This amendment is not entirely new, but clarifies and codifies existing case law which establishes sex-based harassment is already unlawful under the Sex Discrimination Act.

2. Expands coverage of the Sex Discrimination Act The Act ensures that persons not previously covered under the Sex Discrimination Act, such as interns, volunteers, and self-employed workers, are protected from harassment. The Act also ensures public servants at all levels of government are protected in the same way as other workers.

Further, it prohibits a person from assisting another person, as well as engaging themselves, in sexual harassment or sex-based harassment.

This change again expands and clarifies the existing laws that already impose a duty on employers to protect workers from risks to health and safety. As such, this change should not impose an increased burden on businesses.

3. Simplifies processes for complaints The Act clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination, in addition to a criminal complaint under the Sex Discrimination Act. It also extends the period of time between an alleged incident and the lodging of a complaint from 6 months to 24 months.

Blair Campbell Photo ofCounsel, Blair Special HHG Legal Group

5. Sexual harassment a valid reason for dismissal The Act clarifies that sexual harassment can be conduct amounting to a valid reason for dismissal.

This ensures that an employer may dismiss an employee because of their sexual harassment of other employees, giving the employer a defence to a claim for unfair dismissal when the termination was based on the employee’s harassment.

6. Miscarriage leave The Act also expands the minimum leave entitlement to ensure that a miscarriage constitutes grounds for compassionate leave. These amendments ensure that when an employee, or an employee’s partner, has a miscarriage, the employee is entitled to two days’ paid compassionate leave (unpaid for casuals).

This means that an employer is now under a legal obligation to allow an employee to take compassionate leave following a miscarriage.

Overall Impact of the Act The Act’s introduction will have impacts on both employers and employees Australia wide, however, the impacts predominantly relate to the expansion of rights for the employee, rather than placing additional burdens on employers.

Overall, the Act expands the scope of existing sexual harassment prohibitions by promoting clarity and reducing barriers for sexual harassment complainants.

4. Availability of ‘stop orders’

The amendments strengthen the existing national legal frameworks that deal with sexual harassment to ensure all Australians are protected from workplace sexual harassment.

1. Prohibits sex-based harassment

The Act clarifies that the Fair Work Commission can make an order to stop sexual harassment in the workplace to prevent further or ongoing workplace sexual harassment.

Employees need to know that they have rights if they are sexually harassed, and employers need to know that they need to address and eliminate sexual harassment or potentially face consequences.

The Act amends the Sex Discrimination Act to clarify that it is unlawful to harass a person on the ground of their sex, however, the provision is limited to inappropriate conduct based on a

The new provisions afford workers access to a fast, low cost, informal mechanism to deal with complaints.

They also expand avenues available to the employee to seek redress.

The more significant impacts of the Act in changing the workplace culture of particular workplaces around the country will hopefully become evident in due course.

The Act makes several significant amendments to this legislation, including:

33

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Extraterritorial Freezing Orders

By Michael Douglas* and Nilan Ekanayake**

T

he freezing order is one of the law’s “nuclear weapons”, according to Donaldson LJ in Bank Mellat v Nikpour (1985) FSR 87 (CA) 92. It is an extraordinary discretionary remedy, which restrains a person from dealing with assets to prevent a person from removing or hiding their assets thus frustrating satisfaction of some future judgment.

This article considers recent developments for freezing orders in cross-border litigation. In particular, it considers freezing orders issued in aid of foreign legal proceedings, and the High Court’s recent affirmation of the Federal Court’s power to issue worldwide freezing orders in Deputy Commissioner of Taxation v Huang [2021] HCA 43.

Freezing orders in Australia Freezing orders—also known as Mareva orders (or, in the UK, Mareva injunctions)—are available in various superior courts, including in the Supreme Court of Western Australia and the Federal Court of Australia. Their availability in a particular circumstance depends on application of the relevant court’s rules. For example, r 7.32 of the Federal Court Rules 2011 (Cth) provides: (1) The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.

(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

Although a freezing order shares common features with a mandatory interlocutory injunction, in Australia, it is not understood as an “injunction” in

the traditional sense of the word. As Kirby J explained in the leading case on these orders, Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, “[n]ot every mandatory imperative order is an injunction”.1 Rather, a freezing order is a special kind of order, issued in a court’s inherent or implied jurisdiction.2 It is issued for a specific purpose: to prevent the frustration of legal process.3 Achieving that purpose comes at a cost to the respondent. A court will not interfere with a person’s liberty to deal with assets they own lightly. Freezing orders may even be issued against third parties, like banks.4 Further, failure to comply with a freezing order puts the person bound at risk of contempt of court. Indeed, in drafting a freezing order for issue in the Federal Court, an applicant needs to attach a penal notice, notifying the respondent that their non-compliance may result in “imprisonment, sequestration of property or other punishment”. (See the Federal Court’s Freezing Orders Practice Note (GPN-FRZG)).

Accordingly, a court will consider various discretionary factors in ascertaining whether relief is warranted, including the following: Potential hardship to the defendant or prospective defendant; The rights of third parties who may be affected by the grant of the orders; Reputational damage to the defendant; Whether the party seeking the relief is a regulator; Whether the plaintiff’s undertaking as to damages is inadequate; The absence of any undertaking as to damages; Whether the plaintiff already has effective security for its claim; and

Whether there has been a delay in the bringing of the application or a lack of candour in the materials placed before the court.5

Freezing orders in crossborder litigation Modern litigation frequently involves people and assets in different jurisdictions. The principles concerning freezing orders have developed such that relief may be available in matters with foreign elements.

It has long been recognised, for example, that English Courts may issue freezing orders that take effect with respect to assets outside of the jurisdiction.6 (Indeed, originally, freezing orders were available with respect to persons outside of the jurisdiction, and not against a defendant within the jurisdiction.)7 The effectiveness of an extraterritorial freezing order in a relevant foreign jurisdiction depends on recognition and enforcement of the order in that foreign jurisdiction.

Where the person to be bound is located outside of the jurisdiction of the issuing court, the effectiveness of the order may be open to question. Australian courts may permit service on a respondent outside of the jurisdiction (eg, Federal Court Rules 2011 (Cth) r 7.37) but that does not mean that the respondent will comply.

An extraterritorial order may also impeach “comity”: the deference that courts give to foreign jurisdictions and their institutions to deal with people and things in their territory. Comity favours a cautious approach to granting extraterritorial relief.8 Freezing orders might also be issued in aid of a foreign legal process. The High Court considered that prospect in PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1.

35

The Supreme Court of Western Australia had issued a freezing order in aid of a pending proceeding in Singapore, pursuant to Rules of the Supreme Court 1971 (WA) O 52A r 5. The application in WA was made by the plaintiff to the foreign proceeding, which sought to freeze the foreign defendant’s shares in an Australian company. The order had the following effect: The freezing order … prohibited, and continues to prohibit, Bayan until further order from: transferring any of its shares in KRL to a related entity; further encumbering those shares; or in any way disposing of, dealing with or otherwise diminishing the value of those shares without first giving notification in writing to BCBC and its Australian solicitors…

The bound respondent, Bayan, argued that the order was beyond the Supreme Court’s power. The High Court rejected that proposition. The freezing order was permissible in that any judgment resulting from the foreign proceeding would be registrable in Australia under the Foreign Judgments Act 1991 (Cth). The freezing order protected the prospective process of recognition and enforcement of the Singaporean judgment in Australia, and was therefore permissible.

Freezing orders in aid of a prospective foreign judgment: Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24 In Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24 (Broad Idea), the Privy Council considered, firstly, whether a court could serve a defendant outside the jurisdiction where a freezing order was the only relief sought; and secondly, whether the court has power to grant a freezing order in aid of a prospective or existing foreign judgment, where the court has jurisdiction over the respondent. These issues arose on appeal from a decision of the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) (EC Court of Appeal), which in turn considered a decision of the High Court of the British Virgin Islands (BVI).

By majority, the Board­answered “no” to the first issue, having regard to the applicable service rules of the BVI court10 in light of previous leading authority.11 As regards the second issue, the Board answered “yes”.

36 | BRIEF FEBRUARY 2022

Convoy Collateral had brought proceedings against Dr Cho Kwai Chee in Hong Kong, seeking damages and other substantive relief. Broad Idea was a company incorporated in the British Virgin Islands (BVI) and Dr Cho owned 50.1% of its shares.

Convoy Collateral also brought proceedings in the BVI against Broad Idea, seeking freezing orders (in the UK referred to as “freezing injunctions”) to prevent dissipation of Broad Idea’s assets which may have served to defeat Convoy Collateral’s ability to enforce any judgment it may obtain against Dr Cho in Hong Kong.

The following was indisputable: there was undoubted personal jurisdiction over Broad Idea (being incorporated in the BVI); no substantive proceedings were brought against Broad Idea in the BVI; an attempt was made in the BVI proceeding to obtain a freezing order in support of a claim pursued in a foreign court; ie, in Hong Kong.

The Privy Council effectively had to decide between two competing lines of authority as to whether freezing orders were available to Convoy Collateral in the particular circumstances.

The first stemmed from a decision of the House of Lords in 1979 – Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA (“The Siskina”) [1979] AC 210. In The Siskina, the House of Lords concluded that the Court had no power to grant an interlocutory injunction unless it would be ancillary to a cause of action for final, substantive relief that the court would have jurisdiction to grant.

In comparison, the court in Black Swan Investment ISA v Harvest View Ltd (BVIHCV 2009/399) concluded that granting a freezing order against a BVI company controlled by an individual against whom substantive proceedings were brought in South Africa was an appropriate exercise of the court’s power to protect the claimant’s ability to enforce a money judgment obtained in South Africa.

The EC Court of Appeal confirmed the conclusion in Black Swan in Yukos CIS Investments Ltd v Yukos Hydrocarbons Investments Ltd (HCVAP 2010/028).

Before Broad Idea reached the Privy Council, the EC Court of Appeal reconsidered its decision in Yukos and

concluded that the decision was wrongly decided: it was bound by the line of authorities starting with The Siskina. That is, the EC Court of Appeal held that a freezing order is not available unless the freezing order would be ancillary to a cause of action justiciable in the issuing court.

The Privy Council reached a different conclusion. By a slim majority of 4:3, it concluded that the decision in The Siskina should be overturned, at least as regards the second issue described above. As Lord Leggatt (with whom Lords Briggs, Sales and Hamblen agreed) summarised, the ability of BVI12 courts to grant a freezing order against a party to assist enforcement of a prospective or extant foreign judgment represents the current law of the BVI.13 The majority thus affirmed the availability of a “freestanding” freezing order in aid of foreign proceedings.

Lord Leggatt went on to say that a court with equitable or statutory jurisdiction to grant injunctions has power to grant a freezing order against a party over whom the court has personal jurisdiction, provided that: 14 the applicant has already been granted or has a good arguable case for being granted a judgment or order for the payment of a sum of money that is or will be enforceable through the process of the court; the respondent holds assets (or, as discussed below, is liable to take steps other than in the ordinary course of business which will reduce the value of assets) against which such a judgment could be enforced; and there is a real risk that, unless the injunction is granted, the respondent will deal with such assets other than in the ordinary course of business with the result that the availability or value of the assets is impaired and the judgment is left unsatisfied.

Finally, Lord Leggatt concluded that, while there may be discretionary factors relevant to the exercise of the court’s discretion, courts will not be denied jurisdiction to grant the remedy on the basis of: 15 the judgment being a judgment of a foreign court, if it is capable of enforcement within jurisdiction; the judgment not being a judgment against the respondent; and

Mr Huang had lived in Australia for some years. In 2018, he absconded to China when audited by the ATO. It was later found that he had significantly understated his income, and thus owed the government a significant tax debt of over $140 million17

the proceedings not yet having been commenced; it is enough that the court be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and that proceedings will be brought.

Comment on Broad Idea Before turning the High Court’s decision in Deputy Commissioner of Taxation v Huang [2021] HCA 43 (Huang), it is worth noting a few matters of principle relevant to the Australian legal landscape prior to Huang.

First, whilst the judgment in Broad Idea is a sensible, pragmatic legal development, its transposition to an Australian court had the potential to be thwarted by recent High Court judgments. For example, decisions such as Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646 and Smethurst v Commissioner of Police (2020) 94 ALJR 502 have emphasised the need to show an actionable legal right, or a sufficient equity to give rise to an obligation of conscience, in order to obtain injunctive relief in equity’s auxiliary or exclusive jurisdictions. English courts consider freezing orders as a type of “injunction”, whereas since Cardile, Australian courts consider them to be a different kind of “order”.

Secondly, the transplant of Broad Idea into Australian doctrine also had the potential to be thwarted by the text of rules of superior courts which focus on protection of the domestic court’s own legal process. Alternatively, it could have been argued that every prospective foreign judgment following a foreign

proceeding could be recognised or enforced in Australia at general law, even if the foreign judgment were not registrable under statute.16 Accordingly, any foreign proceeding could crystallise into a proceeding in the domestic jurisdiction, which may be protected by an order issued in light of the text of the rules and the authority of PT Bayan.

If that is not right, it would nonetheless be possible for an Australian court to follow the Privy Council by drawing on the deep well of inherent and implied powers of Australia’s superior courts. As litigation evolves with globalisation, so too should the exercise of powers of Australian courts in order to achieve material justice for parties to global disputes.

The worldwide freezing order in Deputy Commissioner of Taxation v Huang [2021] HCA 43 In December 2021 the High Court delivered judgment on a case that considered the effect of r 7.32 of the Federal Court Rules extracted above.

Could the Federal Court issue a freezing order that affected the worldwide assets of the respondent, even though there was no realistic possibility the relevant Australian judgment would be recognised or enforced in the foreign jurisdictions in which the respondent’s assets were located?

Mr Huang had lived in Australia for some years. In 2018, he absconded to China when audited by the ATO. It was later found that he had significantly understated his income, and thus owed the government a significant tax debt of over $140 million.17

Before the Federal Court delivered judgment to that effect, in September 2019 the Court issued an ex parte interim worldwide freezing order, substantially in the terms of Annexure A to the Federal Court’s Freezing Orders Practice Note (GPN-FRZG).18 At that time, Katzmann J found that there was a danger that a prospective judgment against Mr Huang would be partly or wholly unsatisfied by Huang moving or diminishing his assets.

After summary judgment was ordered against Huang with respect to his tax debt,19 the worldwide freezing order was continued in inter parte proceedings in which Huang had submitted to the Federal Court’s jurisdiction.20 This was the case even though Huang had assets in Hong Kong and China, and it was unlikely that the judgment for a tax debt would be enforceable against Huang in Hong Kong or China—jurisdictions in which Huang had assets that were purportedly “frozen”.

In the Full Court, Besanko, Thawley and Stewart JJ allowed Huang’s appeal, holding that in order to extend a freezing order extra-territorially, there must be a realistic possibility that any judgment obtained by an applicant could be enforced against assets of the respondent in the place to which the proposed order relates.21 A High Court majority overturned the Full Court’s judgment. Gageler, Keane, Gordon and Gleeson JJ found in favour of the Deputy Commissioner after construing the Federal Court Rules, and considering the policy implications of the contrary position:

37

....Unaffected by a Worldwide Freezing Order, a defendant would be free to move assets surreptitiously to a jurisdiction not covered by the order...

[T]he Full Court’s requirement is inconsistent with the evident purpose of r 7.32, restricting the power in a manner that would significantly impair its capacity to protect the Federal Court’s process, including by granting urgent relief. Such a requirement would render the power largely impotent to protect the Court’s process from frustration by defendants who are able to secrete their assets or move them almost instantaneously across international borders. Unaffected by a Worldwide Freezing Order, a defendant would be free to move assets surreptitiously to a jurisdiction not covered by the order... 22 In dissent, Edelman J recognised the commerciality of the majority position but held that the Court’s power to issue a freezing order has territorial limitations.23 His Honour noted that freezing orders were, by their nature, draconian tools and should not be used without good reason.24 His Honour also stressed that courts cannot be taken to act in vain, implying that the global scope of the freezing order in this case would be a mere brutum fulmen.25

Conclusion Global freezing orders may be severe in their consequences, and there is some force to Edelman J’s dissent.

