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Volume 41 | Number 9 | October 2014

2014 SIR RONALD WILSON LECTURE ‘Justice Reinvestment What difference could it make in WA?’

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Volume 41 | Number 9 | October 2014

Take me with you.




President’s Report


YLC Practical Advocacy Weekend 2014

Konrad de Kerloy

James Graham and Emma Cavanagh




Family Law Case Notes

Rebecca J Lee


Thomas Hurley Case Notes


Executive Director’s Report

David Price


Law Council Update


Attorney General's response on Mandatory Sentencing


Pam Sawyer


Professional Announcements


2014 Sir Ronald Wilson Lecture



Dean Curtis


New Members


President’s Cocktail Function


Events Calendar


FEATURE 2014 Sir Ronald Wilson Lecture: ‘Justice Reinvestment - What difference could it make in WA?’

Tammy Solonec


Homeless Persons Week Conference

The Honourable Wayne Martin AC, Chief Justice of Western Australia


Involuntary Patients and Legal Representation

Sandra Boulter


Law Enforcement and the Homeless: Does it Really Help?

Ann-Margaret Walsh and Vidya Rajan

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. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: 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 monthly (except January) Advertising enquiries to Eleanor Jackson Business Development Executive Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Communications Officer Tanya Holzmann Graphic Designer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

EDITOR Rebecca Lee

PRESIDENT Konrad de Kerloy

EDITORIAL COMMITTEE Cheyne Beetham, Erin Blight, Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Rebecca Lee, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Moira Taylor


PROOFREADERS Michael Hardy, Leisa Mundy Brief is the official journal of THE LAW SOCIETY OF WESTERN AUSTRALIA Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: www.lawsocietywa.asn.au ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

VICE PRESIDENT Elizabeth Needham TREASURER Alain Musikanth ORDINARY MEMBERS Brendan Ashdown, Marie Botsis, Hayley Cormann, Brahma Dharmandanda SC, Nathan Ebbs, Adam Ebell, Pamela Hass, Nicholas van Hattem, Greg McIntyre SC, Denis McLeod, Clinton Russell COUNTRY MEMBER Cameron Syme JUNIOR MEMBERS Emma Cavanagh, Hayley Ellison, Rosie Hill IMMEDIATE PAST PRESIDENT Craig Slater



President's Report Konrad de Kerloy, President, The Law Society of Western Australia DELAYS IN THE CRIMINAL JURISDICTION OF THE SUPREME COURT On Thursday, 2 October 2014, I attended a meeting convened by the Chief Justice to discuss any ways in which current delays in the exercise of the criminal jurisdiction of the Supreme Court might be mitigated. The meeting was attended by representatives of other organisations and agencies with an interest in this issue, as well as various representatives of the Court. There is a developing trend of increasing delays when dealing with criminal matters in the Supreme Court. The statistics indicate that: •

unresolved cases on hand, whether measured by accused or by indictment, have increased by about 50% over the seven months between January and July of this year;

the significant increase in the number of homicide cases within the cases on hand has continued; and

the significant increase in unresolved cases on hand has occurred notwithstanding the application of unprecedented levels of judicial resources to criminal trial work.

The practical consequence of these developments is that the Supreme Court is currently listing criminal cases for trial in the middle of 2015. Neither the court nor the Society regard delays of that magnitude as acceptable. I expect members of the community would also not regard such delays as fair and/or reasonable. I agree with the observations of Peter Beattie made in an opinion piece published in The Australian on 5 January 2013 where he said: Delays in the criminal justice system go to the very heart of a fair society. In Queensland, for example, alleged offenders are waiting up to two years to have their day in court. How do the accused rebuild their lives if a jury finds them not guilty after waiting

02 | Brief October 2014

two years in detention before going to trial? What happens to their families, mortgages and personal assets in that time? The losers under the present system are the victims of crime, the family of an accused and, finally, the accused. Courts have good reason to refuse bail and remand accused people in custody. However, the underlying assumption is that the person will go to trial within a reasonable period of time. The courts can only do their work if they have the resources to do so. They are doing their best but are groaning under the weight of cases. The reality is simple; the problem cannot be fixed without more recurrent resources. … It isn't just justice delayed for the accused, it is also justice delayed for the victims of crime struggling to rebuild their lives but who cannot get closure while the matter is pending. Needless to say, the implications of delays for rape victims trying to rebuild their lives are huge. The emotional scarring can be lifelong. The Society believes that there is a strong case for additional judicial resources and jury court facilities to be made available to the Supreme Court. If such resources are not made available however, it seems inevitable that these delays will increase. I have written to the Attorney-General to voice the Society’s concerns and to urge the Western Australian Government to make additional resources available to the Supreme Court as a matter of urgency in order to deal with these delays. COMMONWEALTH GOVERNMENT’S DECISION TO ABOLISH CORPORATIONS AND MARKETS ADVISORY COMMITTEE The Society is extremely concerned with the Commonwealth Government’s announcement in the May Budget of the proposed abolition of the Corporations and Markets Advisory Committee

(CAMAC) and has written to the State Attorney-General on the matter voicing its concern. CAMAC was set up in 1989 to provide a source of independent advice to the Australian Government on issues that arise in corporations and financial markets law and practice. CAMAC members are appointed on the basis of knowledge and experience in business, financial markets, law, economics or accounting. CAMAC is assisted by a Legal Committee, whose members have expertise in corporate law. Members of CAMAC and the Legal Committee serve on a part-time basis. It is supported by three staff at an annual cost of $1 million. CAMAC has developed and advised Australian governments of all persuasions on best practice policy which has made a significant contribution to the strength and efficiency of our corporate and financial institutions. Abolishing the body would result in corporate Australia having to shoulder the far greater costs and senseless ‘red tape’ associated with poor quality regulation. The announcement appears to have been made with little, if any, prior consultation with Western Australia or the other referring states and territories. It also appears that the important role CAMAC has played in allowing representation of the business and financial communities of the states and territories, in the process of corporate law reform, is being overlooked. The Society does not believe that the functions of CAMAC would be able to be performed by the Department of Treasury, as the Commonwealth Government has proposed. The Department of Treasury, operating within its existing structure, cannot replicate many of the unique aspects of the CAMAC structure that have contributed to its past success.

THE MANDATORY SENTENCING DEBATE Readers of this column will know that earlier this year I wrote to the Premier and the Attorney-General (amongst others) voicing the Society’s strong opposition to the draconian mandatory sentencing laws, which the present Government is proposing to enact. My letter was published in the May edition of Brief. In the interests of promoting a balanced and fair debate on the topic, the Attorney-General’s response to my letter is published in full, on page 8 in this edition of Brief. Any feedback from members will be gratefully received. 2014 20TH ANNIVERSARY REVIEW OF THE 1994 CHIEF JUSTICE'S GENDER BIAS TASKFORCE REPORT On behalf of the Society, I congratulate the Women Lawyers of Western Australia on the release of the 2014 20th Anniversary Review of the 1994 Chief Justice's Gender Bias Taskforce Report, which is available to view on their website at wlwa.asn.au. The findings are clear and extremely concerning. Despite advances over time, the report found that women still face considerable inequality in key areas including: •

accessing law and justice, as well as the court environment

succeeding in the legal profession

advancing and being appointed to the judiciary

as Aboriginal women and girls

as victims of crime, particularly as victims of sexual assault and domestic violence

in obtaining protection from violence through restraining orders

under civil laws, in education, the workplace, as care providers and as law makers

under the criminal law and

as offenders under the justice system

The 2014 Review Report sets out a clear and measurable path for positive change to address current inequalities and makes 197 recommendations covering nine broad areas under the law and justice. I encourage all of our members to familiarise themselves with the findings and recommendations in this report. Eradicating inequality and achieving true gender equality will benefit

not only the legal profession but the broader Western Australian community. THE SOCIETY RESPONSE TO LAW COUNCIL OF AUSTRALIA REGARDING THE NATIONAL ATTRITION AND RE-ENGAGEMENT STUDY REPORT The Society has made a submission to the Law Council of Australia in response to the National Attrition and Re-engagement Study (NARS) Report which details the Society’s position on gender diversity in the profession and recommends the promotion and facilitation of the adoption of flexible work practices within the profession, as well as the visible monitoring of gender diversity practices. The Society supports the findings in the NARS Report in relation to rolemodelling; mentoring, sponsorship and networking; financial barriers at the Bar; discrimination, sexual harassment and bullying; and empowering women. A copy of the Society’s response to Law Council is available on our website’s news section. HERBERT SMITH FREEHILLS PRESIDENTS’ AND VICE PRESIDENTS’ LUNCH In late August, I hosted a lunch for former partners and employees of Herbert Smith Freehills (and its predecessors Parker & Parker and Freehill, Hollingdale & Page) who had been either President or Vice President of the Law Society of Western Australia. In the past 32 years, seven partners and one senior associate have served as President and two partners and one senior associate have served as Vice President. The lunch was held to honour the contribution that that firm and its people have made to the Law Society of Western Australia. It is a model of voluntary service that has served the community, the profession and the firm very well over the years. Attendees included Rory Argyle OAM, Bob Nicholson AO, John Symington, Dudley Stow, Ted Sharp, Matt Keogh and David Price, the Society’s Executive Director. Apologies included Bob Meadows QC, John Ley and Clare Thompson.

of all sizes, the Bar, regional practices, government, in-house, and young lawyers. I encourage all members to consider nominating for a position on the council. In addition to the Executive positions (President and Vice Presidents) the available positions are: For a two year term: •

Ordinary members six positions

Country member one position

For a one year term: •

Junior members three positions

The council nomination and election dates are as follows: •

Nomination forms to eligible members — Tuesday, 7 October 2014

Close of nominations — Thursday, 23 October 2014

Voting open — Tuesday, 11 November 2014

Election date — Tuesday, 25 November 2014

LAWYERS FOR A CAUSE The Lawyers for a Cause event is a fantastic commitment by Western Australia’s legal profession to raise money for the Chief Justice’s Law Week Youth Appeal. The event will be held on the morning of Saturday, 25 October 2014, so I hope your training regimes are in full flight. Individual participants and teams will have the choice to take part in a 5km walk, 10km run or a 40km cycle, followed by a networking brunch at the Royal Perth Yacht Club. From the 2012 Lawyers for a Cause event, the Chief Justice’s Youth Appeal was able to donate $15,000 to Headspace Kimberley, who coordinate two 10-week programmes, which build the life skills that promote health and wellbeing for young people in Broome. So register a team and contribute to another worthwhile cause in 2014 at lawsocietywa.asn.au.

