Issuu

VOLUME 49

NUMBER 4

JUNE 2022

Special Feature:

Western Australia Joins the Uniform Law Scheme!

ALSO INSIDE

Everything You Need to Know

Law Week Wrap-up Carbon Markets 101 The Best Place for Environmental Appeals What’s Our Story? Opening Remarks by the Honourable Justice Janine Pritchard

YLC Section Event Wrap-ups, ‘Case Nopes’ and more Revisiting Crimea and the Utility of International Law

The Legal Practice Productivity Solution Law firms using LEAP enjoy all the benefits of a state-of-the-art practice management system, as well as legal accounting, document assembly & management, and legal publishing assets all in one integrated solution.

Document Assembly & Management

Legal Accounting

Practice Management

Legal Publishing

Volume 49 | Number 4 | June 2022

CONTENTS

ARTICLES 06

Council Member Interview: Ben Bullock

Special Feature: The Uniform Law Scheme in WA

Event Feature: What’s Our Story? Challenging Sexual Harassment in the Workplace to Change the Culture

26 34 36

Law Week 2022 Wrap-up

Legal Aid category added to Attorney General’s Community Service Law Awards

Carbon Markets in Australia 101 The Best Place for Environmental Appeals High Court Affirms Application Of Orthodox Contract Law Principles To Employment Relationships Young Lawyers Committee Section To Good Financial Health

Editor’s Opinion Ethics Column New Members High Court Judgments

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 RRP $16.00 incl GST.

Revisiting Crimea and the Utility of International Law

President’s Report

@LawSocietyWA

Communications and Design Officer: Des McKenzie

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.

REGULARS 02 04 51 57 58 60 63

LawSocietyWA

Proofreaders: Ingrid Briggs, Sonia Chee, Cassandre Hubert

66 67 68 69 69

Cartoon

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

Law Council Update

Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au.

Quirky Cases

Classifieds Member Privileges

President: Rebecca Lee Senior Vice President: Ante Golem

Federal Court Judgments

Junior Vice President & Treasurer: Paula Wilkinson

Family Law Case Notes

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

Immediate Past President: Jocelyne Boujos

Country Member: Michael Ryan Junior Members: Thomas Camp, Selina Gates, Hamish Glenister Chief Executive Officer: David Price

PRESIDENT'S REPORT

Rebecca Lee President, The Law Society of Western Australia

Welcome to the June edition of Brief.

Law Week

It has been a busy but exciting first half of the year for the Law Society and the legal profession.

Law Week 2022 (16 May to 20 May) brought the legal profession and public together with a focus on law and justice in the community. Through a series of events and initiatives, Law Week highlighted the important role of the profession in providing access to justice, inclusion and community service.

Legal Profession Uniform Law The most important news for the legal profession right now is that on 1 July 2022, Western Australia will officially join the Legal Profession Uniform Law scheme. You can find out more about Uniform Law in our special feature on page 8.

Law Access Ltd – New MOU The Law Society of Western Australia and Law Access Ltd signed a new Memorandum of Understanding (MOU) on 16 June 2022, as part of a three-year commitment by the Law Society to provide funding and ongoing support to Law Access Ltd, effective from 1 July 2022.   As sole member and founder of Law Access Ltd, the Law Society makes a significant contribution to Law Access Ltd by providing a range of services at no cost under the current MOU. Following a review of the MOU by the Law Society Council and Law Access Board, the new MOU will provide a funding mechanism for “cash support” to Law Access Ltd from a minimum of $20,000 up to a maximum amount of $50,000 each year for the next three years. In addition to the payment set out above, the Law Society will also make a one-off payment upon the commencement of this MOU to Law Access Ltd of $20,000.

Renew Your Essential Membership

For a comprehensive review and wrap-up of Law Week, please see page 26 in Brief. My thanks to everyone who contributed to another successful Law Week, including our valued supporters and sponsors.

Professional Standards Scheme The Law Society of Western Australia Professional Standards Scheme (Scheme) runs from 1 July to 30 June and enables Australian legal practitioners and incorporated legal practices to limit their professional liability to either $1.5 Million, $5 million or $10 million, depending on the insurance policies and total annual fee income of the law practice of the Participating Member, and to the extent that liability can be limited under the the Professional Standards Act 1997 (WA) (PS Act). Failure to renew your participation in the Scheme by 30 June can result in a gap in your practice’s coverage under the Scheme and limitation of occupational liability to the extent that it may be limited under the PS Act. If your practice is seeking to participate in the Scheme in 2022/2023, I encourage you to renew your membership and participation in the Scheme as soon as possible to prevent a gap in coverage.

The Law Society is your partner in providing professional and personal support, representing you at the local and national level and continually delivering high value benefits for your membership and

For further information in relation to the Scheme, please visit the Law Society’s website or contact the Scheme Coordinator on (08) 9324 8600 or email pss@lawsocietywa.asn.au

I strongly encourage you to renew your membership by no later than 31 July to ensure you get the following key benefits:

Following on from Law Week 2022, in June, the Law Society has launched a state-wide social media public education campaign for a threemonth period.

Membership fees for Ordinary members and eligible Associate members automatically include FREE CPD through CPD Freedom, if you join or renew on or before 31 July 2022.* Support and resources to assist the WA profession in the transition to Legal Profession Uniform Law commencing on 1 July 2022. Ability to cap your occupational liability through the Professional Standards Scheme.* Flexible monthly instalments for individuals under our payment plan option. (*Conditions apply) If you have queries relating to your membership, please email membership@lawsocietywa.asn.au or call (08) 9324 8692.

02 | BRIEF JUNE 2022

Lawfully Explained

Initially developed by the Law Society of NSW, this national campaign is linked to a new website for the public called Lawfully Explained. Lawfully Explained presents a range of articles, podcasts, videos and infographics explaining the most common legal issues; what to expect in a courtroom; and information on how to find the right solicitor for your individual circumstances. The website also provides links to Find a Lawyer in each state, so that the Western Australian public, for example, are directed to finding advice in the right place. Find a Lawyer is a database service for members of the Law Society. Each year the Law Society deals with almost 30,000 website and phone referrals for the Find a Lawyer service each year. Stop Looking for Advice in All the Wrong Places and Lawfully Explained aim to educate the

public about common legal issues with a view to making the law feel more accessible and less intimidating. This includes humanising and demystifying lawyers and the legal process, for the purpose of increasing visibility, trust and authority. The simple message of the campaign is that people should consider getting a lawyer – and we can help them find one. To join our database or find out more about Find a Lawyer, please click here.

Contact the Law Society As always, we love to hear from our membership, and we invite engagement and input in a variety of ways including through the significant number of committees of the Law Society, regular surveys, and both informal and formal occasions when feedback can be provided to us. In addition, we encourage you to contact either me (president@lawsocietywa.asn.au), or the Law Society’s Chief Executive Officer (dprice@ lawsocietywa.asn.au) directly, to share with us your ideas, feedback or any concerns.

Submissions from the Law Society Application to seek registration for the Law Society to be a Nominating Authority under the Building and Construction (Security of Payment) Act 2021 and establish and maintain a Panel of Adjudicators Submission to Department of Planning, Lands and Heritage on the Amendment to the Planning and Development (Development Assessment Panels) Regulations 2011 Submission to the Joint Standing Committee on the Corruption and Crime Commission regarding what happens next after the Corruption and Crime Commission makes a finding of Serious Misconduct Submission to the Law Reform Commission of WA seeking preliminary views on potential amendments to the definition of consent in Western Australia Submission to the Law Council of Australia regarding an advocacy project on establishment of a Federal Parole Authority Submission to the Law Reform Commission of Western Australia seeking preliminary views on legislative responses to coercive control in Western Australia Submission to the Deaths in Custody Watch Committee WA on the racial composition of Juries.

Advance your career in Law at the No.1 university in WA for Skills Development*. Notre Dame offers flexible online postgraduate law programs including: • Master of Laws • Master of Bioethics

Law Graduate

Apply now for Semester 2

notredame.edu.au/study/online/law *2020 Student Experience Survey, postgraduate coursework category, QILT.edu.au

CRICOS PROVIDER CODE: 01032F

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

Our special feature concerns a significant event for the profession: WA joining Victoria and NSW in the Uniform Law Scheme. We have Roselina Kruize on key differences between the Uniform Law and WA’s Legal Profession Act, Legal Services Counsel CEO Meghan Pitt on the Scheme, and the State Attorney General, the Hon John Quigley MLA not only on the Legal Profession Uniform Law Application Act 2022, but also other legislative initiatives. This is a much happier and congenial entry into a uniform scheme than that celebrating its 80th anniversary, in June/July being 1942’s uniform income tax legislation which, as a practical matter at least, conferred upon the Commonwealth (initially justified by wartime necessity) the power to impose income tax and the landmark decision of South Australia v the Commonwealth (1942) 65 CLR 373 (the “First Uniform Tax Case”) where WA joined with other Aussie Rules states SA and Victoria (and Queensland, anticipating their ultimate conversion to the great game) to unsuccessfully challenge the legislation. It is remarkable that in those two months in 1942 the acts were introduced and passed, and the High Court challenge heard, especially given the States may have gotten off to a slow start in reacting seriously to the measures, given the Commonwealth wrote to the them about the intention to take over, on April Fools’ Day 1942. Our special feature is an excellent introduction to the Uniform Law, its implications and the areas where local

bodies and rules will still operate. As this affects all practitioners in a profound way, it will be the subject of future items in Brief and, as the President’s Report notes, CPD presentations by the Law Society. The development is something all practitioners need to get on top of, read and absorb in detail, and that cannot be skated over or winged. Winging it, with a dose of state parochialism, fairly describes US attorney Brent J Savage’s recent appearance before Georgia’s Court of Appeal where, after some fraught oral argument, he admitted to the Court he “can’t keep up with you on this stuff,” was a “fact lawyer”,“guessed” an answer to a question from the bench, will hire someone else next time to “argue appellate law” and isn’t prepared to argue “the California stuff” (referring to some California Appeal Court decisions put to him).1 On the “California stuff” Mr Savage might take some solace from, subsequent to his appearance in Georgia and just a few weeks ago, California’s Third District Court of Appeals attracting considerable attention to their ruling that, on a proper construction of California’s Endangered Species Act, bees fell within the definition of “fish”.2 As to skating over and not fully reading material, this year is the 100th Anniversary of one of the greatest works of modernist literature, and also an embarrassingly common source of bending the truth from otherwise impeccably honest people: James Joyce’s “Ulysses” (“Yeah, I think…I’m pretty sure I’ve read it…it was ages ago…at Uni. Definitely started it…can’t really remember it now in detail…”). Equally embarrassing is that this canard is often invoked when one is actually thinking of Marcel Proust’s “Rememberances of Things Past” (French title: À la recherche du temps perdu)3 which also celebrates the 100th anniversary of its first English publication. Such responses are pretty much

the opposite of those when asked about Bret Easton Ellis’ “American Psycho” (“oh gosh no…no interest in it…started it but couldn’t finish it…finished it but wiped it from my memory/undertook Luvidico technique therapy4…”). Ulysses and American Psycho were both banned at times in Australia5 and were both considered un-filmable. So naturally films were made of them6 with American Psycho being the more popularly and culturally successful, proving that even the most squeamish of audiences were not put off by seeing yuppie 80’s Wall Street M & A practitioner Jared Leto hacked to death to Huey Lewis’ “Hip to be Square”, and rocketing former child actor Christian Bale into superstardom. Interestingly, Bret Easton Ellis declared that Ulysses was “the most thrilling thing I’ve ever read.”8 16 June is an enigmatic date/anniversary provided by Ulysses which, although apparently taking a lifetime9 to read, is actually set on a single day: 16 June 1904. Joyce fanatics have dubbed 16 June “Bloomsday” (after the protagonist Leopold Bloom) and Bloomsday celebrations take place worldwide, including Australia.10 There is much in Ulysses that lawyers will appreciate and can only envy. It follows a “stream of consciousness” technique, and Episode 18 “Penelope” is devoid of any punctuation, being techniques commonly employed by lawyers when using a dictation machine. Episode 17 “Ithaca” in particular contains a host of errors by the narrator which are arguably intentional (the 1922 Edition contained a 7-page/201 correction errata list by Joyce/ his publishers). Purportedly “deliberate” errors in written documents are a luxury lawyers can only dream of. Joyce said he “put in so many endings and puzzles it will keep the professors busy for centuries arguing over what I meant”. This is a tantalising prospect for lawyers in their written work though would last, not centuries, but only about an agonising 4 minutes before a Court.

Monty Python’s Eric the Half-a-Bee’s dialogic rhetoric interpolates his own issues of identity and knowledge - is he a fish? or half-a-bee? No such sorrow, nor issues of split identity for WA and the rest of our Uniform Law sister states now with the advent of the Legal Profession Uniform Law Scheme.

04 | BRIEF JUNE 2022

Ulysses has a famous trial scene and Joyce, himself a frequent litigant, seems to channel his grave concerns about the legal system, reflecting his close following of the torments of fellow Irishman/literary genius Oscar Wilde. The Editor would give a better account of the trial scene, but thinks he only read the book many years ago at Uni and can’t really remember many details. Attempts to short-cut things by watching the movies does no good, and reading legal academic articles has even worse results, grappling with sentences such as “the dialogic rhetoric interpolates issues of identity and knowledge. These ontological and epistemological conversations link James Joyce’s real-life experiences with the law to his fictional representations of legal procedure, which are nightmarish, at best.” While the second part of that sentence resonates strongly and is readily understood, the first part suggests it is actually easier to just read the book.11 16 June has also been claimed as (especially in America(n)) “Psycho Day” being the date of the first release in 1960 of Hitchcock’s groundbreaking and still stunning “Psycho” at the De Mille and Baronet Theatres in New York. Hitchcock’s famous publicity stunts for the opening have lessons for lawyers: firstly, the unusual at the time, “no late admission” policy (i.e. don’t be late to Court or any important meeting) and secondly don’t reveal the ending to the general public (something a clerk at the US Supreme Court ought to have thought of before leaking the

draft judgment in Dobbs v Jackson Women’s Health Organisation). Monty Python skits are, for good reason, favourites of lawyers and one feels it is beyond co-incidence one feels that their (perhaps lesser known) “Fish License” sketch is almost a nod to the California Court of Appeal and modernist literature. It starts with John Cleese trying to buy a licence for his pet fish “Eric”, and upon being told by the clerk that there is no such thing as a pet fish licence says, “In that case, give me a bee licence” (when the clerk asks if the pet bee is also called Eric, Cleese responds: “ – No. Eric the half-bee. He had an accident.”) After being called a “loony” by the clerk, Cleese’s character responds: “Marcel Proust had a haddock. So if you’re calling the author of A La Recherche Du Temps Perdu a loony, I shall have to ask you to step outside.” Not sure what to make of any of these freaky co-incidences, but then again the Editor only vaguely remembers the “Fish License” sketch, and read Proust and Joyce long ago, and can’t really remember what it all means… In addition to the special feature, this edition as always, also has many other diverse and interesting items including former Supreme Court Justice John Chaney SC on the “Best Place for Environmental Appeals”, Thomas Camp’s interview with Council Member and former MasterChef contestant Ben Bullock, Lea Hiltenkamp and Lara Scott on “Carbon Markets in

Australia 101”, Ian Neil SC on “The High Court Affirming the Application of Orthodox Contract Law Principles to Employment Relationships”; Kenneth Yin on “Revenge Porn and Sexting”; and Peter Handford on “James And Mary Coultas and the Law of Nervous Shock – The Perth Connection”. We are also, as always, grateful for all the contributions to Brief, including our regular contributors and Law Society’s Committees.

End Notes 1

“I can’t keep up with you on this stuff,’ busy trial lawyer tells Georgia Justices”, D Cassens Weiss, 25 August 2021, abajournal.com

2 Almond Alliance v Fish and Game Commission, see also Unanimous Three-Judge Panel Rules Bees Are ‘Fish’: ‘We Are Tasked with Liberally Construing’ the California Endangered Species Act 31/5/22, C Kalbacher, lawandcrime.com. 3 Not, interestingly, “Remembrances of Things Past”, but rather “In Search of Lost Time” 4 May as well thrown in an esoteric Anthony Burgess/ Stanley Kubrick reference while we’re at it. 5 Ulysses from 1929 to 1937 so not really an excuse for many for not having read it. American Psycho was banned in Qld and made 18+ in the rest of the states. 6 With Ulysses, one in 1967 with Milo O’Shea, and a 2003 version with Stephen Rea under the name Bloom. 7 Bale was 13 when he featured in Steven Spielberg’s Empire of the Sun (1987) by Tom Stoppard and based on J. G. Ballard’s semi-autobiographical novel. 8 Interview of Brett Easton Ellis in The Guardian, 23/6/2998, the guardian.com 9 And possibly an after-life. 10 Of course, Melbourne has what they regard as the “real” Australian Bloomsday events, it has not escaped the Editor’s attention that Subiaco’s Irish Club has a Bloomsday night on 16 June. 11 Confession, Trauma and the Search for Truth, Blooms Trials in Ulysses, Dale Barleben Law & Literature, Volume 27, Number 3.

GAIN PRACTICAL LEGAL TRAINING WITH CURTIN LAW SCHOOL Curtin’s Practical Legal Training program has a strong emphasis on technical legal skill development, with practical training conducted through the John Curtin Law Clinic.

Taught by experienced legal practitioners with extensive legal experience, the program is highly flexible, delivered through a blend of face-to-face teaching and online self-directed learning. Find out more about the Practical Legal Training program or contact the Curtin Law School.

CRICOS Provider Code 00301J 5120FBL

Interview: Law Society Council Member Ben Bullock Associate at Steedman Stagg

Interviewed by Thomas Camp, Junior Council Member, Law Society of Western Australia,

Why did you decide to run for the Law Society Council? The Law Society is instrumental in shaping both the profession and the way that the law impacts our community. I want to try and give something back to both.

You had 2 years out of the law, how did that impact your career? Sleeping in a Thai prison cell and being arrested in Iran provides an incomparable education in the law. Everyone should experience life outside of the profession. Our legal systems would be vastly different (for the better) if every lawyer took a few years out to try something different.

Part of that gap was due to starring in MasterChef, what was that experience like and is it still a part of your life? MasterChef was a surreal experience. Some life-long friends (and added kg’s) were made along the way.

I understand you rode a motorbike through 30 countries to raise awareness of suicide, why did you choose to do that? It was a dream I held since I was young. Having recently come out of MasterChef I thought there might be a way to promote a charity and a positive cause. In Australia we lose 8 people a day to suicide. The majority of them are young men. By comparison there are 3 road fatalities a day.

Where did you ride, and what was it like? The 35,000km ride took me through 30 countries between Perth, Australia and Perth, Scotland via south-east and central Asia. It wasn’t an easy journey, but the people I met along the way made everything worth it.

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

Unfortunately, I soon realised that a chef carries far more stress and significantly worse hours than any lawyer.

An uptake in mental health awareness across the profession.

We’ll stick with law for the time being.

Presenteeism and unsociably long workdays still pose a problem. However,

LEAVING A

there has been real progress over the last 10 years.

Is there anything you would like to change about the legal profession? The delay that participants in the legal system experience is unacceptable. ‘Justice delayed is justice denied’. The government, courts and profession need to do more about this problem.

Do you have a favourite part of Brief? The judgement summaries are brilliant. I can often find myself deep in cases outside my practice area.

Lawyers are known to work long hours – how do you manage to balance your work and personal life? Prioritising work and setting boundaries The reality is that there are few tasks that cannot wait another day.

Do you have any wellbeing tips? Use your annual leave. There are no prizes for hoarding it.

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

06 | BRIEF JUNE 2022

Australia’s only mortgage broking service exclusively for lawyers. Leverage your profession and enjoy exclusive beneﬁts on your home loan today. Official partner of the Law Society of WA Member Privilege Programme. Members receive $500 cashback at loan settlement.

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

www.legalhomeloans.com.au

Special Feature: Legal Profession Uniform Law

Contents

08 | BRIEF JUNE 2022

Welcome to the Uniform Law scheme

Pg 10

Attorney General’s Update to the Profession

Pg 18

Key differences between Pg 20 the Uniform Law and the Legal Profession Act 2008 (WA) – what you need to know

UNIFORM LAW SCHEME

Important changes for the legal profession in WA and how the Law Society can help you Western Australia will officially join the Legal Profession Uniform Law scheme on 1 July 2022. The Legal Profession Uniform Law was introduced to create a simpler and more efficient system for both law firms and their clients by cutting red tape, better protecting consumers and ensuring consistency across our borders. The scheme came into operation in Victoria and New South Wales in July 2015. To assist the West Australian legal profession in preparing for the changes brought about by the Uniform Law, the Law Society has developed resources and is providing CPD Seminars on topical Uniform Law matters such as Costs Disclosure, Complaints and Conduct Rules. Visit the CPD Seminars section of the Law Society website for more information. For additional resources and updates, please visit our Legal Profession Uniform Law online hub. Furthermore, the Law Society and Law Mutual are making available at no cost

new Client Engagement Agreements and Guidelines for both litigated and transactional matters for the purposes of:

profession, stating that Uniform Law is “a significant milestone in creating a simpler and more efficient system of regulating legal practice in this jurisdiction”.

implementing best practice risk management; and

Roselina Kruize discusses the key differences between the Uniform Law and the Legal Profession Act 2008 (WA) – what you need to know. This article provides practical advice and insights on practising certificates, trust accounts, legal costs (cost disclosures and billing) and business management and insurance. A key take away is that it is important to understand what changes have been implemented to be able to comply with the new Uniform Law scheme. Some changes attract penalties or may constitute unsatisfactory profession conduct if not complied with.

meeting the costs disclosure obligations in the Legal Profession Uniform Law. In this special feature on Uniform Law, a comprehensive overview of Uniform Law is provided by the Legal Services Council (LSC), which monitors the overall operation of the Legal Profession Uniform Framework and is responsible for making Uniform Rules. The Law Society and the Legal Practice Board of Western Australia (LPBWA) will continue to be consulted by the LSC on matters relating to the Uniform Law and Uniform Rules, and is presenting an opportunity for the profession to meet the Legal Services Council in a CPD session on 6 July 2022. The Attorney General of Western Australia, the Hon John Quigley MLA, provides an important update to the legal

The LPBWA has a range of fact sheets covering topics related to the introduction of Uniform Law, such as transitional arrangements; costs disclosures; dispute resolution and complaints. The fact sheets are available on the LPBWA’s website here: https:// www.lpbwa.org.au/Uniform-Law/FactSheets

The Law Society and the Legal Practice Board have provided a range of online resources to assist with the transition ahead - click on each screen to visit each resource in turn.

Welcome to the Uniform Law Scheme On 5 April 2022, the Legal Profession Uniform Law Application Bill 2021 passed the Western Australian Parliament. The Uniform Law scheme will become operational in Western Australia on 1 July 2022. This event is a tremendous milestone, in terms of the expansion of the Uniform Law scheme, and a significant step towards the goal of Australia having a national legal profession under a national regulatory regime. This article provides an overview of the Uniform Law scheme for the information

of legal practitioners in Western Australia. Specific details about the operation of the Uniform Law and Rules, in terms of their regulatory impact on legal practitioners in Western Australia, has been and will continue to be provided by the Law Society of Western Australia, the Western Australian Bar Association and the Legal Practice Board of Western Australia.

Overview of the Uniform Law Scheme In 2014, the Uniform Law was enacted in Victoria, adopted as an applied law in NSW in May 2014, and commenced on 1 July 2015.

663

Qld

As at 30 June 2021

Percentage values have been rounded

%16

7,292

4,348

The Uniform Law creates two new interjurisdictional bodies to oversee the regulatory regime: the Standing Committee of Attorneys General of the participating jurisdictions, and the Council. A diagram showing each of the bodies under the Uniform Law scheme, including the relevant Western Australian bodies, is shown on the opposite page.

15,167

WA %7

The Legal Services Council (Council) oversees the Uniform Law which regulates the legal profession in Victoria and NSW and soon, WA. The Uniform Law scheme currently covers 68% of the Australian legal profession and soon, will cover over 75% of the profession nationally.

Number of Legal Practitioners (Solicitors and Barristers) Australia wide

NT %1

by Chelly Milliken, Senior Principal Policy Officer Legal Services Council

There are 96,808 legal practitioners in Australia From 1 July 2022, the Uniform Law scheme will cover 75% of legal practitioners in Australia, as it then applies in NSW, Victoria and Western Australia

NSW % 42 40,311 Vic 25,454 %26

Figures are based on practising certificates issued by State and Territory authorities as at 30 June 2021

ACT %3 2,955

Tas %1 618 Standing Committee of Attorneys General (Standing Committee) The Standing Committee appoints the Council, approves changes to the law and rules that are recommended by the Council and has a general supervisory role over the Council. Through the involvement of the Attorneys General, the scheme ensures that the interests of each jurisdiction are taken into account.

10 | BRIEF JUNE 2022

The Honourable Jaclyn Symes MP

The Honourable Mark Speakman SC MP

The Honourable John Quigley MLA

Victoria

New South Wales

Western Australia

Role of Bodies Under the Legal Profession Uniform Law Standing Committee – NSW, Victorian and Western Australian Attorneys General Supervises the Legal Services Council, Commissioner for Uniform Legal Services Regulation and local regulatory authorities to ensure they fulfil their duties consistently with the Uniform Law’s objectives. Approves Uniform Rules.

Admissions Committee

Legal Services Council

Commissioner for Uniform Legal Services Regulation

Develops rules about admission to the legal profession.

Monitors the Uniform Law’s implementation and operation.

Gives advice to the Legal Services Council about admissions related matters.

Develops General Rules and makes all Uniform Rules.

Promotes compliance with the Uniform Law and Rules.

Issues guidelines and directions to local regulatory authorities about the exercise of their functions.

Ensures the consistent and effective implementation of Chapter 5 of the Uniform Law. Raises awareness of the Uniform Law framework and its objectives. Issues guidelines and directions to local regulatory authorities about Chapter 5 functions.

Local Regulatory Authorities for Functions and Regulation of The Legal Profession Admission to the Legal Profession Legal Profession Admission Board (NSW) Victorian Legal Admissions Board Legal Practice Board WA

Australian Practising and Registration Certificates

Trust Money and Trust Accounting Bar Council (NSW)

Compliance Audits and Management System Directions

Bar Council (NSW)

Law Society Council (NSW)

NSW Legal Services Commissioner

Chapter 5 Consumer Complaints, Dispute Resolution and Professional Discipline

Law Society Council (NSW)

Victorian Legal Services Board

Law Society and Bar Councils (NSW)

NSW Legal Services Commissioner

Victorian Legal Services Board

Legal Practice Board WA

Victorian Legal Services Board

Law Society and Bar Councils (NSW)

Legal Practice Board WA

Victorian Legal Services Commissioner

Legal Practice Board WA

Legal Services and Complaints Committee (WA)

Courts and Tribunals Supreme Court

Local Court of NSW

Appeal or review of some DLRA decisions, disqualification of entities from providing legal services, admission to and removal from the roll of Australian lawyers, appointment of receivers, injunctive relief.

Magistrates Court of Victoria Magistrates Court of Western Australia

Civil and Administrative Tribunals Chapter 5 consumer complaints, dispute resolution and professional discipline.

Prosecution of summary offences.

UNIFORM LAW SCHEME Intergovernmental Agreement

Uniform Framework (Intergovernmental Agreement), made between the states of NSW, Victoria and Western Australia.

On 5 December 2013, the states of NSW and Victoria signed the Bilateral Agreement on the Legal Profession Uniform Framework, pursuant to which NSW and Victoria enacted the Uniform Law in their jurisdictions.