However, so too are the consequences of allowing international actors to exploit their foreign networks, and the jurisdictional veils between legal systems, to the detriment of Australian judgment creditors. Recent case developments concerning extraterritorial freezing orders

38 | BRIEF FEBRUARY 2022

demonstrate their considerable value to cross-border commercial litigation.

The dissents in both Broad Idea and Huang serve to illustrate the jurisdictional difficulties inherent in dealing with orders having extraterritorial effect.

Jurisdictional issues aside, there is also a live question as to how courts can (and should) exercise their discretion in circumstances where there is no realistic possibility of enforcing a judgment in the foreign jurisdiction.26 Despite the observed difficulties, the majorities of both the Privy Council and High Court have chosen to adopt a pragmatic approach to the development of legal jurisprudence consistent with the ever-evolving global village in which we live.

EndNotes *

Consultant, Bennett + Co and Senior Lecturer, University of Western Australia.

** Principal Associate, Bennett + Co. 1 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, [80] (Cardile).

2 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, [43]; Deputy Commissioner of Taxation v Huang [2021] HCA 43.

3 See Cardile (1999) 198 CLR 380, [40].

4 See, eg, eg, Cardile (1999) 198 CLR 380; Z Ltd v A-Z and AA-LL [1982] 1 QB 558 (CA).

5 See generally Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders (LexisNexis Butterworths, 2nd ed, 2008) ch 6.

6 Worldwide freezing orders have “long since ceased to be exceptional”: Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, [20], quoted in Deputy Commissioner of Taxation v Huang [2021] HCA 43, [28].

See Babanaft International Co SA v Bassatne [1990] 1 Ch 13 (CA); Republic of Haiti v Duvalier [1990] 1 QB 202 (CA); Derby & Co Ltd v Weldon [1990] 1 Ch 48 (CA); Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] 1 Ch 65 (CA).

7 Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24 , [11], citing Gerb Van Weelde Scheepvaart Kantoor BV v Homeric Marine Services (“The Arabele”) [1979] 2 Lloyd’s Rep 117.

8 See generally Pitel and Valentine, ‘The Evolution of the Extra-Territorial Mareva Injunction in Canada: Three Issues’ (2006) 2(2) Journal of Private International Law 339; Douglas, ‘Extraterritorial Injunctions Affecting the Internet’ (2018) 12(1) Journal of Equity 34.

9 ie, the panel comprising the Privy Council.

10 Eastern Caribbean Supreme Court Civil Procedure Rules 2000.

11 Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA (“The Siskina”) [1979] AC 210; Mercedes Benz AG v Leiduck [1996] AC 284.

12 And other jurisdictions where courts have inherited the equitable powers of the former Court of Chancery, including superior courts of Australia. However, it is also useful to note that, in Australia, freezing orders are understood as being made in exercise of inherent or implied powers, not equitable jurisdiction; see Cardile (1999) 198 CLR 380, [40] (see further discussion below).

13 Broad Idea [2021] UKPC 24, [1]; [3] (Lord Leggatt).

14 Broad Idea [2021] UKPC 24, [101] (Lord Leggatt).

15 Broad Idea [2021] UKPC 24, [102] (Lord Leggatt).

16 Eg, the Foreign Judgments Act 1991 (Cth).

17 Deputy Commissioner of Taxation v Huang [2019] FCA 2122.

18 Deputy Commissioner of Taxation v Huang [2019] FCA 1537.

19 Deputy Commissioner of Taxation v Huang [2019] FCA 2122.

20 Deputy Commissioner of Taxation v Huang [2019] FCA 1728.

21 Huang v Deputy Commissioner of Taxation (2020) 280 FCR 160, [43]; Huang v Deputy Commissioner of Taxation (No 2) [2020] FCAFC 160.

23 Deputy Commissioner of Taxation v Huang [2021] HCA 43, [26].

23 See Deputy Commissioner of Taxation v Huang [2021] HCA 43, [33]–[34], [46].

24 Huang at [34] (Edelman J), citing Jaken Properties Australia Pty Ltd v Nauman [2020] NSWSC 2554, [44].

25 Deputy Commissioner of Taxation v Huang [2021] HCA 43, [40].

26 See, for example, the observations of Lord Leggatt in Broad Idea at [102].

Taxing Matters

Capital Gains Tax

AND ITS EFFECT ON VALUES

By Grahame Young FTI, TEP Barrister, Francis Burt Chambers Suppose a deceased estate holds two assets having equal market values.

Property A is either a pre-CGT asset or a post-CGT asset with a cost base approximately equal to the market value.

Property B is a post-CGT asset with a cost base very much less than the market value.

There are two equal beneficiaries and, under the Will or by agreement between them, each is to be entitled to one of the properties.

If the beneficiaries were to dispose of the properties then the beneficiary taking Property A will only have a capital gain equal to any increase in value after transfer from the estate, but the beneficiary taking Property B will have a capital gain including the capital gain that accrued before the transfer from the estate.

As between the beneficiaries, the value they place on the properties will be influenced by the potential tax liability, but any purchaser will be indifferent to the taxation consequences for the seller.

The question arises, what, if any, allowance is to be made for the latent capital gains tax on any subsequent disposal of property B? The question can arise in a number of contexts: •

The agreement between the parties as to who takes which property;

•

If there is an equalisation clause in the Will; and

•

The transfer duty payable on the transfer if a beneficiary is taken to receive dutiable property having a value greater than their entitlement.

The issue was considered recently by Bampton J. of the South Australian Supreme Court in Todd v Todd [2021] SASC 36, in the context of an equalisation clause intended to result in all beneficiaries receiving “an equal value of bequests” under her will. The bequests were of properties having differing market values.

Two of the beneficiaries were to receive properties subject to a latent liability for capital gains tax.

The executors put forward a methodology for valuing the properties by deducting the tax payable by the beneficiaries assuming the properties were sold as at the date of the deceased’s death and the beneficiaries would disclose their tax returns to enable the calculation to be made.

The two beneficiaries were prepared to accept that methodology, but also took a

“value received” approach which would make allowance for the possibility of a future sale.

or active assets of a small business that have been the focus of legislative attention from time to time.

They argued that an allowance should be made under the equalisation clause and cited the family law decision in Rosati v Rosati [1998] FamCA 38 in which the Court held that the potential liability could be taken into account in relation to a division of property.

These matters can preclude agreement being reached, in that event the fall-back is likely to be that no allowance can be made or the properties are sold.

They cited a number of other cases, but were unable to persuade the judge that they supported their contention.

They also noted that in the valuation of assets and liabilities accountants, “every day of the week”,take into account future events that may or may not happen.

The other beneficiary relied on the well known Spencer test to support her contention that value meant market value.

The judge accepted that there could be “truly exceptional circumstances” where “value” should notionally bring future CGT liabilities into account, but held there was no evidence to suggest such circumstances existed.

After pointing out some of the difficulties standing in the way of making an allowance she found that “value” in the equalisation clause meant market value.

While the judgment was made in relation to a particular equalisation clause, it is submitted it has wider application.

In the writer’s experience, as between beneficiaries, it can be possible to agree on an allowance for the adverse tax consequence after taking into account the effect of three variables: •

The likely time the property will be retained by the beneficiary before being disposed of;

•

A discount rate to calculate the time value of the deferral of the liability; and

•

The rate of tax applicable to the gain.

The decision in Todd suggests that a standard ‘equalisation’ clause will not be effective to take account of tax consequences. No doubt it would be possible to draft a clause that fixes, or prescribes a method to fix, the variables mentioned above so a calculation can be made of the potential liability in order to equalise the benefits received. I suggest the drafting would be difficult and that changing circumstances may mean the adjustment no longer works as intended and creates the same sort of unfairness that the provision seeks to overcome.

The more recent case of Craven v Bradley [2021] VSC 344 deals with a clause that was effective, but nevertheless required the Court to construe the equalisation clause.

Finally, in respect of the transfer duty regime for transfers from deceased estates contained in sections 139 and 139A of the Duties Act 2008, the decision in Todd confirms the values to be taken into account for determining whether a beneficiary has received dutiable property with a value greater than the beneficiary’s entitlement to the estate will be the market values without any adjustment for the taxation consequences for the beneficiary.

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

Resolution of the issue can be further complicated if the beneficiary has carry forward capital losses that may or may not still be available to be offset against the capital gain when realised.

Any agreement usually assumes the continuation of the current capital gains tax regime and income tax rates. It is difficult, if not impossible, to forecast future tax rates or legislative changes, particularly if the property is subject to special provisions, such as the exemption for main residences

39

2022

Welcome to

The fabulous Lalla Rookh will play host to our first sundowner of the year on February 23 — bookings are open now!

40 | BRIEF FEBRUARY 2022

Chris Burch

Chair, Young Lawyers Committee

Demi Swain

Deputy Chair, Young Lawyers Committee

W

elcome to 2022 — only a month old, and it is already set to be as eventful as the year we’ve just farewelled.

junior lawyers, graduates and paralegals will heighten, with our Know Your Rights Guide to be broadcast to new-starters in the profession.

2022 for the YLC promises to be eventful in a fortunately different way.

And worry not — all of our usual sundowners, social sports and careersfocused events are back. Not to mention the unmissable Golden Gavel: register early before it sells out.

Joining the mix from last year will be a renewed focus on opportunities for boutique and in-house juniors to get together, and new ways to bring students into the profession.

Our focus on working conditions for

MARCH

18 2022

So if you don’t want to miss out, follow the YLC on Instagram @ylc.wa and look out for your chance to get involved.

YLC Mixed Beach Volleyball Competition Unless you’re in litigation, you’ve had all summer to train. If you are in litigation, you certainly have the requisite level of competitiveness to pull a team together. Register your team’s interest today by emailing membership@ lawsocietywa.asn.au.

APRIL

08 2022

FEB

23 2022

@ylc.wa follow the YLC on Instagram @ylc.wa to be the first to know when new events and news are released

YLC Sundowner Join us at Lalla Rookh to catch up with colleagues and make new connections.

Welcome to the Profession Breakfast We will once again welcome the newest lawyers to the profession. Don’t miss out on celebrating this milestone with your friends and colleagues.

41

Case Notes Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Before last month, not many of us knew a great deal about the Minister for Immigration’s power under s 133C(3) of the Migration Act 1958 (Cth) to cancel visas without any requirement to afford natural justice.

The decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 highlights the extraordinary breadth of that power, and the very limited prospects that even an exceptional visa holder has of seeking to quash a cancellation decision.

And the visa holder in this case truly was exceptional.

Novak Djokovic and his views on vaccination For the past decade, Novak Djokovic has dominated men’s tennis. One of the key contributors to his success has been said to be his complete professionalism in taking care of his body and mind.

This dedication has led him to hold the world no. 1 ranking for a total of 356 weeks, to become the only man to win all majors twice, and to have almost been in position to reach his coveted 21st slam in January of 2022. Had he not been deported, he could have overtaken his rivals’, Roger Federer and Rafael Nadal’s, joint record of 20 majors each.

Throughout the 2010s, Djokovic repeatedly indicated a preference for alternative methods of medicine. His 2013 book, Serve to Win, details his decision to adopt a gluten-free diet following consultation with a ‘holistic practitioner’ and in 2016-18, Djokovic added Spanish former-player-turnedmeditation-guru Pepe Imaz to his team, who brought the philosophy of Amor Y Paz (Love and Peace) to tennis coaching.

During this period, Djokovic was affected by an elbow injury that many in his team (including his then coach Andre Agassi) believed would require surgery to heal satisfactorily. After some time off from competition, and a drop to 22nd place in the rankings, Djokovic grudgingly agreed to undergo the procedure in 2018, telling Simon Briggs of The Telegraph, ‘I am not a fan of surgeries or medications … I am

42 | BRIEF FEBRUARY 2022

Chris Burch

Chair, Young Lawyers Committee

just trying to be as natural as possible, and I believe that our bodies are selfhealing mechanisms’.1 Later, in 2020, Djokovic hosted several Instagram interviews with Chervin Jafareih, a former real estate agent and hedge fund manager turned wellness guru. These discussions became a platform for Jafareih to peddle various ‘wellness’ products such as ‘brain nutrients’, and included discussions on topics such as how prayer and gratitude can change toxic foods into healthy/ healing ones.2 In a livestream discussion with other Serbian athletes in April 2020, Djokovic stated he is opposed to vaccination and would not wish to be forced to take a vaccination in order to compete in international tournaments.3 Though Djokovic has more recently narrowed these remarks by referring specifically to a COVID-19 vaccine, such a vaccine was not available at the time and the comments led to widespread speculation within the tennis community that he may have been opposed to vaccinations more generally.

In early 2020, Djokovic faced heavy criticism for the lack of social distancing procedures enforced during the Adria Tour; an exhibition tennis tour that was Djokovic’s brainchild. The tour was held across Serbia and Croatia, and resulted in a cluster of COVID-19 cases.4 Throughout 2021, Novak continued to decline to reveal his vaccination status, declaring it a private matter and reiterating his freedom of choice stance.

Conversely, the 2021 Serbia Open — a clay court tournament which Djokovic was heavily involved in organising, and at which his younger brother Djordje held the role of the tournament director — offered vaccination clinics for players, coaches and officials.5 That led to speculation that perhaps Djokovic was honestly opposed only to being obliged to be vaccinated in order to compete, or that he might have been vaccinated but merely unwilling to disclose his vaccination status for privacy reasons.

On 4 January 2022, Djokovic shared a post on Instagram with a caption stating

Vaughan Jameson

Law Student University of Notre Dame Fremantle

that he was heading to Australia with an ‘exemption permission’, providing what was at the time the most definite answer to the question of his vaccination status. 6 Djokovic landed at Melbourne airport late on 5 January 2022, was quickly escorted to passport control and was later formally interviewed by Australian Border Force officers. The interview lasted for 8 hours and resulted in the decision to cancel Djokovic’s visa and relocate him from the airport to the Park Hotel where he would remain under detention until the Federal Circuit Court later ordered he be released.

The first definitive response Djokovic gave to an enquiry as to his vaccination status is found in the transcript of the interview with the Border Force officers in the early hours of 6 January. In response to the question ‘… regarding your vaccination, are you vaccinated[?]

- - -’. Djokovic responded ‘I am not vaccinated’; repeating again in response to the clarification ‘- - - for COVID-19?

Not vaccinated?’, ‘I am not vaccinated’.7

The visa cancellation and the Federal Court challenge When the decision made at the end of that long interrogation to cancel Djokovic’s visa was quashed, the Commonwealth’s Counsel informed the Court that the Minister for Immigration would consider whether to himself cancel Djokovic’s visa under s 133C(3).

That power, relevantly, gives the Minister discretion to cancel a visa if they are satisfied that the presence of the visa holder in Australia is or may be, or might or would be, a risk to the health, safety or good order of the Australian community or a segment of it, and are satisfied that it would be in the public interest to do so.

Its exercise also results in a person being excluded from Australia for three years, absent limited exceptions.

The Minister exercised that power four days later, cancelling Djokovic’s visa for a second time.

The hearing that followed before the full court of the Federal Court was remarkable both for how quickly it convened — on a Sunday morning within 2 days of the decision, and for what it

While protests had occurred only after the first cancellation decision, the Court found Djokovic’s apparent position on vaccination may nevertheless encourage rallies and protests, and may lead to heightened community transmission: [81]

and the decision that followed reveal about the nature of the Minister’s power to cancel visas.

The Court was at pains to get across to the tens of thousands of viewers of its livestream that it was not in a position to consider the merits or wisdom of the Minister’s decision; only its lawfulness by reference to the complaints made by Djokovic’s legal team.

Those complaints related broadly to the findings open to the Minister on the material before him, and to whether the Minister should have but did not compare the consequences of cancelling Djokovic’s visa against the position if he were allowed to remain in Australia.

Each was dismissed.

As to the proposition that it was not open to the Minister to conclude Djokovic had a well-known stance in opposition to vaccination, the Court simply noted he had previously expressed views about his opposition to vaccination, and had not by January 2022 become vaccinated: [71], [72], [74]. In those circumstances, it was plainly open to the Minister to infer Djokovic was opposed to vaccination or did not wish to be vaccinated: [74], [76].

Next, the Court dispensed with the argument that the Minister lacked evidence that Djokovic’s presence in Australia may foster anti-vaccination sentiment: [78]. It was open to the Minister to infer that Djokovic was publicly perceived as not in favour of vaccinations, had chosen not to be vaccinated, and that anti-vaccination groups portrayed Djokovic as a hero and icon of freedom of choice: [79].