THE LAW SOCIETY NEEDS YOU The Society’s 2015 Council nomination and election process has commenced. The Society’s Council is made up of a diverse range of practitioners, including representatives from private law firms 03


Prevention v Criminalisation and Punishment Rebecca J Lee, Barrister, Francis Burt Chambers, Editor, Brief Journal Welcome to the October issue of Brief which, as our cover article suggests, is focused on the often fraught nexus of the law and society’s underclass. In particular, our contributors explore the need to break the vicious cycle of criminality experienced by Indigenous people and the homeless, and the importance of legal representation for those who face involuntary treatment and detention due to mental illness. As Chief Justice Wayne Martin observes in these pages, an ounce of prevention is worth a pound of cure. I sincerely hope that these articles will contribute to the prevention of society’s ills, and also prompt a reevaluation of some of the ostensible cures, including two bills currently before the Western Australian Parliament. TOUGH OR SOFT ON CRIME? It’s well known that Aboriginal and Torres Strait Islander people are disproportionately over-represented in Australia’s prison population and in the justice system more generally, particularly in this state. Well known, but as Tammy Solonec asserted in the 2014 Sir Ronald Wilson Lecture reproduced in this issue, Indigenous people’s “incarceration and victimisation ... has been normalised and there is a sense of government and broader community apathy about the situation.” Ms Solonec argues that a tough-on-crime approach, including Western Australia’s proposed Criminal Law Amendment Bill 2014, will only worsen the alarming statistics of Indigenous incarceration and recidivism. She believes it is neither socially nor financially viable, and advocates a ‘smart-on-crime’ approach: justice reinvestment. She points to promising programmes that focus on prevention, early intervention, diversion and rehabilitation, including the Kimberley region’s Yirriman Project, but calls on our state government to do more – to lead the way, in fact. Some of our elected representatives do recognise the positive potential of justice reinvestment. As Ms Solonec notes, Minister for Corrective Services Joe Francis said last year that “the principles 04 | Brief October 2014

of spending money to get people on the right track to stop them breaking the law and ending in jail makes sense.” However, it seems that greater sums of money will continue to be spent on prisons, the judiciary, police and other aspects of the criminal justice system for some time yet, if the Attorney General’s recent letter to the Society’s president is any small indication. As you may recall, Konrad de Kerloy wrote to the Honourable Michael Mischin earlier this year, expressing the Society’s concerns regarding the proposed Criminal Law Amendment Bill 2014 – particularly in relation to a tough-on-crime mainstay, mandatory minimum sentences. The reply, published on pages 8 to 11 (without attachments) argues that the government is essentially legislating according to the will of the people, although whether that will has been expressed in consideration of and in balance with the benefits of justice reinvestment is not addressed. Furthermore, the Attorney General quotes from cases that state “judges need sentencing yardsticks … (and) a mandatory minimum penalty fixes one end of the relevant yardstick.” HOME ECONOMICS Our government’s apparent preference for the stick over the carrot is also evident in the way that homeless people become caught up in the justice system. As our contributors from the Street Law Centre note in their article entitled ‘Law Enforcement and the Homeless’, the very circumstance of being homeless necessitates acts that contravene laws about public urination, camping and the like; acts that are perfectly legal when carried out in private. “A common case scenario that emerges in our work”, they report, “relates to clients who enter a spiral of increasing infringements and fines” that make it all the more unlikely that these people can extricate themselves from homelessness. Our contributors advocate alternatives to criminalisation and law enforcement measures, including referral pathways, and the prioritisation of housing for the homeless.

Chief Justice Martin also addressed the subject of homelessness and the law in a recent speech reproduced on pages 26-30. Among his sobering points are the fact that the over-representation of Indigenous people in the state’s homeless population would be even higher were they not also over-represented in the prison population, and that policies of de-institutionalisation have seen those suffering from poor mental health institutionalised in prisons instead. His Honour argues that homelessness comes at a considerable cost to the justice system and the broader community, a cost that could be alleviated by prioritising measures that reduce homelessness and its causes. Like other contributors to this challenging issue of Brief, the Chief Justice argues that “simple economic rationalism suggests that we should be focusing much more effort and money on the front end, the causes of crime, than on the back end – punishing crime after it occurs.” LAST BUT NOT LEAST Finally, Sandra Boulter of the Mental Health Law Centre questions the wisdom of another proposed piece of Western Australian legislation: the Mental Health Bill 2013. She believes this Bill “diminishes the importance and desirability of legal representation at Mental Health Tribunal reviews by equating legal and lay representation, redefining representation, removing advocacy funding provisions and permitting non-lawyers to be paid for representation.” Ms Boulter argues that those subject to the tribunal’s decisions, which can impinge upon fundamental human rights, should instead have their right to and need for expert legal counsel enshrined in legislation. There are many vulnerable and disadvantaged people in our society, including the mentally ill, the homeless and members of the Indigenous community. Often, these vulnerabilities and disadvantages overlap. Is there something you can do to help?

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Executive Director's Report David Price, Executive Director, The Law Society of Western Australia MENTAL HEALTH AND WELLBEING



Following on from our topical article in last month’s issue on mental health and wellbeing, Mental Health Week this year is 5 October to 12 October. As an important focus area to the Society, we would like to highlight some events that have been organised with your health and wellbeing in mind:

Last month WA finalist, Mr Jamie Cooke from Norton Rose Fulbright, won the National Golden Gavel at the National Young Lawyers Annual Conference in Canberra. The Society would like to congratulate Jamie on his success.

Members are invited to attend the 2014 Law Society Annual General Meeting, which will be held on Tuesday, 28 October. This year’s AGM will be held at Herbert Smith Freehills, Level 36, QV1 Building, 250 St Georges Terrace, Perth commencing at 5.15pm.

The YLC Ball was a huge success on Saturday, 20 September, with a great vibe and lots of positive feedback. Thank you to all who attended and the organisers who made it a night to remember. A special thanks to our sponsors KBE Human Capital, Bellanhouse Legal and Centia Private Financial Office for making the event possible. You can look forward to a full wrap up article with photos in the next issue of Brief.

14 October 2014 – What is the difference between mentoring and supervision? 11 November 2014 – Avoiding burnout and understanding vicarious trauma

Visit the Society’s website for more details and to register. Mental health and wellbeing is essential for our balance and longevity, so we encourage you to utilise the support services on offer if needed. Later this month is the 9th annual Tristan Jepson Memorial Lecture, ‘Putting the Guidelines to Work’. This lecture follows the launch earlier this year of the Tristan Jepson Memorial Foundation (TJMF) Psychological Wellbeing: Best Practice Guidelines for the Legal Profession, which have been endorsed by the Society. Justice Virginia Bell AC QC who will deliver the lecture this year will discuss the Best Practice Guidelines and their significance in driving change in the profession. The lecture is 6.00pm, Thursday, 23 October 2014 and tickets are $5-$15 excluding booking fees. TJMF is a volunteer Foundation and all proceeds from the Annual Lecture will support further work on the Best Practice Guidelines and initiatives to improve mental wellbeing in the workplace. Visit tjmf.org.au for more details and to register. Don’t forget that as a member you can access the Society's LawCare(WA) initiative, which provides access to up to three complimentary counselling sessions and a range of online information resources to assist in times of need. For more information on this visit lawsocietywa.asn.au/lawcarewa. 06 | Brief October 2014


MOCK TRIAL FINALS This year’s Mock Trial grand final will be held between Mount Lawley Senior High School and Perth Modern School. Both teams have performed extremely well and have impressed the judges throughout the competition. With a record breaking year in terms of having the largest number of teams compete (92), the grand final on Monday, 20 October should be a night to remember. To attend or find out more please email Paige, Mock Trial Coodinator on pstandenburrows@lawsocietywa.asn.au. QPS SURVEY Quality Practice Standard (QPS) is an important initiative by the Society, which recognises firms that have developed and adhered to documented internal systems and processes. QPS training can be delivered in-house and CPD points apply. There are multiple benefits of becoming a Quality Practice Standard legal practice. For more information visit the Society’s website.

LAW MUTUAL Law Mutual (WA)’s Risk Management seminars have sold out for the remainder of this year. There are more scheduled for February and March 2015 so be sure to register soon and hold your seat. For more information, to register online or to view the schedule of seminars visit lawsocietywa.asn.au/risk-management. As we move toward the end of 2014, the Society has a large range of events for members and the legal profession. Some of these events are listed below; the full range and booking information is available on our website. MIXED NETBALL COMPETITION Registrations are now underway for the Mixed Netball Competition on Friday, 7 November, which is a great way to be active with your colleagues for a fun day on the courts. This event is always a sell-out with food, drinks and even a massage available for players. To register your team or join a team please visit lawsocietywa.asn.au/membershipevents. END OF YEAR DRINKS – SAVE THE DATE Don’t forget to register for our End of Year Drinks on Wednesday, 3 December commencing 5.30pm. Come join us at the Parmelia Hilton to wrap up 2014 with drinks, canapés and socialising over a summer’s night. Visit our website for more details.

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Our Ref:


Mr K de Kerloy President The Law Society of Western Australia PO BoxZ5345 St Georges Terrace PERTH WA 6831

Dear Mr de Kerloy MANDATORY SENTENCING Thank you for your letter dated 9 April 2014 regarding mandatory sentencing and the Criminal Law Amendment (Home Burglary and Othe r Offences) Bill 2014 (INA). I apologise for the delay in responding. I have noted the Law Society's comments on this Bill and the reasons for its opposition to mandated minimum terms of imprisonment. In relation to those concerns, I make the following comments. As you may be aware, the above Bill was introd uced into the WA Parliament on 12 March 2014 to implement a 2013 election commitment. Attached, for your ease of reference, is a copy of the Second Reading Speech delivered by the Hon Liza Harvey MLA, Minister for Police which refers to the proposed mandatory sentencing provisions. As explained in the Second Reading speech, it is clear that that home burglaries, particularly in circumstances of aggravation and in the cours e of which violence may be committed, are of major concern to the community. There is an obvious public perception that burglars, particularly recidivists and those who harm occu pants of the homes they invade, are not being sufficiently punished by the courts. In particular, as the Minister states, "it is argua ble that the punishments imposed by the courts for home burglaries, and for offences comm itted in the course of home burglaries, are limited by longstanding court-established sentencing tariffs and precedents, and Court of Appeal judgments, and are out of step with community expectations." In these circumstances, it is clear that the Western Australian community expects Parliament to amend the relevant sentencing laws. This is not only a proper exercise of Parliament's legislative function to respond to community concerns, but also one of its duties.