The Intergovernmental Agreement sets out the principles and processes for cooperation between NSW, Victoria and Western Australia to expand the Uniform Law framework and addresses the role of the Standing Committee, implementation of the Uniform Law framework, maintenance of national consistency and amendment of the framework,

From February 2019, that agreement was replaced by the Intergovernmental Agreement on the Legal Profession

appointments to the Council and funding arrangements. Since 2019, Western Australia has been regarded as part of the Uniform Law scheme and has been involved in all consultations undertaken by the Legal Services Council and its Admissions Committee.

Legal Services Council The Council oversees the operation of the Uniform Law scheme. It formally makes the Uniform Rules and can make recommendations for changes to the Uniform Law, to the Standing Committee. From 14 October 2014 to 13 October 2020, the Chair of the Council was the Hon Michael Black AC QC FAAL. The inaugural Council’s members included Ms Fiona Bennett, Ms Kim Boettcher, Mr Steve Stevens and Mr Bret Walker SC.

The current Council was appointed in October 2020. The members of the Council are: One member appointed as the Chair by the Standing Committee – Mr Alan Cameron AO

Two members appointed by the Standing Committee on the basis of their expertise in legal practice, consumer protection, legal profession regulation or financial management – Mr Murray Baird and Ms Elizabeth Harris.

Two members recommended by the Australian Bar Association and Law Council of Australia respectively – Mr Noel Hutley SC and Ms Juliana Warner

Hon Michael Black AC QC FAAL

Mr Alan Cameron AO

Mr Murray Baird

Chair from 2014 to 2020. Previously, the

Chair from 2020 to date. Previously,

Murray Baird was the inaugural Assistant

Hon Michael Black AC QC FAAL was the Chief

Alan Cameron AO occupied a range of

Commissioner and General Counsel at the

Justice of the Federal Court of Australia for

senior roles in both the private and public

Australian Charities and Not-for-profits

19 years, from 1991 to 2010. He commenced

sectors, including as Commonwealth and

Commission (ACNC) from its inception in 2012

practice at the Victorian Bar in 1964 and was

Defence Force Ombudsman, Chairman of

until 2019, following a career in private practice

appointed Queen’s Counsel in 1980. During

the Australian Securities and Investments

as a Partner and Chair of Moores Legal in

his outstanding career, he has held various

Commission from 1993 to 2000, and

Melbourne. He is a member of the Law Institute

academic, committee and international

Chairperson of the NSW Law Reform

of Victoria’s and Law Council of Australia’s

appointments.

Commission from 2015 to 2022.

Charities and Not for Profit Committees.

Former Chair

12 | BRIEF JUNE 2022

Chair

Member

Empower yourself to work to end exploitation with a postgraduate degree in Modern Slavery and Human Trafficking. In Notre Dame University’s new graduate certificate and graduate diploma programs, you’ll analyse the complex issues of modern slavery and human trafficking from social

justice, legal and economic perspectives. Empower yourself as a leader in your workplace and the wider community to address these global challenges.

Apply now for Semester 2

notredame.edu.au/gdmodernslavery

CRICOS PROVIDER CODE: 01032F

Ms Liz Harris

Mr Noel Hutley SC

Ms Juliana Warner

Liz Harris is a recognised expert in costs law

Noel Hutley is a NSW barrister who was

Juliana Warner is a Partner of the Sydney

and has been a member of the Victorian

appointed as Senior Counsel in 1996 and

office of Herbert Smith Freehills and was the

Supreme Court Costs Committee, VCAT Legal

as Queen’s Counsel in Western Australia in

President of the Law Society of NSW in 2021.

Practice List and Chair of the LIV Advisory

1997. Noel has previously been President of

Juliana is also a Director of the Law Council of

Board on Costs Law and its Cost Lawyers

the NSW Bar Association and President of

Australia, a Trustee of the Public Purpose Fund

section. Liz consults to government and

the Australian Bar Association.

of NSW and a Director of Law Firms Australia.

Member

corporate legal departments and appears as an expert witness in litigation.

Western Australia Observers Since Western Australia indicated its interest in joining the Uniform Law scheme, the Council has had the benefit of an observer from Western Australia. In 2017, the first observer was the Hon Chief Justice of Western Australia, Peter Quinlan QC, when he was the Solicitor General of Western Australia and the current observer is Mr Joshua Thomson, the current Solicitor General.

The Hon Peter Quinlan SC Chief Justice of Western Australia

14 | BRIEF JUNE 2022

These Western Australia observers have assisted the Council to understand Western Australia’s perspectives and their involvement has enabled Western Australia to gain a greater understanding of the operations of the Council and the Uniform Law scheme. The contribution that these observers have made to the Uniform Law has been significant.

Mr Joshua Thomson SC

Solicitor General of Western Australia

When Western Australia joins the scheme, a permanent appointment to the Council from Western Australia will be made, so that Western Australia will have a direct voice in the scheme. The Law Council of Australia will also nominate an additional Council member.

UNIFORM LAW SCHEME

Legal Services Council Admissions Committee The Council’s Admissions Committee, chaired by the Hon Arthur Emmett AO QC, is responsible for developing Admission Rules and provides advice to the Council about admission matters generally. Admission Committee members are nominated by a range of bodies, including the Chief Justice of Victoria with the concurrence of the Chief Justice of each of the other participating jurisdictions, the Law Council of

Australia, the Australian Bar Association, the Dean of a Law School or Faculty of Law, and the Standing Committee. The Council appoints the Committee members and must ensure that there is at least one member from each participating jurisdiction.

Since Western Australia expressed an interest in joining the Uniform Law scheme, the Hon Rene Le Miere SC, formerly a judge of the Supreme Court of Western Australia, has been an observer on the Admissions Committee and has made valuable contributions to its work.

Judicial members of the Committee include the Hon David Habersberger QC, formerly of the Victorian Supreme Court, and the Hon Justice Francois Kunc of the NSW Supreme Court.

A permanent appointment to the Admissions Committee will be made when Western Australia joins the Uniform Law scheme.

The Hon Arthur R Emmett AO QC

The Hon David Habersberger QC

The Hon Justice Francois Kunc

The Hon Rene Le Miere QC

Ross Drinnan

Professor Jenni Lightowlers

Professor Tania Sourdin

Robert Hollo SC

Chair

Observer

Member

Law Admissions Consultative Committee (LACC) The LACC was set up by the Council of Chief Justices of Australia and New Zealand before the Uniform Law scheme was established, to forge consensus on admission matters nationally. The LACC comprises a delegate of each Australian State or Territory, together with a nominee of the Australian Professional Legal Education Council, the Council of Australian Law Deans and the Law Council of Australia. Since the Uniform Law scheme came into existence, the Admissions Committee

has worked constructively with the LACC, to promote consensus on admission matters as between the Uniform Law jurisdictions and other Australian jurisdictions.

five joint appointees across both the Admissions Committee and the LACC, including the Chair and the Western Australia observer on the Admissions Committee.

Recently, the Council of Chief Justices of Australia and New Zealand resolved that in the interests of uniformity, a Chair and as many people in common as possible should carry out the admissions advisory functions in the participating and nonparticipating jurisdictions. In response, appointments to the LACC resulted in

The Council provides secretariat services to the LACC. Both Committees meet three times per year on the same day and inform themselves of the other’s issues and business, working cooperatively to maximise uniformity in admissions matters between all Australian jurisdictions.

CEO and Commissioner The CEO of the Council supports the Council in the performance of its functions, provides advice and heads the Secretariat and its operations. The CEO is also the Commissioner for Uniform Legal Services Regulation and ensures the dispute resolution and professional discipline arrangements set out in Chapter 5 of the Uniform Law are implemented consistently and effectively. The Commissioner also promotes compliance with the Uniform Law and raises awareness about the scheme and its objectives.

The Commissioner furthers these objectives through regular meetings with the Executives of the DLRAs to discuss their operations under the Uniform Law and obtaining complaints data that is input into a national Uniform Law database. Other mechanisms employed are the Council’s website, which highlights developments in the Uniform Law, guidelines and practice directions, annual reports and a quarterly newsletter that is distributed to Uniform Law stakeholders. Additionally, the Council’s annual Uniform Law Summit brings together representatives of the

Dale Boucher

Megan Pitt

Former CEO and Commissioner

Current CEO and Commissioner

bodies in the Uniform Law framework, to discuss issues and plan priorities. From 29 September 2014 to 29 September 2017, the inaugural CEO and Commissioner was Dale Boucher. Since 3 October 2017, the CEO and Commissioner has been Megan Pitt.

Secretariat The Secretariat provides support to the Council and the CEO in administering the day-to-day matters of the Council. It has a policy team led by Chelly Milliken and including Ella Howard and Jessica Wardle. Its corporate work is supported by Bridget Sordo and Tina O’Brien. The Secretariat has extensive experience in legal policy and in advising corporate bodies and committees.

Designated Local Regulatory Authorities (DLRAs) CEO and Commissioner from 2014 to 2017.

CEO and Commissioner from 2017 to date.

Previously, Dale Boucher was the first

Previously, Megan Pitt led the Sydney office

Chairman of the Tax Practitioners Board,

of the Australian Government Solicitor as

from 2009 to 2013, the CEO of the Australian

its Director for over 20 years. Megan has

Government Solicitor and he held the

a strong background in Commonwealth

personal office of the Australian Government

litigation and legal practice management,

Solicitor between 1993 and 1997.

and has chaired various Commonwealth and State-based legal networks.

16 | BRIEF JUNE 2022

Under the Uniform Law, regulatory functions are conferred on DLRAs in each jurisdiction. The Council and Commissioner do not have a direct role in the regulation of legal practitioners and law practices and cannot intervene in individual cases. When Western Australia joins the scheme, the Legal Practice Board of Western Australia and the Legal Services and Complaints Committee will be

UNIFORM LAW SCHEME

the DLRAs. The Legal Services and Complaints Committee is a renaming of the current Legal Profession Complaints Committee. In NSW, the local regulatory authorities are the NSW Legal Services Commissioner, the Law Society of NSW, the NSW Bar Association, the Legal Profession Admission Board and the Civil and Administrative Tribunal of NSW.

In Victoria, the local regulatory authorities are the Victorian Legal Services Board and Commissioner, the Victorian Bar and the Victorian Legal Admissions Board.

The Council does not interfere with the operation of the DLRAs, except to ensure that the Uniform Law is operating effectively and consistently with the objectives of the Uniform Law.

The local Admission Boards and Supreme Courts maintain their role in the admissions process under the Uniform Law.

Western Australian involvement in the Uniform Law Scheme The Uniform Law scheme has some unique features that distinguish it from the earlier proposed national model. Unlike the previous model for national law, the scheme provides for uniformity, while allowing participating jurisdictions to retain existing local features, as long as they are not inconsistent or irreconcilable with the Uniform Law. Accordingly, when the Uniform Law commences in Western Australia, although there will be some changes, much will remain the same. In addition, Western Australian legal practitioners will be able to access features of the Uniform Law scheme that are currently available to legal practitioners in NSW and Victoria.

Retention of Western Australian regulatory bodies and provisions The retention of the Western Australian legal and regulatory bodies is an important feature of the Uniform Law scheme, including the Legal Practice Board and the Legal Profession Complaints Committee, as well as the Law Complaints Officer, the Legal Costs Committee and the Legal Contribution Trust. Western Australia will also retain some provisions that are important and unique to it, such as the ability of a barrister to accept direct briefs on a pro bono basis or pursuant to a direct grant of legal aid, without breaching the Uniform Law Barristers Conduct Rules. By enabling Western Australia and other jurisdictions to keep historically important and unique bodies and practices, the Uniform Law framework is inclusive and embracing of difference, rather than requiring total conformity.

Uniform Law data sharing Western Australia’s legal complaints and admissions data will soon be included in the Legal Services Council’s national database. This will enable broader analysis of trends and enhance the ability to compare Western Australia’s performance against relevant benchmarks, as is the case with NSW and Victoria.

Australian Legal Profession Register The Council’s online Australian Legal Profession Register, available on its website, will soon include the names, practising certificate types and locations of Western Australia legal practitioners. With links to the Registers of Disciplinary Action in the Uniform Law jurisdictions, the ALPR will be a useful enquiry tool for the legal profession and for the protection of consumers in Western Australia, as it is in NSW and Victoria.

Australasian Legal Information Institute Uniform Law Library The Australasian Legal Information Institute Uniform Law Library, known as the AustLII Uniform Law Library, will include relevant Western Australia case law in the near future. This will assist Western Australian legal practitioners to keep up to date with relevant Uniform Law developments, as it does legal practitioners in NSW and Victoria.

Ongoing collaboration between Western Australia and the Council The success of the Uniform Law scheme is dependent upon the collaboration and cooperation of all bodies in the Uniform Law framework. The Council has actively directed its efforts towards ensuring that this collaborative and collegiate spirit exists, by its ongoing consideration of the significant views of all bodies and jurisdictions in the scheme. The Council will continue to actively involve Western Australian stakeholders in its decision making and to consult with the Western Australian legal profession directly, and through the Law Society of Western Australia, the Western Australian Bar Association and the Legal Practice Board of Western Australia in the future.

Attorney General’s

Update to the Profession by the Hon John Quigley LLB JP MLA

One of the most significant and longawaited developments in our State’s legal profession is Western Australia joining the Legal Profession Uniform Law scheme. Since I signed the Intergovernmental Agreement on the Legal Profession Uniform Framework on 20 February 2019, together with the Attorneys General of New South Wales and Victoria, I have been committed to the Uniform Law and Western Australia’s involvement in the scheme. With the passage of the Legal Profession Uniform Law Application Act 2022 through the Parliament earlier this year, we will officially join the scheme on July 1, alongside Victoria and New South Wales. This will see the scheme operative in respect of 75 per cent of the legal profession in this country. I trust that Western Australia’s involvement will create a critical mass that will encourage other States and Territories to do likewise and in so doing bring us a step closer towards a single regulatory regime and a truly national legal profession. Increasingly, the legal profession and consumers conduct their business nationally and internationally. The traditional lines between jurisdictions have been blurred and the legal profession should keep pace with these developments. The internet, online legal services and artificial intelligence are good examples of this changing pattern of delivery and access to services, including legal services. Internationally, our system of jurisdiction-based legal services is difficult to understand, cumbersome and expensive to comply with. It also restricts our international competitiveness, in terms of the legal employment market and legal service provision. The Uniform Law scheme reduces

18 | BRIEF JUNE 2022

compliance costs for firms operating across participating jurisdictions by simplifying and standardising regulatory obligations, cutting red tape and creating a common market for legal services. Along with the benefits that come with harmonising the regulation of the legal profession, ordinary consumers of legal services are also likely to benefit from increased consumer protection provisions and faster resolution of disputes and complaints, as well as greater consistency of experience across jurisdictions. Western Australian practitioners will also be able to practise seamlessly across the three jurisdictions. However, while providing for uniformity the scheme also accommodates local variations in the way in which Western Australia and the other participating jurisdictions operate. Our unique Western Australian legal and regulatory bodies, such as the Legal Practice Board and the Legal Profession Complaints Committee as well as the Law Complaints Officer, the Legal Costs Committee and the Legal Contribution Trust, are also preserved. It is a significant milestone in creating a simpler and more efficient system of regulating legal practice in this jurisdiction and I’m sure it will be welcomed by all those in the legal profession. I am pleased that this Government has been able to deliver this important reform. Another reform that has been close to two decades in the making is the overhaul of the laws relating to de facto couples separating in Western Australia. For many years, de facto couples in our State have been at a considerable disadvantage when it came to the splitting of superannuation when their

relationship broke down. I recently introduced a Bill into Parliament which, if enacted, will overcome the Family Court of Western Australia’s current inability to make an immediately enforceable order splitting superannuation assets. When superannuation is a couple’s biggest asset, these outdated arrangements have meant women, who retire on average with half the superannuation of men, are disproportionately disadvantaged. This is in marked contrast to married couples in Western Australia and married couples, as well as de facto couples, elsewhere in Australia, whose superannuation could be the subject of such a court order. I am pleased to be part of the Government which has developed legislation to address this injustice. The Government has also recently overhauled Western Australia’s outdated laws relating to how property is distributed amongst family members following the death of a loved one who dies intestate. The recent enactment of the Administration Amendment Act 2022 brings Western Australia into line with the rest of the nation. The updated scheme increases the payment to a surviving spouse or partner from $50,000 to $472,000 if the deceased dies leaving direct descendants, such as children or grandchildren. If the deceased dies leaving a surviving spouse or partner but no direct descendants, the amount has increased from $75,000 to $705,000. The parental statutory legacy has been increased from $6,000 to $56,500. The Act includes appropriate mechanisms to avoid Western Australia falling behind again. The Government’s promised laws targeting serious and organised crime came into effect on Christmas Eve last year and I am pleased to see that the

UNIFORM LAW SCHEME WA Police Force have wasted no time putting them to good use. The laws allow our police to disrupt and restrict criminal activities through the prevention of unlawful consorting between offenders; the prohibition of displaying insignia of identified organisations in public; and the power to disperse gang members who gather together in public places. The new laws make it an offence to consort contrary to an unlawful consorting notice, attracting a maximum five-year jail term. Displaying insignia of an identified organisation in a public place is no longer permitted with offenders facing a maximum 12-month jail term and fines of up to $12,000 or $60,000 for corporations. Consorting contrary to a dispersal notice attracts a maximum 12-month jail term and $12,000 fine. The Minister for Police has also implemented firearm prohibition order laws closing the loopholes bikies were exploiting to get access to firearms. This represents a coordinated approach across Government to tackling these criminal gangs. The community is right behind us, with police receiving reports from the general public when they observe individuals flouting the laws. There has never been a worse time to be a bikie in WA. As Minister for Electoral Affairs I oversaw the passage of the Electoral Equality Act 2021, which effectively means that the vote of every Western Australian is now equal when electing representatives to sit in the Legislative Council. The 2021 Upper House election results and the election of Wilson Tucker from the Daylight Saving Party in the Mining and Pastoral Region with just 98 first preference votes left many of us scratching our heads. How could it be that the Nationals WA received 5,032 votes in the Mining and Pastoral Region but did not get a member elected and yet Mr Tucker was elected on 98 votes in a region that is fundamentally opposed to daylight saving? The result

exposed a deeply flawed system that needed reform. Following an open and transparent public consultation process under the Ministerial Expert Committee chaired by former Governor, Malcolm McCusker AC CVO QC, the Government devised a solution. Under the reforms, WA moved to a new whole-of-State electorate so that from the 2025 election on, every Western Australian will be represented by their local lower house member and 37 Legislative Councillors. The Government’s laws introducing a statutory right for second and subsequent criminal appeals against a conviction on indictment have passed through State Parliament. Previously, convicted persons who had exhausted all of their appeals had no further right to appeal. Even when new evidence was available showing that a person is innocent, their only avenue of redress was to lodge a petition for the exercise of the Royal Prerogative of Mercy by the Governor or petition the Attorney General to refer the case to the Court of Appeal. In 2018 I granted such a request in regard to Mr Scott Austic, whose case demonstrated how allowing for fresh or new evidence to be heard and assessed can rectify a substantial miscarriage of justice. However, Mr Austic’s petition to a previous Attorney General had not been granted, and it has long been my view that a court – not politicians – should be the arbiter of such matters. The Criminal Appeals Amendment Act 2021 makes this important change. I’d like to touch on another Bill that is currently before the Parliament, because it has been a long time in the making and, when passed, will represent the most rigorous and comprehensive laws in the nation in relation to charitable trusts. Just two months after being sworn in as the Attorney General in 2017, I used long-dormant investigatory powers under the Charitable Trusts Act

1962 to order the first inquiry into a charitable trust. The Njamal People’s Trust was the subject of the investigation by Mr Alan Sefton SC, the then Deputy State Counsel at the State Solicitor’s Office. This inquiry uncovered systemic problems with charitable trusts being the vehicle for multi-million dollar payments to indigenous groups, often flowing from Native Title settlements. What I had initially hoped would be a short, sharp inquiry into governance and administration grew into an 18-month behemoth weighing in at 675 pages when tabled in State Parliament in December 2018. It became blatantly apparent that neither the legal instrument by which the funds are held, distributed and administered, nor the legislative regime in place were fit for purpose. The Bill before the Parliament implements the 21 legislative reforms recommended in the Sefton Report. It establishes the Western Australian Charitable Trusts Commission, constituted within the office of the Ombudsman WA, to undertake inquiries under significantly expanded powers akin to a standing Royal Commission. It addresses gaps in the current regulatory regime, including the lack of compulsive powers to require a person to attend and give evidence on oath or affirmation and significantly increases penalties for those who refuse to cooperate with the commission. I hope to see these significant reforms passed without delay. The Department of Justice is continuing its work on the development of a new Evidence Act for Western Australia. Targeted amendments to the Bail Act 1982 to strengthen protections for alleged child victims of sexual abuse were introduced into State Parliament on 14 June 2022. The establishment of a Judicial Commission remains on my list of priorities for this term of Government, as do reforms to the Criminal Law (Mentally Impaired Accused) Act 1996.

Gifts in Wills help us get closer to our vision of a cancer free future for our community. How are we going to achieve this? By funding world-class researchers here in WA.

By providing support from the point of diagnosis through to treatment and beyond.

By empowering healthier lifestyles and shaping public policies for West Australians to reduce their risk of cancer.

When writing a Will for a client please ask them to consider a charitable gift.

To find out more contact us on 08 9212 4333 or visit cancerwa.asn. au/getinvolved/a-gift-in-will Cancer Council Western Australia (Inc). Level 1, 420 Bagot Road, Subiaco WA 6008 ABN: 15 190 821 561

Key differences between the Uniform Law and the Legal Profession Act 2008 (WA)

What You Need to Know.

By Roselina Kruize, Mills Oakley

he Uniform Law scheme is coming into effect on 1 July 2022. It is designed to promote the administration of justice and create a more efficient system for lawyers across Australia to practice and to comply with their legal requirements. The Legal Profession Uniform Law (WA) is made up of the following: 1. Legal Profession Uniform Law Application Act 2022 (WA); 2. Legal Profession Uniform Law (Uniform Law), which may be found in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic); and 3. Uniform Rules.1 In this article, we address four important areas of change implemented by the Uniform Law and the practical

20 | BRIEF JUNE 2022

implications which will follow in everyday legal practice. These are not all the differences between our current Legal Profession Act 2008 (WA) and the soon to be implemented Uniform Law and should only be used as a starting guide.

Practising Certificates When a person (the applicant) applies to be admitted as a practitioner of the Court, there are certain steps the applicant must comply with. One of these steps is to file an admission application form with the Legal Practice Board. The Legal Practice Board will then review the application and if satisfied (of completion of further academic qualifications and that the applicant is a fit and proper person), it will issue a compliance certificate to the Supreme Court of WA. If the Legal Practice Board is not satisfied, it may refuse to issue a compliance

certificate or provide a declaration. The usual process, should an applicant wish to object to either decision, is to apply to the State Administrative Tribunal for a review of the decision.2 Under the Uniform Law, this has now changed. Now, an applicant has a right of appeal to the Supreme Court of WA against the refusal of the Legal Practice Board to make the declaration. This is applicable for both early assessment applicants and applicants applying in the usual timeframe.3 This new appeal process will also apply if a compliance certificate is issued and then revoked by the Legal Practice Board.4

Trust Accounts Under the Uniform Law, a law practice is now required to give the Legal Practice

UNIFORM LAW SCHEME Board written notice of the associates and Australian law practitioners (including their names and addresses) who are authorised, as at 1 July in that year:

to exceed $750,8 exclusive of GST and disbursements.9

1. to sign cheques drawn on a general trust account of the practice; or

2. Where the legal costs fall between $750 to $3,000,10 not including GST and disbursements, a law practice may comply with its disclosure obligations by either:

2. otherwise to effect, direct or give authority for the withdrawal of money from a general trust account of the practice.

a. making full disclosure to their client or third party payer in accordance with the main disclosure requirements; or

There is no need to provide this information if it has already been provided (or the law practice reasonably expects that the information will be provided) in an external examiner’s report.5

b. providing to their client or third party payer a completed uniform standard disclosure form as set out in Schedule 1 of the Legal Profession Uniform General Rules 2015 (NSW) (General Rules).

Legal Costs Part 4.3 of the Uniform law deals with legal costs. Except for certain cost agreement requirements (see sections 170, 181 to 183 and 185 of the Uniform Law), this Part does not apply to commercial or government clients or third party payers who would be a commercial or government client if the third party payer were a client of the law practice.6

Costs Disclosure A law practice must, when or as soon as practicable after: 1. instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

3. Where the estimated legal costs exceed $3,000, excluding GST and disbursements, then full disclosure is required. As soon as the law practice becomes aware that it will exceed the lower threshold, and disclosure has not been made, the law practice must, when or as soon as practicable, inform the client in writing of that expectation and make the disclosure required.12 Be aware that if the law practice fails to comply with its disclosure requirements: 1. the costs agreement is void (please note that there could be a possibility it will not be void if steps to satisfy rule 72A of the General Rules are met, and a void costs agreement does not mean that the law practice isn’t entitled to be paid for services rendered);

2. there is any significant change to anything previously disclosed, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable to the client,

2. the client or an associated third party payer is not required to pay the legal costs until they have been assessed or any costs dispute has been determined by the designated regulatory authority (the Legal Practice Board13 or the Supreme Court of WA depending on the amount disputed);

together with the standard information relating to the client’s rights to negotiate the costs agreement and billing method, request an itemised bill to seek the assistance of the Legal Practice Board in the event of a dispute about legal costs (main disclosure requirements).7

3. the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority or under jurisdiction legislation; and

This is something law practices already adhere to under the current regime.

4. the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.14

However, the cost disclosure requirements have changed as follows: 1. No disclosure is required if the estimated costs threshold is unlikely

Billing and Interest Charged A bill issued by a law practice, or a letter accompanying the bill, must be signed by the principal of the law practice who is the responsible principal for the bill or a nominated principal as the responsible principal of for the bill.15 A request for an itemised bill must be made within 30 days after the date on which the legal costs become payable16 (in the Legal Profession Act 2008 (WA) there was no set date but a law practice could commence legal proceeding to recover the legal costs after 30 days after the date on which the person is given the lump sum bill). A law practice must not charge interest to a client under a costs agreement on a bill given more than 6 months after completion of a matter, unless the law practice has provided a lump-sum bill within the 6 month period after completion but the client or third party payer has requested an itemised bill outside this time or the bill has not been issued within the 6 month period at the request of the client or associated third party payer.18

Costs Assessment The Board is the Designated Local Regulatory Authority under the WA Application Act for the Uniform Law. It can delegate certain functions to the new LSCC or otherwise. The Board or its delegate will be able to resolve costs disputes where the total bill for the matter is less than $100,000 (indexed) or where the total amount in dispute is less than $10,000 (indexed).19 The Board or its delegate may make a binding determination about costs where it is unable to resolve a costs dispute and the total amount still in dispute is less than $10,000 (indexed).20 Legal costs that are the subject of a costs dispute within the parameters above, may not be subject to a costs assessment until the Board or its delegate is unable to resolve the dispute and has notified the parties of their entitlement to apply for a costs assessment.21

Business Management and Insurance Local authorities can audit a law practice’s compliance with the Uniform Law obligations. This is a new requirement for law practices which are not incorporated.22 An audit may be sought if the Legal Practice Board considers there are

Key differences between the Uniform Law and the Legal Profession Act 2008 (WA) reasonable grounds to do so based on the conduct of the law practice or one or more of its associates or a complaint against the law practice or one or more of its associates.23 Management system directions can now be given to ensure law practices implement and maintain appropriate management systems. Directions can be given by the Legal Practice Board if they consider it reasonable to do so after carrying out a trust record examination or investigation, compliance audit or complaint investigation. Failure to comply is conduct capable of constituting unsatisfactory professional conduct or professional misconduct.24 A positive duty will apply to principals of law practices to take reasonable steps to ensure that: 1. all legal practitioners of the law practice comply with the Uniform Law; and 2. the legal services provided by the law practice also comply. A failure to uphold that responsibility is capable of constituting unsatisfactory professional conduct or professional misconduct.25 Principals are only liable for contraventions of the Uniform Law by the law practice if they knowingly authorised or permitted the contravention or were in (or ought reasonably have been in) a position to influence the law practice’s conduct.26 The onus rests on the principal to establish that they should not be held liable. Previously, the default position was that the liability of

the principals was the same as the liability of the law practice.27

6 Section 170 of the Uniform Law and includes definitions for a commercial or government client.

While legal practitioners always needed professional indemnity insurance to obtain a practicing certificate under the Legal Profession Act 2008 (WA),28 there is now a maximum civil penalty of 100 penalty points imposed for a contravention of the Uniform Law’s requirement that practitioners hold or are covered by an approved insurance policy.29

8 Clause 18(3) of Schedule 4 to Uniform Law.

Key Takeaway Although there are some similarities between the Legal Profession Act 2008 (WA), which we currently practise under, and the Uniform Law, it is important to understand what changes have been implemented to be able to comply with the new Uniform Law scheme. Some changes attract penalties or may constitute unsatisfactory profession conduct if not complied with. In this article, not all changes have been addressed. It is prudent that you consider the changes to the Uniform Law yourself to make sure you adhere to the new requirements.