While protests had occurred only after the first cancellation decision, the Court found Djokovic’s apparent position on vaccination may nevertheless encourage rallies and protests, and may lead to heightened community transmission: [81], [83], [85]. More than that, the Minister relied on Djokovic’s stance affecting those who may be uncertain or wavering as to whether to be vaccinated: [80].

The latter effect did not need evidence; it arose from common sense and human experience — an iconic world tennis star may influence people, especially the young and impressionable, to emulate him: [82]. Further, that Djokovic had recently attended public activities while COVID positive to his knowledge and without wearing a mask left open the inference that, if emulated, his behaviour may encourage breaches of public health

regulations: [86].

Finally, the Court addressed the contention that the Minister should have but did not consider whether cancelling Djokovic’s visa may itself foster antivaccination sentiment: [92]. It simply wasn’t necessary for the Minister to consider and weigh that potential consequence where the power to cancel Djokovic’s visa arose once the Minister was satisfied that his presence in Australia may be a relevant risk: [95]. The Minister was not required to consider the consequences of cancellation by way of a counterfactual: [95]. The Court noted, though, that it was open to the Minister to consider that potential consequence in assessing the public interest or in exercising his discretion: [96], [97]. The Court concluded the Minister was aware of ‘any number of’ consequences that might ensue from cancellation, including unrest, but was to be taken as not having regarded them as something necessary to weigh in making his decision: [100].

In any event, the Court identified that any failure to consider the potential consequences of cancellation would not affect the group that was hesitant or unwavering about getting vaccinated, who would not be influenced by

43

Case Notes

In the Park Hotel alone, which Djokovic endured for a countable number of hours, are refugees and asylum seekers who have spent years of their lives detained.8 Pictured: Victoria Police observe Novak Djokovic supporters, refugee supporters, and antivaccination protestors at The Park Hotel in Swanston Street, Carlton.

Djokovic’s absence from as they would his presence in Australia: [101].

The breadth of the Minister’s power to cancel visas In its decision, the Court explained how the Minister’s power to cancel visas arose.

First, it made plain that it need not be the fact that Djokovic was a risk to the health, safety or good order of the Australian community, only that the Minister be satisfied that his presence may or might be such a risk: [20], [41]. Those words, introduced into the Migration Act in 2014, lowered the requisite threshold of satisfaction to that of a possibility: [36].

Next, where the Minister’s satisfaction turned on factual matters on which reasonable minds could reasonably differ, Djokovic’s battle to show that no reasonable Minister could have cancelled his visa was ‘very difficult’ and ‘not easily made’: [27], [33].

Meanwhile, the Minister’s task was only to consider future possibilities by drawing inferences from known facts, based on reasonable conjecture within the parameters set by historical facts, and by taking into account common

44 | BRIEF FEBRUARY 2022

sense, a reasonable appreciation of human experience and the Minister’s and Department’s personal or specialised knowledge: [39].

All of that highlights the hard task Djokovic faced in challenging the Minister’s decision. He set to that task with a highly paid and well-resourced legal team and eminent counsel. They were able to prepare for a final hearing within days. But they were unable to overcome the breadth of the Minister’s power.

Djokovic is exceptional in another way, then. Very few visa holders could hope to fund such a thorough legal challenge, and to have it heard in so short a time. Instead, many former holders of cancelled visas find themselves in immigration detention — somewhere Djokovic spent only days while others languish indefinitely. In the Park Hotel alone, which Djokovic endured for a countable number of hours, are refugees and asylum seekers who have spent years of their lives detained.8 Assuredly, they are unlikely to all have been represented by leading silks and large law firms in their legal challenges.

What they have in common, though,

is how unlikely their challenges were to succeed in the face of a Minister’s unilateral power to cancel visas, once satisfied only of a future possibility, and whether or not a person in fact poses any risk at all.

Perhaps the inquiry that will inevitably flow from Djokovic’s deportation should not be into the tripartite debacle of the Commonwealth, Victoria and Tennis Australia, but instead into how our immigration system leaves the lives of the powerless subject to a single person’s whim.

Endnotes 1

https://www.telegraph.co.uk/tennis/2018/11/09/novakdjokovic-exclusive-cried-three-days-had-surgery-felt/

2

https://youtu.be/IsjipEwuFYg?t=3267

3

https://www.huffpost.com/entry/novak-djokovictennis-anti-vax_n_5e9daf8cc5b63c5b587220db

4

https://www.abc.net.au/news/2020-06-24/ novak-djokovic-charity-tennis-tournament-becamecoronavirus-mess/12387086

5

See, eg, https://twitter.com/i/web/ status/1385897312287956993

6

https://www.instagram.com/p/CYTe9fer_1K/

7

https://www.fedcourt.gov.au/__data/assets/pdf_ file/0004/95053/Parties-jointly-agreed-Transcript-ofInterviews-conducted-by-the-ABF.pdf

8

https://www.theguardian.com/australia-news/2022/ jan/07/novak-djokovic-refugees-hope-tennis-starshotel-detention-will-cast-light-on-their-torture

Climate Clauses Impactful ways young lawyers can contribute to tackling the climate crisis

Y

ou can hardly open LinkedIn, the Financial Review or any other media source these days without being confronted with at least one article about the impacts of climate change and the action that needs to be taken to keep global warming to below 1.5 degrees Celsius. Despite this, in its most recent report, the Intergovernmental Panel on Climate Change (IPCC) states that ‘Global warming of 1.5°C and 2°C will be exceeded during the 21st century unless deep reductions in carbon dioxide (CO2) and other greenhouse gas emissions occur in the coming decades’.

The IPCC calls on the global community to make strong, rapid and sustained reductions in our emissions to avoid catastrophic climate extremes in every region across the globe.

Closer to home, the New South Wales Young Lawyers Committee published a policy statement in late 2019 that recognises that we are facing a climate emergency and that ‘the law needs to enable and require Australia to rapidly decrease CO2 (and other greenhouse gas) emissions and to be legally accountable for their adverse contributions to the impacts of climate change’.

The question is, can young lawyers actually do anything about the climate crisis? The answer may not be immediately clear. Certainly, a majority of young lawyers will not be working in a field that provides them with the opportunity to take part in running strategic climate change litigation.

However, as outlined below, there are a number of other initiatives that young lawyers, (and lawyers of all ages!) can take to contribute to tackling the climate crisis.

Adopting a climate conscious approach to daily legal practice The Honourable Justice Preston SC, the Chief Judge of the New South Wales Land and Environment Court recently

spoke on how lawyers can implement a climate conscious approach in daily legal practice. At the heart of his speech was the concept of giving ‘holistic advice’. Justice Preston notes that when lawyers provide advice to solve a legal problem or dispute, they may already consider financial or relational consequences of different courses of action. He goes on to state that ‘Adding the climate change consequences as a consideration is a natural extension of this everyday practice’.

Justice Preston urges lawyers to adopt a climate conscious approach by considering possible climate change issues and consequences of different courses of action and incorporating these into the legal advice given. This may apply across a smorgasbord of different practice areas. Young lawyers may be involved in advising on clauses in transactions where there may be risks of extreme weather events damaging property or other business assets, or disrupting supply routes. As seen more and more frequently it could also involve advising on the risk to companies from either contributing to the climate crisis or failing to take action to adapt to climate change. It could also include advising clients on climate change impacts, such as sea level rise or bushfire risk, which might impact their plans to develop an area of land.

Consider whether climate clauses are suitable for your contracts Flowing on from Justice Preston’s advice, if you’re a young lawyer involved in drafting contractual clauses and commercial agreements you may wish to familiarise yourself with The Chancery Lane Project and its climate clauses toolkit.

The toolkit contains new and practical contractual clauses that can be incorporated into law firm precedents and commercial agreements to deliver climate solutions. Even if young lawyers

may not be overly familiar with this emerging area of the law, they can consider the applicability of a draft clause which has been drafted by sector specialist lawyers and peer-reviewed.

There are hundreds of draft clauses and precedents available, including everything from shareholder resolutions relating to a company’s climate change commitments to clauses for renewable energy requirements in supply contracts and to ‘Coolerplate’ clauses (climate aligned boilerplate clauses). Whilst these clauses may not be applicable to every contract or matter, young lawyers could consider following Justice Preston’s ‘holistic advice’ approach and looking to whether there are any situations in which they may be applicable.

Working on law reform activities 2020 and 2021 saw an overhaul of several pieces of environmental legislation in Western Australia as well as on a federal level, including the Environmental Protection Act 1986 (WA) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

There are also ongoing consultations on various environmental policies at both a State and local government level.

Therefore, an obvious way for young lawyers to contribute to tackling the climate crisis is to lend their legal expertise to organisations who make law reform submissions on climate change matters, or alternatively to draft their own submission on climate-related law reform matters.

Secondment to a community legal centre or other organisations working on climate change litigation Depending on young lawyers’ work situations, they may consider investigating whether their firm is open to secondments to community legal centres or other organisations working on climate change matters.

Often, community legal centres or

45

Impactful ways young lawyers can contribute to tackling the climate crisis environmental organisations have limited resources and are reliant on funding.

By being a secondee, young lawyers can contribute to the capacity of a community legal centre or organisation to undertake climate change related work.

example, Law Access and Legal Aid WA have facilitated pro bono assistance to communities that were affected by Cyclone Seroja in 2021. Legal issues that might arise during natural disasters include insurance claims, housing and tenancy issues, and destroyed wills.

updating of written materials distributed by environmental law organisations.

This can include ensuring that written materials such as factsheets, checklists and legal information guides are written in plain English, and accurately reflect current legislation and policy.

Organisations include the Environmental Defenders Office, the WA Branch of the National Environmental Law Association, WA Climate Leaders and Lawyers for Climate Justice. A further list of Australian organisations that are working to fight climate change has been published by the Australian Pro Bono Centre.

If a secondment or providing pro bono assistance is out of the question, then young lawyers could consider volunteering with the previously mentioned organisations on specific projects which require a lesser time commitment.

Conclusion

Alternatively, it may also be possible to provide pro bono legal assistance for legal needs that may arise because of the higher incidence of natural disasters such as bushfires, flooding and other extreme weather events across the country. In Western Australia, for

For example, depending on their level of experience and skills, young lawyers are able to assist with providing community legal education. This can include assisting with the organising and delivering of seminars and webinars on climate change related issues.

Climate change litigation may not form a part of the daily legal practice of many young lawyers. Despite this, young lawyers have the ability to make an important contribution to the legal fight of tackling climate change. In the words of the Australian Pro Bono Centre’s Guide to the Climate Crisis, ‘While our individual actions may seem small, collectively the legal profession can show leadership — and have a substantial impact on the climate crisis’.

Alternatively, young lawyers may be able to assist with the drafting or

The Chancery Lane Project has hundreds of draft clauses and precedents available, including everything from shareholder resolutions relating to a company’s climate change commitments to clauses for renewable energy requirements in supply contracts and to ‘Coolerplate’ clauses (climate aligned boilerplate clauses).

54

07

Model Clauses

Glossary Entries

Tools

Contractual clauses which can be incorporated into precedents and commercial agreements

Draft climatealigned contracts using these climate-related definitions

1300 104 Legal Professionals Collaborating

63,000 Publication Downloads

46 | BRIEF FEBRUARY 2022

This toolkit guides legal professionals in the use of climate-aligned clauses in their contracts

Young Lawyers Mixed Netball Competition – Wrap up

Aunt

Prudence Juris Dear Aunt Prudence, I made the mistake of showing auto-sum in Excel to my Partner; now they think I’m some sort of computer genius and call me in to assist on all IT issues. I’m worried they will figure out I’m a fraud in IT as well as law sooner or later. What should I do? - Not the Office IT Guy Dear Not the Office IT Guy, Unfortunately, you’ve made the all-too-common mistake of displaying basic computer literacy, and there’s no un-ringing that bell. Luckily, most technical problems our learned Partners come across are easily remedied, even if some things they set out to do are simply impossible using today’s technology instead of Lotus Notes.

On Friday, 26 November 2021, the Law Society’s Young Lawyers Committee hosted the annual Mixed Netball Competition, this year on the indoor courts at the Gold Netball Centre.

The competition is always one of the most popular events on the YLC’s calendar and this year did not disappoint with 10 teams battling it out over five fast-paced rounds, all eager to take home the trophy.

The semi-finals saw four teams battle it out for a place in the finals, with Clayton Utz meeting Corrs Chambers Westgarth and King & Wood Mallesons competing against Allens.

New Members

In the end it was King & Wood Mallesons that went head-to-head with reigning champions Clayton Utz in an exciting game but for the fourth year in a row, Clayton Utz proved they are the top tier team and took home the trophy.

It was a great evening and participants had a chance to catch up and enjoy some well-earned wood-fired pizza after the games before heading off to the Wembley Hotel for some much-needed refreshments and for one team, some celebration.

Thank you to everyone who took part in the competition and congratulations to this year’s winners Clayton Utz!

New members joining the Law Society (December 2021 & January 2022)

Associate Membership

Restricted Practitioner

Ms Bethany Hosking Mr Rex O’Rourke Department of Communities Ms Priya Conrad Murdoch University - School of Law Ms Jessica Gordon Edwards Mac Scovell Mr Kim Pedler Frichot Lawyers

Mr Americk Sidhu Rekhraj Legal Ms Jane Song Philipoff Legal Ms Alexia Avdoulas Tang Law Ms Sylvia Biesenbach Frichot Lawyers Mrs Debra Crossley Gilchrist Connell Mr Sean McMurdo Andrew Lynn Lawyers Ms Danielle Scott Vogt Graham Lawyers

Ordinary Membership Mr Hugh Dahlitz Butlers Lawyers & Notaries Ms Bella Phillips Foyle Legal Ms Rachel McKenzie McKenzie & McKenzie Miss Bec Slimming Allens

While you might not always have the answer, Google does. If you come across an error you can’t fix, feign severe intestinal distress (not terribly hard to believe with our stress levels), slip out and google the problem. If that fails, carry on the time-honoured tradition of blaming your IT service provider. Simple.

Best of luck, Aunt Prudence Dear Aunt Prudence, I’m nearing the completion of my PLT and am looking toward getting admitted. My problem is, a few years ago I was charged with drink driving and I’m worried that will stop me from getting to be a lawyer. What should I do? - I’ve Changed I Promise Dear I’ve Changed I Promise Fret not, if a past indiscretion prohibited us from practising, there’d be almost no lawyers at all.

At the end of the day, everyone makes mistakes; the important thing is that you’ve learnt from it and are a fit and proper person now. Provided you haven’t committed any further sins (including any you reckon you got away with), there is no great need for fear. Think of the Legal Practice Board as the Priest and your application as the confessional — declare everything and repent.

Forgiveness should follow. It’s only trying to hide your indiscretions from their omniscient gaze that will land you in hot water.

Best wishes for your sober legal career, Aunt Prudence

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

47

Under Pressure to Falsely Certify Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Ethics Column Lawyers can sometimes be pressured by clients to cut ethical corners, say, by false certifying the execution or witnessing of a document.

It may prove tempting to yield to this pressure when this will benefit the client and not disadvantage another person.

Yet lawyers owe a higher obligation to foster unwavering ethical standards.

It takes little time in legal practice to recognise that clients can be demanding, and are, on occasion, inclined to place undue pressure on their legal representative(s) to secure or facilitate a desired outcome.

Apart from patent self-interest, client behaviours of this kind are often informed by a belief that lawyers owe a one-eyed duty to clients. And this may indeed align with lawyers’ own inclinations to keep clients satisfied, thereby increasing the scope for retaining clients and attracting new ones.

Wales,1 the appellant lawyer certified that he had explained mortgage documents to the mortgagors despite not having met the mortgagors or communicated with them. While not downplaying the seriousness of the lawyer’s misrepresentation, which was conceded to constitute professional misconduct, the New South Wales Court of Appeal unanimously viewed his behaviour as an isolated error of judgment that was the result of a momentary lapse. The lawyer’s candid acknowledgement of wrongdoing, coupled with his expression of contrition, led the court to set aside the tribunal’s order that he be struck off with the payment of a $7000 fine.