Level10, Dumas House, 2 Havelock Street, West Telephone: +61 8 6552 5600 Facsimile: +61 8 6552 5601 Perth Western Australia 6005 Email: Minister.Mischin@dpc.wa.gov.au 08 | Brief October 2014

Neither I nor the State Government is proposing in this Bill or elsewhere minimum mandatory terms of imprisonment for all offences. However, the Government is of the view that the proposed legislation reflects for the specified offences not only the community's expectations but also the appropriate circumstances, criteria and penalties which should be the subject of mandatory sentences. Your letter asserts that "mandatory minimum sentencing obligations interfere with the idea of a judiciary independent of prosecuting authorities and executive government because [such mandatory sentencing] restricts the ability of the judiciary to determine a just penalty that fits the individual circumstance of the offender and the crime." This assertion raises issues about "just" penalties and judicial independence. As you will appreciate, the Courts do not and should not have a monopoly over deciding what is 'just' and 'unjust'. Other governmental institutions, including the Parliament, as well as the public, are also entitled to determine what constitutes and provides for justice and a just outcome. The history of law reform is replete with instances where judicial decisions and lines of authority have been overturned to achieve what the community - and its Parliament - has regarded as a more just result, or to realign court-evolved law to community expectations. In relation to judicial independence and sentencing, including sentences imposed on individual offenders, you will be aware that common law jurisdictions have for many centuries accepted that Parliament has power to legislate with respect to criminal sentences, and in this sense to limit judicial discretion in sentencing. In this context, Professor Ashworth, a pre-eminent criminal law scholar, in his book Sentencing and Criminal Justice (Cambridge University Press, 4th ed, 2005) at pp.52-53, observed: If one looks at the history, then one finds that wide judicial discretion has only been a characteristic feature of English sentencing for the last hundred years or so. In the first half of the nineteenth century, there were two factors that considerably restricted judicial discretion. There were maximum and minimum sentences for many offences, and several statutes provided a multiplicity of different offences with different graded maxima. For much of the nineteenth century, judges were left with less discretion than their twentieth and twenty-first century counterparts, and any claim that a wide sentencing discretion 'belongs' to the judiciary is without historical foundation. It gains its plausibility only from the legislature's abandonment of minimum sentences in the late nineteenth and early twentieth century, and from the trend at one time to replace the plethora of narrowly defined offences, each with its separate maximum sentence, with a small number of 'broad band' offences with fairly high statutory maxima.... That belief, widely shared in the judiciary, is a belief that judicial discretion supervised by the Court of Appeal is more likely to produce fair sentencing outcomes than greater statutory restrictions. This is an arguable proposition.... But it is not the same as the principle of judicial independence, nor does it provide a basis for any principle that the legislature may not properly do more than set maximum sentences and introduce new forms of sentence. In Magaming v The Queen [2013] HCA 40, the High Court considered the constitutional validity of a mandatory minimum sentence of five years with a minimum non-parole period of three years in relation to an offence under s.233C of the Migration Act 1958 (Cth). In the context of the circumstances of that case, in sentencing the appellant the Chief Judge of the District Court remarked that normal sentencing principles would have resulted in a sentence substantially less than the mandatory minimum. Even so, the High Court held that the Commonwealth Parliament had constitutional power to enact such mandatory sentences and that the mandatory sentences did not breach the Commonwealth Constitution's Chapter


Ill requirements regarding judicial power and judicial independence. For example, the majority indicated at paragraph 27 that: It may be that, as Barwick CJ said in Palling v Garfield: 'It is both unusual and in general ... undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.' Whether or not that is so, as Barwick CJ also said, '[i]f Parliament chooses to deny the court such a discretion, and to impose ... a duty [to impose specific punishment] ... the court must obey the statute in this respect assuming its validity in other respects'. Also, at paragraphs 45-49 the majority stated: Shorn of the disapproving epithets, the appellant's submission amounted to the proposition that the Parliament cannot, consistent with Ch Ill of the Constitution, prescribe a mandatory minimum penalty for an aggravated offence if no mandatory minimum penalty is prescribed for the simple offence. How or why that should be so was not explained. The larger proposition which the appellant advanced was that the legislative prescription of a mandatory minimum penalty for an offence under s 233C distorted 'the judicial sentencing function' and that the distortion was 'not reasonably proportionate to the end of general deterrence' which the law sought to serve. The proposition came very close to, perhaps even entailed, the still larger proposition that legislative prescription of a mandatory minimum penalty is necessarily inconsistent with ChIll. As the appellant rightly submitted, adjudging and punishing criminal guilt is an exclusively judicial function. In very many cases, sentencing an offender will require the exercise of a discretion about what form of punishment is to be imposed and how heavy a penalty should be imposed. But that discretion is not unbounded. Its exercise is always hedged about by both statutory requirements and applicable judge-made principles. Sentencing an offender must always be undertaken according to law. In Markarian v The Queen, the plurality observed that '[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks.' The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick. The appellant may be right to have submitted, as he did, that, even at 1901, mandatory minimum custodial sentences were 'rare and exceptional'. But as the appellant's submission implicitly recognised, mandatory sentences (including, at 1901, sentence of death and, since, sentence of life imprisonment) were then, and are now, known forms of legislative prescription of penalty for crime. Legislative prescription of a mandatory minimum term of imprisonment for an offence was not, and is not, on that account alone inconsistent with Ch Ill. Your letter also asserts that "Mandatory sentencing obligations are discriminatory". It is difficult to perceive how, using the concept of discrimination in its normal sense, a mandatory sentencing regime which applies to all and treats all persons who are similarly situated (i.e. who have committed the same offence or offences) equally, can be considered

10 | Brief October 2014

discriminatory. I am not aware of any Australian anti-discrimination legislation which specifies mandatory minimum punishments to be a ground of discrimination. In addition, you refer to a concern about "the severity of the punishment under this [proposed] mandatory sentencing regime" and you balance that severity against several other matters including increased workloads and police work. As with all other matters, the State Government is aware of the possible consequences, both practical and economic, of proposed reforms and of the need to arrive at an appropriate and sensible balance between conflicting views, outcomes and consequences. In the context of the above Bill, the Government has taken those matters into consideration and drafted the legislation accordingly. Another matter to which you refer in your letter is the view that "research has shown that mandatory sentencing does not have a deterrent effect." Even if one accepts that proposition, deterrence is not the only objective of the criminal law. Mandatory sentencing is not devoid of other attributes of the criminal law, including the protection of the public, especially from the recidivist offenders who are referred to in the attached Second Reading Speech. The predictability of the consequences of law-breaking and the certainty of the result are important features of any justice system, and those considerations alone are a virtue of mandated minimum terms. From a non-legal perceptive, your letter refers to "the average cost of keeping someone in prison". Again, financial consequences, especially to the 'taxpayer' are important and need to be balanced against the demands for money to be spent by the government in other areas. However, as indicated above, and in the attached Second Reading Speech, this Bill implements the public's demand for stronger penalties and many members of the public are taxpayers. Thank you for taking the time to convey the Society's views to me and I trust that the above indicates the State Government's position in relation to this Bill to you and the Law Society. Yours sincerely


2 8 JUL 2014


Second Reading Speech


Hon Liza Harvey MLA MINISTER FOR POLICE (Together with Law Society's letter of 9 April2014)


2014 Sir Ronald Wilson Lecture Dean Curtis Education Services Coordinator, Francis Burt Law Education Programme




On 5 August, the Francis Burt Law Education Programme (FBLEP) coordinated the annual Sir Ronald Wilson Lecture sponsored by Murdoch University School of Law. The lecture targets Year 11-12 Politics and Law students and teachers and aims to address syllabus items in that learning area. First held in 1989, the annual Sir Ronald Wilson Lecture provides an opportunity for a person, learned in the law and familiar with the public face of law, to address issues of relevance to the Year 11-12 Politics and Law curriculum in a public forum. The 2014 lecture was presented by Tammy Solonec, the Indigenous Peoples’ Rights Manager at Amnesty International, and was entitled ‘Justice Reinvestment: What difference could it make in WA?’ Professor Jürgen Bröhmer, Dean of Law at Murdoch University, took the role of Master of Ceremonies and Mr Matthew McGuire conducted the Welcome to Country ceremony as a representative

of the Wadjuk people of the Noongar nation. The lecture focused on the justice reinvestment principles, the American experience with justice reinvestment, pilot justice reinvestment programmes in Australia and the possibilities for justice reinvestment initiatives in WA. The lecture came to a conclusion with Ms Solonec making a call to action in WA, encouraging those in attendance to work collaboratively to lobby State politicians to implement justice reinvestment initiatives. There were 80 attendees at the lecture and those attendees included students and teachers from the following schools; Mt Lawley SHS, Santa Maria College, Willetton SHS, Schools of Isolated and Distance Education, Shenton College, Mercedes College and Woodvale Secondary College. The distinguished guests included the Hon Justice John McKechnie, the Hon Justice Stephen Hall, Ben Wyatt MLA, Paul Papalia CSC MLA, the Hon Judge

Christopher Stevenson, the Hon Judge John Staude, the Hon Mary Ann Yeats AM, Magistrate Felicity Zempilas, Magistrate Martin Flynn, Cheryl Gwilliam, Bob Taddeo, John Gillett, Brian Pass, Alain Musikanth, Greg McIntyre SC and Dieter Solonec. Other attendees included practitioners from a wide range of firms and agencies as well as representatives from the Department of Child Protection, the Office of the Inspector of Custodial Services and Amnesty International. The 2014 lecture paper can be found on the Society’s website as an online education resource, and is also this issue’s cover story. The FBLEP thanks Murdoch University School of Law for sponsoring the 2014 Lecture and DLA Piper for facilitating the use of the Central Park Building Theatrette.