7 Sections 174(1) and (2) of the Uniform Law. 9 Section 174(4) of the Uniform Law. 10 Clause 18(3) of Schedule 4 to Uniform Law. 11 Section 174(5) of the Uniform Law. 12 Section 174(7) of the Uniform Law. 13 Note that although the Legal Practice Board of WA is the designated local regulatory authority under the Uniform Law, the power to deal with complaints will be delegated to the Legal Services and Complaints Committee (formerly Legal Profession Complaints Committee). 14 Section 178(1) of the Uniform Law. 15 Section 188 of the Uniform Law. 16 Section 187(2) of the Uniform Law. 17 Section 292(4) of the Legal Profession Act 2008 (WA). 18 Sections 195(5) and 195(6) of the Uniform Law – note there is no such limitation under Section 273 of the Legal Profession Act 2008 (WA). 19 Section 291 of the Uniform Law. 20 Section 292 of the Uniform Law. 21 Section 197 of the Uniform Law. 22 See Section 118 Legal Profession Act 2008 (WA) and Section 256 of the Uniform Law. 23 Section 256(1) of the Uniform Law. 24 Section 257 of the Uniform Law. 25 Section 34 of the Uniform Law. 26 Section 35 of the Uniform Law. 27 Section 212 of the Legal Profession Act 2008 (WA). 28 Section 40 of the Legal Profession Act 2008 (WA). 29 Section 211 of the Uniform Law.

End Notes 1 Section 3 of the Legal Profession Uniform Law Application Bill 2021 (WA) defines the Uniform Rules as those in force in Victoria. Section 431 of the Uniform Law defines the Uniform Rules as those published on the NSW legislation website. 2 Sections 23(6), 24 and 31(3) of the Legal Profession Act 2008 (WA). 3 Sections 26(1), 27 and 28 of the Uniform Law. 4 Section 26(2) of the Uniform Law. 5 Rule 50(2) of the Legal Profession Uniform General Rules 2005 (NSW).

Professional Indemnity Insurance Arrangements The Law Mutual (WA) insurance arrangements will not change as a result of the coming into effect of the Legal Profession Uniform Law Application Act on 1st July 2022. Please direct all your insurance, claims and risk management enquiries to the current contacts at Law Mutual (WA) which are listed below. However, the responsibility for Exemptions from those insurance arrangements will move to the Legal Practice Board from that date. Therefore, from 1st July 2022, please direct all enquiries regarding Exemptions to the Legal Practice Board. Staff of the Law Society and Law Mutual will not be able to assist you.

Law Mutual (WA)

Telephone - (08) 9481 3111

22 | BRIEF JUNE 2022

Insurance – info@lawmutualwa.com.au Claims – claims@lawmutualwa.com.au Risk Management - risk@lawmutualwa.com.au

Event Feature:

What’s Our Story? Challenging Sexual Harassment in the Workplace to Change the Culture

uch has been written and talked about on the endemic and prolific issue of sexual harassment in the Legal Profession of Western Australia and other States in many and varied legal workplaces. I attended “What’s our Story?” and the scenario’s presented and acted to a large audience, gave guidance and impacting practical meaning to all that has been written. Although I felt a little uncomfortable and perhaps embarrassed about what was revealed, the entire presentation along with Justice Pritchard’s powerful opening remarks were a revelation and put the entire issue into sharp focus. Attending “What’s our Story?” ought to be compulsory. James Mactaggart - Experienced legal practitioner for 37 years

Sexual harassment in the workplace remains under the spotlight, as well as the need to affect change and shift a culture that allows it to flourish. As part of our Change the Culture framework addressing sexual harassment in the workplace, the Law Society’s behavioural change component has delivered ongoing training for the legal profession throughout the year. “What’s Our Story?” is one such training component which is an interactive and creative response to affecting behavioural change. First presented in August 2021, its strength lies in the live interactive dramatisation of sexual harassment in a legal workplace guided by the expert facilitator Franca Sala Tenna, Director of EEO. Professional actors play convincing characters in a legal workplace, with the script developed in partnership with the Law Society and local teaching staff and alumni from the WA College of Law. The audience play a vital part with opportunities to interact with the characters and the facilitator, to call out

poor behaviour, reflect on the issues and change the narrative. The Law Society and College of Law were pleased to present the follow-up “What’s Our Story?” on 2nd June with thanks to our Major sponsor HFW and supporting sponsors Jackson McDonald and Cullen Macleod Lawyers. The event again received an overwhelmingly positive response. The occasion was opened with words from The Hon Justice Janine Pritchard which set the tone for what is expected of the profession and from individuals to play their part in mitigating sexual harassment in the workplace. We are pleased to provide Justice Pritchard’s opening address on the following pages.

What’s Our Story? Opening Remarks by the Honourable Justice Janine Pritchard Professional development presented by the Law Society of Western Australia and the College of Law Thursday, 2 June 2022

I acknowledge the traditional owners of this land, the Whadjuk people of the Noongar nation, and I pay my respects to their elders, past, present and emerging. May I begin by applauding all of you for attending the seminar tonight. As we all know, the incidence of sexual harassment within the legal profession, and beyond, continues with appalling frequency. The possibility of criminal prosecution, or civil litigation, as mechanisms for deterrence, and thus for the prevention, of sexual harassment, have proved inadequate to the task. As members of the legal profession, we need to educate ourselves about alternative strategies to tackle sexual harassment. I applaud you for attending tonight because it demonstrates your commitment to doing something about the problem. I wish more of your colleagues would do the same. If it were up to me, I would make attendance at a CPD seminar on sexual harassment mandatory for every existing legal practitioner, regardless of age or seniority, and I would make it a mandatory component of every newly admitted practitioner’s CPD obligation thereafter. The same should apply for all members of the judiciary. Such mandatory training would undoubtedly have benefits in other contexts where power dynamics contribute to misconduct or poor behaviour, such as when bullying occurs. For my own part, I am very pleased to be able to attend the seminar tonight, for three reasons. First, as a head of jurisdiction (not to mention the head of the jurisdiction that deals with applications for relief under the Equal Opportunity Act 1984 (WA)), as

24 | BRIEF JUNE 2022

The Honourable Justice Janine Pritchard

a judge, as a senior woman in the legal profession, as an employer of young female associates, as a mentor and friend to a number of younger women lawyers, and as a mother of a young man and an even younger daughter, I want to be equipped with more knowledge about how to talk about, and perhaps to give advice about, appropriate behaviour in the workplace, how to identify inappropriate behaviour of a sexual nature, and how to respond to inappropriate behaviour of a sexual nature, if I see it, or if it is reported to me. It seems to me that part of the difficulty in combatting the incidence of sexual harassment lies in widespread differences in understanding about what sort of conduct can constitute sexual harassment. In the Equal Opportunity Act 1984 (WA), one component (the conduct component) of the definition of what it is to ‘sexually harass’ someone else is that the perpetrator must make an ‘unwelcome sexual advance’, or an ‘unwelcome request for sexual favours’, or engage in ‘other unwelcome conduct of a sexual nature’ in relation to another person. Quite apart from how that might be interpreted in the context of litigation, different people may well have a different understanding about what the conduct component means in everyday life. We can all agree that conduct involving explicit physical contact of a sexual nature - groping a woman’s breast or her bottom, touching a man’s genitals or bottom, kissing someone on the lips - if done without their consent, can constitute an ‘unwelcome sexual advance’. But putting those unambiguous kinds of examples to one side, people often have different views. Can sexual harassment include wolf whistling a person in the street?

Calling out to someone with a lewd remark? Giving someone a compliment about how good they look? Offering to give a person a foot massage to relieve stress? Confessing undying love, or at least an attraction, to another person? Asking someone on a date? Repeatedly asking them on a date, after being refused on other occasions? Inquiring about whether a person is in a relationship? How about telling a joke which includes sexual innuendo? I suspect we would see a range of views within our community, and even within our profession, about whether this kind of conduct can constitute sexual harassment. Of course, the conduct component is only part of the answer as to whether behaviour constitutes sexual harassment. Context is everything. The Equal Opportunity Act definition talks about the conduct being unwelcome. The definition also requires consideration of the victim’s assessment of what will happen if they refuse the advance or reject the conduct, or alternatively requires consideration of the actual outcome of that person’s refusal of the advance or rejection of the conduct. These criteria can also contribute to confusion about what conduct actually constitutes sexual harassment. Why do we need to have a better understanding of what constitutes sexual harassment? If our community is better educated about what constitutes sexual harassment, that will avoid any claim by a perpetrator that they aren’t aware that their conduct might constitute sexual harassment. Some perpetrators struggle with the idea that their conduct may be unwelcome to a recipient. Some perpetrators may genuinely believe that their conduct is

intended as a compliment, or that the recipient should feel flattered by their interest. Other perpetrators may not stop to think much about their conduct, or how it will be received, at all: whether because of raging hormones, a raging ego, intoxication, a narcissistic personality, or a personal belief in their own attractiveness which is devoid of any link with reality.

someone (or you may be that someone yourself) who has been the recipient of another person’s conduct, who felt that the conduct was inappropriate, but who later wondered whether they had misunderstood it, or whether they had misjudged what was intended by it, or even wondered whether their response was an over-reaction.

Spelling out in no uncertain terms the sorts of conduct that may be capable of constituting sexual harassment, is important to dissuade potential perpetrators. Because then the message can also be conveyed in no uncertain terms: unless and until the intended recipient confirms that conduct of that kind would be welcomed, it should be regarded as possible sexual harassment. So just don’t do it!

Equally importantly, if we witness another member of our profession engaging in conduct of a sexual nature which appears to be unwelcome, we need to speak up and call it out. But I’ve no doubt that there are many people here who have witnessed some kind of interaction between others - heard a conversation or seen some physical interaction - and thought that the conduct didn’t seem appropriate, but then wondered whether that was in fact the case.

This kind of education, using clear examples of conduct capable of constituting sexual harassment, proceeds along similar lines to the ‘red flag’ idea championed by Rachel Doyle SC. In her excellent paper Power and Consent, Ms Doyle suggests that certain factors should be ‘red flags’ to alert perpetrators that their intended conduct may constitute sexual harassment. She suggests that if the perpetrator is older, or more senior in occupation, than the recipient of the intended advance, or if the perpetrator would rather that the recipient kept the advance a secret, then that should be a red flag which alerts the perpetrator to the risk that their intended conduct may constitute sexual harassment. If the perpetrator proceeds despite the red flags, they do so at their peril. Knowing what sort of conduct can constitute sexual harassment is also important for victims. You may well know

In short, increasing knowledge within our community and our profession about the range of possible kinds of conduct which might constitute sexual harassment will result in perpetrators, victims and potential responders having a greater understanding - so that we all know what we’re talking about when we talk about sexual harassment. The second reason why I’m pleased to be here tonight is that I want to have a greater understanding of the ways in which I might respond if I see something that I think constitutes sexual harassment, or if I receive a report of sexual harassment. One of the most important ways to stamp out sexually harassing conduct is to call it out immediately when it occurs. For victims, that involves giving them the confidence to immediately tell the perpetrator that the conduct

is unwelcome and that it should stop. Understandably, not all victims will have that confidence, or the presence of mind, in the moment, to react. But if the conduct occurs in the presence of others, those who are present are, in my view, obliged to step in and call out the conduct. Each of us is responsible for maintaining the standards of conduct within our profession and if we witness conduct inconsistent with those standards, then we need to do something. The question is, what to do? It can be difficult to know what to do in a situation for which you are not prepared, and when there is no time to deliberate on an appropriate response. What we need is a range of possible options which we can draw on in an appropriate context, to enable each of us to respond with confidence, and without delay, before the moment for action passes. Fortunately for us, the College of Law and the Law Society, and our presenters today, have given a lot of thought to how we can respond when we witness conduct which constitutes sexual harassment, or when it is reported to us. So I am looking forward to going away much better informed. The third reason why I’m pleased to be at the seminar tonight is that adult education, including CPD for lawyers, is most effective when it is interactive. Education of that kind permits us to learn by experience, and to learn from each other. The things we learn in that context are things which we reflect on and remember for much longer than the things we hear from a talking head. So, without further ado, it’s time for me to stop talking, and for us all to start learning about how to identify and respond to sexual harassment.

A Reflection on Law Week 2022 Monday, 16 May – Friday, 20 May

LawWeek2022 Justice | Inclusion | Community

A focus on law and justice in the community 1

aw Week provides a moment in time for the legal profession to engage with community, discuss issues important to achieving access to justice and to hear diverse perspectives from our Western Australian legal profession. As the voice of the legal profession, this Law Week the Law Society provided a platform for events which reflected the make-up and diversity of the legal profession it serves.

26 | BRIEF JUNE 2022

With a focus on justice, inclusion, and community service, we were delighted to have over 30 events in this year’s programme, with seven bespoke events hosted by the Law Society in collaboration with important stakeholders and supporters.

In the words of Verna Myers – “Diversity is being invited to the party; inclusion is being asked to dance” and Law Week 2022 provided many opportunities to dance.

I. Stephanie Boyce Push! Persevere Until Something Happens!

L-R: Rebecca Lee (Chair), President of the Law Society of Western Australia; Áine Whelan, General Manager Marketing, Business Development & Community Engagement, The Law Society of Western Australia; guest speaker I. Stephanie Boyce, President of the Law Society of England and Wales; Magistrate Wendy Hughes, Perth Children’s Court; Dr Ben Gauntlett, Disability Discrimination Commissioner, Australian Human Rights Commission; Michelle Sims, Legal Aid Western Australia; Inzwie Murapata, Circle Green Community Legal.

It was a privilege to open Law Week in powerful conversation with a dynamic woman, I. Stephanie Boyce. I. Stephanie has a large following in the legal profession in the UK (and growing worldwide) as she represents only the sixth female, the first black office bearer and the first person of colour to become President of the Law Society of England and Wales. She is a shining symbol of what you can see, you can be. In Conversation with I. Stephanie Boyce, was a virtual small screen event, but big picture on issues as our panel came

together to discuss diversity, social mobility, and access to justice and much more. I. Stephanie shared her journey to the law, obstacles faced, and her resilience and persistence in pursuing her ambition of becoming the President against many odds. Some key messages from our panellists about what matters included: representation; awareness of the issues before we can move forward to resolve them; that change comes from the inside; and for there to be space for every lawyer to turn up to work and be their authentic self.

A copy of I. Stephanie Boyce’s speaking notes can be found in full at the end of our Law Week Reflections on page 32. Thank you to our event Chair, Rebecca Lee, President of the Law Society of Western Australia, our guest speaker I. Stephanie Boyce and our engaging panellists Inzwie Murapata, Circle Green Community Legal; Michelle Sims, Legal Aid Western Australia; Magistrate Wendy Hughes, Perth Children’s Court; and Dr Ben Gauntlett, Disability Discrimination Commissioner, Australian Human Rights Commission.

Law Access Walk for Justice People, Purpose and Passion THE LAW SOCIETY OF WESTERN AUSTRALIA IN THE COMMUNITY

28 | BRIEF JUNE 2022

Getting active for purpose is a wonderful recipe for bringing the legal profession together. It was an early crisp start for everyone who participated in this year’s Law Access Walk for Justice on the Tuesday, 17 May on the banks of the Swan River. The Law Society team, including President Rebecca Lee were there to get their step count in for the day with the legal profession at the annual walk along the banks of the Swan River.

Congratulations to Law Access on another successful year with a record-breaking attendance and record-breaking $151,079 raised to help ensure they can continue to provide this vital pro bono service. Well done to everyone who took part and thank you to all who donated to an important cause.

‘Capital Punishment in 1860s Western Australia: The Hangman’s Heyday’ The Old Court House Law Museum Bringing History to Life

Stories are told in different formats and this temporary exhibition at The Old Court House Law Museum is very compelling. It focuses on two remarkable cases that were held at the Old Court House and examining the notes of the judge who pronounced the death sentence for so many men, Chief Justice Sir Archibald Paul Burt. During the 1860s, the number of legal executions carried out in Western Australia spiked to double the number of any other decade. With 42 men legally executed, double the number of any other decade, this period stands out for all the wrong reasons. Come visit and read the notebooks for yourself to get an inside view of the times.

The exhibition continues until September 2022. Visit the Old Court House Law Museum, Stirling Gardens, Perth Open Tuesday - Friday, 10.00am to 4.00pm

New Book Club Forum - The Mother Wound, a memoir by Amani Haydar “You make a living with what you get, but you make a life with what you give” Our Book Club Forum was launched on the Wednesday, 18 May and it was everything a Law Week event should be an opportunity for diverse backgrounds to come together, share stories and experiences and to share in a safe space. The intimate and historical setting of the Old Court House Law Museum hosted our panel discussion and exploration of the themes of The Mother Wound, a raw account of one of the most publicised domestic violence murders in Australia.

Legal Service WA; Shadia Rahman, Assistant State Solicitor, State Solicitor’s Office; and Thomas Camp, Senior Associate, Butcher Paull & Calder. The Mother Wound is the winner of the Victorian Premier’s Literary Award for Non-Fiction 2022.

Facilitated with empathy and skill by Solicitor, Karess Dias, the event’s opening with each panelist reading a passage from the book, set the tone and integrity of the discussions to follow. With panelists from legal and social services backgrounds the audience was guided through significant topics such as coercive control, perspectives on perpetrators and victims, education on healthy relationships, intergenerational trauma, and the act of legitimising types of violence in society. A warm thanks to our event Facilitator, Karess Dias and panelists David Cain, Executive Director Strategy and Growth, Communicare; Rebecca Bunney, Head of Practice – Family Law, Cullen Macleod Lawyers; Dr Jennie Gray, CEO, Women’s

LawWeek2022 Justice | Inclusion | Community

Tilting our Lens to the Lived Experience of Disability - Inclusion and Personal Perspectives: the lived experiences of people with disabilities in the legal profession Access and inclusion extend to colleagues with a disability which was the focus on this Law Week panel event at Corrs Chambers Westgarth. Bringing together diverse perspectives on the lived experience of disability in the legal profession was a passion project for the Law Society’s Young Lawyers Committee as a means of seeking to understand and to make positive change in the profession. The event provided an inviting and safe space for our panel and audience to consider many factors including the importance of employers creating an inclusive and flexible workplace for people with both visible and non-visible disabilities; those who care for family members living with a disability; and the need for greater awareness and education regarding the challenges faced by people living with a disability.

30 | BRIEF JUNE 2022

Heartfelt thanks to our inspiring Chair, Marisa Taliangis, Consultant, Corrs Chambers Westgarth and a special thank you to our panelists for guiding us through the issues faced and for sharing their personal stories with us: Tom Oliver, law student and Board Member, People With disabilities WA (PWdWA); Catherine Stokes, Executive Director, The College of Law; and Dr Rita Kleinfeld-Fowell, Senior Solicitor, Midlas. Dr Rita Kleinfeld-Fowler closed her speech with a fitting quote from Helen Keller: “Alone we can do so little, together we can do so much.”

Putting Country Practitioners at the Centre - CPD Day for Rural, Regional and Remote Legal Practitioners

insightful session included a breakdown of the complaints currently received by the Legal Profession Complaints Committee and the most ‘complaints heavy’ practice areas (spoiler alert: it’s family law).

This annual gathering at the close of Law Week saw an intimate mix of regional, rural and remote practitioners visit Perth as well as record numbers of online attendees from both town and country.

A highlight of the day was John Blackburn SC’s presentation on the recent High Court decisions regarding whether a person is properly characterised as an employee or independent contractor. Chair, Nick Ellery appeared as Counsel in the Personnel Contracting case. A senior employee relations practitioner described this session as ‘the best CPD I have ever attended’.

The day kickstarted with a fascinating and fear inducing session on cyber security, with de-identified real-life examples of law firms getting ‘hacked’. Next was an informative session from the Law Complaints Officer, Russell Daily, on the pertinent topic of the Uniform Law. This

After lunch and time for catching up, a special session by members of the Law Society’s Tax Committee gave an informative and humorous whistle-blower tour of the tax ramifications of litigation settlements.

clients (tip: don’t wear high heels to a muddy farm on a client visit!). The day was rounded out by a session chaired by the Hon Kevin Sleight with Judge John Prior and Magistrate Belinda Coleman on the ‘Court and the Country’. Using some quips of Rumpole on circuit work as their starting point, the judicial officers provided an insightful presentation on the challenges of justice in remote communities and the challenges of remaining aloof when conducting trials in small towns when everyone (prosecution, defence, jurors) all get their lunch from the same sandwich shop. We express our deep gratitude to all presenters who gave their time to present such excellent and valuable sessions for the benefit of our country members. The Society looks forward to putting on the event again next year, when covid is a distant memory!

The afternoon continued with a practical talk on estate planning for farming

Bringing Justice Inclusion and Community Together - Long Table Lunch Live Collaboration starts with inviting people to participate and building the activity together with shared values. The Long Table Lunch Live event was the culmination of such a rich process which saw different legal profession associations come together to enjoy great food and company and to create a common platform to share insights and opinions on subjects relating to access to justice, diversity and inclusion, disability, and community service. Guests were seated on long white tablecloth-covered tables with touches of native greenery and candles creating an uplifting atmosphere. The panel format, Q&A style, allowed the integration of insightful and inspirational discussion from a dynamic and diverse panel made up of colleagues from our event collaborators: Panel Facilitator, Pnina Levine and Edward Fearis, WA Society of Jewish Jurists and Lawyers Julie Waud and Hayley O’Hara, Aboriginal Legal Service of WA Limited Charmaine Tsang and Belinda Wong, Asian Australian Lawyers Association

Tom Monks, Chairperson of the Board, People With disabilities Western Australia and Asian Australian Lawyers Association Matthew Howard SC and Alana Dowley, Law Access James Case and Christie Oey, Pride in Law Kaday Conteh and Nelson Chibwe, Society of African Australian Lawyers Inc A resounding takeaway was that diversity should be recognised and celebrated in the legal profession and by the legal profession. We look forward to continuing this important and valuable conversation. Thank you to our event collaborators for your significant involvement. Thank you to the Department of Justice and the Public Purposes Trust Fund for supporting this event. The Law Society would like to thank all who got involved in this year’s Law Week, your contribution has helped make this one of the most successful Law Week’s to date.

LawWeek2022 Justice | Inclusion | Community

I. Stephanie Boyce Push! Persevere Until Something Happens! I. Stephanie Boyce has granted the Law Society of Western Australia permission to publish her speaking notes from the recent Law Week opening event.

Introduction Good afternoon, everyone. I am I. Stephanie Boyce, President of the Law Society of England and Wales. For those of you who are not familiar with us, The Law Society of England and Wales is the professional body that represents more than 200,000 solicitors of England and Wales both at home and across the globe. Our purpose is to be the voice of solicitors, to drive excellence in the profession, and to be a valued and trusted partner. It is a pleasure to address you all on the first day of the Law Society of Western Australia’s Law Week 2022, and to talk with you about some of the pressing issues facing our sector today, such as access to justice and technology, public legal education, and diversity and social mobility.

Journey Into Law I took up my role as an office holder of the Law Society of England and Wales in July 2019 and became the President last year. I am the first person of colour to become president of the Law Society of England and Wales, and I stand as living testament to the diversity, dynamism and growing social opportunity in the legal profession. It had always been my dream to enter the legal profession. I grew up surrounded by injustices, and I saw people domestically and across the globe struggle to enforce or even access their rights. In 1985, my family relocated to the United States of America. Even though I lived there for the next six years, I always knew I would return to the UK to study law. So, in 1991, the day or so after finishing high school, I returned to the UK—and so began my legal career. But I stumbled on my first barrier upon discovering my US qualifications would not be recognised in the UK. However, thanks to the access to qualification route, I was able to enter London Guildhall University in

32 | BRIEF JUNE 2022

I. Stephanie Boyce, President of the Law Society of England and Wales 1996, from which I graduated with an LLB (Hons) in politics. After that, I progressed to the LPC at the College of Law in Guildford. Securing a training contract was not an easy task. However, thanks to the steadfast encouragement of my father, Melvin, I secured a placement with a local Aylesbury firm. I qualified in 2002 and joined my first in-house team a few years later. In 2010 I completed a master’s degree in public law and global governance at King’s College, London. Later in my career in private practice I was made redundant twice and decided to move to in-house practice. I was told by my first recruitment consultant that I was not being realistic for wanting to work in the City. But I went on to work for the then Complaints Commissioner. Since then, almost all my career was spent in in-house practice – an increasingly common career choice for many solicitors. My work focused on corporate governance, regulatory frameworks, and professional regulation. I always had a desire to represent the profession I had fought so hard to become a part of, and so I threw myself into working with the Law Society of England and Wales. I joined the Council as a representative of the Women Lawyers Division. Finally, I set my sights on the presidency, but I was not initially successful. Drawing on the experiences I had gained throughout my career I resolved to keep trying, and on my fourth attempt I was elected to become the 177th President of the Law Society of England and Wales, the sixth female President and the first President of colour. I hope that my journey can help inspire others to push through the obstacles they come across.