Multiple other cases have likewise responded to single instances of false certification by way of a reprimand coupled with a fine.2 The very number of disciplinary instances in this context may well suggest a “tip of the iceberg” in this regard, especially in that false certification can easily be masked with the client’s cooperation.

Yet some clients are hardly averse to their legal representatives “cutting ethical corners” when this may accrue for the clients’ benefit. There are manifold occasions where this might ensue, but a typical one — which may not register at the serious end of misdeed in the minds of some — may involve lawyers falsely certifying as to the witnessing or execution of a document, or to having given an explanation thereof. One may (albeit not legitimately, it should be observed) rationalise that certification requirements can be obviated for reasons of convenience and cost.

A danger, of course, is that a single instance of false certification for a client’s benefit can translate to a repetition of the wrongdoing. Yielding to client pressure once may prompt the same expectation thereafter, conveying to the client that the lawyer is willing to cut ethical corners in this (and possibly other) contexts where it may benefit the client. The lawyer may, to this end, tread a slippery slope, capable of incrementally numbing his or her ethical sensitivity, and thus triggering a rationalisation of unethical behaviour (including behaviour directed at benefiting the lawyer personally).3 Law is, after all, heavily concerned with process, and the utilitarian ethic of “ends justifying the means” rarely underscores ethical behaviour in legal practice.

The disciplinary case law is littered with instances of lawyers who have engaged in false certification. Almost invariably, this has sounded in a finding of professional misconduct.

In a leading case, Fraser v Council of the Law Society of New South

It is little surprise, then, to find occasions in the disciplinary case law of lawyers who have succumbed to repeatedly making false certifications.

Nor is it surprising that, on those occasions, the disciplinary sanction has proven more severe. In Victorian

48 | BRIEF FEBRUARY 2022

Legal Services Commissioner v Merhi,4 for instance, four occasions of false attestation and certification over a five month period produced a 12 month disqualification time frame.

Yet even an ostensibly isolated infelicity in this context can translate to a protective order. In Legal Practitioners Conduct Board v Rowe,5 a lawyer who arranged for a client to sign blank pages so that his affidavit could be printed onto them, without the client needing to attend to sign the document in question, was ordered not to apply for a practising certificate for three years. This was despite the fact that the misconduct was driven to avoid inconvenience to the client, and occurred against the backdrop of a largely unblemished lengthy practice career.

The lesson, in the words of a New South Wales tribunal in a recent case, is that “[p]ressure from clients and embarrassment are not and cannot be excuses for lapses in compliance by lawyers with their professional conduct obligations and should not affect the way a solicitor’s conduct is characterised”.6

End notes 1 2

3

4 5 6

CA(NSW), Kirby P, Handley and Cripps JJA, 7 August 1992, unreported.

See, for example, Re Rigelsford [1995] 1 LPDR 1; Re Bellamy [1995] 1 LPDR 26; Legal Services Commissioner v Nguyen [2006] LPT 7; Legal Services Commissioner v Lamplugh [2012] VCAT 279; Law Society of New South Wales v Gathercole [2016] NSWCATOD 27.

See, for example, Council of the Law Society of New South Wales v Selim [2016] NSWCATOD 29 (involving a solicitor who made and propounded a false declaration that documents pertaining to a loan “for her own benefit” had been properly witnessed; in tandem with an attempt to mislead the Law Society upon its investigation, this led to her removal from the roll).

[2017] VCAT 1054.

[2012] SASCFC 144.

New South Wales Legal Services Commissioner v Zou [2021] NSWCATOD 139 at [72].

Summary of Judgment

Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 11 October 2021

T

he Honourable Justice John Dixon has today found that a litigation funder and five lawyers (‘contraveners’) engaged in egregious conduct in connection with a fraudulent scheme, intending to claim more than $19 million in purported legal costs and funding commission from the settlement sum in a group proceeding. Justice John Dixon noted that the contravener’s conduct had shattered confidence in, and expectations of, lawyers as an honourable profession, and corrupted the proper administration of justice.

His Honour concluded that the contraveners’ actions were appalling breaches of their respective duties to the court, particularly the paramount duty and overarching obligations imposed on them by the Civil Procedure Act 2010 (Vic).

Justice John Dixon ordered that they pay damages of $11,700,128 to approximately 16,000 group members, plus the costs of the remitter on an indemnity basis.1

His Honour further ordered that: Mr Norman O’Bryan SC and Mr Michael Symons (barristers) be removed from the roll of persons admitted to the legal profession; Mr Anthony Zita and Mr Alex Elliott (solicitors) each show cause as to whether they are fit and proper to remain on the roll of persons admitted to the legal profession; and the reasons for judgment and the record of the trial be referred to the Director of Public Prosecutions for any further investigation and action thought appropriate.

Background In November 2018, the Court of Appeal remitted the Banksia Securities Limited group proceeding to the Trial Division to consider an application by Australian Funding Partners Limited (‘AFP’) to be reimbursed $5.2 million in legal costs and to be paid $14.1 million in litigation funding commission, following a $64 million settlement reached in December 2017.

In March 2019, the court-appointed Contradictor alleged breaches of the overarching obligations, fiduciary duty, professional conduct rules and the funding agreement, such that AFP ought not be entitled to recover any or all of those amounts. Those allegations were rejected and fiercely defended by AFP, Mr O’Bryan and Mr Symons until the trial of the remitter commenced, where they each withdrew their respective defences.

acted contrary the strictest of ethical and professional duties as barristers, in the arrogant and defiant belief that their conduct would go undetected.

Mr O’Bryan, in particular, abused his standing and influence as senior counsel to deceive the court and other lawyers into trusting his representations concerning his fees, and in seeking to collude with other witnesses to the remitter. They have left a stain on the integrity of barristers as a profession.

Dixon found that: After avoiding being formally restrained from acting as solicitor and senior counsel while they each held an investment in AFP by false representations to other practitioners and the court, Mr Mark Elliott (managing director of AFP) and Mr O’Bryan circumvented the court’s ruling, including by appointing Mr Zita as ‘post box’ solicitor.

Following the in-principle settlement, Mr Mark Elliott, Mr O’Bryan and Mr Symons demanded that the other parties agree to settlement terms that were adverse to the interests of group members, including requiring the other parties to support court approval of AFP’s $19.3 million claim, while broad confidentiality requirements prevented the court and other parties from careful assessment of that claim.

Mr Zita acted in gross dereliction of his duty to his client and group members by allowing himself to be controlled throughout the litigation. He failed to exercise independent forensic judgment or perform work advancing their interests in the four years that he acted as their solicitor. He, too, has left a stain on the integrity of his profession.

Mr Alex Elliott was his father’s ‘right hand man’ and knowingly and actively assisted Mr Mark Elliott execute the fraudulent scheme and deceive the court.

Mr Mark Elliott reverse engineered the $5.2 million costs claim into ‘fee targets’ that each of Mr O’Bryan, Mr Symons and Mr Zita then met; none of whom having issued invoices for their fees prior to the settlement.

Mr Trimbos’s conduct allowed AFP’s illegitimate claim to succeed undetected.

He failed to act as an independent expert witness and did not make proper enquiries concerning how legal costs had been calculated or to confirm they were referable to work actually performed.

Mr O’Bryan and Mr Symons each contrived backdated costs agreements and invoices, to appear as if their fees were legitimately incurred. Each of them included hundreds of hours of time for work that had never been performed.

Mr Mark Elliott, Mr O’Bryan and Mr Symons deceived the court as to the legitimacy of AFP’s claim, including authoring a misleading opinion of counsel, and procuring a report from an expert costs lawyer, Mr Peter Trimbos, by misleading him into concluding the legal fees were legitimate, resulting in court approval of the $19.3 million claim.

Mr Mark Elliott, Mr O’Bryan and Mr Symons, supported by Mr Zita and Alex Elliott, waged a campaign of intimidation against a group member who appealed the approval of the settlement in order to preserve their own interests, including by issuing financial threats against that group member and her legal representatives.

Active steps were taken to avoid the proper administration of justice and conceal fraudulent scheme in both the appeal and the remitter hearing.

Findings

Mr Mark Elliott was a highly unethical and dishonest person who demonstrated total disregard for his professional obligations and his duties as an officer of the court.

In reasons published today, Justice John

Mr O’Bryan and Mr Symons each

His Honour noted that although the conduct of the contraveners was appalling, the remitter had demonstrated the capacity of the civil justice system to self-regulate, particularly in the context of group proceedings and litigation funding, through the commitment of the judiciary and the profession in protecting the proper administration of justice. Ultimately, despite the best efforts of the contraveners, the spoils were never divided.

The proceeding will be relisted on a date to be fixed, for applications for non-party cost orders against the estate of Mr Mark Elliott and entitles associated with Mr O’Bryan and the Elliott family.

--NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the court’s reasons or to be used in any later consideration of the court’s reasons.

The only authoritative pronouncement of the court’s reasons and conclusions is that contained in the published reasons for judgment.

Endnotes 1 Estimated at trial to exceed $10 million.

49

Understanding “Them”

by Dr Jane Tudor-Owen BSW(Hons) LLB PhD

Our language is constantly evolving, more inclusive use of pronouns is being sought by clients – and courts In 2019 Merriam Webster announced ‘they’ as the Word of the Year,1 specifically noting its use as a pronoun for individuals who identify as non-binary.2 Although some have heralded the singular use of they as offending the English language, using other gender neutral singular pronouns like ‘someone’ or ‘everyone’ is nothing new.3 It is also not a new concept to be revising our use of language in response to allegations of gender bias. Historically, there has been a move away from the default use of ‘he’ for this reason.4 However, at times the attempt to remedy this has been less than comprehensive.

For example, utilising interpretation acts to provide an overarching caveat with respect to legislation using ‘he’ exclusively, rather than amending individual instruments.

However, as welcome as reform is to reduce linguistic bias, to date, this has generally been limited to broadening gender to include male and female pronouns. In contrast, adopting gender neutral pronouns, for example, the singular use of ‘they’, includes people who may not identify as male or female, or whose gender may not be fixed.5 Opponents to the inclusive use of pronouns cite extremes of political correctness in their arguments: “pronoun preferences are a favourite joke among unimaginative reactionaries who use them as proof that “snowflake millennials” just want to feel special”.6 More dangerous arguments come from those who suggest the singular use of they, the most common strategy to eliminate the use of gendered pronouns, leads to imprecise language which, in the context of legal work, can lead to ambiguity with significant implications for parties.7

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In order to encourage clients to seek assistance from lawyers, particularly those clients who are vulnerable, it is essential to provide services that are accessible in every way. Far from being too much of a challenge to amend the way we interact with clients, Brown reminds us that of all professions, lawyers are best placed to adapt: “every day, lawyers and judges write about complex material that is unfamiliar to our audiences; we explain and define odd terms of art, strange vocabulary, and peculiar rules, and then we lead the reader through analyses that use those same concepts and principles.

We can do the same with pronouns and honorifics”.8

Strategies to promote inclusion Jurisdictions around the world are formalising approaches to inclusive use of pronouns with clients and in courts. In Australia, there is increasing awareness of the need to recognise gender diversity, rather than grouping this together with sexual diversity. For example, within the Equal Justice Bench Book in Western Australia9 and the Equality Before the Law Bench Book in New South Wales,10 gender is treated separately to sexuality.

In their strategy to Eliminate LGBTIQ+ Discrimination, the Victorian Bar have suggested inquiring after a person’s preferred pronoun as a matter of practice in an attempt to be more aware of gender diversity.11 Around the world there are examples of practical strategies that have been adopted to promote (and at times, mandate) inclusive use of pronouns. In Canada, from 16 December 2020, parties to proceedings are required to provide (or have provided on their behalf) their name, title, and pronouns. Clerks of the court are to request this information if it is not offered and judicial officers will make the request in circumstances where there is no clerk present.12 From 30 June 2021 in San Francisco, a policy directive from the District Attorney requires the correct pronouns and preferred names to be identified as soon as possible for defendants, witnesses, victims, as well as non-parties, for all new cases.13 While

not operating retrospectively, the policy encourages the use of inclusive pronouns wherever possible in all cases.

Of particular note are the resources produced by the Law Society in the United Kingdom, which make tools and templates for workplaces to use in supporting trans employees widely available. The suggestions they provide for using pronouns inclusively include:14 Use “they/them” until you know someone’s pronouns, e.g. “There is someone here to see you. I will ask them to take a seat”; If you know someone’s pronouns, use it when you introduce someone so that others know what pronouns to adopt, e.g. “This is Jen, they work in Finance.

This is Fred, he works in Marketing”; Listen to how people speak about themselves and follow; Check to see if the person has included their pronouns in their e-mail signature; If you are unsure, discreetly ask people what their pronouns are (e.g. “Sorry, I didn’t catch your pronouns”).

The approach to adopting the inclusive use of pronouns will vary according to context, whether that be working with clients, colleagues, or in the court.

However, as Hesse states, “we’re not really talking about grammar. We’re talking about the willingness for all of use to feel a little uncomfortable on our universal, bumbling quest toward compassion and humanity”.15 The judgement delivered by Quinlan CJ in WM v CEO for Department of Communities [2021] WASC 325 has drawn attention for the humanity expressed in the Chief Justice’s final observations. It could be argued that an equally powerful statement can be found in the Chief Justice’s consistent use of the respondent’s preferred pronoun throughout the judgement. This simple action recognises the respondent for who he is and is particularly poignant given the respondent’s family appeared not to. It more generally signals to the wider community that they do the same.

Book Review:

Endnotes 1 Locker, M. (2019, December 10). Merriam Webster’s Word of the Year 2019: “They”. Retrieved from https:// time.com/5746516/merriam-webster-word-of-theyear-2019/

The Curate’s Egg

by Tom Percy QC

2 Hesse, M. (2019, September 20). A grammar nerd gently dismantles those arguments for rejecting the new ‘they’. Retrieved from https://www. washingtonpost.com/lifestyle/style/a-grammar-nerdgently-dismantles-your-arguments-for-rejecting-thenew-they/2019/09/20/95f87260-da56-11e9-a688303693fb4b0b_story.html 3 Locker, M. (2019, December 10). Merriam Webster’s Word of the Year 2019: “They”. Retrieved from https:// time.com/5746516/merriam-webster-word-of-theyear-2019/ 4 A Pauwels & J Winter, Gender inclusivity or “Grammar rules OK”? Linguistic prescriptivism vs linguistic discrimination in the classroom’ (2006) 20(2) Language and Education, 128,128.

5 W Oliver, Gender and Grammar: The Singular “They” (2018) 18(1) Journal of Dance Education, 1, 1; including people who identify as gender-fluid, transgender, genderqueer, androgynous, and/or intersex.

6 Mahdawi, A. (2019, September 13). He, she, they … should we now clarify our preferred pronouns when we say hello? Retrieved from https://www.theguardian.com/ lifeandstyle/2019/sep/13/pronouns-gender-he-she-theynatalie-wynn-contrapoints 7 P Salembier, Is Bad Grammar Good Policy? Legislative Use of the Singular ‘they’ (2015) 36(2) Statute Law Review, 175, 178; Opponents of the singular use of they in legislative drafting highlight that it results in ambiguity with respect to the subject of the provision.

8 HK Brown, ‘Get with the Pronoun’ (2020) 17 Legal Communications and Rhetoric: JALWD 61, 101.

9 and Gender: Intersex, Trans and Gender-diverse People (ITGD)’ in Equal Justice Bench Book, 2nd Edition (2021) Retrieved from https://www.supremecourt.wa.gov. au/_files/Equal_Justice_Bench_Book.pdf 10 Judicial Commission of New South Wales, ‘Sex and Gender Diverse People’ in Equality Before the Law Bench Book (2020). Retrieved from https://www.judcom.nsw. gov.au/publications/benchbks/equality/index.html 11 Victorian Bar, ‘Eliminating LGBTIQ Discrimination.’