Clockwise from top left: 1. Greg McIntyre SC, Matthew McGuire, The Hon Mary Ann Yeats AM, Tammy Solonec, Prof. Jürgen Bröhmer, Alain Musikanth 2. Students from Mt Lawley SHS and Tammy Solonec 3. Dieter Solonec, Tammy Solonec, Prof. Jürgen Bröhmer, Dominique Hansen, Alain Musikanth

12 | Brief October 2014

broader horizons Market Update - October 2014 Beat the end of year rush! NOW is the time to secure your dream role, or quality legal talent to support your business. Demand for Corporate specialists and Project/Infrastructure lawyers continues, with opportunities for mid level Property lawyers and Commercial Litigators also remaining strong. To find out how we can assist you with your next career move or legal staffing requirements, please contact us for a confidential discussion on our services and full range of available opportunities. Please find below a selection of our latest job opportunities for October.

Corporate Resources Lawyer

Professional Indemnity Lawyer

4-5 years +

4 years +

This pre-eminent firm offers the unique combination of premium work and a genuine and friendly culture. A talented Associate or Senior Associate is required to play a key role on corporate transactions and major resources projects.

This thriving Insurance practice is well positioned for growth and requires the expertise of a Professional Indemnity specialist to work on complex claims.

You will directly advise a quality list of Australian and international corporate, project and government clients and their financiers on a range of corporate and commercial matters including M&A, equity capital markets and major oil & gas, energy, mining and infrastructure projects. The drafting and negotiation of all corporate, finance and commercial documents including joint ventures, service and supply agreements will also form part of your role. Previous corporate, resources and major projects experience with a leading firm will ensure your success. Rare opportunity to join a busy team, do a diverse range of top tier work and take a lead role in the development and expansion of this team.

You will have daily interaction with clients in construction, healthcare and financial services sectors and will be given autonomy to run your own files, with responsibility for all advice, representation and management of the claim through to successful settlement. The firm is appointed to the panel of many major national and international insurers, ensuring a consistent flow of work and has a professional, yet down to earth approach where a work/life balance and direct interaction with supervising partners is strongly encouraged. Proven experience in the area with a leading insurance firm or group will ensure your success. Excellent time to join this growing team.

Commercial Property Lawyer

Commercial Litigator



This highly successful Property practice has long retained a prestigious client base of major mining and oil & gas clients. A mid level Property lawyer is required to focus on major property developments and projects, property acquisitions and disposals, financings, due diligence and retail, commercial and industrial leasing.

This independent local practice, led by a forward thinking and down to earth partnership, has long established a top reputation in the local market. A high calibre junior is required to support the growth of this team.

As part of a national team, this role will see you responsible for the drafting, negotiation of and advice in relation to joint venture agreements, project approvals, state agreements, property sale contracts, security documents, leases and licences. You will have regular client contact in this role and definite opportunities to progress upwards quickly in the current team structure. A minimum of 3 years PAE gained with a leading top tier or boutique Property practice is required. Refine your skills and gain exposure to some of the best property work and clients currently on offer in the Perth market.

Acting for a range of medium to large corporate clients and high net worth individuals, your work will encompass all aspects of commercial litigation, with a strong focus on major corporate disputes in the higher courts. Your duties will include file management, advice and court document preparation, legal research and assistance with trial preparation. You will enjoy regular advocacy work and direct interaction with supervising partners, clients and counsel. Quality firm experience, previous exposure to District and Supreme Court matters and a knowledge of associated court processes and procedures is essential. With a relaxed, yet professional culture and flexible working practices, this truly is a firm with a difference.

Stacey Back Director

p 08 9380 9914 m 0406 647 577 e stacey@profilelegal.com.au

Profile Legal Recruitment PO Box 1288 West Leederville WA 6901


President’s Cocktail Function Thursday, 28 August 2014

In late August, the Society hosted the annual President’s Cocktail function. With over 60 guests in attendance, President Konrad de Kerloy highlighted the accomplishments achieved by the Society throughout the past 12 months.


Held at LouVe in the Alluvion Building, the Society also honoured two new life members. Congratulations to: •

Her Hon Antoinette Kennedy AO

The Hon Robert Nicholson AO

This year’s function proved to be a great success with guests enjoying the opportunity to network with friends and colleagues. 2.




Clockwise from top left: 1. Immediate Past President Craig Slater (Francis Burt Chambers) and Konrad de Kerloy (President, Law Society) 2. Curtis Ward and Gemma Mitchell (Consumer Credit Legal Services) 3. David Davidson (Office of the Director of Public Prosecutions) and Joseph McGrath SC (Director of Public Prosecutions) 4. The Hon Robert Nicholson AO, The Hon Justice Jeremy Curthoys (President, SAT), The Hon Michael Mischin MLC, Attorney General of Western Australia and Rachel Webber (Jackson McDonald) 5. Rosie Hill and Nicholas van Hattem (State Solicitor’s Office)

14 | Brief October 2014

society events 6.


9. 8.


Clockwise from top left: 6. Dr Christopher Kendall (John Toohey Chambers), Laurie Shervington (Squire Sanders Boggs) and The Hon Justice Jeremy Curthoys (President, SAT) 7. Nick Stamatiou (Griffith Hack Lawyers) and Dr Eric Heenan (Francis Burt Chambers) 8. The Hon Justice John Chaney and The Hon Justice Ken Martin (Supreme Court of Western Australia) 9. The Hon Daryl Williams AM QC (Francis Burt Chambers) and The Hon Justice Stephen Thackray (Chief Judge, Family Court of WA) 10. His Hon Peter Martino (Chief Judge of the District Court), Gray Porter (Rockwell Olivier), Cathryn Greville (President, WLWA), Joseph McGrath SC (Director of Public Prosecutions) and George Turnbull (Director, Legal Aid WA)

Help grow hope for future generations

Cancer impacts all of us. Gifts in Wills help us to support people affected by cancer, fund research and deliver prevention programs to the community. Join us in bringing about a cancer-free future.

To include a gift to Cancer Council WA in a Will, please use our full legal name: Cancer Council Western Australia (Inc) ABN: 15 190 821 561

For more information visit:

Web: www.cancerwa.asn.au/wills Email: donorrelations@cancerwa.asn.au



Sir Ronald Wilson LECTURE

16 | Brief October 2014

Presented by Tammy Solonec (LLB) Indigenous Peoples’ Rights Manager Amnesty International Australia

Tuesday, 5 August 2014

I start with our protocol of acknowledging the traditional owners of this land. I acknowledge that we are meeting today on the lands of the Whadjuk Noongar and acknowledge them and the Noongar Peoples of south west of WA generally, and pay respects to their Elders and ancestors. Thank you also to Matthew McGuire for his Welcome to Country and to Dr Jürgen Bröhmer for his response. I would also like to acknowledge the consistent efforts of Dean Curtis in organising this lecture, and the assistance of researcher Melanie Schwartz, who is an expert in this field and UWA intern Aisling Murray. Thank you for the opportunity to present today about Justice Reinvestment and what difference it could make to Western Australia. This is a subject I have been involved in for some time in my work at the Aboriginal Legal Service of Western Australia, the National Congress of Australia’s First Peoples and at Amnesty International, where we are embarking on a campaign aimed at reducing the detention of Aboriginal and Torres Strait Islander youth. Although the Justice Reinvestment approach to the criminal justice system is something I have worked on in all these organisations, please note that I speak today in my private capacity, rather than on behalf of any of these organisations. Justice Reinvestment and the ideas surrounding prevention and diversion are seen as possible solutions to reverse the growing incarceration rates in Australia. This is a problem for our whole community, but it is a problem particularly for Aboriginal and Torres Strait Islander peoples.


THE EXPERIENCE Before I go on to explain the mechanics of Justice Reinvestment, let me briefly touch on why the interaction between the experience of Aboriginal and Torres Strait Islander people and the justice system is particularly problematic. I think everyone here would be aware of the vast overrepresentation of Aboriginal and Torres Strait Islander people in the justice systems,1 and that Western Australian is often touted as one of the worst jurisdictions in this regard, especially where the comparative statistics are viewed by rate of imprisonment, as shown in the following table from 2012.2

Currently in Western Australia, Aboriginal and Torres Strait Islander people make up 40% of the prison population, our youth make up 77% of juvenile incarceration and 67% of Juvenile Justice Orders,3 and our children make up 49.5% of those in protective care. Sadly, our people are disproportionately affected by all areas of the justice systems – whether it be child protection, juvenile justice or adult justice. We are more likely to be removed as children, more likely to have children removed (or monitored / investigated), more likely to be victims of crime, more likely to have contact with police, more likely to be charged with offences, more likely to be convicted of offences, and more likely to receive harsher sentences for offences, including receiving higher fines. On the flipside, we are less likely to receive police cautions, less likely to receive sentences that are alternatives to incarceration, less likely to be granted parole once incarcerated, and less likely to receive access to rehabilitative and throughcare programmes. The cycle then continues, with our people more likely to repeat offend. When we consider the system like this, it becomes clear that although it is called a ‘justice system’, it is hardly a ‘just system’. The reasons for Aboriginal and Torres Strait Islander over-representation in the justice system involve a complex interplay of historical and contemporary factors and social determinants. I don’t have time today to go into the historical factors, but do note that the situations of dispossession, discrimination, oppression and institutionalisation that have been suffered by Aboriginal and Torres Strait Islander peoples is 18 | Brief October 2014

Figure 2: Adult imprisonment rate (per 100,000) by State & Indigeneity (2012)7

Aboriginal and Torres Strait Islander

Non-Aboriginal 4,500


4,000 3,500 3,000 2,500 2,000 1,500 1,000 500 0







similar to that which has been suffered by Indigenous Peoples in many other nations around the world. If you are interested in learning more I would encourage you to read and consider the reports of the Royal Commission into Aboriginal Deaths in Custody, released in 1991, the Bringing Them Home report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, released in 1995; and the country report from the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, released in June 2010.4 The historical disadvantage suffered by our people is perpetuated by the disproportionate impact that a tough law and order regime has on disadvantaged minority groups, including Indigenous





peoples and by targeting, over policing and discrimination against our people by the very individuals that uphold the laws including policy makers, police and the judiciary. This includes laws like mandatory sentencing, which take away the ability for the judiciary to consider circumstances. As sad as the over-representation and underlying causal factors are, what is worse is that the numbers of Aboriginal and Torres Strait Islander people who have contact with the justice system has been increasing in recent years, and they are projected to increase even more over the next 20 years, due most specifically to our large youth population moving into adulthood, as demonstrated by the following population graph.5

Age group (years)

Non-Aboriginal Aboriginal and Torres Strait Islander


80-84 75-79 70-74 65-69 60-64 55-59 50-54 45-49 40-44 35-39 30-34 25-29 20-24 15-19 10-14 5-9 0-4 7



















feature There is a desperate need to take strategic action now to prevent these predicted increases, and to help those who have already had negative interaction with the child protection, juvenile justice and adult justice systems.

were 70% for Aboriginal male adults, 55% for Aboriginal female adults, 80% for Aboriginal male juveniles and 34% for Aboriginal female juveniles.7

Unfortunately, in Australia, there has been a lack of political leadership to address these grave concerns and projected increases in over-representation, and little to hold governments to account. The incarceration and victimisation of our people has been normalised and there is a sense of government and broader community apathy about the situation.