Diversity and Social Mobility During my time as President of the Law Society of England and Wales, one of my key focuses has been on helping to build

the open, diverse, and inclusive legal profession of the future. Whilst we have come some way in the pursuit of a diverse and inclusive legal sector, there is a lot more to be done if we are to achieve what we are aiming for: a legal profession that truly reflects the society it serves. This is not just a moral necessity. Just as our legal system’s international reputation, and the reputation of those that practise within it, rests in part on ensuring universal access to justice within the UK, it also rests on ensuring that the legal profession is representative. We cannot claim that our legal system is the best it can be when we know that many talented people from non-traditional backgrounds are unable to join or advance within the professions. There is no one button to press marked ‘make solicitors, barristers, judges and arbitrators diverse.’ This is a complex issue with many factors, but the first step is identifying root causes, and looking to counter them – that is what we at the Law Society of England and Wales are trying to do regarding solicitors. With the pandemic having exacerbated inequalities across the sector, solicitors with disabilities, women, LGBTQ+ and black, Asian and minority ethnic solicitors need the support of their law societies more than ever. That is why I have spent my time as President challenging harmful and reductive attitudes – on panels, speeches and articles, as well as through the resources we provide. Attitudes like the belief that flexible working is somehow lesser than presenteeism; that blind allocation is unnecessary; that this whole diversity thing will just sort itself out and does not need real commitment and effort from everyone. But obstacles remain. The Law Society of England and Wales’ Race for Inclusion

report, published in 2020, showed that here in England and Wales many black, Asian and minority ethnic lawyers experience lower wellbeing and less career progression and can often face direct discrimination and microaggressions in the workplace. This contributes to lower retention as people understandably leave workplaces that they do not feel welcome at. This is an issue the Law Society of England and Wales takes seriously. We are working with workplaces to support their own inclusivity and diversity initiatives. We also commission research and put forward guidance and resources that firms can use to create a more inclusive culture. Through our Legally Disabled? research we are working to understand the experiences of disabled solicitors and how the barriers they face can be mitigated. Among LGBT+ solicitors, a survey we carried out last year found that 97% of respondents felt that they could be themselves at work sometimes or all the time, which is encouraging to see. Nonetheless, we know homophobia, transphobia and biphobia can go unreported and we must all do more to tackle this. There are still obstacles faced by different groups in the legal profession. There are no broad-brush solutions to these challenges, but the Law Society of England and Wales is working to understand the different experiences of members of our profession and how we can play our role to remove the barriers that do still exist. Regarding social mobility, research from here in the UK has shown that people from less advantaged socio-economic backgrounds take a year and a half longer on average to reach partner level than their colleagues from more advantaged socioeconomic backgrounds, with no link to job performance. Meanwhile, the UK’s Solicitors Regulation Authority data from 2021 shows that 58% of solicitors are from a professional background – meaning their parents were in occupations classified as professional rather than intermediate or working class – compared to 37% nationally. Similarly, the proportion of partners who attended independent or fee-paying schools is higher than the proportion amongst solicitors generally, and indeed amongst the wider population. We at the Law Society of England and Wales would like to see equity of progression, with high performance valued over ‘fit’ and ‘polish’. We are working with our members and partners across the profession to find out what more we can all do to make this a reality. It is still my mission to leave the profession

more diverse and inclusive than the one I entered, but I am clear that this must be a shared ambition with each and everyone of us playing our part. We solicitors need to reflect the society we serve.

Access to Justice Beyond increasing diversity and opportunity, one of my other priorities as President is protecting access to justice for all in our society. I have often said that legal rights mean nothing, absolutely nothing unless people are able to exercise them. This means that we need to make the case for investment in the justice system, in the courts and, crucially, in legal aid, to ensure that no-one is excluded unfairly from the promise of justice.

Technology Joining you here virtually today, I think about all the ways technology has allowed the world to remain connected over the last two years and has granted the legal profession options to continue supporting our clients. Technology does not just have implications for our practice, but how we access justice too. Throughout the pandemic we have seen a broad move to remote hearings, and with this have come fundamental shifts in our justice system that will shape the post-pandemic world. In many instances remote hearings have been more convenient, accessible, and time- and cost-effective for advocates, parties, and judges. They have minimised travel time, which has had a positive impact for people with long commutes or childcare commitments. They have also provided a better work/life balance for many and have subsequently contributed to improved wellbeing. In England and Wales our justice system is going through a court reform programme to modernise the courts and tribunals system. The aim of the programme has been to create services that are digital by default and design, including digitising paper-based services, moving cases online and introducing remote hearings. The pandemic significantly sped up this process and the Law Society of England and Wales has been broadly supportive of the programme, while seeking to ensure that access to justice is protected. This has not always been an easy process. It takes time and money to train lawyers, members of the judiciary and the public on new technologies. This is a reminder that the technological revolution that is rightly lauded for its advantages has costs too. In addition, there have been questions about the impact of the changes on access

to justice for some clients. We know the most vulnerable can find it difficult to engage with remote proceedings. Our own research found that only 16% of solicitors felt vulnerable clients were able to participate effectively in remote hearings, and only 45% were confident that nonvulnerable clients could do so. The post-pandemic world will make ever greater use of remote hearings, but we must ensure the impact of this way of working is clearly understood and the negative effects mitigated if we are not to see our clients cut off from justice. I believe it is important to recognise that digitalisation will be a transition for many practitioners and clients and that they may require support. As we step into the post-pandemic future it will be our role as leaders to support and guide the profession through this.

Legal Education We also need to do more to improve the public’s understanding of the law and their rights within it. For many, their first experience of the justice system will come at an extremely stressful time, when they are in the middle of a civil dispute or a serious criminal allegation. That is not an ideal time to be finding out about the law and how it works. By educating people about the law at an early age we can give them a firm grip on their legal rights and an understanding of why the justice system matters. It may encourage more people to think about why funding our courts and legal aid system properly is so very important. We should advocate for law to be taught in all schools – the earlier the better. The Law Society of England and Wales has previously supported The Big Legal Lesson to help primary and secondary school children develop a better understanding of the law. I also believe this will demystify the legal world and help more people to consider a legal career and take the early steps that can help prepare them for one. It was not until I got to university that I was asked about work experience or whether I had considered applying to a particular law school. We need to start having these conversations earlier if we are to create an inclusive profession.

Close So, before we begin our discussion, I would like to thank the Law Society of Western Australia for offering me this platform to come together with you all and share my story, and I look forward to considering these issues further with you. Thank you.

Legal Aid category added to Attorney General’s Community Service Law Awards

A new category has been added to the Attorney General’s Community Service Law Awards for lawyers who have provided outstanding services to clients of Legal Aid WA. Nominations have opened for the 2022 Awards, which acknowledge and celebrate pro bono and community legal work in Western Australia. The new category is open to members of Legal Aid’s private practitioner panels who have made an exceptional contribution assisting disadvantaged people. Legal Aid calls on hundreds of private lawyers to provide legal services across WA. Seventy-nine per cent of all grants of aid were delivered by private practitioners in 2020/21.

34 | BRIEF JUNE 2022

Attorney General John Quigley with PCLS chief executive Miranda Cecich, MinterEllison partner Lee Rossetto and family lawyer Jon Redman.

“Without these lawyers, the legal aid system would not function,” Attorney General John Quigley said. “They do this work at heavily discounted rates and take on some of the most complex clients, often at short notice and in times of crisis,” he said. The other award categories are Individual, Not-for-Profit and Legal Firm. Previously announced during Law Week, the Attorney General will present this year’s awards during the Law Society of West Australia’s Gala Dinner on 30 September. “It’s always a pleasure to give out these awards to those who donate their time and expertise for the public good,” Mr Quigley said. “Pro bono and community legal work ensure underprivileged and vulnerable

people can access the legal assistance they need,” he said. Last year’s Individual winner was veteran family lawyer Jon Redman, a co-founder of the Sussex Street Community Law Service. The Pilbara Community Legal Service won the Not-for-Profit Award and MinterEllison the Legal Firm Award. “I encourage all to nominate a person or organisation doing selfless, exemplary work so they can receive the recognition they deserve,” Mr Quigley said. Nominations must be submitted by 2.00pm on Friday, 22 July. To nominate, visit www.justice.wa.gov.au/lawaward

ted

& lth

wellbeing

pe d

D CP

ing h c ea r ad cy & voice o br voca ad

he a

networks ional ip ess ntorsh s rof pdates me &p d u ial an oc ws

d ethical standa essional an rds f o r p g n i improv

su p p

t or pp r su ree g ca ongoin

indu str s yn e

ed wer po

or t

d e

p i qu

SOURCE STRENGTH FUTURE your essential membership

Revisiting Crimea and the Utility of International Law

By Hiruni Alwishewa PHD Researcher In International Law Geneva Graduate Institute

he recent invasion of Ukraine will likely revive the assertion that international law has failed to constrain Russian aggression, as occurred when the Autonomous Region of Crimea was annexed by Russia in March 2014. However, the utility of international law is not merely to prevent undesirable or illegitimate actions such as unlawful aggression against neighbouring states. International law also retains a useful role in standard setting and, when those standards are not adhered to, in imposing sanctions or counter measures. Whether those sanctions and counter measures are effective for the use of force is reflective of political will rather than a deficiency in the law. During its annexation of Crimea, Russia attempted to use international law to shield its actions from scrutiny and avoid consequences for breaching the prohibition on the use of force. Rather than marking a failure of the law, the Crimean situation highlighted that even though international law remains unable to deter powerful states from unlawful actions in the face of a weak collective security system, it nevertheless remains important for establishing standards of behaviour.

History and Geopolitics of Crimea The annexation of Crimea by Russia presented a unique flashpoint for ethnic, religious, political and strategic tensions between Russia and Ukraine. The Russian Empire, founded in 1721 with the conferral of the title ‘Emperor’ on Peter I, coincided with a golden age of involvement in European history for Russia and the concept of empire became intrinsically linked to its sense of nationalism. Consequently, Russia’s loss of empire also resulted in a loss of its very sense of being.1 Exactly when and how Russia lost its imperial status is not simple, although it is often associated with the dissolution of the Soviet Union. Crimea, annexed by the Russian Empire after the Russo-Turkish War, was a part of Russia’s imperial ideology for nearly two centuries, during which it became an autonomous republic within the Russian Soviet Federative Socialist Republic. It was transferred to the Ukrainian republic of the Soviet Union in 1954; a gesture which at the time may have made geographical sense, but which was nonetheless curious given that 90 percent of Crimean residents at that time were ethnic Russians. Premier Nikita Khrushchev’s rationale for the transfer remains unclear. He was an ethnic Ukrainian and some viewed the transfer as a gift to his homeland. It was, at that time, an internal transfer within the Soviet Union as a whole. However, it was to become a hot button

36 | BRIEF JUNE 2022

Vladimir Putin signs the treaty to annex Crimea. Source: kremlin.ru

issue after the dissolution of the Soviet Union because of the region’s strategic importance. Control of Crimea gives access to the naval base at Sevastopol; arguably one of the best naval bases in the Black Sea. In the 1990s, Russia and Ukraine entered into several treaties reaffirming Ukraine’s independence and recognising its contemporary borders, including Ukraine’s sovereignty over Crimea. One of these agreements was the Black Sea Fleet Status of Forces Agreement (1997) permitting up to 25,000 Russian troops to remain stationed at the Sevastopol naval base until 2022, which was extended the agreement until 2042 by the Kharkiv Agreement (2010). The stationed Russian troops are required to respect Ukrainian sovereignty and act in accordance with Ukrainian law. Russia maintained significant interest in Crimea and particularly in Sevastopol where the Black Sea Fleet is based, which continues to be regarded as a ‘city of Russian glory’, an honour bestowed upon it following World War II. The shared historical, cultural and economic ties between Russia and Ukraine have been emphasised by the former since the break-up of the Soviet Union. At the time of the Crimean annexation Russian President Vladimir Putin stated that any war between the two states would be a ‘fratricidal war’. The unique political ecosystem formed by Russia and Ukraine has been affected by increased involvement of Western states in Ukraine and NATO’s push towards Russia’s borders – a point of contention for Russia which has been reasserted in the current Ukrainian situation.

International Law as a Shield Three main claims were made by the Russian leadership for its actions in Crimea which illustrate the continuing utility of

international law. First, Russia claimed that Russian troop movements were in accordance with the Status of Forces Agreement and disassociated Russian troops from the actions of local armed groups in Crimea, whom it claimed it did not have control over. By attempting to act under the radar,2 either to evade attribution or create sufficient plausible deniability, for instance by using unmarked troops and declaring them to be self defence units set up by locals, Russia evidently accepted that blatant acts of aggression would be viewed as a violation of Article 2(4) of the UN Charter and to some degree was concerned about how its actions would be perceived by the international community.3 Second, Russia attempted to use the defence of consent to legally validate its unauthorised entry into Crimea. On March 1, Russia claimed that the new Prime Minister of Crimea, Sergey Aksyonov, had requested assistance from Russia to restore order and peace. As the Crimean leader did not possess the authority to issue an invitation for intervention under international law, this claim was quickly abandoned.4 On March 3, Russian Foreign Minister Sergei Lavrov stated at the UN Security Council that Russia had received an invitation by ousted Ukrainian President Viktor Yanukovych to intervene in Crimea. As Yanukovych no longer retained de facto control of Ukraine, the validity of his invitation is not supported by effective control of the territory, nor could it be claimed that he retained popular sovereignty over Ukraine, as this applies only to military coups d’état and revolt in Ukraine extended only to widespread protests. The invitation for intervention claim nonetheless further elucidates Russia’s attempts to use international law to shield its actions in a cloak of legality, albeit unconvincingly. In addition to whataboutisms about the

violation of international law by Western states, to justify Russia’s current invasion of Ukraine, Putin has claimed that the republics of Donbass requested assistance.

Crimea, both military forces and citizens, and in doing so once again invoked international law as a shield for planned (and eventual) aggression.

Third, as there was no armed attack on Russian troops to support the claim for self- defence under Article 51 of the UN Charter, the argument transformed into one for humanitarian intervention to protect Russian nationals in the region, although there was no evidence of widespread or systematic violations of human rights to support this. In other situations, such as Syria , Putin has been an ardent proponent against humanitarian intervention, stating ‘[t]he law is still the law, and we must follow it whether we like it or not’. In the weeks leading up to Crimea’s annexation, native Russian speakers in Crimea were granted Russian citizenship, similar to the policies used by Russia in South Ossetia in 2008 and Georgia in 2009, as an amplification of its ‘protective justification’ for its actions.5 Putin only generally asserted ‘a real threat to the lives and health of Russian citizens’ but did not establish that Russian nationals in Crimea were endangered by the transition of the Ukrainian government on February 23. Nevertheless, in his appeal to the Russian parliament , Putin declared that intervention was required to protect Russian nationals in

Conclusion The actions of Russia in Crimea in 2014 and in Ukraine in 2022 illustrate that international law remains unable to compel the compliance of states whose geopolitical interests conflict with established rules and standards. But compliance is only one measure of utility. In both situations Russia has justified its actions using the normative language of international law, reaffirming its importance as a mechanism for setting standards. The Crimean situation also highlighted that international law can be deployed as a shield for brazenly unlawful actions, which are enabled by a weak collective security system that remains unable to prevent the unauthorised use of force by powerful states. This does not mean that a violator state will avoid consequences; the sanctions imposed on Russia following the Crimean annexation and now the Ukrainian invasion attest to this. However, without changes to a collective security system hampered by the geopolitical interests of powerful states, Jessup’s words on the potential for international law to

prevent aggression will continue to ring true: ‘Impotent to restrain a great nation which has no decent respect for the opinion of mankind, failing in its severest test of serving as a substitute for war, international law plods on its way, followed automatically in routine affairs, invoked, flouted, codified, flouted again but yet again invoked.’6 Hiruni Alwishewa is a PhD Candidate in International Law at The Graduate Institute Geneva. She was formerly an Associate at the Supreme Court of Western Australia. This article was originally published on the Opinio Juris blog: http://opiniojuris. org/2022/03/08/revisiting-crimea-and-theutility-of-international-law/.

End Notes 1 https://www.tandfonline.com/doi/abs/10.1080/09668 136.2012.661927 2 http://www.ejiltalk.org/crimea-and-the-limits-ofinternational-law/ 3 http://opiniojuris.org/2014/03/06/ukraine-instasymposium-breach-status-forces-agreement-amountact-aggression-case-ukraine-black-sea-fleet-sofa/ 4 https://www.ejiltalk.org/the-crisis-in-ukraine-andthe-prohibition-of-the-use-of-force-a-legal-basis-forrussias-intervention/ 5 http://opiniojuris.org/2014/03/07/russias-citizenshippower-play-ukraine-pretty-weak/ 6 https://www.foreignaffairs.com/articles/1940-01-01/ reality-international-law

Carbon Markets in Australia 101 By Lea Hiltenkamp (WA President of the National Environmental Law Association; HFW) and Lara Scott (WA Vice President of the National Environmental Law Association)

orld Environment Day is celebrated annually on 5 June and is the United Nations’ principal vehicle for encouraging awareness and action for the protection of the environment. The 2022 World Environment Day campaign #OnlyOneEarth calls for collective, transformative action on a global scale to celebrate, protect and restore our planet. The following two articles in Brief look at the importance of climate policies and environmental appeals.

Overview and Background Australia’s carbon market has gained momentum in the last twelve months. Due in part to the value of Australia’s carbon price soaring in late 2021 and increasing levels of engagement with the voluntary carbon market, it is expected that participation in the carbon market will continue to grow in 2022. The carbon market is primarily established for the purpose of trading Australian Carbon Credit Units (ACCUs). ACCUs are tradable instruments that represent one tonne of carbon dioxide net abatement per ACCU. Federally, the Clean Energy Regulator (CER) administers the national carbon market for the emissions reduction fund (ERF). Participation in the ERF is currently voluntary. In Australia, the carbon market is comprised of the national scheme, and ACCUs are generated pursuant to the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). State and territory government regimes also contribute to, and interact with, the carbon market. There are various methods and projects which can generate ACCUs, which include predominantly eligible activities and projects that avoid or sequester greenhouse gases. ACCUs are issued as either Kyoto-ACCUs or non-Kyoto ACCUs. As the name suggests, a Kyoto-ACCU is issued where the relevant offsets project is an eligible Kyoto project, and a nonKyoto ACCU where a relevant offsets project is not a Kyoto project. Normally the CER purchases ACCUs however - in recent years there has been increasing demand from other actors, especially the private sector, to purchase ACCUs. This has been predominantly driven by the announcement of netzero targets and the need to offset any emissions that cannot physically be eliminated.

Background to Australia’s climate policy and regulation

Emissions Reduction Fund under the Carbon Farming Initiative Amendment Bill 2014 (Cth).

Climate policy in Australia has remained divisive and topical, due in large part to inconsistent policies applied by successive governments. An emissions trading scheme was first supported in 2003 during the Howard government era. However, after opposition from industry the regime was aborted.

Emissions Reduction Fund

In 2007, Kevin Rudd shifted the needle on the energy policy debate in Australia. Following the publication of major climate reports, such as the Garnaut Climate Change Review, Kevin Rudd released a green paper on climate change, which was then supplemented by a final White Paper in December 2008. Kevin Rudd introduced the Carbon Pollution Reduction Scheme to operate as a cap-and-trade emissions trading scheme. However, the senate never passed the legislation and such a failure led to the double dissolution election. In 2012, Julia Gillard’s Carbon Pricing Mechanism was introduced and operated under the Clean Energy Act 2011 (Cth). The mechanism introduced a price on greenhouse gas emissions directly produced by a facility (scope 1 emissions), but did not apply to indirect emissions (scope 2 or 3 emissions). Further, the mechanism only applied to facilities which emitted more than 25,000 tonnes of CO2e per year, and did not apply to agriculture or to transport fuels. The “carbon tax” required entities that emitted over 25,000 tonnes of carbon dioxide equivalent greenhouse gases per year to obtain emissions permits called carbon units, fixed at $23 each. These carbon units were purchased either from the government, or issued free as part of industry assistance measures. Interestingly, it has been commented that while the Carbon Pricing Mechanism was in place, Australia’s emissions declined by approximately 2%, but subsequently increased for the four years after its repeal. If the Carbon Pricing Mechanism had remained in place, it is estimated that Australia’s emissions would have been 25 million tonnes lower in 2020 and 72 million tonnes lower for the period 2015 to 2020.1 The Carbon Pricing Mechanism was labelled as a “carbon tax” and was repealed by the Abbot government in mid-2014, after significant public opposition to the “carbon tax” from business and industry. Later, the Abbott government would introduce the

Today, the Emissions Reductions Fund has remained Australia’s central policy tool for addressing climate change. The ERF is made up of three components, being the voluntary scheme to credit emissions reductions (as is discussed in detail in this article), the process to purchase emissions reductions under contracts between the ERF and the market, and the safeguard mechanism. The safeguard mechanism operates to ensure that “big emitters” do not exceed baseline emissions applicable to the facility, being a threshold of 100,000 tonnes of carbon dioxide equivalence (for scope 1 emissions). Any excess emissions over and above this baseline are managed to account for the excess emissions. For example, an emitter can reduce the facility’s net emissions by purchasing and surrendering ACCUs. The safeguard mechanism has been criticised for its effectiveness, as these baselines have been adjusted or varied in the past, in certain circumstances. This means that baseline emissions have not been reduced year on year, which would be necessary to ensure that emitters are required to take proactive steps to reduce emissions.

How does the carbon market link to Australia’s emissions reductions targets? As Australia has ratified the Paris Agreement, a legally binding international treaty on climate change, it is required to submit emissions reduction commitments known as Nationally Determined Contributions (NDCs). Under the Paris Agreement, Australia has set a national target of net zero by 2050. Australia has also set a target of a 26-28% reduction below 2005 levels by 2030. The voluntary carbon market scheme enables the trading of ACCUs among individuals and businesses to allow for a broader range of emissions reduction projects across industry. As Australia’s emissions decrease, Australia will be closer to reaching its NDCs under the Paris Agreement. The Australian government tracks the movement of carbon credits through the Australian National Registry of Emissions Units (ANREU), in order to measure compliance with the national emissions

Apart from an ACCU representing 1 tonne of CO2e either ‘sequestered’ or ‘not emitted’, an ACCU is also a ‘financial product’, which can be traded in Australia.

reduction legislation and to manage its emissions reduction obligations under the Paris Agreement.

Who can purchase ACCUs and why would you want to? Companies, organisations and individuals who have a net zero target or who want to otherwise reduce their emissions may need to rely on ACCUs. This is because it may not always be possible to physically fully reduce emissions to zero. In these cases, purchasing an ACCU (essentially a carbon offset) allows the remaining emissions to be brought down to zero. An ACCU cannot simply be purchased off the shelf. Rather, currently a buyer must firstly identify whether an ACCU is available, and if so, engage a broker to purchase the ACCU. This may change with the development of an Australian Carbon Exchange, which is discussed in further detail below. When a person purchases an ACCU, it is placed into the ANREU which is administered by the CER and underpinned by the Australian National Registry of Emissions Units Act 2011 (Cth). Organisations or individuals must use the ANREU to buy, sell, cancel or relinquish ACCUs or certain other eligible credits. Once a person has purchased an ACCU through the ANREU, that ACCU becomes that person’s ‘personal property’, meaning that they are the legal owner of that ACCU.2 A person who is the legal owner of an ACCU can transfer the ACCU within Australia using the ANREU. The transfer can be by way of sale or gift. The transfer of an ACCU will only take legal effect when the CER updates the ANREU to remove the ACCU from the seller or giftor’s account and enters it on the buyer’s or recipient’s account.3

40 | BRIEF JUNE 2022

Trading ACCUs Apart from an ACCU representing 1 tonne of CO2e either ‘sequestered’ or ‘not emitted’, an ACCU is also a ‘financial product’, which can be traded in Australia. It is not currently possible to trade ACCUs on any international markets. An ACCU is treated as a ‘financial product’ under the Corporations Act 20014 (Cth) (Corporations Act). This means that businesses or individuals who provide financial services in relation to ACCUs, such as trading ACCUs, generally require an Australian Financial Services Licence (AFSL), unless exemptions apply. Once a business or an individual holds an AFSL they will be required to meet the ongoing requirements and obligations for licensees under the Corporations Act and the Australian Securities and Investment Commissions Act 2001 (Cth). This involves meeting general obligations which are set out in s912A(1) of the Corporations Act, submitting annual financial reports, ensuring there is an adequate risk management system in place and notifying ASIC of any major changes, for example if there is a change in control of the AFSL.

Voluntary climate disclosures in absence of carbon pricing mechanism The CER is providing some of Australia’s largest companies with a voluntary opportunity to demonstrate how they are addressing their climate commitments. It has launched a pilot programme under which eligible companies who are participating in the pilot will prepare a Corporate Emissions Reduction Transparency Report (CERT). Participation in the CERT is voluntary and open to all companies reporting more than 50

kilotonnes of emissions a year and will be underpinned by the National Greenhouse and Energy Reporting scheme. The key purpose of introducing the CERT is to allow companies to provide shareholders, supply-chain partners and the public an independently verified and published report that presents their net emissions position and their progress against their voluntary commitments. The overarching aim is to increase the transparency around some of Australia’s largest emitters and companies’ annual progress toward their voluntary emissions and reductions targets. Eligible companies may be motivated to take part in the CERT to meet the growing expectations of their investors and customers to demonstrate what actions they are taking to address climate-related risks. The introduction of the CERT pilot programme comes against the backdrop of currently no Federal government mandated restrictions on large emitters because, as discussed above, there is currently no carbon pricing in place. Further, other schemes, such as the Safeguard Mechanism, which sets pollution limits on large emitters, have been criticised for rarely imposing penalties or requiring companies to offset emissions in instances where they have exceeded their pollution limits.5 It remains to be seen how the CERT scheme will be expanded following the pilot. However, the Federal government has foreshadowed that it intends to support participation by a wide group of companies, including the full ASX200.6

Is the Australian carbon market effective? How could it be improved by future developments?

The carbon markets scheme has been criticised in the past. Among several criticisms, the most common are in relation to the barriers to participation, a failure to provide cohesiveness and a lack of sufficient transparency.

strong, resilient market infrastructure, such as the Australian Carbon Exchange, which is described further below.

In recent times, there has been a surge in criticisms regarding the lack of governance and centralised regulation for the ERF. This in turn feeds into distrust in the regulation of carbon reductions via the Emissions Reduction Fund in Australia. Recently, ex-Chair of the Integrity Committee for the Emissions Reduction Fund and academic Andrew Macintosh has published a number of papers outlining flaws associated with the governance of the Emissions Reduction Fund. He has gone so far to describe it as “taxpayer and environmental fraud”. Whilst the Clean Energy Regulator fiercely denies these claims, it is no doubt that these criticisms will affect the public’s opinion of the efficacy and legitimacy of the regime. Despite this, the Labor party has indicated that it will commission an independent review into the ERF.7 The timing of such a review remains unclear at this stage.

There is currently no Australian exchange traded market for emissions offsets. Given the number of businesses who have announced net zero targets in recent years, there has been an increasing demand for ACCUs and other environmental credits to meet those targets. As a result, there have been calls for an Australian carbon credit trading platform that allows for simpler, efficient and transparent trading.

Compounding these criticisms is the lack of transparency associated with the Emissions Reduction Fund. Because there is no one centralised carbon trading platform in Australia, carbon credits are sold pursuant to terms of private contracts. These contracts are typically small, and are commonly criticised for being projects which “would have happened anyway”. Private contracts also do not gain sufficient price transparency, with the details of the project being contained to parties to the contracts. Lastly, the carbon market could be improved by increasing its scale to increase participation and facilitate further voluntary carbon market transactions. In 2020, a report published by the Australian Government Department of Industry, Science, Energy and Resources known as the “King Review” highlighted the need for voluntary carbon markets to innovate and deepen to encourage further participation.8 It has also been said that the voluntary carbon market needs to grow by more than 15-fold globally by 2030 to support the investment required to deliver the 1.5°C pathway.9 One recommendation for scaling carbon markets is to build legitimacy in the market, potentially through establishing core principles to ensure higher integrity and functionality of the carbon market. Another mechanism is through building

What is the Australian Carbon Exchange?

In response to this, the CER instigated the development of the Australian Carbon Exchange in June 2021. It has indicated that the Australian Carbon Exchange would operate similarly to online stock exchanges, but that it will be solely for the purchase, clearing and settlement of ACCUs and potentially other environmental credits. Whilst acknowledging that it is difficult to predict the exact timeframe for the launch of the Australian Carbon Exchange, the CER has indicated that it will be sometime in 2023. The Clean Energy Regulator hopes that the development of the Australian Carbon Exchange will streamline the process of buying and selling ACCUs. Currently, the process involves using a broker and “emissions unit registries”. By simplifying the process, some commentators hope that it will support the “growing appetite across the private sector, government and community to voluntarily reduce emissions”. If the Australian Carbon Exchange operates like an online stock exchange, ACCUs and possibly other environmental credits will be traded at publicly viewable market prices, which would result in the Australian carbon market becoming more transparent. One of the frequently cited benefits of the Australian Carbon Exchange is the reduction in transaction costs. The Clean Energy Regulator has predicted that over $100 million will be saved in transaction costs by the end of 2030.