Retrieved from https://www.vicbar.com.au/members/ community/equality-diversity/eliminating-lgbtiqdiscrimination 12 M Gillespie CJ, ‘The Provincial Court of British Columbia: Notice to the Profession and Public Form of Address for Parties and Lawyers’ (2020, December 16) Retrieved from https://www.provincialcourt.bc.ca/downloads/ Practice%20Directions/NP%2024%20Form%20of%20 Address%20for%20Parties%20and%20Lawyers.pdf 13 C Boudin, ‘Policy Directive: San Francisco District Attorney’s Office Gender Neutral and Gender Inclusive Pronoun Use for People Encountering the Criminal Legal System’ (2021, June 30) Retrieved from https:// sfdistrictattorney.org/wp-content/uploads/2021/06/ Pronoun-policy-Final.pdf

Review by Thomas Camp

Solicitor, Butcher, Paull & Calder Junior Council Member, Law Society of Western Australia

T

here wouldn’t be a reader of Brief who is not aware of Tom Percy QC. Indeed, while many high-flyers in our profession would be unknown to the layman, that is not so for Percy. Lawyer, radio personality, commentator; it is now time to add “author” to the list. And with The Curate’s Egg, Percy is fully deserving of recognition as just that.

Published by Halstead Press, it is impressively written and has all the tension, twists and drama that would make it fitting for adaption as a tv mini-series. Percy has burst onto the literary scene with an excellent first offering.

We follow Declan McKenna at the beginning of the new millennia, a mining consultant in Perth who has recently returned to the big smoke from Albany. McKenna gets involved in a seemingly unspectacular gold float through an accountant friend and a wholly spectacular affair with an alluring finance reporter, which together see his world flipped on its head. As his comfortable existence begins to unravel, disparate threads from his life come together in a desperate fight for his future.

It is a book that keeps you on tenterhooks and has you asking whether the good can win, and whether they are actually good after all.

Australians, and particularly Western Australians, are no strangers to sensational stories from the worlds of mining, finance, the courts and law enforcement. This tale crosses over each of them, and there is of course also room for one of Percy’s renowned loves, horse racing.

While we are assured that it is a work of fiction, I am told that for people familiar with the milieu of the noughties in which the book is comprised, there are plenty of characters and events which may be more than a little familiar.

Even if you, like me, weren’t a part of it, it is refreshing as a Western Australian to read a book set in our own backyard and in a world we are all too familiar with. It provides an intimacy, as if you are part of the story.

The Curate’s Egg is a thoroughly entertaining romp and is refreshingly concise. It is hoped that this is just the beginning of Percy’s literary career.

14 The Law Society, ‘Using Pronouns in the Workplace’ (2021) Retrieved from https://www.lawsociety.org.uk/en/ topics/hr-and-people-management/using-pronouns-inthe-workplace 15 Hesse, M. (2019, September 20). A grammar nerd gently dismantles those arguments for rejecting the new ‘they’. Retrieved from https://www. washingtonpost.com/lifestyle/style/a-grammar-nerdgently-dismantles-your-arguments-for-rejecting-thenew-they/2019/09/20/95f87260-da56-11e9-a688303693fb4b0b_story.html

Jane Tudor-Owen (she/they) completed Piddington PLT with Midlas, and was admitted in November 2021. She holds a PhD, and subsequently taught and researched in, criminology.

This article was written with the research assistance of Emiko Watanabe, who also completed Piddington PLT in 2021 and was admitted in November 2021. Emiko is a lawyer at Glen McLeod Legal.

Audio Discussion Click here to listen to Tom Percy QC discuss his book (and a little commentary on a late night phone call to a certain tennis player).

The Curates Egg Tom Percy QC

Marty Young & Alex Vlahos

Thursday January 6, 2022

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WA Case Notes

By Dianne Caruso Senior Associate, HHG Legal Group

Middendorp v Lygina [2021] WASC 409 In Middendorp v Lygina the Supreme Court considered the defendant’s application to set aside the plaintiff’s writ of summons or alternatively, to transfer the proceedings to the Family Court of WA. The plaintiff sought in his writ to permanently restrain the defendant from adducing certain documents, or evidence of their content, in any proceedings as he claimed they were confidential and covered by legal professional privilege. The documents the subject of the plaintiff’s claim included draft Minutes of Consent Orders received by the plaintiff from his family lawyer with respect to Family Court proceedings and notes made by the plaintiff regarding a meeting with his family lawyer. The defendant argued that the plaintiff’s claim fell within the exclusive jurisdiction of the Family Court or alternatively, that it be transferred to the Family Court under cross vesting legislation. The Supreme Court dismissed the defendant’s application, made an order for costs and programmed the matter to an expedited trial to hear the plaintiff’s claim.

Background and procedural history The plaintiff made an application to the Supreme Court of WA to restrain the defendant from seeking to adduce certain documents or evidence of their content in any proceedings on the basis the information contained therein was confidential and protected by legal professional privilege. The documents the subject of the plaintiff’s claim included: 1. Draft Minutes of Proposed Consent Orders to be made in the Family Court which had been sent to him by his lawyer; and 2. Notes made by the plaintiff in a bound notebook for the purposes of a meeting with his lawyer as well as notes made by him during the meeting with his lawyer regarding matters discussed during the meeting.

The parties had been in a de facto relationship which had ended. There was a child of that relationship that was aged 5. There were proceedings on foot in the Family Court of Western Australia in respect of both financial and parenting matters.

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There were also proceedings on foot in the Magistrates Court of Western Australia in relation to an interim violence restraining order in force protecting the defendant against the plaintiff. A final hearing had been listed in the Magistrates Court in early December 2021.

The defendant’s application to the Supreme Court was heard on 5 November 2021. The matter required urgent consideration in light of the final hearing listed in the Magistrates Court and the relevance of the plaintiff’s application to that final hearing. The reasons for decision of the Supreme Court in respect of the defendant’s application were delivered on 9 November 2021 and published on 23 November 2021.

The parties’ positions The defendant sought that the plaintiff’s writ of summons be set aside on the basis that the Supreme Court lacked jurisdiction and the plaintiff’s claim fell within the exclusive jurisdiction of the Family Court of WA. Alternatively, the defendant sought, that if the Supreme Court had jurisdiction, that the Supreme Court proceedings be transferred to the Family Court of WA under cross vesting legislation.

The plaintiff’s position was the Supreme Court did have jurisdiction to determine his claim and he opposed the transfer of the proceedings to the Family Court.

However, if the Court found it did not have jurisdiction, then rather than set it aside, he sought the Court transfer the Supreme Court proceedings to the Family Court.

Consideration of sections of the Family Court Act 1997 as to jurisdiction It was common ground between the parties that the Family Court of WA is a State Court and as the parties were in a de facto relationship, the Court was exercising its non federal jurisdiction. Further, it was common ground that the Family Court of WA’s non federal jurisdiction was exclusive of any other Court as provided under section 39 of the Family Court Act 1997 (WA) (“the Act”). The parties disputed however whether the plaintiff’s claim was within the jurisdiction of the Family Court when exercising its non federal jurisdiction.

The parties referred the Court to the following sections of the Act: 1. Section 36: Non-federal jurisdictions of

the Court; 2. Section 37(2): Principles to be applied and matters to be considered by Court in its non-federal jurisdiction; 3. Section 66A: Child’s best interests paramount consideration in making parenting order; 4. Section 184: Certain proceedings to be instituted only under this Act; 5. Section 202B: Principles for conducting child related proceedings; 6. Section 202C: This Division also applies to proceedings in chambers 7. Section 202F: Power to make determinations, findings and orders at any stage of proceedings; 8. Section 202H: Rules of evidence not to apply unless Court decides; 9. Section 202V: Right to certain civil proceedings limited; 10. Section 205ZA: Declaration of interests in property; 11. Section 205ZG: Alteration of property interests; 12. Section 235: Injunctions (in relation to a child); and 13. Section 235A: Injunctions relating to de facto relationships.

Findings of the Court In regards to the jurisdiction of the Family Court, the Supreme Court held: The Family Court of WA is a statutory court however the plaintiff’s claim was in equity.

Although the Family Court has an implied power to make orders to prevent its processes being abused and to protect the integrity of its processes, this power does not depend on it having an equitable jurisdiction.

The plaintiff seeks the defendant be permanently restrained from divulging the information in all contexts, including the Magistrates Court. The implied powers of the Family Court cannot be invoked in the Family Court to grant him the relief he is seeking in the Supreme Court.

Although the Family Court has the power to grant injunctions under sections 235 and 235A of the Act, it would be an unnatural construction to conclude that the plaintiff’s claim in the

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Supreme Court was in relation to the child or in relation to a matter arising out of the de facto relationship.

In respect of the application to transfer the Supreme Court proceedings to the Family Court, the Court considered section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). Section 5(4)(b) provides that where proceedings are pending in the court and it appears to that court that proceedings arise out of, or are related to proceedings in another court, and it is more appropriate that the relevant proceedings be determined by that other court, having regard to whether it was capable of being instituted in that court and the interests of justice, the first court shall transfer the proceedings to that other court.

The Supreme Court held: The plaintiff’s claim in the Supreme Court proceedings did not arise out of the Family Court proceedings.

Arguably it was not even related to them. Although there was a factual nexus - including that the parties were in a de facto relationship, they had a child together, and the alleged confidential information was created in the context of the plaintiff receiving legal advice in relation to his family law matter - proceedings relate to other proceedings where there is a nexus between the proceedings themselves, a factual nexus is insufficient.

The parties’ papers and submissions did not disclose that the Family Court was the more appropriate court. The relief sought by the plaintiff was entirely discrete and equitable in nature. The Court weighed in that the relief sought concerns use of confidential material in all courts, not just the Family Court. It also weighed in the urgency considering the upcoming final hearing in the Magistrates Court.

The Court dismissed the defendant’s application, ordered that the defendant pay the plaintiff’s costs and that programming orders be made programming the proceedings to an expedited trial commencing in November 2021.

Dianne Caruso is a Senior Associate in the Family Law team at HHG Legal Group.

Taxation United Kingdom Convention In the High Court decision of Addy v Commissioner of Taxation [2021] HCA 34 (3 November 2021) the High Court was required to determine whether Part III of Schedule 7 of the Income Tax Rates Act 1986 (Cth) (Rates Act) breaches article 25(1) of the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains (United Kingdom Convention).

In December 2016 a new tax rate was introduced for people holding working holiday visas. Part III of Schedule 7 of the Rates Act applied a flat rate of tax of 15 per cent to the first $37,000 of a person’s working holiday taxable income (a maximum tax liability of $5500). But, under Part I of Schedule 7 of the Rates Act, the taxable burden for an Australian national, for taxable income from the same source and over the same period, was less – they were entitled to a tax-free threshold for the first $18,200 and were thereafter taxed at 19 per cent up to $37,000 (a maximum tax liability of $3572).

Article 25(1) of the United Kingdom Convention provides that nationals of the United Kingdom shall not be subjected in Australia to “other or more burdensome” taxation than is imposed on Australian nationals “in the same circumstances, in particular with respect to residence”.

Ms Addy is a national of the United Kingdom. During the 2017 taxable year Ms Addy derived taxable income working in casual employment in Australia on a working holiday visa.

The Commissioner of Taxation (Commissioner) applied Part III of Schedule 7 of the Rates Act to Ms Addy’s assessable income. Ms Addy objected. At first instance the primary judge held that Part III of Schedule 7 did breach article 25(1). The Commissioner successfully appealed to the Full Court of the Federal Court.

Derrington and Steward JJ, in separate judgments, considered that Part III of Schedule 7 did breach article 25(1)

because they reasoned that the holding of a particular type of visa was not necessarily bound to nationality. Davies J, in dissent, held that article 25(1) was infringed because a person’s visa status could not be divorced from the person’s nationality.

The High Court (Keifel CJ, Gageler, Gordon, Edelman and Gleeson JJ) unanimously agreed with Davies J. In reaching this conclusion the High Court observed (at [23]) that “international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation”. The High Court considered (at [24]) that article 25(1) required a comparison between a national of the United Kingdom and a national of Australia who is “in the same circumstances, in particular with respect to residence”. The Commissioner tried to argue that a comparison was not possible because an Australian national cannot hold a working holiday visa. The High Court (at [30]) roundly rejected this argument.

The High Court held (at [31]) that Part III of Schedule 7 did impose a more burdensome taxation on those holding working holiday visas (in breach of the United Kingdom Convention for nationals of the United Kingdom) and allowed Addy’s appeal.

Torts Damages Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 (8 December 2021) concerned two separate appeals in which the High Court was required to determine whether the appellants, who had admitted liability for the cost of repair to cars damaged in traffic accidents, were also liable for the costs of hiring equivalent substitute cars until the completion of repairs.

In both appeals the respondents owned prestige vehicles and hired equivalent cars during the period of repair. The Court of Appeal of the Supreme Court of NSW allowed the respondents to recover their hire costs from the appellants. The appellants sought special leave and appealed to the High Court.

The High Court (Keifel CJ, Gageler, Keane, Edelman and Steward JJ)

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HIGH COURT JUDGMENTS unanimously dismissed the appeals. The High Court, observing the divergence of views in the courts below, considered (at [17]) that “this division of opinion reflects the lack of any clear recognition in Australian law of loss of amenity, in the sense of loss of pleasure or enjoyment, in the use of a chattel, as a recoverable head of damage”. The High Court (at [25]) rejected the appellants argument that compensation for negligent damage to a chattel should be assessed any differently from negligent damage to real property to exclude loss of amenity. In particular, the High Court (at [28]-[32]) rejected the concept of “need” for an equivalent hire car in assessing damages. The High Court (at [40]) recognised that the respondent’s consequential loss was not limited to the purposes or uses for which the (now damaged and unavailable) car was likely to have been put to during the repair period but included loss of amenity of the car, “. . . including their enjoyment of the safety features, pleasurable functions, and other specifications of those cars”.

Practice and procedure Worldwide Freezing Order In Deputy Commissioner v Huang [2021] HCA 43 (8 December 2021) the High Court was required to determine whether the Federal Court of Australia can only exercise its power, under r7.32 of the Federal Court Rules 2011 (Cth) (Rules), to make a Worldwide Freezing Order if there is proof of a realistic possibility of enforcement of a judgment debt against the person’s assets in each of the foreign jurisdictions to which the freezing order relates.

Rule 7.32 provides: 1) The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or a prospective judgment of the Court will be wholly or partly unsatisfied 2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

The background facts in this case concerned the tax liability and shortfall penalty of the respondent (Huang) as assessed by the Commissioner of

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Taxation (Commissioner) of a whopping $141 million (Assessments). Prior to the Commissioner making the Assessments, Huang, and his wife, left Australia for the People’s Republic of China (PRC). On 16 September 2019, the Commissioner commenced proceedings against Huang seeking judgment against Huang based on the Assessments. That same day Katzmann J made an ex parte interim Worldwide Freezing Order against Huang. Later, the Commissioner applied for a summary judgment against Huang and a Worldwide Freezing Order until further order. Before the primary judge, Jagot J, Huang only objected to the making of a freezing order in respect of his assets outside Australia (and in particular his assets in Hong Kong and the PRC). Huang argued that the Worldwide Freezing Order did not serve the purpose of protecting or preventing the frustration of the Federal Court’s processes because there was no process available for the enforcement of the judgment debt in the Deputy Commissioner’s favour in those jurisdictions. Jagot J rejected Huang’s contention and made a Worldwide Freezing Order until further order in the same terms as Katzmann J’s interim order.

Huang successfully appealed Jagot J’s order in the Full Court of the Federal Court. The Full Court considered that if the assets were beyond the Court’s enforcement processes then a freezing order did not meet the purpose identified in r7.32; being to prevent the frustration or inhibition of the Court’s processes by meeting a danger that a judgment or a prospective judgment of the Court will be wholly or partly unsatisfied. In determining whether assets were beyond the Court’s reach, the Full Court favoured a “realistic possibility” over a “not impossible” test in assessing the likelihood of enforcing a judgment.

The Deputy Commissioner appealed to the High Court. The High Court (Edelman J dissenting) allowed the Deputy Commissioner’s appeal. The majority (Gageler, Keane, Gordon and Gleeson JJ) rejected the limitations, contended for by Huang, on the Court’s power to exercise a Worldwide Freezing Order for broadly five reasons. First, the majority rejected Huang’s contention that r7.35 qualified the operation of r7.32. The majority (at [21]) observed that r7.35 is not expressed to affect r7.32; nor does r7.35 “cover the field” with respect to ordering a freezing order where there is a judgment debt.