With this in mind, the time for change is imminent and around the world, particularly in Western countries that have inherited the British system of justice, policy makers are looking for alternatives. In Australia, calls for reform to the justice system, especially from Aboriginal and Torres Strait Islander people are growing stronger each day and we are starting to see change including a plethora of diversionary programmes being developed, which are gaining funding and community support.

Instead of trying to reduce incarceration, political leaders have historically pushed ‘tough on crime’ law and order campaigns, pumping out more and more laws with harsher penalties, incarcerating more and more people. A classic example of this is the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 currently before the WA Parliament. This Bill, created to ‘get tough’ on home invasions, proposes to extend mandatory sentencing for burglary to juveniles by suspending the section of the Young Offenders Act which, in tandem with international law, gives judges discretion when it comes to sentencing children. As a result, if the Bill passes, children involved in home invasions in WA will be detained – regardless of the circumstances that bought them there. Although tough on crime rhetoric may assist with the popular vote during elections, and make the broader community feel safer (whether it in reality makes them more safe or not), the fact of the matter is that the tough on crime approach to justice is simply not sustainable. For our peoples, it is not socially sustainable, and for everyone else, it is not financially sustainable, with enormous costs associated with incarceration. Over $12.5 billion is spent on criminal justice in Australia every year.6 As Aboriginal and Torres Strait Islander prisoners make up about a quarter of the adult prison population, approximately $3 billion is spent on imprisoning our men and women each year. If we add to that the costs of other aspects of the criminal justice system including juvenile detention and the costs associated with police, the judiciary and legal aid, we start to get a true picture of the enormous financial burden that our justice system imposes on society. This is heightened by recidivism (repeat offending) rates, which are higher for Aboriginal and Torres Strait Islander inmates than that of the non-Aboriginal prisoner population. The 2010 report from the WA Parliament, Making Prisons Work noted that the Aboriginal recidivism rates


These reforms are all about pushing for a shift in thinking, a change in the rhetoric, from ‘tough on crime’ to ‘smart on crime’ approaches, also referred to ‘solution based policy’, using prevention, early intervention, diversion and rehabilitation. In particular, in regards to Aboriginal and Torres Strait Islander peoples, there is a push for programmes that involve the participants learning their cultures. There are a number of programmes in Australia including Halo Leadership here in Perth and the Yirriman Project in the Kimberley, that have had positive results in diverting our people from the justice system and slowing recidivism rates by offering rehabilitative programmes, which are founded on the concept of ‘culture as a preventative mechanism’. JUSTICE REINVESTMENT IN THE USA So now, let’s move to a full discussion of Justice Reinvestment, a concept that emerged in the United States just over a decade ago, driven by four main factors. First, spending on corrections in the US had risen faster in the 20 years from 1988 to 2008 than spending on nearly any other state budget item—increasing from about $12 billion to $52 billion a year. Second, despite mounting corrections spending, the rates of recidivism remained high and, by some measures, it had actually worsened. Third, research was pointing to practices and programmes that can effectively reduce crime and rates of recidivism. Finally, it was becoming clear that policymakers often did not have information about factors that are driving crime, re-offence rates, and the growth of correctional populations, resulting in poor policy making. The pioneering influence came from the George Soros Open Society Institute, in a 2003 report entitled Ideas for an Open Society: Justice Reinvestment.8 Its overarching aim was to reduce the high levels and the subsequent financial

burden of incarceration. However, this was not simply a task of rethinking and redirecting public funds. It was driven by a need to devolve accountability and responsibility to the local level; thus seeking ‘community level solutions to community level problems’.9 The idea gained traction, and was coordinated by the Justice Center, an organisation within the Council of State Governments, a national nonprofit organisation that serves policymakers at the local, state, and federal levels from all branches of government. It provides practical, nonpartisan advice and consensus-driven strategies—informed by available evidence—to increase public safety and strengthen communities.10 In the US, Justice Reinvestment has been pushed along with a redefinition of ‘public safety’. The focus became: “What can be done to strengthen the capacity of high incarceration neighbourhoods to keep their residents out of prison?” Not, “where should we send this individual?” The solution to ‘public safety’ was locally tailored and locally determined.11 A 2013 paper co-authored by a group of researchers, analysts, and advocates called, Ending Mass Incarceration, summarised the success so far, where 27 US states have participated in one way or another in this reform. Of the 27, approximately 18 of these states have enacted legislation for the purposes of implementing Justice Reinvestment Strategy.12 Adopting Justice Reinvestment legislation in Connecticut (2004), Kansas (2007), Texas (2007), Rhode Island (2008), and Arizona (2008), allowed these states, at a local level, to reduce violations of parole and probation, holding parole hearings at the point of parole eligibility, or re-establishing earned ‘good time’ credits. Additionally, in Oregon, using Justice Reinvestment, they were able to reduce the juvenile incarceration rate by a staggering 72%, and in Dallas Texas, for the first time ever, the incarceration stopped growing and they have recently closed three prisons. The US example, as a success, not only reduced the financial burden (reducing cost of the justice system to tax payers), but socially and culturally, it decreased crime, and improved community safety. To demonstrate the success that Justice Reinvestment has had in the US, I’d like to show an interview from ABC Lateline earlier this year with Jerry Madden, the former Chairman of the Texas House of Representatives Corrections Committee and Senior Fellow with Right On Crime about how investment in crime prevention has worked in Dallas. 19

feature www.abc.net.au/lateline/content/2013/ s3738637.htm As you can see, there is much to learn from the American experience. THE FOUR STEPS I now want to briefly talk through the mechanics of Justice Reinvestment. The first advocate to really start pushing for its adoption in Australia was the former Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma, in his last report delivered as Social Justice Commissioner in 2009.13 In that report the Commissioner identified four clear steps, which are. 1. Analysis and Mapping, 2. Development of options to generate savings and improve local communities, 3. Quantify savings and reinvest in high needs communities, and 4. Measure and evaluate impact. Let’s go through these four steps in more detail. Step One: Analysis and Mapping The first stage of Justice Reinvestment involves a statistical mapping of the prison populations to determine where the offenders come from (their home community) and where the offences occurred. From this statistical analysis, high-risk communities are identified. It also seeks to understand the underlying causal reasons for the offending. For example, it might be the case that much of the crime is related to drug and alcohol abuse, or domestic violence, or bored youth, or driver and vehicle licensing issues. This is not as easy as it might sound, which I will explain soon when I go into some of the challenges. Step Two: Development of options to generate savings and improve local communities The second step is about developing options to generate savings, particularly in the high-risk communities. Some of the rhetoric has been that the answer is to simply stop building more prisons and divert that money into the high-risk communities, but it really is not that simple. It involves determining ways to save prison costs so that funds can be spent in communities.14 This involves considering why prison and return to custody rates are high.15 The reasons may relate to technical matters like bail and parole laws, as well as social issues.16 Each community will have different options and needs, so consultation and engagement around 20 | Brief October 2014

causes and solutions to crime is central.17 Sometimes, the changes can be simple. For example, with regards to juvenile justice, one of the simplest and most effective ways of reducing juvenile detention is for police to give out more cautions and warnings. We are not saying that bad behaviour should be ignored, on the contrary, the youth can be cautioned and diverted into youth related programmes, rather than charged and detained. For example, in WA we have had cases where Aboriginal children caught stealing things as minor as a chocolate bar have been charged and detained. Step Three: Quantify savings and reinvest in high needs communities The third step is to quantify the savings and use those savings to reinvest in the high-risk communities, according to the needs identified in the mapping. For example, if the mapping shows that a high-risk community has a high incidence of crime related to drug and alcohol abuse, then drug and alcohol services will be located in those communities. This stage can involve the participation of nongovernmental community organisations and groups, including local Aboriginal and Torres Strait Islander people and organisations and possibly even local government. Also, once resources are invested into high-risk communities, judges can be more confident about sentencing offenders to communitybased options, thereby reducing incarceration and providing genuine alternatives to imprisonment.18 Step Four: Measure and evaluate impact The final step is to measure and evaluate the impact in the identified communities. The methodology will operate differently in each location due to administrative and community differences, and should be amended according to its results.19 Through this system of evaluation, programmes that are effective can be nurtured and adapted to other communities, and programmes that are not effective can be retired. Eventually, there will be an expansive database of programmes and organisations, which have proven results in diverting people from crime and from incarceration. This step, like step one, depends on appropriate monitoring systems to collate data across agencies on outcomes and the capacity of agencies to collect, record and monitor the data required.20 The whole series of steps are a cycle, so that the mapping is done on a regular basis, and high-risk communities are continually identified and invested in.