Conclusion The election of the Labor Party and record numbers of both Greens representatives and independents who campaigned on stronger climate action is likely to result in changes to Australia’s energy and climate policy. The Labor Party has indicated that, the ERF mechanism will remain in place,

but that it will commission an independent review into its operation. Further, Labor’s ‘Powering Australia’ policy identifies the introduction of an array of different policies which will contribute to emissions reductions, leading to an additional $76 billion investment.10 It is clear that interest in and the need for a robust carbon market in Australia has been growing, especially with net zero targets being adopted across the nation. While carbon markets in Australia have been plagued by a lack of coherent policy and criticisms about integrity, transparency and scalability, there are hopes that new ideas, such as the introduction of an Australian Carbon Exchange, will remedy at least some of these issues. Further, the development of emissions transparency projects, such as the CERT, may lead the way on more innovative ways to reduce emissions. The growing expectations of investors and the general public to demonstrate what actions big emitters are taking to address climate-related risks may pave the way forward in this regard.

End Notes 1 Matt Grudnoff, ‘ The carbon pricing mechanism under the Gillard Government’ (5 August 2020) < https:// apo.org.au/node/307353>. 2 See section 150 of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). 3 See section 151 of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). 4 See section 764A(1)(ka) of the Corporations Act 2001 (Cth). 5 The Guardian, ‘ A 60% rise in industrial emissions points to failure of Coalition’s ‘safeguard mechanism’ (12 February 2020) https://www.theguardian.com/ australia-news/2020/feb/12/a-60-rise-in-industrialemissions-points-to-failure-of-coalitions-safeguardmechanism 6 Ministers for the Department of Industry, Science, Energy and Resources ‘Corporate emissions reduction transparency (CERT) report to help business translate ambition into action’ (19 October 2021) https:// www.minister.industry.gov.au/ministers/taylor/ media-releases/corporate-emissions-reductiontransparency-cert-report-help-business-translateambition-action 7 A Morton ‘ Labor promises review of Australia’s carbon credit system after allegations it is ‘largely a sham’’ (25 March 2022) https://www.theguardian. com/environment/2022/mar/25/labor-promisesreview-of-australias-carbon-credit-system-afterallegations-it-is-largely-a-sham 8 Australian Government Department of Industry, Science, Energy and Resources ‘Report of the Expert Panel examining additional sources of low cost abatement’ (14 February 2020) Examining additional sources of low cost abatement: expert panel report | Department of Industry, Science, Energy and Resources 9 World Economic Forum, ‘How to Scale Effective Voluntary Carbon Markets in 6 Steps’ (28 January 2021) How to scale effective voluntary carbon markets in 6 steps | World Economic Forum (weforum.org). 10 Australian Labor Party, ‘Powering Australia’ (2021) Powering Australia | Policies | Australian Labor Party (alp.org.au).

The Best Place for Environmental Appeals By The Honourable John A Chaney SC

This article was originally delivered as a Law Society CPD seminar by the Honourable John A Chaney SC on 0 November 2021.

Background Discussion as to whether the appeal system established under the Environmental Protection Act 1986 (WA) (EP Act) should be maintained or changed is not new. In 1986, while the Environmental Protection Bill was still in preparation, a Law Society delegation urged that environmental appeals should be dealt with by an independent appeal body.1 The same view, at least in relation to Part V appeals was expressed by a Taskforce on the establishment of a Western Australian Civil and Administrative Tribunal in 2002.2 That recommendation was not accepted by government. In 2009 an Industry Working Group established by the Barnett government recommended reform to the EP Act appeals processes by transferring responsibility for appeals to SAT. The same recommendation was made by the Environmental Stakeholder Advisory Group established by the Environment Minister in June 2009 in its report to the Minister released in February 2010.3

42 | BRIEF JUNE 2022

On 28 January 2020, in response to A Discussion Paper on Modernising the EP Act in October 2019, NELA submitted to the Department of Water and Environmental Regulation (DWER) a paper entitled “Position Paper: Reforming Appeal Rights in Planning and Environmental Law”. NELA recommended that appeals under Part V of the EP Act be transferred to SAT and that SAT replace the current role of the Appeals Convenor but not the role of the Minister in making a decision on a proposal under Part IV. In November 2019 the Hon Diane Evers, then the member for the South West introduced into the Legislative Council a private members Bill to amend Part VII of the EP Act and create an Environment Court.4

The Current System Part VII of the EP Act deals with appeals. Section 100 confers appeal rights in relation to proposal assessment decisions by the EPA or actions by the Minister under Part IV of the EP Act: Appeals in relation to Part V approvals include appeals in relation to clearing

permits,5 work approvals,6 various notices issued by the CEO.7 The office of the Appeals Convenor is established by section 107A. By section 107B, the Appeals Convenor functions as an appeals committee. The Appeals Convenor’s function is to advise the Minister generally on matters concerning appeals under the EP Act, and to perform such other functions as are conferred on that office by any other written law.8 On completion of its consideration of an appeal, the Appeals Committee is required to report with recommendations to the Minister who is required to allow or dismiss the appeal. If the appeal is from a decision of the Minister, the appeal must be disposed of in accordance with the recommendations of the appeal committee or if the appeal is from a decision other than the decision of the Minister, having regard to those recommendations.9 Section 106 provides for the preliminary procedures on appeals. In relation to appeals concerning Part IV matters, the Appeals Convenor is required to request the EPA to report to the Minister on the

appeal. In relation to Part V matters, the Appeals Convenor is required to request the CEO to report to the Minister on the appeal. In addition, the Appeals Convenor may consult the appellant and any other appropriate person to determine whether or not the point at issue in the appeal can be resolved.

access to information. It argued that that was particularly the case where the parties to an appeal have not been provided with written responses or reports from other participants in the process and must instead rely on the content of correspondence being relayed by the Appeals Convenor to them.

Part 5 of the Environmental Protection Regulations 1987 deals with appeals. It comprises Regs 7, 8 and 9. Regulation 7 deals with the manner of commencing appeals. Regulation 8 prescribes the requirements as to the publication and content of the Minister’s decision. Regulation 8 does not appear to require the Minister to provide reasons for decision save to the extent that they may emerge from “a summary of the nature and grounds of the relevant appeal”. In practice, however, short reasons are published as is the report of the Appeals Convenor provided to the Minister on which the Minister has relied in reaching his determination.

The NELA paper continued:

The System in Other Jurisdictions There are presently three specialist environment courts in Australia. They are located in New South Wales (NSW Land and Environment Court), South Australia (Environment Resources and Development Court) and Queensland (Planning and Environment Court and Land Court). In Victoria (Victorian Civil and Administrative Tribunal), the ACT (Australian Capital Territory Civil and Administrative Tribunal) and Tasmania (Resource Management and Planning Appeal Tribunal), various aspects of environmental appeals are dealt with by specialist tribunals. The precise jurisdiction of each of those bodies varies from State to State.

The Alternatives There are two essential questions to be addressed in deciding where environmental appeals would be best dealt with in Western Australia. The first is, is there good reason to make any substantial change to the Ministerial appeal system? The second is, if so, then where should environmental appeals be dealt with?

Arguments for Change In its position paper, NELA identified the arguments for reform under Part V of the EP Act. One of the concerns which it raised was the informality of the process leading to a lack of transparency and

The authors note that, since the Erujin decision, appellants are more frequently given the opportunity to review written responses or reports as part of the appeals process. While this is encouraging, further transparency in the decision-making process is required to instil a greater level of confidence in the process by the community and industry.10 (a) Development of environmental jurisprudence The Appeals Convenor, in preparing the report and recommendation, is under no obligation to consider the relevance or applicability of previous reports and the Minister is under no statutory obligation to give reasons for their decision. This means that there is essentially no environmental jurisprudence with respect to the resolution of appeals of Part V decisions. Developing environmental jurisprudence can help to ensure the consistency and quality of decision-making and consequently increase public and industry confidence in the system through the increased certainty that is provided. Further, a larger body of precedent will likely result in the submission of more informed and higher quality applications for determination by the DWER which would likely lead to a reduction in the number of appeals. (b) Multiple roles The Minister is responsible for the DWER. The Appeals Convenor is usually appointed from within the public service and often from within the DWER. Although the Appeals Convenor is appointed by the Governor, the Minister participates in the appointment. The decision under appeal is a decision made by the CEO of the DWER, which is the Minister’s own department. This multiplicity of roles is the ‘Caesar to Caesar’ phenomenon.11 Further criticism concerns the loss of public confidence in the appeals system given there is no independent third party to review decisions outside of the Minister’s influence.12

1. Leaving the current system in place 2. Transferring appeals to SAT 3. Transferring appeals to the District or Supreme Court or a newly created division of either of those courts 4. Establishing a standalone Environmental Court or Tribunal

The underlying principles Before looking at the options that, at least theoretically, present themselves, it is worth identifying what, in my view, underlying principles or values should be heeded in any decision that might be made. Awareness in the community of environmental issues and the need for environmental protection has undoubtedly increased markedly since the EP Act was enacted in 1986. There is no doubt that significant environmental decisionmaking, particularly in relation to major projects, can have very significant social and economic consequences. Recently in our own State, the debate over the Roe 8 project before the 2017 election illustrated differences of views as to where the balance of competing economic and social interests should lie. As explained by the Court of Appeal in Conservation Council of Western Australia v Hon Stephen Dawson, Minister for the Environment: Disability Services13 the final stage of the Part IV environmental assessment process which involves the decision as to whether a proposal can be implemented takes into account environmental factors but also economic, commercial, social and cultural factors. The stage at which those factors are brought to account is not however the subject of any of the appeal provisions under the EP Act. The appeals lie in relation to matters involving purely environmental considerations. In my view, the process of appeal in relation to the matters on which an appeal lies under the EP Act should have (and be seen to have) the following attributes: 1. The process that leads to a determination should be transparent.

The possible options

2. The aggrieved party and the original decision maker should have the opportunity to be heard and to respond to the case put by the other side.

There are a number of potential options for the handling of appeals under the EP Act. They include:

3. The decision maker on appeal should be independent of the parties to the appeal.

4. The decision maker should have and be seen to have appropriate knowledge and expertise to understand and adjudicate on the issues at hand. 5. The parties should be given sufficient reasons to understand the decision that has been made and the reasons for it. 6. There should be consistency in decision making. 7. The process of appeal should be accessible, efficient and cost effective.

Maintaining the current system As discussed above, the series of reports and submissions to government over many years have almost universally recommended change to the present system. Concerns about the current system have included the adequacy of the opportunity for appellants to be fully heard, questions of transparency and consistency, and a lack of opportunity to develop jurisprudence in relation to decision-making and appeals. However, the most obvious criticism of the current system relates to the perception of, if not actual, lack of independence of the process from the decision-maker. There is no doubt that the current system has been developed having regard to concerns to achieve the attributes which I have listed above. Transparency of the system is sought to be addressed by the explanations of the process and what appellants can expect in the information provided through the Appeals Convenor’s website. Transparency is also aided by the statutory requirement for the publication of not only the Minister’s decision, but also of the Appeal Convenor’s report to the Minister. Supporters of the present position would no doubt argue that the system provides for the application of specialist knowledge and experience and expertise in dealing with the issues which arise on appeals. The opportunity to be heard is supported by the obligation under s109 for an Appeals Committee (which by virtue of s107B includes the Appeals Convenor) to consult the relevant first instance decision maker and the appellant, although the EP Act is silent as to the nature of that consultation. In particular it is silent as to any obligation on the Appeals Convenor (or Appeals Committee) to enable responses to the case to be put by the

44 | BRIEF JUNE 2022

other party. My understanding is that the Appeals Convenor will obtain the s106 report and then consult the appellant. That consultation will involve the Appeals Convenor outlining the points made in the report so that the appellant has the opportunity to respond. If the appellant wants to see the full report in order to respond fully, the Appeals Convenor will seek the Minister’s approval to release the report to the appellant. Having received the report and consulted the appellant the Appeals Convenor then works through the issues to form her own view as to the issues in the appeal and prepares her report to the Minister. In doing so, if the Appeals Convenor considers that there is some matter which procedural fairness requires that a further opportunity to respond be given to the appellant (or presumably the original decision maker), then a response will be sought. As noted above, the most powerful criticism of the current ministerial appeal system is as to independence. This criticism is summarised in the extract above from the NELA paper under the heading “Multiple Roles”. It can be noted that the Minister’s appeal determinations which are published commence with a paragraph under the heading “Purpose of this Document” which reads: This document sets out the Minister’s decision on an appeal lodged under section… of the Environmental Protection Act 1986…. This document is produced by the office of the Appeals Convenor for the Minister but is not the Appeals Convenor’s own report, which can be downloaded from the appeals Convenor’s website… One can well understand that a busy Minister must necessarily rely on administrative support to filter and process material submitted in relation to an appeal and to draft documents of the character of a decision on appeal. The consequence of that is that the material upon which the Minister is relying in making his or her decision is the product of analysis and reasoning by the Appeals Convenor or an appeal committee coupled with the report of the original decision maker. It might reasonably be expected that different ministers might approach treatment of the materials before them differently in terms of the extent to which they analyse and review the reasoning processes leading to the recommendations to them. Different holders of the office of Minister will of course have different backgrounds,

and quite different levels of experience and expertise in relation to the type of scientific issues which arise in the context of environmental regulation. It is reasonable and to be expected that a minister will rely on the expertise of those reporting to them or providing recommendations as to the outcome of the appeal. I have not undertaken a thorough analysis of the outcomes of ministerial appeals, and in particular the level of consistency or inconsistency with the recommendations of the Appeals Convenor or with the report of the CEO or EPA. My random review of a number of recent decisions reveals that it is not uncommon for appeals to be allowed in part, usually by the modification or addition of conditions. In most of those cases which I looked at, the modification or addition was the subject of recommendations by the Appeals Convenor, and commonly was not apparently opposed by the original decision maker. Not uncommonly appeals were dismissed by the Minister, and I did not see any decisions where the dismissal was not in accordance with the recommendation of the Appeals Convenor. I do not want to suggest that any Minister charged with determination of an appeal does not apply their mind to the task at hand. Although I acknowledge that my cursory research of a smattering of recent decisions is not adequate to draw conclusions without significant qualification, I have seen no indication that the Minister goes outside of the Appeals Convenor’s report and recommendations and the report of the original decision maker in reaching her decision. It is almost inevitable that the Minister will be heavily reliant on the advice provided to them, particularly where, as is commonplace, the Minister does not possess a background in the relevant area. The practical consequence of that inevitability is that the appeal is, in effect, an appeal to the Appeals Convenor (or where appointed an Appeals Committee). The Appeals Convenor is structurally independent of DWER and the EPA. It can be noticed that the EP Act precludes the Minister from determining an appeal relating to the Minister’s own decision other than in accordance with an appeal committee’s recommendation, so as to avoid the criticism of an appeal from Caesar to Caesar. However, the connections between the Minister and

the original decision makers and the appeal committee raise significant perceptions of a lack of independence in the system. Accepting that efforts are made by the Appeals Convenor’s office to make the system transparent, the highly informal process of consultation, effectively in private, seems to me to have the potential to reinforce that adverse perception. It is the existence of that irremediable perception that in my view favours the transfer of jurisdiction to a body whose independence and transparency of process is demonstrable.

Transfer to SAT As noted above, since the establishment of the SAT, there have been widespread calls for the transfer of jurisdiction to hear appeals under the EP Act to SAT. Given the adverse perceptions as to the independence of the present appeal system, it is hard to see any reason why it would not be preferable for appeals to be dealt with by a tribunal which is clearly independent of the decision-makers, provided of course that it has appropriate special expertise in the area and the capacity to acquit the work required to efficiently deal with appeals in a timely way.

As has been observed many times before, including by the task force established to report on the establishment of SAT, the argument for transfer of appeals in relation to Pt V of the EP Act is somewhat more straightforward than the argument in relation to Pt IV appeals.

including notices under regulations dealing with the protection of watercourses, wind erosion and sand drifts and requiring specified measures to be taken for preventing or minimising movement of sand, silt, clay and rocks which may be likely to adversely affect other land.

Part V appeals involve clearing permits,14 works approvals and licences,15 closure notices, environmental protection notices, vegetation conservation notices, or prevention notices,16 or notices requiring information in relation to, or to produce for inspection, vehicles.17

The Rights in Water and Irrigation Act 1914 Div 3B confers jurisdiction on SAT to review various decisions of the Minister in relation to water licences.

Appeals of that nature have much in common with the existing jurisdiction of SAT. The most obvious example, is the range of matters concerning approvals and notices issued under the Planning and Development Act 2005 (PD Act) which are the subject of review by SAT. The review of planning approvals not infrequently involves the consideration of conditions dealing with environmental issues. Section 9.7 of the Local Government Act 1995 (LG Act), confers jurisdiction on SAT to review a range of notices under the LG Act or subsidiary legislation made under it,

Accepting that appropriate knowledge and expertise is called for in relation to the review of notices or authorisations under the EP Act (as it is in relation to authorisations and notices under the PD Act), there seems no reason in principle that reviews of decisions under Pt V of the EP Act should stand outside the ambit of reviews by SAT. In considering the question as to whether appeals in relation to decisions under Pt IV of the EP Act should be transferred to SAT, consideration needs to be given to the type of decisions in respect of which the right of appeal is conferred. Under Pt IV, the ultimate decision in relation to environmental impact assessment, and the decision as to conditions

attaching to a decision that a proposal may be implemented, is made either by the Minister with agreement of other affected ministers (or where the relevant decision making body is not a minister then with the agreement of the other decision making body), or where there is no agreement between the relevant ministers, then by the Governor. In the case where the other relevant decisionmaking authority is not a minister, then the ultimate decision is by the Minister having received a report of an appeal committee. The Court of Appeal explained the Pt IV process as a three stage process, the first being the referral of proposals to the EPA, the second being the assessment of the proposal by the EPA having regard solely to environmental considerations, and the third being the making of the decision by the relevant decision makers having regard to environmental factors but also broader considerations including economic, cultural, commercial and social factors.18 The right of appeal under s100 of the EP Act relates to the second stage of that process which involves only environmental factors. The process of weighing those factors in the balance with relevant social, economic, commercial or cultural factors is not the subject of any right of appeal. It follows that the transfer of appeals under Pt IV would not have the effect of requiring SAT to exercise judgment based on balancing those broader factors in its decision. It can be readily accepted that that is a proper function of government, and I do not understand anyone to have suggested that that function should lie elsewhere. Certainly, in my view, it should not. The question then becomes whether SAT is appropriately equipped to deal with reviews which involve analysis and judgment on environmental issues. It can be noted that s254 of the PD Act confers a right of review by SAT of a decision of a responsible authority under s48I of the EP Act in relation to environmental assessment of a proposed planning scheme. To that extent, the legislature has already acknowledged SAT is an appropriate body to deal with reviews in that context. The basis upon which SAT might undertake and approach environmental appeals would require particular attention. It would be necessary to give consideration to how the Tribunal is

46 | BRIEF JUNE 2022

constituted under section 11 of the SAT Act to ensure that there is appropriate expertise to deal with matters under the EP Act, the parameters within which SAT would exercise its discretion, the role if any for the Minister in the appeal process and the procedure that would be followed on an environmental appeal. By the utilisation of the mechanism in section 11 of the SAT Act, it would be a simple matter to ensure that, when dealing with reviews under the EP Act, the Tribunal is constituted by members with appropriate knowledge and experience. The parameters within which SAT exercises its jurisdiction are found in the enabling act under which it is exercising jurisdiction.19 In approaching a review under the EP Act, SAT would necessarily be guided by the principles underlying the EP Act as expressed in s4A of the EP Act. To the extent that a decision involves consideration of a published government policy, s28 of the SAT Act requires SAT in conducting the relevant proceedings to have regard to that statement of policy. It is open to an enabling act to specify matters to which SAT is required to have regard in dealing with matters under that enabling act.20 There is a further way in which the Minister might retain some control of the outcome of the appeals where the issues involve questions of some particular importance or wider general application. That is by the exercise of a call in power of the type found in s246 of the PD Act. That section enables the Minister to either direct the President to refer an application to the Minister for determination, or for the Tribunal to hear the application but, without determining it, refer it with recommendations to the Minister for determination. That power arises where the Minister considers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister. Whether, in the context of environmental appeals, that would be the appropriate test to trigger the power, or whether some other criterion for the exercise of the power is appropriate, is a matter that could be dealt with in the necessary amendments to the EP Act. One attribute of the present system is the informality and flexibility of its process. While that has attracted some criticism because of concerns as to the adequacy of procedural fairness, it has the advantage of facilitating access to the appeals system, potentially minimising

cost and permitting a flexible approach dependant on the nature of the issues at hand. They are valuable advantages. That is especially so when, as I understand happens from time to time in relation to Pt IV appeals, there may be hundreds of appeals lodged in relation to a single proposal. A question therefore arises as to whether SAT could provide the same advantages. In my view, it could. The practice and procedure of the Tribunal is, to the extent that it is not prescribed by an enabling act, to be as the Tribunal determines.21 Two consequences flow from that provision. The first is that it is open for the legislature to prescribe, through an enabling act, practices and procedures that are to be observed by SAT in dealing with matters under that act. The second is that it is open to the Tribunal to determine the most efficient and effective practice and procedure for the matter at hand. The Tribunal has successfully utilised that flexibility since it commenced operations in 2005. It adopts an array of procedures depending on the area of jurisdiction being exercised. It can reasonably be expected that SAT would adopt procedures which most effectively and efficiently acquit the various reviews under the EP Act. That flexibility would enable it to deal with multiple applications for review in relation to a single proposal with at least the same efficiency is the Appeals Convenor does. Having regard to all those matters, and in particular having regard to the concerns which have been expressed over an extended period as to the transparency and independence of the existing process, the transfer of appeals under the EP Act to SAT presents the best option. There is one qualification to that conclusion. That is that it would require adequate resourcing for SAT to undertake the work. There were 64 published outcomes of appeals to the Minister in 2020. That is a significant amount of work. Transferring that work to SAT would require that there be an appropriate number of relevantly qualified members appointed to undertake the work.

Transfer to an Existing Court Transfer of the jurisdiction to an existing Court could be done in one of two ways. The first is simply to add the jurisdiction to the general jurisdiction of the court. The second is to establish a separate

specialist division of an existing Court. In my view, neither is an attractive option. Transfer to the general jurisdiction of a court would fail to recognise the need for specialist expertise and knowledge of environmental matters. It would likely introduce a level of formality which would reduce accessibility, increase cost and, by reason of a lack of flexibility, prove less efficient. Establishment of a separate division of an existing Court would provide greater opportunity for the appointment of specialist judges, and persons with expertise to sit as part of panels, presumably with a judge presiding, and in that way satisfy the need for specialist expertise and knowledge. The composition of the specialist division of the Court might effectively be separate from the court in its other jurisdictions so that the processes and procedures adopted by the specialist division could enable it to act in a far less formal manner. However, it is difficult to see how that result would be any more favourable than conferring the jurisdiction on SAT which on its current structure is already capable of meeting those objectives, including where appropriate judicial involvement in the decision-making. What might be achieved by conferring jurisdiction under the EP Act to a court is greater ease of enforcement of orders, and possibly a special criminal jurisdiction to deal with offences under the EP Act. For my part I see little advantage in there being one forum in which both environmental appeals and environmental prosecutions are dealt with. There is little overlap between them and the nature of the experience and training of those dealing with environmental appeals will in many cases differ from experience and training required to deal with criminal prosecutions.

A Standalone Court or Tribunal

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

4 Environment Court Bill 2019 introduced and read a second time on 29 November 2019.

Much the same can be said about establishing a standalone Court or Tribunal. Although undoubtedly any such body would be comprised of persons with appropriate knowledge and expertise, it is not apparent to me that anything would be gained by having to establish the necessary infrastructure when the same outcome can be achieved utilising the infrastructure, and the sixteen years of experience dealing with administrative review, which the SAT has now in place.

5 s101 of the EP Act.

As mentioned above, a private member’s Bill was introduced in 2019 to establish an Environmental Court. Without wishing to spend time analysing the many shortcomings of that Bill, a quick reading of it identified the many issues that need to be addressed in establishing a body of that nature. The establishment of SAT has already grappled with many of those issues, albeit not in the specific context of environmental appeals. For my part I see no advantage in trying to reinvent the wheel.

16 EP Act s103.

6 s102 of the EP Act. 7 ss103 and 104 of the EP Act. 8 s107B(2) of the EP Act. 9 s109(3) of the EP Act. 10 Parliament Standing Committee SAT Report, May 2009, 341. 11 Michael L Barker, ‘The Politics of Environmental Dispute Resolution’ (1994) 4 Australian Environmental Law News 61, 70; Jones, above n 49, 55. 12 Doherty, above n 50, 118. 13 Conservation Council of Western Australia v Hon Stephen Dawson, Minister for the Environment: Disability Services [2019] WASCA 102 [131]. 14 EP Act S101A. 15 EP Act s102. 17 EP Act s104. 18 Conservation Council of Western Australia v Hon Stephen Dawson, Minister for the Environment: Disability Services [2019] WASCA 102 [130]- [131]. 19 SAT Act s18. 20 For example PD Act ss240 and 241. 21 Section 32(5) of the SAT Act.

Conclusion In my view the calls for review of the system of appeals under the EP Act which have been made over many years, and in particular the calls for the transfer of that jurisdiction to SAT are soundly based and the best place for those appeals in Western Australia is the State Administrative Tribunal.

End Notes 1 Paper entitled “Environmental Appeals, and the Possibility of Appeal to the SAT” presented 20 March 2018 [5.1]. 2 Western Australian Civil and Administrative Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal, May 2002. 3 Environmental Stakeholder Advisory Group, “The

Bequests Help Save Cats’ Lives For nearly 60 years, Cat Haven has relied on the generosity of West Australians bequests and donations to keep our doors open for cats in need. We are WA’s premier cat welfare organisation taking in over 8,000 cats a year and rehoming close to 90%.

Appeals Process – Report to the Minister for Environment”, 21 September 2009.

Please Donate, Adopt Foster, Bequeath, Volunteer

companion cat we will rehome it in a similar home as to the one it has come from via our Cat Custodians Program. All we ask is they remember us in their estate after providing for family and friends. For further information please go to our website www.cathaven.com.au or call CEO 9442 3600 for a brochure.