Second, the majority( at [24]) saw no reason to imply an “unexpressed

limitation” on the power in r7.32 when the rule was a restatement of the Court’s power under s23 of the Federal Court of Australia Act 1976 (Cth) and the Court’s implied power and there is no similar limitation on those powers.

Third, the majority noted (at [25]) the limitation is inconsistent with the in personam nature of a freezing order.

Fourth, the majority considered (at [26]) that the limitation was inconsistent with the “evident purpose” of r7.32 and restricted power under the rule “in a manner that would significantly impair its capacity to protect the Federal Court’s process, including granting urgent relief”. Fifth, the majority considered (at [28]) that the limitation was inconsistent with the power to make a Worldwide Freezing Order, similar to the power recognised in many forging jurisidictions, because it would necessarily require identification of the defendant’s foreign assets as well as potential means of enforcement in that jurisidiction.

Edelman J conceded (at [33]) that the majority’s decision would “enhance the efficacy of the ‘worldwide freezing order’” and (at [34]) expressed “some regret” in dissenting from the majority. But Edelman J considered that, construing the wording of r7.32, the Court’s power to make a freezing order is restricted to meeting the purpose of preventing the frustration or inhibition of the Court’s processes.

As for the personal nature of a freezing order, Edelman J argued (at [46]): “Merely because a court has personal jurisdiction . . . does not mean that it has unlimited jurisdiction to make orders against that person”.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com.au.

The full version of these judgments can be found at www.austlii.edu.au.

FEDERAL COURT JUDGMENTS

By Zoe Bush, Anthony LoSurdo SC, Dr David J Townsend and Dan Starr

Environment Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 In a globally significant development in emergent climate change litigation, the Federal Court has found the Commonwealth Environment Minister (Minister) owes all Australian children a duty of care to avoid causing personal injury or death arising from the emission of greenhouse gases when deciding whether to approve an extension to a coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The decision is the first time in the world that an executive member of government has been held to owe a duty of care to avoid harms associated with climate change.

In February 2016, Whitehaven Coal applied to the Minister to extend its Vickery Coal Project in accordance with s 68 of the EPCB Act (the Extension Project). If approved, the Extension Project

would increase total coal extraction from the mine by 33 million tonnes (Mt).

Once combusted, the additional coal would produce about 100 Mt of CO2.

The Minister’s delegate determined the Extension Project constituted a ‘controlled action’ under s 75(1) of the EPBC Act, and so required approval by the Minister under ss 130(1) and 133 of the EPBC Act. The Minister had not yet made her decision when a Sister of the Brigidine Order of Victoria, as litigation representative for eight Australian children, applied for a declaration that the Minister owed the children and other Australian children a duty of care when exercising her powers under ss 130 and 133 of the EPBC Act and an injunction to restrain an apprehended breach of that duty.

In finding a novel duty of care to avoid the risk of personal injury, Bromberg J considered reasonable foreseeability strongly favoured the recognition of the duty, as did the salient features of control, vulnerability and reliance. Incoherence and indeterminacy he regarded as ‘agnostic’, although incoherence proved

determinative in denying the existence of a duty of care that extended to property and pure economic loss.

His Honour concluded a reasonable person in the Minister’s position would foresee that, by reason of the Minister’s approval of the Extension Project, Australian children are exposed, through climatic hazards, to the risk of death or personal injury. This conclusion was predicated on his Honour’s acceptance of unchallenged expert evidence that: a. the best future stabilised global average surface temperature which can be realistically contemplated is 2°C above the pre-industrial level; and b. if the global average surface temperature increases beyond 2°C, there is a risk, moving from very small (at about 2°C) to very substantial (at about 3°C), that Earth’s natural systems will propel global surface temperatures into an irreversible 4°C trajectory, resulting in global average surface temperature reaching about 4°C above the pre-industrial level by about 2100.

His Honour concluded a reasonable person in the Minister’s position would foresee that, by reason of the Minister’s approval of the Extension Project, Australian children are exposed, through climatic hazards, to the risk of death or personal injury.

Photo: Mount Piper coal Power Station, Portland NSW

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FEDERAL COURT JUDGMENTS His Honour accepted that the risk of harm to Australian children from climatic hazards brought about by global average surface temperatures is on a continuum in which both the degree of risk and the magnitude of potential harm will increase exponentially if the earth moves beyond 2°C towards 4°C above the pre-industrial level.

The Minister contended that her prospective contribution to the risk of Australian children being exposed to this harm, if she were to approve the Extension Project, was negligible in circumstances where the emission of a further 100 Mt of CO2 would result in an increase of one eighteen-thousandth of a degree Celsius. Bromberg J rejected the Minister’s contention on the basis of the following: a. There was evidence to suggest that the emission of 100 Mt of CO2 would not be consistent with the available carbon budget necessary to limit global warming to a 2°C target, because it is unlikely there is capacity for any new coal reserves to be developed. b. Even if the 100 Mt of CO2 to be emitted was not outside the available carbon budget for 2°C, there was a plausible prospect that a ‘tipping cascade’ would be triggered even by a fractional increase in temperature, and there was no evidence to suggest the ‘tipping cascade’ had yet been triggered.

Accordingly, his Honour concluded that, while the Minister’s prospective contribution to the risk of exposure to harm made by approving the Extension Project may be characterised as small or tiny, it was not so insignificant as to deny a real risk of harm to Australian children given that even an infinitesimal increase in global average surface temperature may trigger a 4°C world. The consequent harm was ‘so immense that it powerfully supports the conclusion’ that Australian children should be regarded as persons who are ‘so closely and directly affected’ that the Minister ought reasonably to have them in contemplation when exercising her powers under ss 130 and 133 of the EPBC Act. Turning to the salient features that weighed in favour of recognising a duty of care, Bromberg J concluded the Minister had ‘very substantial, if not exclusive, control over the real risk of harm to the Children that would flow from her approval of the Extension Project’ because it was her exercise of

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power upon which the creation of that risk depended. In doing so, his Honour rejected the Minister’s contention she had no control over the prospective harm because she could not control other elements in the likely causal chain that would lead to Australian children being harmed, such as whether or not the Extension Project proceeded. His Honour reasoned that, where a third party has the capacity (or even the primary responsibility) to avert a risk of harm, this does not of itself deny the control that an entity with overarching responsibility for the risk of harm may hold.

Bromberg J held vulnerability was an affirmative indicator of a duty of care due not only to the magnitude of the potential risk of harm, but also Australian children’s powerlessness to avoid that harm. He considered that vulnerability had a nexus with the Minister because the source of Australian children’s exposure to risk included her potential approval of the Extension Project.

Further, while it was not a case where a defendant had assumed responsibility for the plaintiff, the general rather than individual nature of the Minister’s responsibility for Australians, derived from the EPBC Act, pointed toward the existence of reliance as a salient feature.

The Minister contended that incoherence and inconsistency with the EPBC Act and public law principles determinatively foreclosed the existence of the posited duty. In terms of the EPBC Act, she primarily argued the posited duty would impair her process of decisionmaking under ss 130 and 133 because it would require that avoidance of harm to Australian children be effectively elevated to a mandatory and paramount consideration and would thus ‘distort’ or ‘skew’ the Minister’s decision.

His Honour accepted the Minister’s argument in so far as it concerned a duty of care in relation to property and economic loss. He reasoned such a duty would functionally impair the Minister’s decision-making under ss 130 and 133 by elevating the importance of Australian children’s economic interests above the economic interests of today’s adults, in circumstances where the EPBC Act contained no suggestion that these interests should be treated differently.

There was no statutory purpose that negated this functional inconsistency.

The EPBC Act did not require the protection of economic or property rights; indeed, it contemplated such interests or rights may be compromised in order to protect the environment.

However, his Honour rejected the Minister’s contention with regard to a duty of care to avoid the risk of personal injury. He considered the avoidance of personal injury to Australian children was both consonant with a statutory purpose of the EPBC Act and, perhaps in one of the more surprising aspects of the decision, a mandatory relevant consideration the Minister must take into account in exercising her powers under ss 130 and 133. Accordingly, his Honour considered the imposition of the duty would facilitate rather than impair the Minister’s exercise of her powers. Even if an impairment had been established, he nonetheless regarded it as outweighed by the consistency between the purpose of the EPBC Act and the posited duty.

His Honour also rejected the Minister’s contention that the posited duty was incoherent with administrative law principles on the basis that the subject of the duty was not the validity of any decision made or to be made by the Minister under the EPBC Act. Accordingly, the negligence claim was ‘not brought in addition to or in substitution for a public law remedy’.

Finally, Bromberg J concluded indeterminacy did not have a determinative negative role because, in light of his conclusions regarding incoherence, the posited duty only concerned personal injury (as opposed to pure economic loss, with which indeterminacy is usually concerned), and the likely number of potential claimants and the likely nature of their claims was ascertainable.

Ultimately, while concluding a novel duty of care existed, Bromberg J dismissed the application for an injunction on the basis it was preferable that the grant of any injunctive relief that may be appropriate await the Minister making a decision in relation to the Extension Project.

The decision is available at: https:// www.judgments.fedcourt.gov. au/judgments/Judgments/fca/ single/2021/2021fca0774.

Postscript: On 8 July 2021, Bromberg J made a formal declaration recognising the duty of care owed by the Minister to Australian children: Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774. The Minister has expressed her intention to appeal the declaration but has not filed a notice of appeal as at the date of writing.

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Corporations Financial services and markets – liquidation – whether the primary judge erred in holding that the date for valuation of client entitlements should be the date of administration Loo, in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Quinlan (Liquidator) [2021] FCAFC 186 (26 October 2021) (Middleton, Beach and Moshinsky JJ) Introduction Halifax Investment Services Pty Ltd (in liquidation) (Halifax AU) held 70 per cent of the issued shares in Halifax New Zealand Limited (in liquidation) (Halifax NZ). Halifax AU held an Australian Financial Services Licence. It was not a licensed broker but facilitated the acquisition of shares by clients through an online broker and made a range of financial products available to clients. Halifax NZ held a Financial Service Provider’s Licence granted by the Financial Markets Authority (New Zealand). Halifax NZ also acted as a broker for its clients in respect of various exchange-traded products including shares and warrants.

Prior to the administration and subsequent liquidation of both companies and in breach of applicable statutory requirements, there was commingling between Halifax AU accounts, between Halifax NZ accounts, and between accounts of Halifax AU and Halifax NZ, and there was a deficiency in the funds held by Halifax AU and Halifax NZ to meet client entitlements.

The moneys paid to Halifax AU and Halifax NZ by clients were held on trust for the clients’ benefit. As at the date of administration of the companies there was, relevantly, a single deficient mixed fund.

The issue The primary issue in the proceedings was whether the primary judge erred in holding that the date for valuation of the proportionate entitlements of clients (or investors) in respect of a single deficient mixed fund was the date of administration of the relevant companies.

The applicant on behalf of a certain category of investors, contended that the primary judge erred and that her Honour should have adopted a date as close as possible to the date for final distribution.

The date of valuation issue arose in circumstances where the administrators/

liquidators had taken the unusual step of permitting investors to maintain open positions after their appointment. Some investors had maintained open positions and the value of some of those positions had increased.

A further interesting aspect of the proceedings is that the issue was, at the request of the parties, heard jointly by the Court of Appeal of New Zealand and the Full Court of the Federal Court of Australia sitting in joint session with the two Courts deliberating jointly but each Court issuing its own decision.

Decision In dismissing the appeal, the Full Court of the Federal Court: a) noted that the primary judge’s decision with respect to the date of valuation issue was discretionary and that appellate intervention requires satisfaction of the well-established grounds of appeal identified in House v The King (1936) 55 CLR 499 b) stated that the fact that the liquidators permitted investors to maintain open positions and that investors had a choice whether or not to do so, does not support the appellants’ contention as to the adoption of a date as close as possible to the date for final distribution (rather than the date of administration) as the date for valuation of clients’ proportionate entitlements because: (i) having regard to the statutory framework and the nature of the trust, the date of administration provides a logical starting point for the purposes of valuing the proportionate entitlements of clients. To the extent that the trust arose by force of reg 7.8.03, the date of administration triggered the operation of that regulation in the circumstances of this case. To the extent that the trust arose pursuant to s981H of the Corporations Act, while the trust already existed before the date of administration, the administrators became the trustees of the trust on their appointment as administrators (ii) the deficiency in the mixed fund existed at the date of administration and the fund was first constituted for the purposes of pari passu distribution on that date. In those circumstances,

there is a logic in valuing the proportionate entitlements of investors as at the date of administration (iii) the adoption of the date of administration in this case is consistent with authorities that have adopted, in the context of the pari passu distribution of a deficient trust or other fund in shortfall, the date when the fund was first constituted for the purposes of pari passu distribution (see, eg, Re MF Global Australia Ltd (in liq) (2012) 267 FLR 27 and Re Lehman Brothers International (Europe) (in administration) [2009] EWHC 3228 (Ch)).

The Court of Appeal of New Zealand delivered its own judgment (Loo v Quinlan and Kelly (in their capacity as liquidators) [2021] NZCA 561 (Kós P, Cooper and Goddard JJ)), on the same date, and to the same effect, as that of the Full Federal Court.

The NZCA judgment is here: https:// www.courtsofnz.govt.nz/assets/ cases/2021/2021-NZCA-561.pdf.

Practice and procedure Offers of compromise – indemnity costs orders – common law (Calderbank) offer of compromise – whether rejection of offer imprudent or unreasonable In Hardingham v RP Data Pty Ltd (No 2) [2021] FCAFC 175 (1 October 2021) the Full Court of the Federal Court of Australia (Greenwood, Rares and Jackson JJ) considered the question of what content was required to constitute an effective offer of compromise under the principles in Calderbank v Calderbank [1976] Fam 93 (Calderbank) and, where the offer was rejected and the offeree failed to better the offer in judgment, whether rejection of the offer by the offeree qualified as “imprudent or unreasonable” such as to give rise to an indemnity costs order in favour of the offeror.

Background At trial, the primary judge held that copyright in certain photographs and plans held by Hardingham and exclusively licensed to Real Estate Marketing Australia Pty Ltd (REMA) was not infringed by RP Data Pty Ltd (RPD). (The role played by another party, Realestate.com.au Pty Ltd, in the trial and appeal is not considered in this case note and is excised for the

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The Court flatly rejected the submission that the Offer did not qualify as a Calderbank offer merely because it did not explicitly cite Calderbank or because it did not explicitly refer to the seeking of indemnity costs.

sake of clarity.) The basis for the decision was that the contract between REMA and RPD was to be construed such as to contain a term allowing for use of the photographs and plans by RPD, which term was either to be inferred from their course of dealing or implied in order to give business efficacy to their agreement.

Costs of the trial were ordered to be borne

by Hardingham and REMA. Hardingham and REMA appealed to the Full Federal Court. In the course of correspondence after institution of the appeal, Hardingham and REMA informed RPD that, although they had litigation funding for the costs of the trial, it did not cover an adverse costs order at trial nor did it cover the appeal proceedings (which were being conducted by Hardingham and REMA’s lawyers on a speculative basis).

The offer After the filing of the notice of appeal

by Hardingham and REMA, but before the parties had filed their outlines of argument on the appeal, the solicitors for Hardingham and REMA sent a letter to the solicitors for RPD proposing terms of compromise of the appeal (Offer).

The Offer proposed that the appeal be dismissed save that the costs order of the primary judge be varied such that each party bear their own costs of the trial, and further that each party bear their own costs of the appeal. The Offer was described as being a “walk away” offer, on the basis of the impecuniosity of the appellants and the impact of COVID-19 on the appellants’ business.

Importantly, the Offer did not constitute an offer of compromise under Pt 25 of the Federal Court Rules 2011 (Cth), as it

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was not open for a minimum of 14 days as required by r25.05(3) and was not in accordance with the form required by r25.01(1). Therefore, if the Offer were to be effective as an offer of compromise with consequences for the making of costs orders, it could only be so under the common law principles enunciated in Calderbank.

The heading of the Offer contained the words “without prejudice save as to costs”. The Offer did not express itself as being made pursuant to the principles in Calderbank, nor otherwise refer to Calderbank. The Offer did not refer to the potential of being relied on in support of an argument for indemnity costs. The Offer did not engage with the merits of the parties’ cases on appeal, nor explain why the Offer was a reasonable one.