It is an incredibly convincing social net to provide common sense policy initiatives for the most vulnerable and disadvantaged people in our community. CHALLENGES Now, I want to briefly talk you through what I consider to be some of the challenges of a Justice Reinvestment system being adopted in Australia. Our Federal System of Government The first challenge is our Federal system of government, and law and order being under the jurisdictions of the states and territories. If Justice Reinvestment is to be adopted nationally, it will require agreement and cooperation of all states and territories and the federal government. As we know, getting these layers of governments to agree on anything is difficult – but not impossible. It will require strong leadership at all levels and a commitment to addressing the underlying causal factors of offending, including with regards to Aboriginal and Torres Strait Islander peoples. There has been a national commitment of this magnitude in this area before, regarding the Royal Commission into Aboriginal Deaths in Custody, but that was over 20 years ago and many of the recommendations have still not been implemented. One thing that is favourable to Justice Reinvestment over the recommendations of the Royal Commission (of which there were 339), is that it is far more simple, and not designed just for Aboriginal and Torres Strait Islander people. On the contrary, Justice Reinvestment is a system for everyone, however due to the massive over-representation of Aboriginal and Torres Strait Islander people in the justice system, we know that our people will benefit from it. If it cannot be agreed that all of Australia will adopt Justice Reinvestment, there is certainly scope for it to be implemented on a state and territory basis, such as what has occurred in the US. With the high rates of detention and recidivism of Aboriginal and Torres Strait Islander people in Western Australia, there is every reason why Western Australia could exercise this leadership and be the first state in Australia to trial the approach. Data Collection The next big challenge is data collection, which is the cornerstone of Justice Reinvestment and ‘smart on crime’ approaches to justice. Unfortunately, in Australia we do not have standardised data collection and the methods of collection and data recorded by

feature each State and Territory is different. At Congress, we were advocating for standardised data collection and nationally consistent approaches to: •

identification of Aboriginal and Torres Strait Islander people, based on self identification;

the length of time taken to finalise criminal matters in court;

rates of assault for crime victims who report to police;

family violence;

the effectiveness of programmes for perpetrators of family violence, to inform the development and delivery of these programmes;

measuring the effectiveness of diversionary programmes, including warnings, cautions, conferences and treatment programmes that seek to address drug, alcohol and mental health issues; and

the health and housing status of people released from prison and youth detention.

Once again, this will require a commitment and cooperation of all states and territories. There have been a number of ideas floated as to how this will occur, including that the data be collected by one agency such as the Australian Bureau of Statistics or the Productivity Commission, however, even if this is the case it would still require the cooperation of state and territory based police, judicial and corrective service institutions. For this reason, once again, it may be easier to implement Justice Reinvestment on a state / territory jurisdictional basis rather than federally. Tough on Crime Rhetoric Another challenge I have alluded to is political will. Tough on crime promises are always floated, particularly by state and territory governments and it will take some doing to be able to counter the historical propaganda that has been fed to people about prisons making our communities safer. However, things are starting to change, and campaigns such as the NSW campaign, ‘Justice Reinvestment Now’, the Victorian initiative ‘Smart Justice’, the Western Australian Aboriginal Deaths in Custody campaign, ‘Build Communities not Prisons’, the Queensland Campaign ‘Project 10% and many more are all, bit by bit, influencing popular voting. However, to really change people’s thinking, strong leadership is needed in the area of justice, particularly on state and territory levels and with time, that leadership will come. Western Australia showed promising

signs earlier this year when it established the Youth Justice Advisory Board21 specifically to reduce youth detention. However we’re at the same time seeing concerning steps backwards such as the Bill before the WA parliament I made mention of earlier. In order for change to be effective, it must occur at all stages of governance including Parliament and the Executive.

" ... the interaction between the experience of Aboriginal and Torres Strait Islander people and the justice system is particularly problematic."

Geography & Remoteness Another challenge, which is specific to Australia, is our geography and remoteness. For example, in the US, Justice Reinvestment has been most effective in high-density ghetto-like suburbs, where the highest concentration of offending was found. It is much cheaper to put diversionary programmes into suburbs of cities than into remote communities. However, because of remoteness, the feasibility of Justice Reinvestment reduces. This does not suffice as a good enough reason not to at least trial Justice Reinvestment in Australia. Identifying High-Risk Communities A final challenge I would alert you to, is the identification of high-risk communities. In order to get the ‘political buy-in’ of all the states and territories, they will all want to benefit from the adoption of Justice Reinvestment. Alongside the Northern Territory, Western Australia locks up high numbers of people and may well have more at risk-communities than other States and Territories. The challenge for decision makers is prevent the identification of high-risk communities becoming a political football. Again, narrowing the implementation to a state / territory level could reduce these tensions. We do need to carefully think about these challenges, as proceeding with Justice Reinvestment will be the most radical overhaul of the justice system in Australia ever. Despite the challenges however, the benefits to our nation, both socially and economically are too great to ignore. No one wants their child, their partner or even their friends to end up in jail, and a system that can prevent and divert people from such a life is one worth fighting for. AUSTRALIAN CONTEXT Despite these challenges, there has been a lot of work done to promote Justice Reinvestment and its underlying philosophies in Australia. Since first introduced by Tom Calma back in 2009, Justice Reinvestment has been spoken about at many conferences and forums, there have been many articles written

and campaigns launched to encourage its adoption and it has been referred to in a number of Government inquiries. This combined advocacy resulted in a Senate inquiry into the ‘Value of a Justice Reinvestment approach to criminal justice in Australia’,22 which released its report on 20 June 2013. The Inquiry received over 120 submissions, almost all of a supportive nature, and the ground swell for support was obvious. The key recommendations of the report were: •

that the Commonwealth take a lead role in data collection and sharing

that long term sustainable funding be committed to Justice Reinvestment

the establishment of a Justice Reinvestment clearinghouse

that the Commonwealth take a leadership role through COAG

that the Commonwealth fund some trials for Justice Reinvestment, including in a remote Aboriginal community

that the Standing Committee on Law and Justice promote the establishment of an independent 21

feature central coordinating body •

that justice targets be included as part of Close the Gap framework

The current Australian government must respond to the inquiry, even though there has been a change in government. Outside of the Federal government there has been a groundswell of activity continuing to push for the adoption of Justice Reinvestment Australia. A stand out is the Just Reinvest Campaign for Aboriginal young people in NSW.23 Their website states: Just Reinvest NSW aims to reduce the shameful over-representation of Aboriginal young people in custody.

to learn from their 10 years of experience. She asked Justice Reinvestment experts in the US what they thought the preconditions for a successful Justice Reinvestment strategy in Australia might be, based on the American experience. They offered a range of fascinating suggestions, some of which were: •

Have very clear aims, including what counts as success. Is success about particular outcomes? (and which ones?) The integrity of the process? The scope of reforms achieved? Or all of the above?

Balance the involvement of government, experts and

"Unless we adopt a ‘vaccination’ approach to crime prevention we are always going to be treating the symptoms rather than the causes. Current thinking around justice re-investment is part of this approach.” WA Police Commissioner, Karl O’Callaghan

community. For example, get locals involved with data mapping: that way, they can give guidance about what data would be most useful, and the knowledge that arises out of the data won’t just be ‘owned’ by the experts;

The purpose of Just Reinvest NSW is to convince the New South Wales Government to adopt a Justice Reinvestment approach to Aboriginal young people and their communities. We believe the time is right for the New South Wales Government to significantly shift policy and spending away from incarceration, towards prevention, early intervention and treatment for Aboriginal young people at risk. The campaign is well structured, with community champions, organisational members and a strong push for a pilot programme in the community of Bourke, which is well underway with significant support. I don’t have time to go into the Bourke pilot – but if you’d like more information please go to the Just Reinvest website. Their campaign is focused around young Aboriginal people in NSW and uses case studies to bring home the message, as shown in this short video from Just Reinvest NSW: Another project gaining momentum is the Australian Justice Reinvestment Project (AJR Project), which is a national research project investigating the characteristics of Justice Reinvestment.24 It draws together senior researchers across the disciplines of law and criminology to examine Justice Reinvestment programmes in other countries and analyse whether such programmes can be developed in Australia. One of their researchers Melanie Schwartz, recently visited the US, seeking 22 | Brief October 2014

Make sure that there is a broad enough representation of stakeholders around the table – not just justice and corrections people, and not just policy makers;

The timeframe for justice reinvestment programmes should be long enough to ensure true community buy-in, allow proper assessment of the impact of policy changes, and to have technical and other support embedded in a location long enough to guide follow through, not just set up; and

Build in independent evaluation of justice reinvestment programmes to collect up lessons learned and guide future directions.25

THE SITUATION IN WESTERN AUSTRALIA Finally, I would like to finish with a discussion of Justice Reinvestment here in WA, where it is most needed. Unfortunately, we don’t have a coordinated campaign like NSW. In June 2010 Paul Papalia MLA, the then

Shadow Minister for Corrective Services advocated for the reform.26 Around that time a coalition of organisations formed a Justice Reinvestment WA Committee, and I was part of the Committee, but the Committee too lost traction and has since disbanded. However, we do have some high level support within the judiciary including WA’s first female judge, Antoinette Kennedy and Chief Justice Wayne Martin. We have also seen some promising comments from the Minister for Corrective Services, Joe Francis recently. In May last year, Minister Francis said, “Call it justice reinvestment or prevention programmes or whatever it might be, the principles of spending money to get people on the right track to stop them breaking the law and ending in jail makes sense.”27 He went further and said that of the $700 million spent on corrective services each year, surely more than $2 million should go to prevention. Of interest also is a blog by the WA Police Commissioner, Karl O’Callaghan in support of justice reinvestment. He wrote, “Unless we adopt a ‘vaccination’ approach to crime prevention we are always going to be treating the symptoms rather than the causes. Current thinking around justice re-investment is part of this approach.”28 It would be good to see a coordinated campaign here in WA like the one occurring in NSW and I encourage any of you who are interested to consider the approach taken in NSW and how it might be adapted here in WA. In particular, I would like to see a trial in a remote Aboriginal community of WA, in keeping with one of the recommendations from the Senate Inquiry. However, we need to observe from of the suggestions from the US experience articulated by Melanie Schwartz. Of critical importance is the balancing of stakeholders. Our initial WA Committee did not have the buy in of Government, and I believe that had a lot to do with why we were not able to make inroads. CONCLUSION So, in summary, I have today outlined the experiences of Aboriginal and Torres Strait Islander people in the justice system and touched on the underlying causes for over-representation. I noted that the trajectories for incarceration are expected to increase significantly over the next 20 years and that there is an urgent need for reform now. I then explained the concept of Justice Reinvestment as a framework for the reform of the justice system. The framework, which was developed in the US, is aimed at diverting people from

feature parliament/commit.nsf/(Report+Lookup+by+Com +ID)/6228E6A9C090FDB9482578310040D2B8/$f ile/Report+No.+6+Final+report+Prisons+Novemb er+2010.pdf.

crime in high-risk communities, especially repeat offenders and serves to actually reduce crime as well as the number of people incarcerated.