High Court Affirms Application of Orthodox Contract Law Principles to Employment Relationships Ian Neil SC, Barrister, 6 St James Hall Chambers, Sydney Giacomo Giorgi, Senior Associate, Herbert Smith Freehills, Perth

scertaining whether an employment relationship exists and, if so, identifying its character, are threshold issues that must be determined in many employmentrelated claims, the results of which have significant consequences for the parties’ legal rights and entitlements. Three recent decisions of the High Court have clarified the approach that should be taken to the resolution of these issues, confirming that employment relationships are no different to any other legal relationships founded on contract, despite their special social and psychological significance. Thus, these threshold issues must be determined using orthodox contract law principles, which place primacy on the parties’ contract(s). This signals a decisive departure from the approach that had become influential in Australian courts and tribunals. That approach had regard to facts and circumstances outside the contractual terms agreed between the parties, such as the parties’ post-contractual conduct, in an attempt to identify “the real substance, practical reality and true nature of that relationship.”1

The Decisions WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681; [2021] HCA 23 (Rossato) A Full Court of the Federal Court followed WorkPac Pty Ltd v Skene to find that Mr Rossato was not a casual employee, focussing on the post-contractual conduct of the parties, such as the preparation of rosters in advance, to determine that there was a “firm advance commitment to continuing and indefinite work” of a kind which was inconsistent with casual employment.2 The High Court upheld WorkPac’s appeal against this decision, finding that the mere fact that Mr Rossato had an expectation of continuing employment (even if that expectation was reasonable) was not a basis for finding there was a “firm

48 | BRIEF JUNE 2022

advance commitment” to ongoing work, given that the Fair Work Act contemplates casual employees working on a regular and systematic basis. The court also found that focus must be on the (express and implied) contractual obligations between Mr Rossato and WorkPac, and, in circumstances where the parties’ relationship was reduced wholly to writing, the Full Court’s reliance on postcontractual conduct “strayed from the orthodox path”.3

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting (2022) 96 ALJR 89; [2022] HCA 1 (Personnel Contracting) Mr McCourt, a backpacker with limited prior work experience, had a written contract with a labour hire company (Construct) pursuant to which he was required to perform work for Construct’s clients. This contract described Mr McCourt as a “self-employed contractor”. The agreement between Mr McCourt and Construct required Mr McCourt to cooperate with Construct’s clients, including by following their directions as to how specific tasks would be performed, and to attend work as directed. Separately, Construct had a contractual arrangement with its client, Hanssen, pursuant to which Construct provided labour. Mr McCourt ultimately performed work at Hanssen’s sites, and pursuant to Hanssen’s directions, even though there was no direct contractual relationship between Mr McCourt and Hanssen, in a triangular arrangement often referred to as an ‘Odco’ arrangement.4 Mr McCourt and the CFMMEU brought a claim against Construct asserting that Mr McCourt was, at law, an employee of Construct and claiming entitlements as such. Relying on Hollis v Vabu Pty Ltd5 the primary judge applied a multifactorial approach to that question, which included “examin[ing] … the reality of

the relationship in practice”6, ultimately finding that Mr McCourt was an independent contractor. This finding was upheld on appeal by the Full Court of the Federal Court, despite the court expressing some concerns about the correctness of this conclusion. On appeal, the High Court picked up the themes in Rossato and found that where a relationship is comprehensively reduced to a written contract, the rights and obligations set out in the contract determine the character of the relationship (subject to a challenge to the validity of contract). While the ‘multifactorial’ test was confirmed as correct, the court was concerned that Vabu and Stevens v Brodribb Sawmilling Co Pty Ltd had wrongly been understood to authorise an examination of “the actual way in which work was carried out”.9 Applying these principles, the plurality (Keifel CJ, Keane and Edelman JJ; Gordon, Gageler and Gleeson JJ agreeing; Steward J agreeing with the relevant principles, but not the result) was satisfied that the degree of control by Construct over the work performed by Mr McCourt and the degree of integration and subservience of Mr McCourt into Construct’s enterprise, based on the terms of the contract between the parties, indicated that Mr McCourt was an employee rather than an independent contractor.

ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; [2022] HCA 2 (Jamsek) The respondents, Mr Jamsek and Mr Whitby, were initially engaged by the appellants (collectively referred to as the ‘Company’) as employees. In or around 1985, the respondents ceased to be employed by the Company and they each created partnerships with their wives, which then each entered written contracts for cartage services with the Company. The partnerships also agreed to purchase and maintain trucks from the Company for the purposes of performing these services.

Following the termination of the agreements between the partnerships and the Company in 2017, the respondents brought proceedings in the Federal Court seeking declarations that they were owed statutory entitlements as employees of the Company pursuant to the Fair Work Act, the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Long Service Leave Act 1955 (NSW). Each of these entitlements were contingent on the respondents being found to be “employees” of the Company for the purposes of these statutes. While the primary judge found that the respondents were independent contractors, the Full Court of the Federal Court overturned this decision based primarily on: (i) an examination of the manner in which the parties actually conducted themselves over the course of their relationship, and (ii) the disparity of bargaining power between the parties (which was found to have impacted on the contracts by which the partnerships were engaged). The High Court criticised the approach adopted by the Full Court as unsustainable. Adopting the principles largely set out in Personnel Contracting, the court emphasised that the analysis of the nature of the relationship between the parties must be conducted by reference to the rights and obligations contained in the written contract, rather than by a consideration of the subsequent conduct of the parties or their ‘expectations’. In this case, the parties to the relevant contracts were the partnerships and the Company (rather than the respondents themselves) and insofar as any terms of the contracts contained obligations which related to the individual respondents, the court considered that those obligations applied to the members of the partnership, for whom the partnership was responsible. On that basis, the court was satisfied that the respondents were operating as members of partnerships and not as employees of the Company.

What propositions can be discerned from these decisions? Identifying and characterising an employment relationship: look to the contract The only rights with which the courts are concerned are legal rights.10 The principles governing the interpretation of contracts of employment are no different from those that govern the interpretation of contracts generally.11 Therefore, where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which are otherwise varied, waived or the subject of an estoppel,12 the legal rights and obligations established by the contract are decisive of the character of the relationship. In such a case, there is no ‘reality’ that transcends the rights and obligations agreed by the parties. A disparity of bargaining power does not authorise a court to disregard the terms of the contract in preference to such a reality.13 For these purposes, the concept of a ‘sham’ has the same meaning as it does in the orthodox law of contract: a contract intended by the parties to give to third parties or to the court the appearance of creating between the parties’ legal rights and obligations different from the legal rights and obligations (if any) which the parties actually intended to create.14 This is a relatively high bar to overcome. If there is no challenge to the validity of the contract nor any suggestion that the contract had been varied by conduct, evidence about how the parties went about discharging their obligations to each other after the formation of the contract is inadmissible.15 It is irrelevant because consideration of postcontractual conduct is ‘unwarranted’, ‘unnecessary’ and ‘inappropriate’.16 The

‘orthodox principle’ is that courts are not concerned with what has actually occurred in a work relationship, or how the contract played out in practice, but rather with the obligations by which the parties are bound.17 However, applying the usual tests, postcontractual conduct may be relevant and admissible to prove a variation to the terms of the original contract, or to give rise to an estoppel or waiver.18 When an oral contract or a partly oral, partly written contract is in issue, recourse to conduct may also identify the point at which the contract was formed and the contractual terms that were agreed. In relation to the latter, some terms may be inferred from the evidence of a course of dealing between the parties, some terms may be implied by established custom or usage, and other terms may be implied because they satisfy the criterion of being so obvious that they go without saying. In each of these cases, the question is whether the particular term is necessary for the reasonable or effective operation of the contract in the circumstances of the case.19

What of the ‘multi-factorial test’? The ‘multi-factorial test’ remains the correct way to determine whether a worker is an employee or an independent contractor. In applying the multi-factorial test, it is still appropriate to consider the totality of the relationship between the parties by reference to conventional indicia of employment.20 The existence of a right of control by a putative employer over the activities of the putative employee remains an important – in Personnel Contracting, the ‘most significant’21 – indicium of employment. It “serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.”22

However, where the terms of the relationship are wholly contained within a written contract, the only ‘factors’ to be considered are those included in the contract. In such a case, it is wrong to conduct a “multifactorial balancing exercise whereby the history of all the dealings between the parties is…exhaustively reviewed” in “a roaming inquiry beyond the contract.”23

relationship.29 It focusses attention on those aspects of the relationship that bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise.30

Taking an example from Jamsek, the respondents were asked at various times to display the Company’s livery on the sides of their vehicles, which they did. Similarly, the respondents were at times provided with, and wore, Company-branded clothing. These were matters on which the Full Court placed some emphasis as indicators in favour of an employment relationship.24 The plurality disagreed with this finding, noting that there were no (express or implied) contractual requirements for the respondents to do these things, and that this behaviour was “consistent with a sensible, self‑interested response of an independent contractor to legitimate commercial pressure from its best customer.”25 That is, the conduct “did not alter the contractual rights and obligations … between the partnerships and the company.”26

There are at least three significant practical implications arising from these decisions:

The relevance of contractual labels Under the common law, the parties are free to agree upon the rights and obligations by which they are to be bound in their contract. But they are not free to attach a label to describe their relationship that is inconsistent with the rights and duties set out in the contract.27 In a rare case, the label that the parties choose to describe their relationship can shed light on the objective understanding of the operative provisions of their contract. Generally, however, the label will be irrelevant, because the determination of the character of the relationship constituted by contractual rights and obligations is a matter for the court, and the parties’ opinion on a matter of law is irrelevant. It is erroneous in point of principle to use the parties’ description of their relationship as a ‘tie-breaker’ or otherwise to resolve uncertainty produced by application of the multifactorial test.28

The entrepreneurial dichotomy The question whether workers are conducting their own independent business, as distinct from serving in the business of the actual or putative employer, provides a meaningful framework to guide the characterisation of the parties’

50 | BRIEF JUNE 2022

Where to from here?

1. First, for all practical purposes, the ‘Odco’ model is dead, at least insofar as such an arrangement includes a contractual right for a putative employer to control the provision of the putative employee’s labour to its customers.31

Industrial Appeal Court which involved “essentially the same dispute between the same parties”: Personnel Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312; (2004) 141 IR 31. 8 (1986) 160 CLR 16. 9 Personnel Contracting, at [42] per Keifel CJ, Keane and Edelman JJ; [138] per Gaegler and Gleeson JJ. 10 Rossato, at [61]-[64]; Personnel Contracting, at [44], [59] per Keifel CJ, Keane and Edelman JJ; Jamsek, at [53], [55] per Keifel CJ, Keane and Edelman JJ. 11 Personnel Contracting, at [60], [88] per Keifel CJ, Keane and Edelman JJ; [124] per Gaegler and Gleeson JJ; [162], [173] per Gordon J. 12 cf Personnel Contracting, at [176] per Gordon J. 13 Personnel Contracting, at [43], [44], [48], [88] per Keifel CJ, Keane and Edelman JJ; [173] per Gordon J; Jamsek, at [6], [8], [9], [62] per Keifel CJ, Keane and Edelman JJ. 14 Equuscorp Pty Ltd v Glengallan Investments [2004] HCA 55, at [46]. 15 Personnel Contracting, at [190] per Gordon J. 16 Personnel Contracting, at [18] per Keifel CJ, Keane and Edelman JJ. 17 Personnel Contracting, at [18], [57], [59] per Keifel CJ, Keane and Edelman JJ; [162], [176], [187] per Gordon J; Jamsek, at [6] per Keifel CJ, Keane and Edelman JJ; [109] per Gordon and Stewart JJ.

2. Second, there will likely need to be a fundamental change in relation to the manner in which legal claims which rely on the (disputed) existence of an employment relationship are pleaded and conducted. The focus must be on the terms of the contract governing the relationship. Evidence about the way in which the parties conducted themselves under the contract will generally not be relevant.

18 Personnel Contracting, at [42] per Keifel CJ, Keane and Edelman JJ.

3. Third, and further to the second point above, this is likely to see an increase in legal claims where sham contracting allegations are made, or where a party alleges that post-contractual conduct gave rise to a variation to their written contract. As noted above, however, any such allegations will be considered through the lens of orthodox contract law principles;32 that is, for conduct to rise to a level of contractual significance, there must be evidence of a meeting of the minds between the parties. Conduct will likely be insufficient to establish this fact where it can be explained in some other way, such as by legitimate commercial considerations.

24 Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; (2020) 279 FCR 114 at 160 [224].

Endnotes 1 WorkPac Pty Ltd v Skene (2018) 264 FCR 536 (Skene), at [180]. 2 WorkPac Pty Ltd v Rossato (2020) 278 FCR 179, at [114], [576], [588]. 3 Rossato, at [66]. 4 Named after the circumstances facing the court in Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104. 5 [2001] HCA 44; (2001) 207 CLR 21. 6 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806, at [176]‑[178]. 7 The Full Court made it clear (at [121]) that it would have held that Mr McCourt was an employee of Construct but for a decision of the Western Australian

19 Personnel Contracting, at [190] per Gordon J. 20 Personnel Contracting, at [61] per Keifel CJ, Keane and Edelman JJ; [121] per Gaegler and Gleeson JJ; [162], [172], [173] per Gordon J. [2020] FCAFC 119; (2020) 279 FCR 114 at 160 [224]. 21 Personnel Contracting, at [122] per Gaegler and Gleeson JJ. 22 Personnel Contracting, at [73], [74] per Keifel CJ, Keane and Edelman JJ. 23 Personnel Contracting, at [47], [55], [56], [61] per Keifel CJ, Keane and Edelman JJ; [172], [173], [174], [180], [188] per Gordon J; Jamsek, at [6] per Keifel CJ, Keane and Edelman JJ.

25 Jamsek, at [53] per Keifel CJ, Keane and Edelman JJ. 26 Ibid. 27 Personnel Contracting, at [58] per Keifel CJ, Keane and Edelman JJ. 28 Personnel Contracting, at [58], [63]-[66], [79], [86] per Keifel CJ, Keane and Edelman JJ; see also [184] per Gordon J. 29 Personnel Contracting, at [39] per Keifel CJ, Keane and Edelman JJ. 30 Personnel Contracting, at [35]-[39], [71]-[72] per Keifel CJ, Keane and Edelman JJ; see also [183] per Gordon J. 31 Personnel Contracting, at [75]-[78], [85]-[88] per Keifel CJ, Keane and Edelman JJ; [158] per Gaegler and Gleeson JJ. 32 A recent example of this can be seen in a decision of the Fair Work Commission handed down subsequently to Jamsek and Personnel Contracting: Chambers v Broadway Homes Pty Ltd [2022] FWC 332, at [298]-[309].

The Lawyer Undertaker Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Ethics Column

Faithfulness to lawyer undertakings goes to the core of legal process. It is unsurprising, therefore, that breaches of undertakings should attract potential adverse consequences.

his column is not targeted at lawyers who conduct business as funeral directors discretely from, or as an adjunct to, their legal practice. (As an aside, a cursory search of the Internet reveals examples of this within the Australian context). Instead, “lawyer-undertaker” refers to a much more frequent reflection of legal practice, namely the giving of undertakings by lawyers. The seriousness with which the profession and the law views lawyer undertakings can be seen as a reflection of the “my word is my bond” motto (although the latter can trace its genesis to the sixteenth century to facilitate traders making legally binding agreements sans a written pledge). Adherence to (and enforceability of) lawyers’ undertakings goes to the core of the trust and confidence that can be placed in lawyers — by their clients, by other lawyers and by the court. As a disciplinary tribunal has observed:1 Undertakings are given by legal practitioners for the specific purpose of enabling legal activities to be carried out. Other persons rely on those undertakings. The undertakings are personal to the legal practitioner and bind that practitioner … as a matter of professional conduct and comity, and will be enforced by the Courts because legal practitioners are officers of the Court and because without enforcement undertakings would be worthless, persons and Courts would be unable to rely on the word of the legal practitioner and this aspect of legal practice, that demands compliance for legal efficiency, would collapse.

As compliance with undertakings is, as noted above, “a matter of professional conduct”, it is hardly surprising to find manifold examples of lawyers being disciplined for failing to comply with undertakings.2 The very nature of an undertaking, moreover, means that it not infrequently overlaps with contract. If so, independent of any disciplinary response, the person(s) to whom a lawyer’s undertaking is given can sue thereon — under the general law of contract — should the lawyer not fulfil its terms. A lawyer may escape liability here if the undertaking was given in an agency capacity (typically for a client). But this can prove so only for undertakings clearly given on behalf of a client (any ambiguity here usually prejudicing the lawyer)3 within the lawyer’s authority. What is unique, though, to the legal practice environment is the court’s longstanding summary jurisdiction to enforce lawyers’ undertakings, based on its inherent right to require its officers to observe a high standard of conduct. While the jurisdiction has a traditionally “disciplinary” slant (though not equating to professional discipline noted above), it can be utilised to require a defaulting lawyer to compensate a person who has suffered from that default. Importantly, such an order is not dependent on an existing enforceable contractual (or other civil) right in the victim.4 Procedural benefits, in addition, arise out of a summary proceeding: it does not automatically or usually involve pleadings, discovery or oral evidence, thereby depriving the lawyer of certain advantages that ordinarily avail a defendant on trial.

undertakings given in the capacity as a lawyer, the breadth of what can fall within legal practice for this purpose may not prove an undue constraint thereon.7 It stands to reason that, from an inherent, disciplinary or contractual jurisdiction, lawyer undertakings are viewed with jealousy. The seriousness of failing to strictly adhere to undertakings accordingly cannot be downplayed.

End Notes 1 Copini [1994] NSWLST 25. 2 See, for example, Law Society of New South Wales v Martin [2002] NSWADT 27; Law Society of New South Wales v Waterhouse [2002] NSWADT 204. 3 See, for example, Gorman v Norton (1887) 8 LR (NSW) L 479. 4 Harcus Sinclair LLP v Your Lawyers Ltd [2021] 3 WLR 598 at [149] per Lords Briggs, Hamblen and Burrows (referring to “the courts [being] concerned to uphold particularly high standards of conduct irrespective of some of the rules imposed in contract law”). 5 See, for example, Bentley v Gaisford [1997] QB 627. 6 See, for example, Hartnell v Birketu Pty Ltd (2021) 392 ALR 154 at [140] per Gleeson JA, with whom Basten and McCallum JJA concurred (where a lawyer’s undertaking was enforced despite being given at a “non-working lunch”). 7 Cf Harcus Sinclair LLP v Your Lawyers Ltd [2021] 3 WLR 598, to be discussed in the ensuing column.

While the disciplinary slant of this jurisdiction confines its exercise, it is said, to cases of behaviour meriting reproof5 (as distinct from that punctuated by bona fides), it should not be assumed that the informality of the occasion or setting at which an undertaking is proffered will serve to excuse non-compliance.6 And while the supervisory jurisdiction targets only

Get Ready to Gavel

52 | BRIEF APRIL 2022

Chris Burch

Chair, Young Lawyers Committee

Demi Swain

Deputy Chair, Young Lawyers Committee

he Young Lawyers Committee has been off to a flying start this year.

Our Law Student Mentoring Programme has connected students with lawyers to provide guidance and support to the transition from student to law graduate and then to lawyer. Our Law Week panel event, “Inclusion and Personal Perspectives: the lived experiences of people with disabilities in the legal profession” discussed topics on inclusivity in the profession

AUG

12 2022 JULY

28 2022

for people with disabilities. During our Welcome to the Profession Breakfast, we heard invaluable insights from The Hon Rene Le Miere QC on navigating a rewarding career in the law, whilst maintaining good mental health.

distinguished (and very funny) judges. Expressions of interest for speakers are now open, so make sure to nominate or, better yet, convince your colleagues to: younglawyers@lawsocietywa.asn. au.

We have been busy. And as we approach the end of financial year, there is no doubt young lawyers are in need of a good laugh. Our upcoming Golden Gavel event is guaranteed to provide just that, whether it be from our speakers or from the panel of

We otherwise have a great line-up of other fantastic events to the end of the year. Make sure to follow the YLC on Instagram @ylc.wa and look out for your chance to get involved.

Golden Gavel The YLC’s most entertaining and humorous event is coming back to the glamorous Ritz-Carlton, Perth! Save the date for the not to be missed Golden Gavel on Friday, 12 August 2022.

JUNE

29 2022

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

Social Justice Career Opportunities Evening Discover how you can pursue a meaningful career in the human rights and social justice space, or just find out more about this important area of law. Free for members! Tickets open soon.

Law Student Mentoring Programme Launch By Isabel Inkster

Member, Young Lawyers Committee

On Thursday, 28 April 2022 the Law Society’s YLC launched its 2022 Law Student Mentoring Programme, generously hosted by the College of Law at their premises in Perth. Our Education & Careers Sub-Committee Leader and solicitor at Bennett + Co, Briony Whyte opened the event and welcomed mentees, mentors and special guests. The speakers kicked off with Helen Hermanns from legalsuper, a valuable sponsor of the YLC Law Student Mentoring Programme. Ms Hermanns’ encouraging words reminded us of the importance of continuing to learn throughout our careers. Chris Burch, Chair of the YLC and senior associate at Corrs Chambers Westgarth gave a helpful heads up for all participants in the programme with various do’s and don’ts e.g. please meet us in the CBD; please forgive our poor email etiquette. Belinda Wong, special counsel at Corrs Chambers Westgarth and Lawyers Weekly Women in Law Awards 2021 Mentor of the Year gave fruitful examples of how it takes a village – or should it be a disputation – of lawyers to raise a junior practitioner. Ms Wong spoke insightfully about how you can and should have a range of mentors who can speak to the various different facets of both your career and your personal context.

54 | BRIEF JUNE 2022

While I’ve got the proverbial conch, there are a couple more tidbits I’d like to add about being a mentee, and a mentor.

phone call was that the envelope ended up in the post-box, and that job ended up being a fruitful career-changer.

1. Have goals - As a mentee, this means for me going into every coffee with my formal mentor with at least one ‘mentor question’. At first it was a ‘bit’, and something we laughed about. But over two years now, it has helped direct our coffee dates. Sure, they are still dotted with stories about our weekends and what we’re reading, but I feel I’ve made the most of my mentor’s precious time and learnt more for it along the way.

As a mentor, I’ve learnt to have faith in myself. At the Office I’m the junior, always asking questions and googling which civ pro form to use. But I have realised through mentoring that I have learnt a useful thing or two on the job. This is particularly the case when informally mentoring even-more-junior lawyers in the office: if only to show them how to find the form online.

As a mentor, my goals are largely shaped by my mentees. However, the one thing that I consistently aspire to is to offer the things I wish I’d known when I was a law student. For example, type your notes (it is no longer first year theatre games!). Use the library. Jobs in public law actually exist, etc. 2. Have faith - As a mentee, this has meant trusting my mentors’ advice. This by and large isn’t very difficult: I have amazing, sage, and generous mentors. There have been one or two times though where I have really had to take the plunge. Once, I was walking up and down Rokeby Rd with a signed contract in a sealed envelope, hesitating to commit to a job. A phone call to the assistant of an unnamed, highly respected female barrister, and within minutes that senior practitioner had made herself available. The consequence of that brief, timely

3. Cast your net wide - This is a citation with approval of Ms Wong’s words at the event launch: it is important to have multiple mentors. I am extremely lucky to be able to access the advice of senior lawyers, immediate supervisors, and friends at firms who somehow already know everything. The inanity of my questions increases on a correlative scale. Each of these categories of mentors is able to bring their perspectives and unique experience to whatever issue is at hand. As a mentor, I’m cognisant that my advice is just one opinion, just one viewpoint. We all know that reasonable minds can differ; and lawyers love to differ the most. I try to keep that front of mind when mentoring, and, come to think of it, in my practice in general. I wish all the participants of the 2022 YLC Law Student Mentoring Programme the very best for their year of learning ahead.

Belinda Wong’s address at the Young Lawyers Committee’s Law Student Mentoring Programme Good evening! I’m Belinda Wong, I’m a Special Counsel in Projects Disputes at Corrs and President of the WA Branch of the Asian Australian Lawyers Association. Firstly, I wish to acknowledge the traditional custodians of the land we are meeting on, the Whadjuk people of the Nyoongar Nation. I wish to pay respect to their Elders — past, present and emerging — as well as to their continuing culture and the contribution they make to the life of this city and this region. They say it takes a village to raise a child and, in my view, it also takes a village to raise a lawyer. Mentoring is incredibly important. Most of what I’m going to say today is advice for mentees but I have a few points for the mentors as well. When you’re starting out mentors provide safety and support as you learn to navigate the legal profession. Having a successful and fulfilling career in the law is not only based on your skill and experience but also the strength of your connections to others. An important connection is to mentors — Firstly, they’ve been there and done that and can provide you with valuable career guidance. Not everyone gets dealt cards which mean they can navigate the legal profession with confidence, familiarity and ease. I’m the daughter of immigrants who had very little experience with the Australian legal system and I grew up without any family friends or relatives practising in the law. For people like me, mentors play a key role launching a career — they provide information about firms, practice areas, what to expect and how to behave. Secondly, the legal profession can be tough. Lawyers suffer from higher rates of depression, anxiety, substance use problems and stress than the general population. Do you get friends and family sometimes telling you, ‘Just walk out the door at 5:30 pm. Who cares?’ or ‘Just tell them to leave you alone’? They mean well, but that’s not really practical advice. Having a mentor who can understand the pressures you’re under and provide valuable advice about self-care and measures to preserve your mental wellness (or who can provide a cautionary tale about what not to do) helps. Back to the village analogy, mentees, there will be different mentors throughout your career. They’ll come from formal and informal channels, and what you need from

a mentor will change as you progress. I was a sensitive graduate, so my mentors when I began had a warm, cheerleading style which suited me. There was the junior lawyer who mixed practical advice with celebrity news and updates on her secret admirer. And a senior lawyer who sat me down one day when I was feeling blue to say that our boss wouldn’t acknowledge it, but he was very lucky to have me and I should think about going somewhere else where I would have the space and opportunities to dream bigger. As I’ve progressed and grown a thicker skin, my mentors have changed as well. They’re more tiger parents now — eminent members of the profession who are positive and supportive; but I am able to better handle tough love from some of them, and they all push me to achieve. I’ve had everything critiqued and I’m now old enough and ugly enough to extract and take what I need from what’s been said. Not everyone is the same personality type or goes on the same journey. What I’m saying is that you need to find mentors with mentoring styles and ways of connecting that suit you at whatever point in time you are in, and who also reflect who you are at that point. You also don’t need to have one mentor at a time. We are all complex individuals with a range of different needs. Personally, I’m a projects disputes specialist at a large, national firm but I’m also a woman of colour. I seek from my mentors guidance about construction, energy and resources disputes, getting ahead at a large, national firm and navigating the legal profession as a woman and as a person of colour. I have mentors who advise about one of those things as well as mentors who advise on two or three. It’s often impossible to find just one person who ticks all of the boxes for you and I’d recommend making sure you have support in all the areas you need it. You need someone you can build a rapport and understanding with and someone you can trust. A mentor needs to have your best interests at heart and tell you the truth. They need to tell you the truth if you’re about to step off a cliff and, by the same token, if there is something very wrong and you raise it with them, they need to listen to you, believe you and not tell you it’s in your head. As tempting as it is for mentors to just mentor younger versions of themselves, I think it’s healthy for mentors to

acknowledge they’re also a complex individual and that they might have something valuable to give to someone who does not have the same background as them, but practices in their area or vice versa. I mentor a range of different people but the thing that unites them is my ability to help them with their specific need. I also encourage mentors to pass mentees to people in your network, in your village, where you hit a brick wall because you don’t have the experience or the time. Lastly, this programme is about mentoring but don’t forget about sponsorship. No one can have a successful career without mentors and sponsors. Mentors give you advice but sponsors sell you, they go out and tell clients and colleagues about how amazing you are. They’re the other side of the coin. It can be harder to find sponsors but they need to be there and sometimes they need a push. For the mentors in this room, don’t forget to be a sponsor too. If you find a junior who you can talk up, put forward for jobs, for promotions, for committees, for projects, it can make a huge difference to their life. Mentees, this mentoring gig is not a one way thing. You shouldn’t just take from mentors without giving anything back. So pay it forward. Find your own mentees and start being part of the village raising them. It’s never too early, there is always someone who needs to hear what you have to say. Secondly, even your mentors will have needs, and eventually you’ll be in a position to help them — personally, it’s an incredible feeling to have been able to repay some of my mentors by profiling them at the Society of Construction Law Australia, the Lighthouse Club and Asian Australian Lawyers Association events. I’m so glad to be participating in this mentoring programme. The mentors and mentees here are doing something wonderful and advancing the legal profession. I’m going to end with my favourite Oprah quote: ‘We’re here for a reason. I believe a bit of the reason is to throw little torches out to lead people through the dark’.

