Young Lawyers Committee Section Feb 2022

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

Welcome to the YLC Section for February

by Chris Burch, Chair, Young Lawyers Committee and Demi Swain, Deputy Chair, Young Lawyers Committee

Demi Swain

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

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

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

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.

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.

MARCH 18, 2022

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.

FEBRUARY 23, 2022

YLC Sundowner

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

APRIL 08, 2022

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.

YLC Case Notes

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

by Chris Burch, Chair, Young Lawyers Committee and Vaughan Jameson, Law Student University of Notre Dame Fremantle

Vaughan Jameson

Chris Burch

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]

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 21 st 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 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

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

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.

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 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.

For Endnotes please see desktop version of publication

Climate Clauses

Impactful ways young lawyers can contribute to tackling the climate crisis

You 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 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.

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.

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

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.

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.

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.

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

Conclusion

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’.

Young Lawyers Mixed Netball Competition – Wrap up

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.

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!

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.

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.