I then noted some of the challenges to implementing it in Australia, including lessons to be learned from the American experience. It should be noted that many of the challenges could be overcome by a state / territory as opposed to a Federal implementation of Justice Reinvestment. I would like to end the lecture with a call to action to the Western Australian government to take the lead in implementing Justice Reinvestment on a State level, especially by starting with a trial in a remote community. Thank you again for the opportunity to deliver this prestigious lecture.


Susan Tucker and Eric Cadora, ‘Justice Reinvestment: Ideas for an Open Society’, Open Society Institute, 3(5) 2003, 3.


Rethinking Crime and Punishment, Justice Reinvestment in the USA, available for download from http://www.rethinking.org.nz/Default. aspx?page=3656 (accessed 27 November 2013).


Susan Tucker and Eric Cadora, ‘Justice Reinvestment: Ideas for an Open Society’, Open Society Institute, 3(5) 2003, 4.


Ending Mass Incarceration: Charting a New Justice Reinvestment, 17 April 2013, p 1 available at http:// sentencingproject.org/doc/Charting%20a%20 New%20Justice%20Reinvestment%20FINAL.pdf.


Calma, T - Aboriginal and Torres Strait Islander Commissioner (2009) Social Justice Report 2009, Australian Human Rights Commission http:// humanrights.gov.au/social_justice/sj_report/ sjreport09/chap2.html (Viewed March 12, 2013).
















Australian Bureau of Statistics (2012) 4517.0 - Prisoners in Australia: Prisoner characteristics states and territories, 2012 http://www.abs.gov.au/ AUSSTATS/abs@.nsf/DetailsPage/4517.02012?Ope nDocument, Table_1.

Calma, T - Aboriginal and Torres Strait Islander Commissioner (2009) Social Justice Report 2009, Australian Human Rights Commission http:// humanrights.gov.au/social_justice/sj_report/ sjreport09/chap2.html, (viewed March 12, 2013).


Department of Corrective Services, Government of Western Australia Weekly Offender Statistics Report as of 26 June 2014, available at http://www. correctiveservices.wa.gov.au/_files/about- us/ statistics-publications/statistics/2014/cnt140626. pdf.

House of Commons, Justice Committee, Cutting Crime: the case for justice reinvestment (2009), p 152 (pt 363) http://www.publications.parliament.uk/ pa/cm200910/cmselect/cmjust/94/94i.pdf (Viewed January 31, 2013).


For information about the Board see https://www. correctiveservices.wa.gov.au/youth-justice/youthjustice-board.aspx.


Senate Legal and Constitutional Affairs Committee, ‘Value of a justice reinvestment approach to criminal justice in Australia’, at http://www.aph.gov. au/Parliamentary_Business/Committees/Senate_ Committees?url=legcon_ctte/just ice_reinvestment/ index.htm (accessed 20 February 2013).


For more information see http:// justicereinvestmentnow.net.au/ (accessed 27 November 2013).

This trend has been evident over the 20 year recording period. In 2011, the rate of imprisonment of Indigenous offenders was 18 times higher at 2,276 per 100,000 population than the rate of 125 per 100,000 for non-Indigenous offenders: Australian Institute of Criminology, Australian Crime: Facts and Figures 2012, p 125. At http://www. aic.gov.au/media_library/publications/facts/2012/ facts12.pdf (viewed 31 July 2014).


See references at the end of this paper.


‘Aboriginal and Torres Strait Islander population estimates, 2011 - preliminary’, Australian Bureau of Statistics 12/2012. And see Jen Korff, ‘Aboriginal Population in Australia’, May 2014, available at http://www.creativespirits.info/aboriginalculture/ people/aboriginal-population-in-australia.



Ideas for an Open Society: Justice Reinvestment, Open Society Institute, Volume 3, Number 3, November 2003, available for download from http://www.rethinking.org.nz/assets/Justice%20 Reinvestment/Soros%20ideas%20reinvestment.pdf (accessed 27 November 2013).

www.paulpapalia.walabor.org.au/files/26/Justice_ Reinvestment_-_an_option_for_Western_Australia. pdf (accessed 27 November 2013). 27.

‘Lift for crime prevention spending’, The West Australian, 6 May 2013.


‘What Really Matters’ by WA Commissioner Karl O’Callaghan, “Justice Reinvestment”, downloaded from http://www.police.wa.gov.au/Aboutus/ CommissionerofPolice/Whatreallymatters/ Justicereinvestment/ta bid/2003/Default.aspx, accessed 27 November 2013.


Report of Senate Inquiry: The value of a justice reinvestment approach to criminal justice in Australia, 20 June 2013, available at: http://www. aph.gov.au/parliamentary_business/committees/ senate_committees?url=legcon_ ctte/completed_ inquiries/2010-13/justice_reinvestment/index.htm. House of Representatives Inquiry into the high level of involvement of Indigenous juveniles and young adults in the criminal justice system, Doing Time, Time for Doing, 20 June 2011, available at http://www.aph.gov. au/parliamentary_business/committees/house_of_ representatives_com mittees?url=atsia/sentencing/report. htm. Susan Tucker and Eric Cadora, ‘Justice Reinvestment: Ideas for an Open Society’, Open Society Institute, 3(5) 2003, 4, available at http://www.opensocietyfoundations. org/publications/ideas-open-society-justice-reinvestment. ‘Ending Mass Incarceration: Charting a New Justice Reinvestment’, 17 April 2013, available at http:// sentencingproject.org/doc/Charting%20a%20New%20 Justice%20Reinvestment%20FI NAL.pdf.

Australian Institute of Criminology, Australian Crime: Facts and Figures 2012, p 135. At http://www. aic.gov.au/media_library/publications/facts/2012/ facts12.pdf (viewed 31 July 2014).


For more information see http://justicereinvestment. unsw.edu.au/ (accessed 27 November 2013).

WA Parliament, Community Development & Justice Standing Committee Making Our Prisons Work – An Inquiry into the efficiency and effectiveness of prisoners education, training and employment strategies, Report No. 6 in the 38th Parliament, available at http://www.parliament.wa.gov.au/


Just Reinvest, Late Nov 2013 E Newsletter, available from http://justicereinvestmentnow.net.au/ (accessed 27 November 2013).


Papalia, Paul, WA Labor Discussion Paper, ‘Justice Reinvestment, an option for Western Australia’, June 2010, available for download from http://

Productivity Commission 2011: Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission, Canberra http://www.pc.gov.au/data/assets/ pdf_file/0018/111609/key-indicators-2011-report.pdf (accessed 01 March 2013). Australian Institute of Health and Welfare 2011, Fact Sheet: ‘Child protection and Aboriginal and Torres Strait Islander Children’ viewed 01 March 2013 http://www.aifs. gov.au/cfca/pubs/factsheets/a142117/index.html. Australian Bureau of Statistics (2013) ‘A Population Overview: Population size and age structure’, viewed 01 March 2013 http://www.abs.gov.au/ausstats/abs@.nsf/ Lookup/4725.0Chapter110Apr%202011. Human Rights and Equal Opportunity Commission, 1997, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, viewed 01 March 2013. http://www.humanrights.gov.au/social_justice/bth_report/ index.html. Australian Government Royal Commission in to Aboriginal Deaths in Custody, Viewed 01 March 2013, http://www. austlii.edu.au/au/other/IndigLRes/rciadic/. United Nations, (2010) Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: Situation of indigenous peoples in Australia, viewed 01 March 2013 http://www. ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/ Pages/CountryReports.aspx.


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‘ ... over many centuries, legislators responded to homelessness by criminalising those who were unable to provide shelter for themselves.’

26 | Brief October 2014


WEEK CONFERENCE The Cost of Homelessness - A Legal Perspective

The Honourable Wayne Martin AC, Chief Justice of Western Australia1



I am grateful for the opportunity to address this Conference, held in conjunction with Homeless Persons Week 2014. I welcome all delegates and congratulate the organisers on bringing this Conference together. It is important to take every opportunity to remind the community that notwithstanding our increasing affluence, homelessness remains a significant social problem. It is also important for people working in this field to gather for the purpose of exchanging ideas and experiences, and thereby improve our response to this difficult problem.

Before going any further however, I would like to acknowledge the traditional owners of the lands on which we meet, the Whadjuck people, who form part of the great Nyungar clan of south Western Australia, and pay my respects to their Elders past and present. It is more than usually appropriate to acknowledge the traditional owners, given the topic of my address. That is because, as I am sure you are all well aware, Aboriginal Western Australians are significantly overrepresented among the homeless. According to data from the most recent census (2011), Aboriginal Western Australians were more than 17 times more likely than non‑Aboriginal Western Australians to be homeless. The rate of Indigenous homelessness in Western Australia was, at the time of that census, the third highest in the country, whereas the homeless rate for non‑Indigenous Western Australians was the lowest.2 It is depressing, and very sad to note that the rate of Indigenous homelessness in this State would be even higher but for the even greater over-representation of Aboriginal people in our prisons - where the comparable multiple is 25 - that is, adult Aboriginal Western Australians are 25 times more likely to be in prison that non‑Aboriginal Western Australians.3 Western Australia’s rate of Indigenous incarceration remains by far the highest in the country.

The theme of my address, and indeed of this conference, is a relatively simple one. Homelessness undoubtedly has a moral dimension, arising from the shared obligations of humanity. Shelter is a basic human need, and our community long ago accepted the obligation to provide the necessaries of life for those who are unable to provide for themselves. But homelessness also has an important economic dimension. Obviously it costs money to provide housing for those who are unable to provide for themselves, but a point that is often overlooked in public debate on this topic is that it also costs money, a lot of money, to not provide adequate accommodation for those who are unable, for one reason or another, to provide it for themselves. The particular focus of my address will be upon the legal dimension of those other costs.