The Offer was rejected by RPD. The appeal proceeded and judgment was ultimately delivered in favour of Hardingham and REMA, with the question of costs reserved.

The question of costs fell to be decided by reference to the Offer. RPD accepted that they should pay Hardingham and REMA’s costs of the appeal on a party-and-party basis, but opposed that they should pay Hardingham and REMA’s costs on an indemnity basis from the date of the expiry of the Offer.

Decision In contradistinction to an offeror’s entitlement to certain costs orders where an offer was made under Federal Court Rules Pt 25 (and analogues such as Supreme Court (General Civil Procedure) Rules 2015 (Vic) Ord 26), where an offer

was made under common law principles, the making of any costs orders remains in the discretion of the Court. Case law has established that a rejected Calderbank offer may result in an indemnity costs order where the rejection was “imprudent or unreasonable”, although there is no presumption in favour of such an order merely because the offeree has failed to better the offer in judgment.

Form of the Offer There is no rule that the offeror must provide a reasoned explanation of the weaknesses in the offeree’s case and the reasonableness of the offer (at [22]).

Further, the requirement that parties comply with the overarching purpose of facilitating a just resolution of disputes as quickly, inexpensively and efficiently as possible is taken into account when the Court exercises its discretion as to costs, and this in effect requires the offeree to consider the reasonableness of the offer whether or not the offeror has explained its supposed reasonableness (at [23]).

The Court flatly rejected the submission that the Offer did not qualify as a Calderbank offer merely because it did not explicitly cite Calderbank or because it did not explicitly refer to the seeking of indemnity costs. Given the inclusion of the words “without prejudice save as to costs” in the Offer, RPD could not have been in any doubt as to the basis on which the Offer was made and the indemnity costs consequences thereof: regardless of the Offer, success on the appeal would have ordinarily led to a party-and-party costs order in favour of Hardingham and REMA anyway, so the only consequence of the Offer can have been in respect of

FEDERAL COURT JUDGMENTS indemnity costs (at [24]-[25]). Given the quantum of legal costs in commercial litigation, it was recalled that an offer to “walk away” at a certain point in litigation did represent a genuine compromise, as the offeror was thereby foregoing the possibility of recovering its legal costs incurred to date.

Reasonableness of rejection of the Offer The reasonableness of an offer falls to be determined from the perspective of the offeree at the time of the offer, but this question does not involve considering what other offers might hypothetically have been made or other outcomes might hypothetically have been negotiated (at [30]). The Court held that the rejection of the Offer was imprudent and unreasonable due to several factors. First, RPD was aware that Hardingham and REMA were impecunious and that their litigation funding did not cover the adverse costs order below, so there was no real prospect of RPD recovering those costs anyway.

Second, RPD was aware that Hardingham and REMA’s litigation funding did not extend to the appeal, such that even if the appeal were ultimately dismissed, any legal costs of the appeal incurred by RPD would likely end up being irrecoverable as well.

Third, RPD was aware that Hardingham and REMA’s impecuniosity had been aggravated by the then-current COVID-19 lockdown. Fourth, RPD was indeed able to assess the reasonableness of the Offer because it was aware of the strengths and weakness of the parties’ respective cases: the notice of appeal had already set out the legal issues to be argued by the appellants and RPD was already familiar with the factual issues, which were the same as in the trial below (at [28]).

Accordingly, the Court ordered that RPD pay Hardingham and REMA’s costs of the appeal on a party-and-party basis up to the time of the expiry of the Offer, and thereafter on an indemnity basis.

Administrative law – practice and procedure Application for enforcement of undertaking as to damages in administrative law proceedings In Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills and Employment (No 3) [2021] FCA 1537 (9 December 2021) the applicant had previously given an undertaking as to damages in support of an application to stay a decision under s15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), pending the completion

of the judicial review proceeding. The applicant, an operator of a child care service, had sought judicial review of a decision cancelling his provider approval under s195 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) as a child care service for the purposes of the family assistance law (cancellation decision). The Court granted a stay of the cancellation decision until the final determination of the applicant’s originating application on the applicant through her legal representative providing the usual undertaking as to damages.

Subsequently the Court dismissed the applicant’s originating application and made orders lifting the stay of the cancellation decision. The respondent (Secretary) then applied for damages pursuant to the applicant’s undertaking as to damages.

This case is an example of an attempt to enforce the “usual undertaking as to damages”, which is defined by the Court’s relevant Practice Note as an undertaking to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person affected by the operation of the interlocutory order: see [2.2] in GPN-UNDR. It was common ground that the effect of the stay order was to enable Billan Family Day Care to continue to operate from 28 June 2020 until 20 December 2020 (stay period). During the stay period, the Secretary paid the applicant a total net amount of $921,971.28 in child care subsidies. The applicant also received $354,682.60 in COVID-19 related payments as an approved provider of child care services. The Secretary sought orders for the applicant to pay, by way of damages, both the amount of the child care subsidy payments and the COVID-19 related payments.

The Court summarised the applicable legal principles for the enforcement of the undertaking as to damages (at [28]-[29]).

Based on the authorities, the purpose of requiring an undertaking as to damages is to compensate the party who has been adversely affected by the interlocutory order, and so ensure that justice is done (at [32]). The effect of an order for damages on the party that has had the benefit of the interlocutory order is not a relevant consideration (at [33]).

The Court rejected the applicant’s submission that the undertaking as to damages should not be enforced having regard to the administrative law context in which the stay order was made and the

undertaking given. O’Bryan J explained (at [34]): “. . . there is ‘no hard and fast rule’ (Botany Bay at 86) in the administrative law context that a party seeking interlocutory relief should be required to give an undertaking as to damages. In exceptional instances, a Court might not consider it appropriate to require an undertaking where an applicant in an administrative matter is entitled to interlocutory relief.

However, it is apparent from the cited authorities that the appropriate time to consider whether an undertaking as to damages should be given is at the point that the stay application is considered, rather than the time for its enforcement. . . .”

Further, there were not any special circumstances that displaced the ordinary presumption that the applicant should compensate the Secretary for damages incurred by reason of the stay order in circumstances where the applicant was not successful in the final determination of its originating application (at [38]).

However, the Secretary failed to establish that the Commonwealth should be compensated for the child care subsidy payments made to the applicant during the stay period (at [39]-[44]). Unlike the child care subsidies, the Court found that the Commonwealth would not have incurred, as an outgoing, the COVID-19 related payments made to the applicant during the stay period if the stay order had not been made (at [45]-[49]). The applicant was held liable to pay damages to the Commonwealth pursuant to the undertaking as to damages for the COVID-19 related payments totalling $354,682.60 (at [50]).

Administrative law Decision refusing parole – judicial review – failure to consider submissions advanced by the applicants In Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543 (10 December 2021) the Court heard an application for judicial review of decisions of the Assistant Minister to refuse the applicants parole.

The applicants, a married couple, are each imprisoned under federal sentences of imprisonment.

The applicants’ first ground alleged that the Assistant Minister was bound, but failed, to consider substantial and clearly articulated submissions made by them.

The submissions alleged not to have been considered were: first, that the time of the

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...the appellants had this right because article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals such as the appellants can enter and reside in Nepal.

Assistant Minister’s decision was optimal for the applicants’ release on parole having regard to their rehabilitative progress; and, second, that their youngest child was struggling in his parents’ absence and needed his parents’ support (at [31]).

The Court summarised the principles concerning the requirement of a decisionmaker to consider the submissions advanced by a person subject to a decision and as applied in the context of parole (at [33]-[37]). The Court accepted the applicants’ submissions that (a) this was the optimal time for their release on parole and (b) that their youngest child was struggling in his parents’ absence and needed his parents’ support were each clearly articulated arguments advanced in support of parole (at [39] and [41]). The Court held that the latter, the welfare of the youngest child submission, was not considered by the Assistant Minister in refusing parole. In so finding, the Court addressed the content of the requirement under s19AL(2)(a)(ii) of the Crimes Act 1914 (Cth) for the provision of a statement of reasons for the refusal of parole, which is to be read with s25D of the Acts Interpretation Act 1901 (Cth) which concerns the content of a statement of reasons for decision (at [55]-[56]). In this case, the applicants’ submissions containing the welfare of the youngest child submission were within the bundle of material placed before the Assistant Minister. However, it was not mentioned in reasons refusing parole.

Rangiah J held that this was a case where the appropriate inference to draw was that the Assistant Minister did not consider the welfare of the youngest child submission and that was a denial of natural justice (at [65]). The remaining grounds of illogical reasoning and inadequate reasons were rejected.

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Administrative law – migration law Refusal of protection visa – whether right to enter and reside in a third country imports requirement of some minimum physical and economic conditions – whether failure to consider DFAT country report In DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586 (15 December 2021) the Court allowed an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) affirming a decision to refuse the appellants protection visas under s65 of the Migration Act 1958 (Cth) (Act).

The appellants are husband and wife, from the Indian state of Punjab. The appellants are both of the Sikh religion, but the husband is of a higher caste compared to the wife. Because of the inter-caste nature of their marriage, the appellants claimed to have suffered persecution in their home state, as well for other reasons including the husband’s political opinion. The AAT had decided that under s36(3) of the Act, Australia was taken not to have protection obligations in respect to the appellants, because they had not taken all possible steps to avail themselves of their right to enter and reside in Nepal. That was on the basis that the appellants had this right because article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals such as the appellants can enter and reside in Nepal.

The appellants’ first ground raised whether the right to enter and reside in a third country (namely, Nepal) imported

requirement of some minimum physical and economic conditions for purposes of s36(3) of the Act. Mortimer J held that the concept of residence implies, at least, some form of reasonable access to the necessities of life, enough to sustain oneself so as to be described as “residing” (at [53]). However this ground still failed as the AAT made findings on the issues that were open to it (at [54]).

The applicants succeeded on their second ground that the AAT contravened s499 of the Act by failing to apply Ministerial Direction No 56 and take into account in its decision the DFAT Country Information Report – Nepal dated 21 April 2016 (at [66]-[79])

Zoe Bush is a Senior Solicitor at the Environmental Defenders Office zoe.bush@edo.org.au Anthony LoSurdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, William Forster Chambers, Darwin and Outer Temple Chambers, London and Dubai.

Dr David J Townsend is a barrister at 3rd Floor Wentworth Chambers, Sydney Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book

Property – Error to exclude latent CGT liability where evidence indicated sale of investment property would occur in near future

today then the CGT payable upon the distribution of the property would be $290,029 …

In Shnell & Frey [2021] FedCFamC1A 55 (5 November 2021), the Full Court (Watts, Austin and Tree JJ) considered a wife’s appeal against an order that each party retain their respective property.

[76] … [T]he primary judge erred in failing to find that the sale of the property ‘would probably occur in the near future’ … [and] failed to recognise the undisputed evidence that this was an investment property held by the wife and had always been rented out.

The wife argued that it was not possible to discern how the decision was reached and that the rejection of the capital gains tax (CGT) on the possible sale of a property owned by her as a liability was in error.

The Full Court said (from [64]): “The primary judge placed the value of the wife’s Suburb L property on the balance sheet at its current value but rejected the wife’s submission that the latent CGT on that property also be included. … [T]he primary judge indicates … that she took the latent CGT into account when adjusting prospective factors.

[65] There was no controversy that if the wife’s Suburb L property was sold

(…)

(…)

[79] … [A]lthough it is true that the ultimate selling price might not be known, the value of the property was placed on the balance sheet at the date of the hearing and the latent CGT at that date was known. …

[80] … [T]he primary judge’s finding that the wife had made a concession in cross-examination which precluded the wife from relying upon the second limb of Rosati, was erroneous. Had the primary judge not made that error, it would have been appropriate for the primary judge to have included the latent CGT onto the balance sheet …”

The appeal was allowed and the discretion was re-exercised to reduce the asset pool by the wife’s latent CGT liability. The husband was ordered to pay costs.

Property – Kennon – Wife fails to establish that a contribution based adjustment for “systematic family violence” should then be quarantined under s 75(2) In Loncar [2021] FedCFamC1A 14 (21 September 2021), the Full Court (Strickland, Ainslie-Wallace & Watts JJ) heard a wife’s appeal from final property orders made by Judge Kemp.

After a 12 year relationship, Judge Kemp found that “the husband subjected the wife to a systematic pattern of family violence” ([16]) and made a 7.5 per cent adjustment for her Kennon claim and a further 10 per cent based on 75(2) factors ([28]).

The wife argued that as the contribution assessment was based on violence by the husband towards her, Judge Kemp erred in not quarantining the contribution adjustment from consideration at the third stage.

[76] … [T]he primary judge erred in failing to find that the sale of the property ‘would probably occur in the near future’ … [and] failed to recognise the undisputed evidence that this was an investment property held by the wife and had always been rented out.

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FAMILY LAW CASE NOTES The Court said (from [61]):

at a time.

“… [I]n our view the application of the principles articulated in Kennon does not fall within the same rubric as the approach applied in the cases relied upon by the wife, which are claims in tort.

(…)

[62] In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step.

[63] … [T]here is no warrant in s 75(2)(b) to discount the outcome of the analysis under s 79(4)(a)–(c) of the Act based on a Kennon argument. Nor in our view does s 75(2)(o) or s 79(2) create scope for the approach suggested by the wife.

[64] … [W]e find the primary judge did not err in failing to quarantine the 7.5 per cent the wife achieved as a result of her Kennon argument …”

The wife’s appeal was dismissed and no order was made as to costs.

Children – Interim return of children to mother after her unilateral relocation – Paucity of evidence of father’s work hours indicative of the children being in primary care of paternal grandparents In Leandra & Randles [2021] FedCFamC1A 51 (5 November 2021), Ainslie-Wallace J heard a mother’s appeal against interim parenting orders providing for 6 and 3 year old children to live with the father in Town.

[46] The mother’s evidence was that since the children have lived with the father they have in fact lived with their paternal grandparents … (…)

[50] … The sum total of the father’s evidence about his hours of work is … opaque at best … The father’s failure to … give detailed evidence on this issue is inexplicable …”

The Court concluded (from [80]): “I am thus of the view that these children’s best interests are served by their being returned to their mother’s care pending the final hearing. … I am conscious that it will necessarily involve another move for these two very little children whose residence has already changed twice … However … I am of the view that a return to the primary care of the mother will best serve the children’s best interests as opposed to stability in their present living arrangement.

[81] … [G]iven the paucity of evidence of the father’s working hours and the arrangements made for the children in his absence, it seems likely that children are more likely than not spending substantial time in their grandparents care …

[82] … I will order that within seven days of the date of these orders, the children be returned to the mother’s care…”

Children – Maternal aunt considered inappropriate as mother’s litigation guardian, despite her existing appointment as mother’s guardian by SACAT In Remington [2021] FedCFamC2F 99 (27 September 2021), Judge Kari heard an application for the appointment of a litigation guardian for the mother in parenting proceedings in respect of an 11 month old child “X”.

As to the father’s availability to care for the children, the Court said (from [38]):

The 27 year old mother had been diagnosed with a number of cognitive impairments and was the subject of state guardianship and administration orders appointing the maternal grandmother and the maternal aunt as guardians and limited administrators of the mother. There had been numerous police interventions involving the mother’s behaviour towards the maternal grandmother and aunt.

“… There was no challenge to the mother’s account of the father’s working pattern before they separated, that is, he would be away a week or perhaps more

The maternal grandmother sought orders providing for X to live with her and for her to have sole parental responsibility. The presumed father

The mother had unilaterally relocated with the children to Suburb F, two and a half hours away. Judge Terry ordered that the children return to live with the father.

As the appeal was allowed by consent, the parties asked the Court to determine the interim parenting arrangements.

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was not party to the proceedings and his whereabouts were unknown.

The maternal aunt (“Ms E”) initially participated in the proceedings as the “legal guardian” of the mother.

After reviewing the report prepared by the State Welfare authority, Judge Kari said (from [53]): “… I am satisfied: (a) That the mother does not understand the nature of these proceedings nor the possible consequences of these proceedings; and (b) That the mother is not capable of adequately conducting, or giving adequate instructions for the conduct of these proceedings. (…)

[57] The issue however is that … the maternal aunt appears to have an interest in the litigation that is adverse to that of the mother … I have come to this conclusion for two reasons, firstly because Ms E has advised the court … that she supports the application of the maternal grandmother. Secondly, as a consequence of the … report from the Department for Child Protection … which makes it clear that Ms E and the maternal grandmother work together to manage the competing obligations that they have towards the mother and the care of the child.