Case

Nopes

by Anthony Dique

Member, Young Lawyers Committee

Fiore Group Pty Ltd v Dain Pty Ltd [2022] WASC 141

hether you are a junior, senior or somewhere in between, almost every solicitor in Western Australia will likely admit to relying on older precedents. When we are scraping the barrel for every time recording while juggling far too many matters than is safe for our mental health, any method to reduce the time to draft that Will or prepare those consent orders is usually a welcome one. Precedents are also a valuable method to train solicitors and particularly junior solicitors. However, almost every solicitor in Western Australia will also likely admit to accidently leaving in a date or a party from an older precedent at least once during their career. Most of the time it is nothing more than an embarrassing error that is either ignored or quickly fixed and moved on, but sometimes that error may result in unintended consequences and leading you to appear before a judicial officer to explain your oversight. The recent Supreme Court of Western Australia decision Fiore Group Pty Ltd v Dain Pty Ltd [2022] WASC 141 is one of those unfortunate, yet relatable instances. As Master Sanderson wrote about the unique circumstances, “Any lecturer who set this problem could be well satisfied it would fully test a student’s grasp of the principles applicable to caveats. Any student reading this question for the first time would be horrified.” In November 2019 the parties entered into a standard contract to purchase a Peppermint Grove property for a

[2022] WASC 141

IA OF WESTERN AUSTRAL

JURISDICTION

: SUPREME COURT IN CHAMBERS

CITATION

PTY : FIORE GROUP [2022] WASC 141

CORAM HEARD DELIVERED PUBLISHED FILE NO/S BETWEEN

LTD -v- DAIN PTY

LTD

: MASTER SANDERS : 21 APRIL 2022 : 26 APRIL 2022 : 26 APRIL 2022 : CIV 1367 of 2022

PTY : FIORE GROUP Plaintiff

LTD

AND DAIN PTY LTD First Defendant TITLES REGISTRAR OF Second Defendant

Catchwords:

n to extend caveat Property law - Applicatio

- Turns on own facts

Legislation: Transfer of Land Act

1893 (WA)

Page 1

Click the thumbnail above to view the decision of Fiore Group Pty Ltd v Dain Pty Ltd [2022] WASC 141

56 | BRIEF JUNE 2022

paltry $14,750,000. After a couple of failed settlements and the forfeiture of a $1,000,000 deposit, the contract was validly terminated by the seller in June 2021. As Master Sanderson put it, it may have been prudent for the purchaser to cut his not inconsiderable loss and look to purchase a more modest property, perhaps in Darch or Rockingham [11]. However, the purchaser clearly had his heart set on acquiring that Peppermint Grove property and, in August 2021 entered into a new contract of sale with the seller. It would not be surprising to learn that settlement was again unable to take place. The seller, who appears to be remarkably patient, only instructed his solicitors to terminate the contract in February 2022 and after multiple rescheduled settlements. However, when preparing the Notice of Termination of the 2021 Contract, the seller’s solicitors clearly copied the notice to terminate the 2019 Contract. Critically the seller’s solicitors failed to update references in the first paragraph of the notice to refer to the 2021 Contract, and on the face of it the notice purported to terminate the already terminated 2019 Contract. In an audacious move, the purchaser refused to accept the notice as effectively terminating the 2021 Contract and, when the seller did not attend the next scheduled settlement date, issued his own default notice and lodged a caveat

over the Peppermint Grove property. While the application before the Master was to seek an extension of the caveat, the application turned on whether the notice was effective in terminating the 2021 Contract. Fortunately for the seller (and his solicitors), Master Sanderson took the view that it must have been clear to the purchaser that it was the 2021 Contract which was intended to be terminated and held that the notice was effective in terminating the 2021 Contract [27]. It is also pleasant to read that in his closing remarks, the Master took a not-so-subtle swipe at the purchaser for repeatedly defaulting on his contractual obligations and failing to come to Court with clean hands [35]. For solicitors who routinely rely on precedents, and in particular to junior solicitors who are tasked to draft what seems like a routine document, the lesson is clear. Always review your work when working off a precedent. In particular check every important term, date and party to ensure it has been updated to reflect the current matter. The case is also a reminder to senior solicitors. Do not assume that the document produced by juniors is fine simply because the precedent they worked from was perfect before. The document ought to be settled as usual. The excuse that the error was an unfortunate oversight by the junior is unlikely to go down well with both the client and the Court.

Prudence Juris Dear Aunt Prudence, I thought the mask-wearing was just virtue-signalling, but since the mandate went about half the office has caught COVID. I’m still turning out negative RATs but feel like it’s only a matter of time. What do I do now? - It’s Coming For Me

Dear Aunt Prudence, I’m a grad who has just been told I’m going to have to do Golden Gavel. I don’t really know what that is, but they’ve told me it’ll end my career. Help? - Over Before It Began Dear Over Before It Began, Do not worry so. Golden Gavel is a gentle and kind experience. It is the comedic equivalent of relaxing in one of those salt float tanks we hear so much about in our firms’ wellness programmes. It has been years since a graduate wrote off their legal career with an ill-considered joke at the Chief Justice’s expense. There is really no risk of it happening to you.

Dear It’s Coming For Me, It did seem for a moment there that, two years after this all began, the spicy cough may just be behind us. But the answer, as the proverbial computer might have said, was ‘no’. Now, like an overinflated balloon covering the triple 20 on a World Darts Championship board*, you’re feeling decidedly under threat.

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.

So when the junior lawyers try to bully you into speaking, sign up. 10 speakers are a lot to source from the profession. It will really help the YLC out. So go on.

So ask yourself — is putting in those billable hours at the office on that document review really worth the risk? Only you can decide. All your Aunt can think to raise is W. F. H. Working from hibernation. If it’s good enough for bears, it’s good enough for you.

Just do it - Aunt Prudence

Stay safe out there - Aunt Prudence *What? Your Aunt has diverse interests.

New Members

New members joining the Law Society (May 2022 & June 2022) Ms Vanessa Johnston Clifford Chance (Sydney) Miss Megan Lee Allens Miss Vanshika Maheshwari Curtin University - School of Business Law & Tax Ms Sydney Melville Jackson McDonald Mr Duane Nunn Murdoch University - School of Law Mr Nicholas Ruhbach Allens Ms Nishtha Vashisth University of Notre Dame Australia Dr Rebecca Wilson State Administrative Tribunal

Associate Membership Mr Kyle Abella Murdoch University - School of Law Mr Meski Ashagrie Murdoch University - School of Law Mr Cohen Augustson UWA - Law Faculty Miss Mikayla Bachiller-Duga Murdoch University - School of Law Mr Scott Ballantyne Lane Buck & Higgins Miss Cassandra Baxter University of Southern Queensland Mr Lennard Bremer Allens Miss Aliyah Butler UWA - Law Faculty Mr Alexander Carter Allens Ms Karina Davies Murdoch University - School of Law Miss Shaneli Dias Abeyagunawardene Mr Nicholas Eloff Allens Ms Rebekah Ervin Edith Cowan University - Business & Law Mrs Angela Fisher Gilchrist Connell Ms Sarah Ihab Murdoch University - School of Law Mr Manuel Ilchuk Murdoch University - School of Law

Ordinary Membership

Allens

Mr Mark Jeffreys Pilbara Community Legal Service Ms Sally Scott Hamilton Locke Pty Ltd Mr Romesh Weeramantry Clifford Chance

Restricted Practitioner Mr Angus Edwards Birman & Ride Mrs Catherine Osment DS Family Law Mr Caleb Simmons Lawfield Legal Practice Ms Ella Williams Jackson McDonald

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Negligence Causation

In Kozarov v Victoria [2022] HCA 12 (13 April 2022) the High Court was required to determine whether the failure by the respondent (Victoria) to provide the appellant (Kozarov) with a safe system of work caused the exacerbation and prolongation of her post traumatic stress disorder (PTSD) and subsequent development of a major depressive disorder (MDD). Shortly after being admitted to practice law, Kozarov was employed, in 2009, by the Victorian Office of Public Prosecutions (OPP) in the Specialist Sexual Offences Unit (SSOU). The SSOU was set up to prosecute all serious indictable sexual offences. Kozarov’s work in the SSOU routinely involved interaction with survivors of trauma and exposure to traumatic material. This included instructing in sexual assault trials, meeting with alleged victims of sexual assault, viewing explicit child pornography and preparing child complainants for cross-examination. In 2012 Kozarov was diagnosed with PTSD resulting from vicarious trauma suffered during the course of her employment. Later Kozarov was diagnosed with MDD which was found to be a corollary of her PTSD. Kozarov commenced proceedings in the Supreme Court of Victoria against Victoria for damages. The trial judge (Jane Dixon J) found in favour of Kozarov. Her Honour found that Victoria had been put on notice of a risk to Kozarov’s mental health by the end of August 2011 (Notice Finding). And Her Honour found that Kozarov would have accepted an offer of rotation out of the SSOU, to work in another section of the OPP, at the end of August 2011 – thereby avoiding the exacerbation of her PTSD (Rotation Finding). Victoria successfully appealed to the Victorian Court of Appeal. The Court of Appeal (Beach and Kaye JJA and Macaulay AJA) unanimously upheld the Notice Finding but rejected the Rotation Finding. Their Honours held that Kozarov had failed to prove, on a balance of probabilities, that she would have accepted an offer of a rotation out of the SSOU at the end of August 2011. Their Honours noted that, among other things, Kozarov had signed a contract for a permanent position in the SSOU and had also applied for a promotion in the unit. Kozarov appealed and the High Court

58 | BRIEF JUNE 2022

unanimously allowed Kozarov’s appeal. The High Court also unanimously denied Victoria’s notice of contention that it had not been put on notice of Kozarov’s psychiatric injury at the end of August 2011. On the issue of notice, the High Court observed that there were several clear signs that Kozarov was failing to cope with her allocated work and that her mental health was at risk. This included, on one occasion, sending “histrionic” emails to her supervisor. On the issue of rotation out of the SSOU, the High Court held that the Court of Appeal erred in rejecting the trial judge’s finding that Kozarov would have accepted an offer of a rotation. The High Court, in reaching this conclusion, had regard to Kozarov’s cooperative conduct in February 2012 (working in different areas of the OPP) and to expert evidence from a psychiatrist that a “significant majority” of people assessed by him and receiving appropriate advice would accept that advice. The High Court also held that the Court of Appeal had failed to advert to the inherent likelihood that a reasonable person advised of the risks of serious psychiatric injury might be expected to accept advice to avoid those risks.

Constitutional law

Judicial power of the Commonwealth In the High Court decision of Hobart International Airport Pty Ltd v Clarence City Council and Australia Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council Pty Ltd [2022] HCA 5 (9 March 2022) the issue the High Court was required to determine was whether the dispute sought to be agitated by the respondents (Councils) involved a “matter” for the purposes of Chapter III of the Constitution. The appellants (Lessees) entered into long-term leases with the Commonwealth (Leases) for the Hobart Airport and the Launceston Airport (Airport Sites). The Airport Sites are both on Commonwealth land and in areas administered by the Councils. The Commonwealth granted the Leases pursuant to s22 of the Airports (Transitional) Act 1996 (Cth) (Transitional Act). The Leases contain materially similar terms; including cl 26 which forms the basis of the dispute between the parties. The insertion of cl 26 into the Leases is consistent with the principle of “competitive neutrality” embodied in the Competition Principles Agreement between the Commonwealth and the States and Territories. Clause 26 provides that if rates are not payable to the local council, because

the Airport Site is on Commonwealth land, then the Lessees must use “all reasonable endeavours” to enter into an agreement with the Council to pay an amount equivalent to the amount which would have been payable as rates on those parts of the Airport Sites which are either sub-leased to tenants or on which “trading or financial operations are undertaken”. In 2014, the Valuer-General of Tasmania undertook a re-valuation of the Airport Sites. The outcome was a significant increase in the amount payable by the Lessees to the Councils under cl 26. Subsequently, the Commonwealth engaged an independent valuer to value the Airport Sites. In 2016 the independent valuer provided a valuation report which was later revised in 2017 (Revised Valuation). The Commonwealth told the Lessees that it would consider the Lessees compliant with their obligations under cl 26 if the Lessees paid the Councils on the basis of the Revised Valuation. The Councils then commenced proceedings in the Federal Court of Australia against both the Commonwealth and the Lessees seeking, among other things, declaratory relief, pursuant to s21 of the Federal Court of Australia Act 1976 (Cth), as to the proper construction of cl 26. The primary judge dismissed th Councils’ applications on the basis that the Councils lacked standing to obtain the declaratory relief sought. The Councils successfully appealed to the Full Court of the Federal Court (Jagot, Kerr and Anderson JJ). By grant of special leave the Lessees appealed to the High Court. The High Court (Edelman and Steward JJ dissenting) dismissed the appeals. Kiefel CJ, Keane and Gordon JJ observed, at [26], that a “matter” has two elements: the subject matter itself (as defined by reference to the heads of jurisdiction set out in Chapter III of the Constitution) and the nature of the dispute sufficient to give rise to a justiciable controversy. Kiefel CJ et al found that the Councils’ dispute satisfied both elements. Kiefel CJ et al considered, at [27], that the first element was satisfied because the Leases owe their existence to a Commonwealth law (the Transitional Act). In determining the second element (the existence of a justiciable controversy), Kiefel CJ et al considered, at [30], that the answer turned on whether the Councils had standing to have the dispute determined and obtain the declarations sought. Referring to the decision of the Full Court of the Federal Court in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR

406 (Aussie Airlines), Kiefel CJ et al held that the Councils’ did have standing to obtain declaration in respect of the proper contruction of cl 26, even though the Councils were not a party to the Leases, because the Councils had a “sufficient” and “real” interest in seeking declaratory relief. Gageler and Gleeson JJ also found both elements of a “matter” to be present. And their Honours, at [74] citing Aussie Airlines, found that that the Councils had an interest in declaratory relief that was “distinctive”, “substantial”, and aligned to the public interest sought to be advanced by cl 26. In dissent, Edelman and Steward JJ agreed with the principles enuniciated by Kiefel CJ et al but, in applying those principles, concluded that there were no exceptional circumstances giving the Council standing to seek declaratory relief.

Contract

Constuction of contract In H Lundbeck A/S & Anor v Sandoz Pty Ltd and CNS Pharma Pty Ltd v Sandoz Pty Ltd [2022] HCA 4 (9 March 2022) the High Court considered two appeals arising out of long-running litigation between the parties in respect of a standard patent of a pharmaceutical substance known as escitalopram (Patent). The appeals heard by the High Court raised many complex issues, but the resolution of all of these issues ultimately rested on one key issue: the construction of a clause in an agreement, executed in 2007 (Settlement Agreement), purporting to give the respondent on both appeals (Sandoz) an irrevocable, nonexclusive licence to exploit the Patent. H Lundbeck A/S (Lundbeck Denmark) is the owner of the Patent. Lundbeck Australia Pty Ltd (Lundbeck Australia) is the Australian subsidary of Lundbeck Denmark and holds the exclusive licence for the Patent. CNS Pharma Pty Ltd (Pharma) is a subsidary of Lundbeck Australia and sells a generic version of a drug, containing escitalopram, which it purchases from Lundbeck Denmark. Lundbeck Denmark and Lundbeck Australia (Lundbeck Entities) agreed to give Sandoz a licence for the Patent if Sandoz discontinued legal proceedings against them for the revocation of the Patent. Clause 3 of the Settlement Agreement provided for Sandoz’s licence to commence two weeks prior to the expiry of the Patent on 13 June 2009 (the Patent being dated 13 June 1989 and having the standard term of 20 years). Unexpectedly, Lundbeck Denmark was granted, on 25 June 2014, an extension of

the term of the Patent to 9 December 2012. During the extended term of the Patent, from 15 June 2009 to 9 December 2012, Sandoz sold generic escitalopram products. The day after the extended term was granted, the Lundbeck Entities commenced proceedings against Sandoz in the Federal Court seeking, among other things, damages and pre-judgment interest on the basis that Sandoz infringed the Patent by selling escitalopram products during the extended term. Pharma also commenced proceedings against Sandoz in the Federal Court seeking, among other things, damages and pre-judgment interest on the basis that Sandoz engaged in misleading or deceptive conduct, within the meaning of s52 of the Trade Practices Act 1974 and s18 of the Australian Consumer Law, by failing to warn customers that its escitalopram product might infringe the Patent if and when the term of the Patent was extended. The primary judge found against Sandoz in both proceedings. Sandoz appealed the decisions and the Full Court of the Federal Court allowed both appeals. The Full Court held that the Settlement Agreement gave Sandoz a non-exclusive licence to the Patent from 31 May 2009 to 9 December 2012. The holding of the licence meant that Sandoz did not infringe the Patent and, accordingly, could not have engaged in misleading or deceptive conduct. The Lundbeck Entities appealed to the High Court (Lundbeck Appeal) as did Pharma (Pharma Appeal). The High Court unanimously allowed the Lundbeck Appeal and dismissed the Pharma Appeal. Kiefel CJ, Gageler, Steward and Gleeson JJ gave a joint judgment and Edelman J gave a judgment on his own. In the Lundbeck Appeal, Kiefel CJ et al observed, at [40], that s79 of the Patents Act 1990 (Cth) (Patents Act) had the effect of filling the “temporal gap” between the expiration of the original term of the Patent and the date on which the term of the Patent was extended. Turning to the construction of the Settlement Agreement, their Honours noted, at [51], that parties to a written contract in respect of statutory rights “can ordinarily be taken to use statutory language according to its statutory meaning”. Accordingly, the terms “Patent” and “expire”, used in the Settlement Agreement, took their content from the Patents Act. Their Honours concluded, at [56], that, by giving effect to the statutory meaning of these terms and being attentive to the “internal logic” of cl

3, the “overall effect” was to grant Sandoz a licence two weeks before the expiry of the original term of the Patent with the licence then coming to an end on the expiry of that original term. Their Honours inferred, at [57], that the “commercial result” which the parties intended to produce by cl 3 was to give Sandoz a commercial advantage over its competitors by giving Sandoz a two week head start on manufacturing, importing, marketing and offering to sell escitalopram products before the expiry of the original term of the Patent. Consequently, Sandoz did hold a licence during the extended term of the Patent and infringed the Patent when it sold escitalopram products during the extended term. Having made this finding, their Honours then determined, at [61], that only Lundbeck Denmark (the holder of the Patent), and not Lundbeck Australia, had rights to bring proceedings against Sandoz for infringing the Patent. And, at [68], their Honours held that Lundbeck Denmark’s cause of action against Sandoz only accrued on the date that the extended term was granted and so Lundbeck Denmark could only obtain pre-judgment interest on damages, under s51A(1)(a) of the Federal Court of Australia Act 1976 (Cth), from that date. In the Pharma Appeal, their Honours observed, at [69], that the resolution of the appeal required highlighting only two principles relevant to the determination of whether conduct is misleading or deceptive. The first principle being (where the conduct is not directed to an identified individual) the need “to isolate by some criterion” a representative member of the target audience for the conduct. And the second principle being (where the impugned conduct is said to be the nondisclosure of a circumstance) to establish that the representative member of the target audience would “hold a reasonable expectation that the circumstance would be disclosed if the circumstance exists”. Their Honours, at [73], considered that it was “not self-evident” that pharmacists purchasing Sandoz’s escitalopram products would have held an expectation of being informed by Sandoz of the possibility that they might be exposed to proceedings for infringment of the Patent.

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

FEDERAL COURT JUDGMENTS By Shanta Martin and Dan Star QC

Evidence – legal professional privilege at common law – waiver Whether forensic report attracts legal professional privilege – whether privilege is waived over whole or part of report – whether Court has power to examine document to determine issue of partial waiver In TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208 (11 March 2022) the Court upheld a claim by the Applicant (TerraCom) that legal professional privilege attached to a forensic investigation report (PwC report) that had been produced to be given to TerraCom’s solicitors so that they could provide legal advice to TerraCom. TerraCom sought a declaration that it was not obliged to produce the PwC report to ASIC and that ASIC was not entitled to inspect it. Stewart J considered whether TerraCom had waived privilege in part or in full by several disclosures. Some of the disclosures were to a communications advisory firm, Teneo, that TerraCom had appointed and which produced draft media statements that were not released. The PwC report had not been provided to Teneo. The Court found that Teneo was bound by confidentiality and the disclosures to it did not result in waiver of privilege in the PwC report. The other disclosures were by way of ASX announcements and an open letter to shareholders. One of the ASX announcements referred to but did not say what the outcome of the PwC report was, apart from stating that TerraCom believed that the allegations against it were totally unfounded. The Court found that this was a statement of belief, which did not disclose the substance or effect of the advice and therefore did not amount to a waiver. However, both the letter to shareholders and subsequent ASX announcements referred to allegations against TerraCom’s CEO and CFO and stated, “an independent forensic investigation was conducted and found no evidence of wrongdoing”. The Court found that these disclosures were inconsistent with the maintenance of privilege in the report, and it would be unfair not to grant access to the report to ASIC.

60 | BRIEF JUNE 2022

The Court also considered whether privilege had been waived over the whole of the report, determination of which would be difficult without examining the report. ASIC opposed inspection by the Court of the report, submitting that a court should only examine a disputed document at the invitation of the party disputing the privilege. The Court formed the view that it would inspect the report, relying on broad statements of the discretion to inspect documents by the High Court in Grant v Downs [1976] HCA 63; 135 CLR 674 and the NSW Court of Appeal in Rinehart v Rinehart [2016] NSWCA 58. On inspection, the Court considered that it was not possible to fully comprehend the disclosed parts of the report without disclosure of the whole. Accordingly, the Court found that the partial disclosure by TerraCom had led to waiver of legal professional privilege in respect of the whole report.

Arbitration – freezing orders – practice and procedure International commercial arbitration – freezing orders in anticipation of enforcement of arbitral award – where enforcement sought in this Court and in foreign courts In Viterra BV v Shandong Ruyi Technology Group Co Ltd [2022] FCA 215 (11 March 2022) the Court considered whether Australian assets can be frozen in aid of enforcement processes of a foreign court and in what circumstances a wholly owned subsidiary of the judgment debtor may be restrained from disposing of, dealing with or otherwise diminishing the value of its assets. The Applicant (Viterra) is a Dutchbased company that had succeeded in an arbitration against the First Respondent, Ruyi, in a dispute arising from a contract for the sale of cotton. Viterra had received from Ruyi no money towards satisfying the award of approximately A$18.7million. Viterra commenced recognition and enforcement proceedings in China and in Singapore. It anticipated judgment in Singapore, following which it intended to execute the judgment against Ruyi’s shares in its wholly owned subsidiary, CSST Singapore. CSST Singapore’s assets

included 80 per cent of the shares in two Australian incorporated entities, the Third and Fourth Respondents. Viterra submitted that once it obtained the shares in CSST Singapore, it would realise that company’s assets and obtain payment. Viterra had been granted ex parte interlocutory freezing orders against CSST Singapore preventing it from dealing with, dissipating or diminishing the value of its assets without notice to Viterra. CSST Singapore sought discharge of the freezing orders, arguing that the case does not come within the meaning of r7.35(5)(b) of the Rules, which allows the Court to make freezing orders against a third party. CSST Singapore submitted that the rule does not apply because there is no process in the Court under which CSST Singapore may be obliged to disgorge assets or contribute towards satisfying any judgment against Viterra. The Court summarised the applicable cases in Australia, of which Stewart J noted there are remarkably few dealing with freezing orders against third parties that are the wholly-owned subsidiary of the debtor, as well as relevant foreign judgments. The Court held that the freezing orders should be discharged, finding that Viterra was outside the ambit of rr7.32 and 7.35(5)(b). Those rules refer respectively to the protection of “the Court’s powers” and the availability of “a process in the Court”. It was held (at [109]) that those are references to the Federal Court of Australia, as opposed to “another court” whether inside or outside Australia. As the freezing order was not sought in aid of a judgment of the Federal Court, the Court should not make such an order. The position was to be distinguished from cases in which a foreign judgment was to be recognised and form the basis of a judgment in Australia. Further, the proposed process of obtaining shares in CSST Singapore and realising its assets was not a process of enforcing or executing judgment of either the Federal Court or the High Court of Singapore. It was a process available to Viterra as a shareholder, not a process that Stewart J considered should be protected by the power to make freezing orders.

Negligence – duty of care – climate change litigation Representative proceeding on behalf of Australian children under 18 against the Minister for the Environment – threat of global warming and climate change to the world and mankind – novel duty of care In Minister for the Environment v Sharma [2022] FCAFC 35 (15 March 2022) the Minister appealed a decision in which it was held that she owed a duty to take reasonable care in the execution of her duties, powers and functions under ss130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), to avoid causing personal injury or death to children resident in Australia arising from carbon dioxide emissions. The Minister also appealed the primary judge’s finding that human safety was an implied mandatory consideration under the EPBC Act. The threat of climate change and global warming was not in dispute between the parties. The Full Court allowed the appeal, rejected the primary judge’s finding that there was an implied mandatory statutory consideration under the EPBC Act, and rejected the imposition of a duty of care. Each member of the bench provided different reasons for finding no duty of care, though all remarked on the difficulty of assessing the case in circumstances where the cause of action was incomplete because damage had not yet occurred. Allsop CJ considered that the duty should be rejected for three reasons: (i) the posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination; (ii) the posited duty is inconsistent and incoherent with the EPBC Act; and (iii) considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach make the relationship inappropriate for the imposition of the duty. His Honour

considered that the proper approach to determine whether a duty of care exists is to begin with the relationship between the parties and consider context, coherence and what is necessarily thrown up at the point of breach, rather than analysing each salient feature on the hypothesis that the government defendant will be amenable to potential liability (at [209]-[212]). Beach J rejected the imposition of a duty of care based on: (i) insufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm – whether temporal, geographic, causal or otherwise; and (ii) the indeterminacy of liability, particularly due to the lack of ascertainability of the relevant class. His Honour expressed no difficulty with the salient features approach to determining whether a duty of care is owed, so long as it is appreciated that it is only a conceptual tool, but considered it should not distract from consideration of broader questions such as whether there is sufficient closeness and directness (at [362]). His Honour accepted there was reasonable foreseeability of harm in the context of duty, and considered the evidence had made out that it was possible to foresee that a particular action may combine with other circumstances to cause harm (at [423]-[428]). It was rejected that incoherency was a strong feature against recognising a duty of care (at [609]), and the case was not in the realm of “core” policy, which label his Honour found unhelpful (at [615]). He concluded that “policy is no answer to denying the duty unless the Act itself makes such policy questions so fundamental to the exercise of statutory power that such a conclusion is compelling” (at [633]), which was not the case here. Wheelahan J’s decision was that no duty of care arose because: (i) the EPBC Act does not create a relationship between the Minister and the children that supports the recognition of a duty of care; (ii) the standard of care cannot be feasibly established, which would lead to incoherence between the duty and discharge of the Minister’s statutory functions; and (iii) it was not reasonably foreseeable that the approval of the coal mine extension would be a cause of personal injury to the children.

Administrative law Judicial review of decision refusing parole – whether legally unreasonable – whether breach of procedural fairness In Khawaja v Attorney-General (Cth) [2022] FCA 334 (4 April 2022) the Court heard an application for judicial review of a decision of the Commonwealth AttorneyGeneral (Attorney-General) under s19AL(1) of the Crimes Act 1914 (Cth) to refuse to release the applicant from prison on parole. There is no entitlement to parole and the power to release a prisoner after the expiry of the non-parole period is a matter for the executive (at [11]). For federal offenders, the power to release a prisoner on parole is conferred on the Attorney-General and addressed by Division 5 of Part IB of the Crimes Act (see [12]-[18] and [24]-[26]). A decision to refuse parole is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s39B of the Judiciary Act 1903 (Cth). The applicant committed serious offences in 2017 and 2018. They included dishonestly influencing a Commonwealth public official, attempting to pervert the course of justice, a forgery related offence and intending to influence a witness (at [32]-[33]). The offending occurred following the cessation of a romantic relationship. The applicant made false statements to a Border Watch hotline that his former partner’s new friend was an Islamic extremist. Subsequently, concerned about another person who the applicant believed was in contact with another woman who did not want to continue dating the applicant, he created false entries in a notebook to make it appear as if the person was preparing for or engaging in a terrorist attack. The applicant pretended to find the notebook and handed it in at his work. The applicant attempted to assist the police in various ways about this incident. Finally, once the applicant was arrested and charged, in breach of his bail conditions he gave a letter to the brother of the woman who ceased the relationship with him asking that she not give evidence against him. The applicant was sentenced to imprisonment for four years and six

FEDERAL COURT JUDGMENTS Employment Lawyer and Senior Associate MDC Legal is a specialist employment law firm, consistently ranked as a First Tier Employment Law Firm in Doyle’s Guide. We seek a lawyer and senior associate. Applicants will be at least 2-4 years postadmission, have employment law experience in various employment and industrial jurisdictions, and have strong drafting and communication skills. Advise and act in all State and Federal employment, discrimination and industrial jurisdictions, common law and restraint of trade matters. Work with a diverse client base across large and small employers from a range of industries, public and private sectors, local governments, regulatory authorities, senior executives and employees. Carry out workplace investigations, advise on disciplinary and performance management matters, draft contracts, policies and procedures, and advise on mergers and acquisitions, restructures and redundancies. Attractive salary and benefits; including one additional week of special leave. Reasonable budgets/targets, work hours and flexible work arrangements. Opportunities for leadership roles. Supportive and well-resourced work environment with great team culture.

Applications Please provide a cover letter highlighting your relevant experience, a resume and your referees to careers@mdclegal.com.au for consideration.

62 | BRIEF JUNE 2022

months. The sentencing judge concluded that at the time of his offending, the applicant was suffering from a serious mental illness which had been undiagnosed and untreated, which provided a cogent explanation for his offending (at [47]-[53]). This led the sentencing judge to impose a shorter than typical non-parole period of two years and six months in the interest of the offender and in the public interest. The community’s interests would be promoted on the basis that parole conditions could be imposed so that the applicant could be appropriately reintegrated into the community while receiving appropriate treatment in a way which minimised risks to the community. This would not be achieved if the applicant served a full term and was thereafter simply released. The Attorney-General was required by s19AL(1) of the Crimes Act to make a decision to grant or refuse parole before the end of the non-parole period on 26 June 2021. A decision to refuse parole was made and, in the course of a judicial review challenge, the Attorney-General consented to that decision being set aside. The Attorney-General was required to remake the decision. Relevant state and Commonwealth departments recommended that parole be granted but noted it was open to the AttorneyGeneral not to do so. The AttorneyGeneral’s second decision was again to refuse parole. The applicant challenged this second decision. The Attorney-General’s reasons for refusing parole did not mention the applicant’s mental illness, despite that being the central focus of his submissions (at [85]-[86] and [114]). Thawley J reasoned that if the Attorney-General proceeded to make a decision without considering his mental illness including in relation to each of the three purposes for which the power to grant or refuse parole was conferred, the implied condition to exercise the power in s19AL(1) reasonably (in the sense of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) would likely be breached and the applicant would not have been afforded procedural fairness (at [93]). The Court did not infer that the AttorneyGeneral read all of the material which was placed before her (at [96]). At [101]: “The use of a generalised statement that everything a person has submitted has been taken into account does not shield from scrutiny the question whether the decision-maker in fact took the submissions into account”. Ultimately

the Court held that the Attorney-General did not consider the applicant’s mental illness in deciding whether to grant or refuse parole, including in connection with each of the purposes in s19AKA, and that, in the particular circumstances of this case, it was legally unreasonably and a breach of procedural fairness not to do so (at [107]-[120]).

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

Children – Order for vaccination of child against Covid-19 – Evidence of public health researcher preferred In Palange & Kalhoun [2022] FedCFamC2F 149 (16 February 2022) Judge B Smith heard an application for a 10 year old child to be vaccinated against Covid-19. The Court directed each parent to file any expert evidence that they sought to rely upon. The mother filed an affidavit of “Dr E”, a public health researcher in the area of vaccination, who had a PhD in public health amongst other qualifications. There was no other expert evidence. The mother also sought to rely upon publications by the World Health Organisation and the Center for Disease Control Prevention. The Court said (from [68]): “ … [E]ach party has given evidence of what various bodies have said, and what is contained in the pamphlets provided, to seek to prove the truth of those statements. ( … ) [81] Dr E … has a PhD on the topic on which she has given her opinion. She currently works in the field in which she has given her opinion and her role is to study the area on which she gave an opinion. There was no challenge to Dr E’s expertise. ( … ) [83] … I am satisfied that Dr E’s opinion evidence sufficiently satisfies the criteria for admissibility pursuant to s.79 Evidence Act ( … ) [109] … I do not consider it appropriate to give any weight to either of [the parties’] opinions on the medical and public health issues associated with COVID-19 infection or vaccination. ( … ) [111] … I also give no weight to the pamphlets tendered by the mother. [112] … I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert. (…) [154] My role is to consider and weigh the relative risks … taking into account the evidence before me, and … to make a decision as to what course of action I believe is in his best interests. …

[155] … I am satisfied that it is in the child’s best interests to be vaccinated against COVID-19 … ”

Property – Court erred by not providing reasons when rejecting a valuation that was not from a single expert In Cantoni [2022] FedCFamC1A 11 (7 February 2022) the Full Court (McClelland DCJ, Williams & Wilson JJ) allowed an appeal from a decision of Foster J, reviewing an interim order for the sale of a property made by a Senior Registrar. The property had been subject of construction that had stalled. The husband sought interim orders for the immediate sale of the property. The wife sought the appointment of a single expert as to value and orders for a builder to complete the construction, and for the property to be sold upon completion. After the Senior Registrar ordered an immediate sale; the matter came to the Court for review, where Foster J refused the wife’s solicitor’s oral application for leave to rely upon adversarial evidence as to value, the only reason given being “she’s not a single expert” ([18]). The Full Court said (from [22]): “The obligation to give reasons varies with the circumstances of the case (Police Federation of Australia and Another v Nixon and Another [2011] FCAFC 161 … at [67]). ... While there is generally no need to give detailed reasons when exercising a procedural discretion such as, whether in the context of this case the affidavit of [the adversarial expert] … should have been admitted into evidence, the reasons provided must nonetheless disclose the process of reasoning … [23] The primary judge in this matter was placed in an invidious position as a result of the appellant not having complied with the requirements of the then applicable Family Law Rules 2004 (Cth) (‘the Rules’). First, the appellant did not file a formal application seeking leave to rely on an adversarial report. Second, the appellant failed to support such an application with an affidavit addressing the requirements of the Rules as required of a party seeking to rely upon an adversarial

report. … ( … ) [27] … [T]he primary judge did not, in giving reasons for rejection of the report … refer to those matters. Instead, the reason provided by the primary judge for rejecting the report … was solely that she was not ‘a single expert.’ ( … ) [29] The failure of a trial judge to provide adequate reasons makes it impossible for the party aggrieved by the ruling and for an appellate court to determine whether the ruling was based on an error of law and, in those circumstances, the failure to give reasons will itself constitute an error of law … ( … )”

Children – Serious contempt warrants 6 month imprisonment – Liberty to purge contempt by disclosing whereabouts of child In The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22 (25 January 2022) Gill J sentenced a mother for contempt, where she failed to provide information about the whereabouts of her son, after she handed him to a friend. In breach of a recovery order, the mother said that she could not locate him. Gill J said (from [8]): “In sentencing [the mother] I accept that to find facts … that are adverse to her I must find facts beyond reasonable doubt. I accept further that where there are matters that are … positive for [her] then they need only be found on the balance of probabilities … She has demonstrated that she suffers from some cognitive difficulties … [S]he is vulnerable to being used by others … [I]t has not been shown that the offending conduct is connected to … that vulnerability … [9] … [T]here are a number of … matters that I am to take into account, which include … personal characteristics … remorse, the seriousness of the contempt, whether she has purged the contempt, the effects of the contempt, issues involving retribution, personal deterrence and general deterrence … [O]f particular importance is the enforcement of orders, punishment, … deterrence and the vindication of the Court’s authority …

FAMILY LAW CASE NOTES (…) [15] … [T]he seriousness of the contempt calls for a custodial disposition … I consider that [the mother] ought to be given the option to purge her contempt and if she provides … the information that she has about X’s whereabouts then she may be released … It is not adequate to suspend the term … Suspension is typically … on terms that a person enter into security or an agreement … to be of good behaviour. Where [the mother] has not disclosed the information that she holds about X … she is not of good behaviour … (…) [17] The circumstances of this case and the purposes of sentencing for contempt will be sufficiently met by a term of six months, on terms that permit [the mother] to relist the matter … to disclose the information about X’s whereabouts …”

Property – Treatment of initial contributions in four year relationship – Specific and generalised allegations of family violence had a significant adverse effect upon contributions In Ferman & Lapham [2022] FedCFamC2F 415 (5 April 2022) Judge Kearney considered property adjustment applications after a four year de facto relationship, where each party had children of previous relationships. The de facto husband’s initial contribution was $895,000 and the de facto wife’s $21,000 (including superannuation) to an asset pool of $2,814,132, with all but $10,763 of the pool owned by the de facto husband. Judge Kearney said (from [183]): “The Court must treat the de facto husband’s superior initial contributions as one of those myriad of contributions to this relationship rather than weighing the myriad of contributions during the relationship against his initial contributions … (…) [189] … [C]ircumstances which weigh against the de facto husband’s contribution [to the de facto wife’s children of a previous relationship] are the short duration of the relationship and his large absences from the … home in the first half of the de facto relationship (due to his work commitments …) … (…)

64 | BRIEF JUNE 2022

[236] There is no doubt that the de facto husband has engaged in serious family violence, including but not necessarily limited to, engaging in physical violence upon her and [her child] (for which he has been convicted), behaving in a threatening manner towards her, repeatedly making offensive, abusive and derogatory comments about her and [her child], damaging property in the presence of her and [her child] and breaching (on more than one occasion) an existing ADVO. (…) [239] I conclude that the de facto wife’s many and varied contributions … took place in a context of fear and suffering caused by the de facto husband’s conduct. A qualitative assessment of those contributions leads inevitably to a conclusion that they were rendered significantly more arduous by circumstances of the de facto husband’s making and meaning that her contributions were adversely affected by her having to bear the burden. …” After assessing contributions as 90:10 in favour of the de facto husband, the Court made a s90SF(3) adjustment of 5% in favour of the de facto wife ([272]), such that there was an 85:15 division overall.

Children – Costs – Father fails in application for indemnity costs where the mother’s mental health difficulties were central to her conduct during the litigation In Earle [2022] FedCFamC1F 16 (21 January 2022) Hannam J heard a father’s application for indemnity costs after parenting proceedings culminated in orders for the parties’ two children to live with the father, with supervised maternal time. A single expert concluded that the mother exhibited symptoms of schizophrenia ([11]). After considering s117(2)(A) factors, Hannam J said (from [47]): “It is the father’s contention … that the mother conducted the proceedings in a manner that caused him to incur significant and unnecessary expense. (…) [61] … I accept the father’s submission that the mother’s conduct … generally contributed to delay and difficulty in reaching a conclusion to the proceedings, which may well have resulted in costs being thrown away. However … this

conduct must be viewed in the context of the mother’s mental health difficulties and the impact these difficulties had on her overall functioning. … [62] The father further argues that a costs order should be made against the mother given she was wholly unsuccessful … [T] he father attaches considerable weight to the mother continuing to press for final orders … contrary to the opinions and recommendations of the court-appointed expert and the final orders ultimately made … (…) [67] … However, this must be balanced together with all of the other relevant factors including … the mother’s mental health difficulties … (…) [77] … I accepted at the final hearing that the mother’s mental health difficulties … had been evolving over time. … [78] … I accepted the opinion of the expert that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning. I also accepted that the mother’s observed disorganised and unusual behaviour had been present to some extent throughout the entirety of the proceedings. In circumstances where these features of the mother’s functioning and behaviour are central to the father’s contentions about her conduct, I do not consider it just to attach significant weight to this matter … ” The Court concluded that each party bear their own costs, with the mother to reimburse the father for her share of the expert’s costs.

To Good Financial Health

There are quick and easy steps you can take to review and possibly improve your financial position. by Andrew Proebstl Chief Executive of legalsuper

he end of a financial year is an excellent time to check in on your personal finances to see whether there are simple and easy changes you can make to better secure your future. The good news is that there are often relatively easy and quick things that can be done – irrespective of what stage you are at in your career – which can increase the likelihood of living the life you want in retirement for both yourself and your family.

Super in the early stages of your career Starting your career is a very exciting time of life. Those years of study have finally paid off and anything is possible. Understandably, at the start of your career, planning for retirement is likely to be low on the list of priorities, but there are still some initial financial steps you can take to ensure your superannuation is working for you. Check your super balance: Check that your employer is paying you the correct amount of super, and that it is being paid into the superannuation fund that you nominated. Choose the best fund: If you did not nominate a fund and have instead been allocated a default fund, look into whether this fund is the right one for you. Consolidate multiple accounts: A lot of new professionals worked multiple jobs to get through university and received superannuation as part of this work. Now is the time, through some very easy and quick steps, to take that super out of all those different accounts and roll it into the one account. By doing so, you stop paying fees on multiple accounts. Before you close an account make sure you are not losing insurance. legalsuper can assist you with consolidating your different super accounts into the one place. Make voluntary contributions: Consider making some small additional voluntary contributions to your super on top of that which your employer must pay as part of the Superannuation Guarantee. If you set up good saving habits early on, they will stand you in good stead for the rest of your life – and the more you have in your account the more you also benefit from compound interest increasing your balance.

Mid-career choices Having established yourself in the workforce, and now possibly with a partner, family, and mortgage, it is a good time to see how you can make your super work even better for you. Investment options: Most super fund members are invested in their fund’s ‘default’ investment option. Speak with your fund to determine whether it is time to make a change, including

moving from a more “balanced” or “conservative” approach to something a bit more “aggressive” or “assertive”. Most funds offer a range of investment options to suit your appetite or needs. legalsuper offers 12 investment options, plus a Direct Investment option, and you can read more about this at https:// www.legalsuper.com.au/investments/ investment-options Insurance: It is a good time to review the types and levels of insurance you have. Circumstances change over time, and the appropriate level of death, disability and/ or income protection insurance for you and your family may have changed too. Nominate a beneficiary or beneficiaries: As part of looking after your dependents, also check that you have nominated beneficiaries for your super in the event that you die and ensure that you have indicated whether this nomination is “binding” or “non-binding”. Voluntary contributions: Consider increasing your concessional pre-tax contributions and making additional non-concessional after-tax contributions to your super but remember that there are caps or limits on how much you can contribute. If you are unsure of what your retirement super account balance target should be at this stage of your career, your super fund should provide an online retirement planner calculator. If they don’t, ASIC’s Moneysmart website provides a helpful calculator, along with other useful tips.1 Once you have determined your forecast balance using the calculator, the next step is to compare it to the Association of Superannuation Funds of Australia (ASFA) Retirement Standard. The ASFA Retirement Standard benchmarks, on a quarterly basis, the annual budget needed by Australians to fund either a “comfortable” or “modest” standard of living in the post-work years. The latest quarterly figures can be found at https://www.superannuation.asn.au/ resources/retirement-standard

Super in your 50s Super in peoples’ 50s can look quite different depending on their circumstances. For some, their super, other finances and career are all going according to plan and only minor adjustments to their super may be needed. For example, it might be time to readjust your investment settings or begin (or continue) conversations with your super fund about what life might look like from a financial perspective as you approach retirement or semi-retirement. For those in their 50s who have faced unexpected challenges such as time out of the workforce or the end of a key personal or professional relationship, there is still

time to take steps to enhance your financial future. Increase your contributions: Speak with your super fund and financial adviser about ways to increase your voluntary concessional and non-concessional super contributions and any changes to the law regarding super which may be of benefit but remember that there are caps or limits on how much you can contribute Review investment options: It is also a good time to speak with your super fund to review your investment options and ensure you have appropriate types and levels of insurance for yourself and your family.

Adviser online – super advice for all ages and stages Irrespective of your career stage, the new free legalsuper “Adviser Online” financial advice tool will help you set your goals, map out the way forward and assist with immediate, short and long-term planning. Built by legalsuper and expert financial advisers, it can help you: Budget Set income and superannuation savings goals Determine how much insurance you may need to protect your income and assets, and Determine the right contribution and investment strategy to help you reach your retirement goals. To access Adviser Online, legalsuper members can simply login to their Member Access account and click on the Adviser Online tile.

legalsuper is here to help If you would like to meet with legalsuper to discuss any aspect of your super as part of a financial health check-up, our team is available for tailored and personalised 1-to-1 consultations. Contact us via mail@ legalsuper.com.au or on 1800 060 312, 8am8pm (AEST), Monday to Friday to book an appointment. Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879, AFSL 246315. This is general information and does not take into account your personal needs. You should read the legalsuper Product Disclosure Statement and Target Market Determination available at legalsuper.com.au. Past performance is not a guide to future performance.

ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on 03 9602 0101 or via aproebstl@legalsuper.com.au.

End Notes 1 See https://www.moneysmart.gov.au/ superannuation-and-retirement/is-your-super-ontarget

The Tale of the Noisy Neighers By The Hon John McKechnie QC

It may come as a surprise to younger readers that in Perth, well into the 1950’s, milk was delivered house to house by milkos who used horses for transport. The same was true in Melbourne where our tale is set. Mr Hubbard senior started a dairy in 1902 in Hampton, a suburb of Melbourne. By 1955, Mr Hubbard had long retired and handed over to his son Patrick who had big plans. In September 1950 a group of milk retailers, carriers and dairy farmers formed a public company to supply pasteurised milk in metal capped bottles, the first milk selling organisation to combine in this way. Patrick was the general manager and the Hubbards substantial shareholders. Horses had been used and stabled at the dairy since the 1920’s although not continuously. From 1952 though horses began to be kept overnight at the dairy – not in nice clean stables but in tumble down accommodation. And so, the flies multiplied. And the smell. And the noise. Finally, Mr Munro, who lived next door had enough. He approached the Sandringham municipal council, the agricultural department, even the RSPCA. All to no avail. Finally, he did what the judge said he should have done in the first place and sued for nuisance in the Supreme Court. The trial, before Justice Sholl, took 8 days. At the heart of Mr Munro’s complaint was the fact that the noise kept him awake at night. Now to many, the occasional broken night’s sleep is a price to be paid for living in a modern vibrant city. But not to the law.

66 | BRIEF JUNE 2022

Justice Sholl quoted the Master of the Rolls Sir Wilfred Greene from a case in 1937: “I certainly protest against the idea that if persons, for their own profit and convenience choose to destroy even one night’s rest of their neighbours, they are doing something which is excusable. To say that the loss of one or two nights rest is one of those trivial matters in respect of which the law will take no notice appears to me to be quite a misconception.” Perhaps Sir Wilfred occasionally suffered from insomnia. At this point in the judgment, no doubt the Defendant’s lawyers probably realised they had backed a loser. Mr Munro obtained an injunction and damages. He no doubt slept well in his bed that night, and for many nights thereafter. By 1955, the days of horse drawn milk floats were numbered. The judge gave milkos some free advice. After pointing out that delivery of milk by electric or motor vehicles may be on the way, he continued: “The general improvement in living and social standards in this country which is very estimable in itself is likely to cause a necessary acceleration in that progress which milk distributors would be wise to recognise.” Southern Dairies Ltd fell into liquidation 15 years later. If you own a horse and want to stay out of trouble with your neighbours, don’t name it ‘Mayo’. (Adapted from Munro v Southern Dairies Ltd (1955) VLR 332.

Law Council Update Law Council celebrates first Indigenous Supreme Court appointee The Law Council has warmly congratulated Mr Lincoln Crowley QC on the announcement of his appointment to the Supreme Court of Queensland, which will make him the first Aboriginal or Torres Strait Islander person appointed to a Supreme Court in Australia. Mr Crowley has had a distinguished career specialising in criminal law, inquests and inquiries, and related civil proceedings and litigation. He has served as Crown Prosecutor for the Commonwealth Director of Public Prosecutions and successfully prosecuted cases across a broad range of crime types including commercial crime and fraud, drug offences, money laundering, child pornography and environmental offences. He was appointed as Queen’s Counsel in 2018. “Mr Crowley has demonstrated professional excellence and is highly deserving of this appointment,” said Law Council of Australia President Mr Tass Liveris. “On behalf of the Australian legal profession I congratulate him on this significant personal and professional achievement – an achievement that also makes history. “It is fortuitous timing indeed that this announcement occurs at the start of National Reconciliation Week, which celebrates the achievements of Aboriginal and Torres Strait Islander peoples. This is a move in the right direction for the Australian justice system and our society. “Although comprehensive and up-to-date national figures are not accessible, the limited data that is available suggests the representation of First Nations peoples across the legal profession continues to sit well below population parity. First Nations peoples make up close to three per cent of

68 | BRIEF JUNE 2022

the total Australian population, but probably less than one per cent of solicitors, barristers and judicial officers. “The Law Council has long stated its commitment to ensuring a diverse and inclusive profession. We note that studies show diversity and equality in representation positively influence factors such as performance, quality, innovation, risk reduction, and client satisfaction. “While clearly there is much work still to be done, today’s announcement marks a significant milestone. “Mr Crowley joins a distinguished group of First Nations judges and magistrates who make a significant difference to the Australian community, legal profession and justice system.”

47th Parliament must move swiftly toward referendum on Voice to Parliament Five years since the Uluru Statement from the Heart, the Law Council of Australia is urging members of the 47th Parliament to come together and swiftly progress a successful referendum on a First Nations Voice to Parliament. The Law Council has long supported enshrining the Voice in the Constitution in order to ensure a First Nations representative body that is permanent and respected, through which meaningful dialogue can be conducted with Parliament. “It was heartening to hear Prime Ministerelect Anthony Albanese give prominence to the Uluru Statement from the Heart in his victory speech at the weekend. We now need his government and the Parliament to deliver,” said Law Council of Australia President Mr Tass Liveris. “It has now been five years since the Uluru Statement – already far too long to wait for

action. There is no reason for delay now. We need a referendum as soon as possible so that First Nations peoples – who have shown considerable strength, resilience, and patience – can have certainty that the Voice will be implemented and enduring. “The Law Council notes the new Government’s commitment to progress a referendum on the Voice as a matter of priority in its first term. However, we also urge all members of the 47th Parliament to come together and smooth the path to a successful referendum on this issue through bipartisan support. “The Law Council will stand side by side with First Nations peoples to advocate for these changes to our Constitution when a referendum is held.” Mr Liveris noted that any remaining concerns the Voice would be a ‘Third Chamber’ were misplaced. “A Voice to Parliament, enshrined in the constitution, would not be a Third Chamber of Parliament,” Mr Liveris said. “It would provide First Nations peoples the opportunity to inform the Parliament on the laws and issues that affect them and their communities, their rights and aspirations. This is the basic entitlement of all people to have control over their destiny and to be treated respectfully. “A large part of the reason Aboriginal and Torres Strait Islander affairs have historically faltered is because elected leaders have not listened to Aboriginal and Torres Strait Islander people. A First Nations Voice to Parliament, as a manifestation of the right to selfdetermination that all people should possess and enjoy, would be a significant step toward rectifying this problem.”

Professional Announcements

Classifieds Missing Will

O’Sullivan Davies O’Sullivan Davies Family Lawyers is pleased to announce the appointment of Bethany Moller as a Senior Associate of the firm.

Would any person or firm holding or knowing the whereabouts of a Will or any other testamentary documents of Allan Hourihane, late of 510 Marmion Street, Booragoon, Western Australia (D.O.B 18/09/1949) please contact Irdi Legal of 248 Oxford Street, Leederville, Western Australia by phone (08) 9443 2544 or email craig.james@irdi.com.au

Bethany was admitted to practice in 2015 and worked in commercial law before deciding to work exclusively in family law in 2017. Bethany’s commercial background, combined with her passion for family law has seen her previously recognised as a “Rising Star - Family Law” in Doyle’s Guide.

Bethany Moller

Bethany is also the current Secretary of Family Law Practitioners’ Association of Western Australia - FLPA(WA). We extend our congratulations to Bethany on her promotion.

Clayton Utz Clayton Utz has welcomed leading environment and planning lawyer (and CU alumna) Lucy Shea as a partner in our national Environment and Planning practice. Lucy will be based in our Perth office.

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late DIVA ANNA D’ORSOGNA of Mercy Place, Mont Clare, 9 Dean Street, Claremont, Western Australia who died on 23 April 2022, please contact Williams & Hughes Lawyers (ref: CO:38913) of 25 Richardson Street, West Perth, Western Australia. Tel: 08 9481 2040 or email: chris.osborn@whlaw.com.au within 21 days of the publication of this advertisement.

Lucy advises clients in a range of sectors – including energy and resources, property, infrastructure, food, industrial, agribusiness, and government – on all aspects of compliance with environment and planning laws, as well as on climate change and sustainability related matters.

Lucy Shea

Lucy began her legal career in 2006 as an associate to the Hon. Justices Carmel McLure AC, QC and Christine Wheeler AO, QC (former president and inaugural judge of the Court of Appeal of the Supreme Court of Western Australia respectively) before joining our firm as a lawyer in 2007. Lucy went on to work at Corrs for nine years (being promoted to special counsel in that time) before joining HWL Ebsworth as a partner in 2019.

Missing Will

National Practice Group Leader for Environment and Planning at Clayton Utz, Claire Smith, said she was pleased to attract Lucy back to the firm: “Lucy has built a reputation in the market as a go-to adviser in this area of practice, which is increasingly complex and requires an understanding of the intricacies of the law combined with a practical, commercially minded approach.

Any person holding or knowing the whereabouts of the last Will and Testament of the late CLARA ELVIRA CAROZZA of 37 Samson Street, White Gum Valley WA, who died on 16 January 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: 211724.

Member

Privileges

Her clients value her experience in providing whole-of-project-cycle advice, from initial risk assessment, securing project approvals and advising on regulatory compliance, to undertaking investigations and responding to, and defending, prosecutions in respect of environmental incidents. Lucy is also experienced in handling native title and indigenous cultural heritage matters, as well as planning approvals and appeals, land remediation and compulsory acquisition compensation matters.

“Our clients, particularly our WA-based clients, will benefit from Lucy’s experience on both projects as well as ‘business as usual’ operational matters. With companies also focusing on their ESG agendas as the world transitions to a zero-carbon economy, Lucy also brings an understanding of sustainability standards and their practical application.”

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/

Bayswater Mazda Bayswater Mazda takes pride in its exclusive offer to members of the Law Society. As a valued member, you are eligible to enjoy access to a dedicated Corporate Vehicle Specialist and free 12 month roadside assistance when purchasing a vehicle. Members of the Law Society receive a 15% discount on all Swan Valley public tours. Visit the members’ only privileges page (password protected) to learn more about this special offer and to access the discount information..

Endota Spa The Perth CBD Endota spa is an oasis; a place of retreat in the middle of the hustle and bustle of the city. All Law Society members can enjoy 15% off a variety of treatments from massages, facials, beauty services and spa packages. Visit endotaspa.com.au to view the treatments available. Please visit the members’ only privileges page (password protected) to access privileges information.

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

Member Assistance Programme

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.*

Service provided by Converge International

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 Ethical Guidance Panel and Western Australian Bar Association Referral Service.

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

Referral service provided by WABA

Phone: (08) 9220 0477

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 ceases on 30 June 2022. 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.

Brief June Edition