[58] It is for all of these reasons that I do not consider it appropriate that the maternal aunt, Ms E be appointed as the litigation guardian of the mother. (…)

[62] … [T]he administration order that has been made relates specifically to the conduct of legal proceedings, being a personal injury claim …

[63] While the orders made by SACAT would entitle either the maternal grandmother or the maternal aunt, Ms E to be appointed as the mother’s litigation guardian … it is my firm view that either of those persons are inappropriate given their conflicting interests.”

Member

In each issue of Brief we highlight a small selection of the exclusive special offers and discounts our members receive on a variety of goods and services. For the full listing of member privileges head to our website : lawsocietywa.asn.au/member-privileges/

Privileges

Gentleman’s Hair Lounge Located in Subiaco, The Gentlemen’s Hair Lounge offers a unique and relaxing experience for all clients. Members of the Law Society receive a 20% discount on all services, including men’s style haircuts, traditional face shaves, facials, massage & men’s wellness. Visit the members’ only privileges page (password protected) to view the discount code and conditions.

Ritz-Carlton The Ritz-Carlton, Perth evokes timeless luxury and the joy of discovery. This stunning hotel in Elizabeth Quay, overlooking the river, skyline and urban parks offers the perfect place for a luxurious staycation in the Perth CBD. Law Society members now receive an exclusive discount on accommodation bookings for stays between 1 November 2021 and 31 December 2022.

Please visit the members’ only privileges page (password protected) to view the full offer details and terms & conditions.

*Conditions apply to some offers. For the full list of member privileges please check our website.

AMVS Australian Motor Vehicle Services offers a Vehicle Buying Service that is 100% customer focused. AMVS will source, negotiate and deliver new vehicles for members of the Law Society of Western Australia at no cost.

Find out more at amvs.com.au Visit the members’ only privileges page to view the full offer and terms and conditions.

SeaLink Rottnest Island SeaLink Rottnest Island is Perth’s Newest Ferry Service to Rotto, with daily services operating between Fremantle - Rottnest Island and Perth.

Members of the Law Society receive a 20% discount on same day return and extended return ferry fares to Rottnest Island (excluding Island Admission fees). Visit sealinkrottnest.com.au to plan your trip.

Visit the members’ only privileges page (password protected) to view the discount code and conditions.

Captain Cook Cruises Members of the Law Society receive a 15% discount on all public cruises with Captain Cook Cruises. From Fremantle Lunch Packages, Twilight Cruises and Swan River Scenic Tours, Captain Cook Cruises has the perfect experience for you, your family and friends.Visit captaincookcruises.com.au plan your day trip. Visit the members’ only privileges page (password protected) to view the discount code and conditions.

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The Tale of a Lost Invitation

By The Hon John McKechnie QC It started with an invitation which a maid forgot to give to the lady of the house.

Dr William Russ Pugh was a doctor in Launceston in 1842 He had a large practice and his expertise in other areas was recognised by the 2000 or so residents of the northern city of Van Diemen’s Land. Dr Pugh was distracted by a looming crisis which may have caused him to lose perspective.

Mr Lewis William Gilles, a former naval officer was the manager of a bank Archer, Gilles & Co, later to merge and become the ANZ bank. He was in severe financial distress having lost 400 pounds in a banking transaction.

Perhaps his circumstances caused him to over-react.

Later that day the committee decided Mr Gilles’ complaint was unfounded. The committee had no right to do so. Under the rules, the question had to be put to a meeting of members. Had it been so, the result might have been different. When Dr Pugh had earlier tried to have Mr Gilles removed from the club, he had been resoundingly defeated.

But for the time being, Dr Pugh was exonerated. He was not one to be gracious in victory. He posted a notice in bold letters on the club’s door where everyone could see:

Both were members of the Launceston Club, a club established for gentlemen.

Mr Lewis William Gilles having instituted charges against me derogatory to my character which he failed to substantiate and having refused to afford me satisfaction, I hereby proclaim him a COWARD and a LIAR.

In early June 1842 Mr and Mrs Gilles held an evening party and ball.

WR Pugh July 8, 1842.

Invitations were sent out through the post, including one for Dr and Mrs Pugh. When the invitation arrived, the maid paid tuppence for its receipt but forgot to give it to Mrs Pugh. Being unaware of the invitation, Dr and Mrs Pugh did not attend the ball or respond.

Their absence annoyed Mrs Gilles who told people so, one of whom told Dr Pugh. He wrote to Mr Gilles saying Mrs Pugh was in ignorance of the invitation and that it was not delivered to any member of the household.

This latter statement was of course wrong.

There the matter should have rested, but human nature being what it is when people feel slighted, it did not.

Mr Gilles tracked down the letter and discovered that it had been delivered by the post office and paid for.

Mr Gilles considered that Dr Pugh’s actions were unbecoming and he complained to the club committee that Dr Pugh had behaved in an ungentlemanly manner.

When he heard of the complaint, and checked that it was true, to say that Dr Pugh was furious is an understatement. In dead of night, with a companion, he called on Mr Gilles and demanded satisfaction – a challenge to a duel.

Mr Gilles sensibly demurred on the grounds that they should wait for the committee’s decision. In the meantime he consulted two soldiers who both told him there were no grounds for a duel. Captain Stewart further advised that Dr Pugh was not entitled to challenge as he was guilty of tergiversation (extra marks if you already knew this word).

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Two things happened in consequence. The members of the Launceston Club were so riven in their loyalties that many resigned, and the club dissolved. It would be 40 years before a new club was founded.

The second thing was that Mr Gilles sued for libel. The trial was held in the new courthouse on 6 October 1842 before Chief Justice Pedder and a jury of 12. The libel was admitted so the only question was the quantum of damages. Mr Gilles sought 2000 pounds which may have alleviated his financial circumstances.

The jury were having none of it. After deliberating only a few minutes, they returned to court and announced a verdict in favour of the plaintiff for damages in the sum of one farthing, the smallest coin in the realm.

They added that each party should bear their own costs.

No doubt the jury felt there was fault on both sides and the whole thing was a waste of everyone’s time.

Mr Gilles left Launceston in 1844 for Adelaide where he helped his brother manage the Glen Osmond lead and silver mine for a time, before joining he public service in Victoria and serving for 14 years as magistrate in Warnambool. He retired back to Glen Osmond and died in 1884 at the age of 88.

Dr Pugh was a popular doctor in Launceston and a man of many accomplishments. He was yet to face further action against him where he…. that is a tale for another quirky case.

(Adapted from Gilles v Pugh [1842] TASSSupC 24 Tergiversation: equivocation, prevarication.

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Law Council Update Parliament has opportunity to do more to protect older Australians When the Senate considers the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill, it has an opportunity to strengthen the proposed reforms and protect older Australians.

“We welcome the Senate’s second reading debate on this Bill,” Law Council of Australia President, Mr Tass Liveris said.

“The Aged Care Royal Commission undertook intensive investigation to determine how to improve aged care in this country and we support efforts to implement its recommendations.”

“However, as we emphasised in our submission on this Bill, we believe there are improvements that can be made, particularly in regard to the new measures to provide for the screening of aged care workers and to impose a Code of Conduct on aged care workers and providers.”

While the Explanatory Memorandum for the Bill states the intention is to establish nationally consistent pre-employment screening for aged care workers, it leaves it up to the Minister to determine whether a State or Territory screening law is sufficient to be able to form part of the national scheme.

“The Bill does not require a State or Territory screening law to include any particular features which would promote national consistency and we could actually end up with very different schemes in each jurisdiction,” Mr Liveris explained.

“It is the Law Council’s view that Parliament should set out the key features which should be included in such a screening law – including procedural fairness obligations.”

“The Law Council supports the measure in the Bill to establish a Code of Conduct prescribing conduct standards for aged care workers and providers and provide for sanction powers in the event of noncompliance.”

“However, given the significance of this measure and the repercussions of noncompliance, the Law Council considers that Parliament should determine the features of the Code in primary legislation or, as a minimum, provide high-level guidance regarding such matters.”

The Law Council suggests that greater attention be given to the applicable safeguards and thresholds with respect to the Bill’s banning order powers, which have significant consequences.

More transparency is also needed around a proposed Ministerial power to authorise persons or bodies to give informed consent to the use of a restrictive practice

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in relation to a care recipient who lacks capacity.

The Bill should provide guidance and clarity regarding the kinds of persons or bodies who may be authorised give such consent.

Funding justice must be Budget priority The rule of law and human rights of all people are core tenets of our modern democracy and having equal access to justice is a vital part of protecting those rights. Therefore, access to justice must be properly resourced.

“All Australians have the right to seek justice, but this right doesn’t count for much if it cannot be exercised. Ensuring this right for every person underpins each of the recommendations contained in the Law Council’s Pre-Budget Submission,” Law Council of Australia President, Mr Tass Liveris explained.

The Law Council’s Pre-Budget Submission calls for a full review of the resourcing needs of the judicial system.

“We want the Australian Government to commit to this review and to providing resources if areas that require additional support are identified,” Mr Liveris said.

“In addition, we would like to see increased allocations in the 2022-23 Budget for our courts, commissions and tribunals to enable them to fill vacancies, appoint additional judges and reduce backlogs.

“Legal problems commonly occur in society, however an unacceptable proportion of our population are disadvantaged and vulnerable in their interactions with our legal system.

“Increasing baseline ongoing funding for Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services by at least $400 million is critical to addressing current service gaps.

“Australians living outside capital cities are one group in particular who can face difficulties in accessing legal services. The Australian Government should allocate adequate, long-term funding for legal assistance services in regional, rural and remote communities and investigate funding for the development of incentive programs that encourage solicitors to take up employment in these communities.”

The Law Council’s submission also seeks to ensure an improved family law system through implementation of the remaining Australian Law Reform Commission’s recommendations in its Inquiry into the Family Law System, including sustained funding of court-based initiatives that aim to facilitate early dispute resolution, such

as the Lighthouse Project, the Priority Property Pools under $500,000 program, and the Family Dispute Resolution program.

“While still out for consultation, we hope to see funds set aside in this year’s Budget for implementation of the National Plan to Reduce Violence Against Women and Children,” Mr Liveris said.

Law Council supports statutory tort for serious invasion of privacy In its submission to the review of the Privacy Act 1988 (Cth) (Privacy Act), the Law Council has expressed support for the development of a statutory tort of serious invasion of privacy.

“If an individual is harmed by a serious invasion of their privacy – such as someone’s private activities being watched or recorded, or private information like medical records being made public – there is currently no tortious right of action,” Law Council of Australia President, Mr Tass Liveris said.

“This limits a person’s ability to pursue compensation or an injunction.”

“Technological advances have increased the risk of these types of breaches, while limiting the capacity for our current legislative framework to keep pace.”

Therefore, the Law Council’s submission reinforces the Australian Law Reform Commission’s conclusion contained in its report ‘Serious Invasions of Privacy in The Digital Era’, that the design of legal privacy protection must be sufficiently flexible to adapt to rapidly changing technologies and capabilities without needing constant amendments.

“We support introduction of this statutory right on the condition there are sufficiently high thresholds in place to ensure actions are limited to serious invasions of privacy and the scope of the tort is carefully considered and drafted to address the risk of unintended consequences. This will require extensive public consultation in order to get the balance right.

“The location of a new statutory tort will also need to be carefully considered, particularly if it is to apply to intrusion upon seclusion (e.g. physically intruding into a person’s private space or by watching, listening to or recording private activities or private affairs) as the Privacy Act primarily regulates information privacy.”

Other recommendations contained in the Law Council’s submission include that the definition of ‘personal information’ be updated and existing exemptions, including in relation to small businesses, employee records and journalism, be clarified.

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Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late MARIA ASSUNTA POTALIVO of 1 Garbin Place, Lake Coogee, WA 6166 who died on 30 November 2021, please contact FourLion Legal at Ground Floor, 12 St Georges Terrace, Perth on (08) 9335 6643 or lstrydom@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 221753.

Missing Will Any person having any information, holding or knowing the whereabouts of the last Will and Testament prepared around 2011 (electronic or physical) of the late ALICIA (LEE) COLUMBINE PHILLIPS (Date of Birth: January 1939) is requested to contact Owen Phillips on 0422 229 444 or email Owen.Phillips@health.wa.gov.au

Missing Will Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of ANTONINO DE ROSA, born 1 March 1966, late of 428B Hamilton Road, Lake Coogee, Western Australia, who died 25 August 2021, please contact Joss Legal, Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 (Tel) (08) 6559 7480 (Eml) lawyers@josslegal.com.au.

Professional Announcements Dwyer Durack

Stork Davies

Dwyer Durack is pleased to announce that Daniel Gill has been promoted to Director effective from 10 January 2022.

Stork Davies has added senior lawyer Ben McPherson to its team.

Daniel joined Dwyer Durack in January Daniel Gill 2008 and became the Co-Head of the Succession Department in July 2018. He has been recognised by Doyle’s Guide as a leading Wills and Estates Litigation Lawyer in WA as well as a recommended Wills and Estates Litigation Lawyer nationally.

Daniel joins Peter Fraser, Maree van der Kwast and Eleanor Scarff as directors of one of WA’s oldest firms.

Dwyer Durack is also pleased to announce that Eleanor Scarff has become an Equity Director of the firm effective from 1 January 2022.

Ben was previously a Senior Associate at Fletcher Law and has over 11 years’ Ben McPherson experience practising in general commercial law, in both Australia and New Zealand.

He joins Stork Davies as Special Counsel.

“Ben’s expertise in areas such as business acquisitions and divestments, construction, hospitality, start-ups and ecommerce will overlap and complement our existing property-focused practice, and will allow us to assist with a broader range of client needs,” said Stork Davies founding principal Michael Stork.

Evangeline Skene has been promoted to Senior Associate at Stork Davies following her recent admission.

Whilst Dwyer Durack is one of WA’s oldest firms, it has evolved Eleanor Scarff into a modern legal practice and has embraced cultural diversity and gender equality.

With Daniel Gill recently promoted to Director joining Peter Fraser, Maree van der Kwast and Eleanor Scarff - the Directors look forward to working together as Dwyer Durack continues to go from strength to strength into 2022 and beyond.

Palisade Corporate The Price Sierakowski Corporate legacy writes a new chapter as Palisade Corporate. Due to recent changes in personnel at the executive level, prestigious law firm. Price Sierakowski Corporate announces its rebrand to Palisade Corporate. Adam Sierakowski, Brett Molony and Connor Graham remain as company Directors.

Andrew Lynn Lawyers Andrew Lynne Lawyers is pleased to announce that Ms Kiri George has been appointed as a senior associate.

She previously qualified and worked as a solicitor in the UK before moving to Evangeline Skene WA and commencing employment with the firm as a lay associate in 2018.

Since joining the firm, Evangeline has built on her previous UK experience with work on large-scale property transactions, retail and commercial leasing, business acquisitions and divestments, loan arrangements, and recovery matters.

Pragma Lawyers Pragma Lawyers has added Associate Cosmos Liu to their team.

Prior to joining Pragma, Cosmos worked in various boutique firms. Her experience Cosmos Liu ranges from commercial law, civil litigation and dispute resolution to various estate matters. She has appeared in all Courts and the Administrative Appeals Tribunal to advance her clients’ interests.

Cosmos speaks fluent Mandarin, and her practice focuses on providing personalised service in a cost-effective manner.

Glen McLeod Legal Glen McLeod Legal are delighted to announce the following promotions: Jess Hamdorf and Connor Fisher have been advanced to the position of Senior Associate. Chelsea White has been advanced to the position of Associate. This is in recognition of their contributions to the firm and wide ranging expertise in planning and environmental law. Congratulations to you all!

Jess Hamdorf

Connor Fisher

Chelsea White

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The Law Society’s Wellbeing and Resilience Programme Did you know? Your membership with the Law Society provides complimentary access to these support programmes through LawCare WA. To find out more about all resources offered through LawCare WA, visit www.lawsocietywa.asn.au/lawcare-wa

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Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

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Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

CoronaCare

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

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

Referral service provided by WABA

Phone: (08) 9220 0477

Service provided by Converge International

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

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

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