THE COST OF HOMELESSNESS Recognition of the economic cost of homelessness is not new. Almost 20 years ago the then Social Justice Commissioner Mick Dodson described the flawed economics in policies of eviction of public housing tenants for rental arrears and tenancy debts in these terms: Although carried out in the name of good business and cost recovery a strictly enforced eviction policy costs the state dearly - the costs are manifested in dollar terms in the criminal justice system, in welfare agencies, in schools and in health centres and hospitals. The social costs of this approach are also significant - rising crime rates, social unrest and increased levels of violence. The human cost involved, especially to the kids, is enormous physical, mental and emotional stress which often shapes a child’s future.4

to be convicted or imprisoned than those who are not homeless.11 •

Of course, the criminalisation of homeless people because they are homeless is not the only legal dimension of homelessness. Other aspects of that dimension include: •

Homeless people are more likely

28 | Brief October 2014

Homeless people are significantly overrepresented amongst victims of crime - a UK study found that homeless people were 13 times more likely to have experienced violence and 47 times more likely to have been victims of theft than others. Almost two‑thirds of homeless people reported having been insulted publicly and one‑tenth had been urinated upon while sleeping.13

While a majority of the harm suffered by homeless people is at the hands of other homeless people - because so many suffer from mental illness and substance abuse, nearly one‑third of the violence experienced by homeless people is perpetrated by people who are not homeless. Few homeless people reported being the victim of a crime or anti-social behaviour because of their fear of the police and the social exclusion they may perceive or experience more generally.14

These characteristics hold true for young people and studies have shown that homeless young people are often the victims of crime rather than the perpetrators.15

Homelessness is often associated with other criminogenic factors - a study of people in police detention in Australia between 1999 and 2006 found that homeless detainees, when compared with their non‑homeless counterparts, were more likely to identify as Indigenous and to report key risk factors such as having spent some time in prison in the 12 months prior to their arrest, to report recent and frequent use, as well as dependence on, either illicit drugs or alcohol and to report generating income from illegal activities such as property offences, prostitution and drug‑related crimes.16

HOMELESSNESS - THE LEGAL DIMENSION It seems that the word ‘homeless’ did not appear in the Australian Parliamentary lexicon until the seventh decade of the 20th century.5 Of course that is not to say that there was no homelessness until then, or that it was not viewed as a problem. To the contrary, over many centuries, legislators responded to homelessness by criminalising those who were unable to provide shelter for themselves. In the United Kingdom the ‘poor laws’ took this approach, and the criminalisation of homelessness was imported, along with British law, when Australia was colonised by the British.6 It was not until 1976 that Professor (now Justice) Ronald Sackville’s seminal 1976 Report Homeless People and the Law recommended the repeal of vagrancy laws. It was not until 1992 that the Law Reform Commission of Western Australia recommended the repeal of the ‘sleeping rough’ offence in its Report on Police Act Offences,7 and it was not until 2004 that this and a range of related offences were repealed in this State.8 However, at around the same time police were empowered to issue a ‘move on’ order. Although applying in a much more limited range of circumstances9 and intended to help defuse antisocial behaviour that was threatening to escalate, at times, that legislation still provides opportunities to criminalise the homeless.10

Prisoners who are released to unstable housing (often indicative of homelessness) are almost three times more likely to return to prison than those released to stable housing, and 61% of those released to homelessness return to prison, compared to 35% of those released to adequate housing arrangements.12

Other research has demonstrated relationships between other criminogenic factors, such as child abuse and neglect, homelessness and criminal activity. People who have one or other of these three characteristics are more likely to also have the others. Young

people, particularly young women, completing a sentence of detention are at greater risk of homelessness than others.17 •

Studies have found that the circumstances which lead to or maintain homelessness are usually multifaceted and complex. However, homeless people faced with complex interactive issues and who lack a safe, regular place to live and a stable point of contact with the system, are very poorly placed to deal with that system, including the legal system.18

This list of aspects of the legal dimension of homelessness is not meant to be exhaustive. It is, however, sufficient to demonstrate that homelessness comes at a significant cost to the justice system. Professor Paul Flatau, who is to present at this Conference, and his associates at the Australian Housing and Urban Research Institute, attempted to assess the additional financial cost to the justice system for clients of homeless support services in the year before and after accessing support. The study included a comparison of financial costs based on the rate at which those persons were more likely to be a victim of assault or theft, to be stopped, apprehended or held overnight by police, to be in court, in prison, or visited by a justice officer. The additional cost was estimated at almost $2,000 per person per year, in 2005/6. It is very likely that those costs have significantly escalated since then. For example, in 2006 it cost $186 per day to place a person in prison, whereas in 2012/13, the daily cost was $317 (for adults, and $645 for juveniles).19 Applying the same escalator to Professor Flatau’s estimated costs would suggest that the cost in today’s dollars is closer to $3,000 per person. (Professor Flatau’s analysis demonstrated that the costs incurred by the community in health and justice services were substantially greater than the costs of providing programmes for the homeless.20 So, returning to both my theme and the theme of this Conference, providing support for the homeless isn’t just the right or moral thing to do, it’s the smart thing to do, because it saves money. CAUSALITY As I have noted, homelessness is often associated with other criminogenic factors such as mental illness, substance abuse and child abuse and neglect. The direction of causality between these factors and homelessness is not clear-cut and will vary from case to case. Substance abuse, mental illness and social isolation are plausible consequences, as well as causes, of homelessness.21

THE CHARACTERISTICS OF THE HOMELESS The characteristics of those likely to be homeless in Australia are relatively well‑known. They include: •

Indigenous people: In 2012/13, over 50,000 clients of specialist homelessness services were Indigenous. Those people represented 22% of those accessing such services, as compared to 3% of the general population.22 More alarmingly, in the same year, almost one in three (31%) of children aged 0‑17 who received assistance from the specialist homelessness agency was Indigenous. By comparison, Indigenous children comprise 5.5% of the population of children in this country.23 As I have already noted, these disproportions reflect, but are not as great as, the disproportionate over-representation of Aboriginal people in the criminal justice system of this country.24 Those escaping family violence and experiencing relationship issues: Domestic violence is the most common factor contributing to homelessness among women and their children25 and, together with other relationship issues, was the biggest factor leading people to seek supported housing in WA in 2011/12 (43.5%).26 One of the many anomalies in this area is that a very positive development in social policy - reduced tolerance of domestic violence - has exacerbated the problem of homelessness.

Care leavers: Young people who have been in State care and protection are also over‑represented in the homeless population.27

People with mental illness and cognitive disability: There is consistent evidence to the effect that people who are homeless have a much higher prevalence of mental illness than the general population28 and also that mental illness is a key risk factor for homelessness.29 Mental health issues are also more prevalent among homeless youth than among the overall population of young people in Australia.30 There is ample evidence to suggest that the association between mental illness and homelessness is exacerbated by past policy failures. After reviewing the last 30 years of mental health policy in Australia, Professor John Mendoza stated: Australian mental health reform over the past 30 years is one of world-class policies

and strategies let down by inadequate planning, poor implementation and our complex system of government.31 These failings have had a profound impact upon the criminal justice system. As I observed last year: the policies of deinstitutionalisation which have dominated Australia since the closure of the large mental hospitals in almost all jurisdictions about 30 years ago, have resulted in a form of reinstitutionalisation of many of those who would have been treated in those hospitals. However, the institutions to which those persons have been committed are not hospitals, but prisons.32 A BROADER STRUCTURAL PROBLEM Reference to the characteristics of those who are overrepresented in the homeless population carries the risk of creating a false inference that only those who have one or more of these characteristics are likely to experience homelessness. Reference to these characteristics should not be allowed to obscure the fact that many people that experience homelessness as a consequence of nothing other than economic conditions - perhaps a period of unemployment in a market in which the cost of housing is prohibitively high. As Professor Flatau has observed: The structural determinants of homelessness are also obviously critical in driving entry into homelessness and creating exit barriers from homelessness.33 These include ‘the failure of the housing market to provide sufficient affordable housing or the labour market to provide accessible jobs’.34 SUMMARY - LEGAL DIMENSIONS OF HOMELESSNESS To summarise, we know that homeless people are more likely to be the victims of crime and also to be the perpetrators of crime; and we know that they are less likely to resort to the legal system for protection or to have access to the information they need about the legal system. We also know those who are at greatest risk of homelessness - they include Aboriginal people, those escaping family violence, those leaving State care or protection, and those with mental health issues.

THE MAGNITUDE OF THE PROBLEM We also know that the causes and consequences of homelessness are multidimensional and complex. Thanks to Professor Flatau and his colleagues, we know of the correlation between being homeless and having homeless parents (intergenerational homelessness), especially for Indigenous people.35 The intergenerational homelessness rate for Indigenous people in Professor Flatau’s research was 69%, compared to a rate of 43% for non‑Indigenous participants.36 We also know that the complex interrelations between homelessness and the legal system are also likely to be intergenerational. This in turn leads to the conclusion that we have not been particularly successful in solving these problems in the past, which in turn suggests that the magnitude of the problem is profound, and that there are unlikely to be any quick fixes or magic solutions. Of course, that conclusion should not discourage us from attempting to find solutions - rather, it should harden our resolve. THE LIMITED CAPACITY OF THE COURTS Criminalising homelessness is an ineffective and extremely expensive response to a social problem. Generally speaking, and excluding from consideration for the moment specialty solution‑focused courts like our Drug Court and Mental Health Court, courts are not well‑equipped to deal with multifaceted social dysfunction. This point is best illustrated by taking two recent cases. The first concerns a case in which a magistrate was confronted by a homeless defendant who had received 463 move‑on notices since 2006. The homeless person was before the court because an application had been made for a prohibited behaviour order, banning him from designated areas within the central business district. The magistrate refused to make the order, concluding that it was “a waste of time and paper” and would ‘just create another offence for [him] to commit’.37 In other words, the magistrate concluded, correctly in my respectful opinion, that a return to criminalisation is not the appropriate response to this multifaceted social problem. In another case, one of my colleagues heard an appeal brought on behalf of a homeless Aboriginal woman who had been sentenced to 7 months’ imprisonment following her conviction for two offences of failing to comply with a move‑on order and one offence of carrying an article with intent to cause 29

‘Criminalising homelessness is an ineffective and extremely expensive response to a social problem.’ fear. She had a very long history of substance abuse, had been homeless for 3 years, had a long criminal record and was paying off accumulated fines and intended to obtain a violence restraining order against her former partner. She was on the long waiting list for public housing. Hall J observed: The appellant’s homelessness and her chronic substance abuse issues were factors that significantly contributed to this offending conduct. They were factors that made it inappropriate to make assumptions regarding persistent offending and the importance of personal deterrence. Personal deterrence assumes an ability to make choices. It assumes an ability to rationalise and to understand the consequences of repeated behaviour.38 CONCLUSION Of course, this is not to say that the courts can or should throw their hands in the air and say, ‘It’s all too hard’ when confronted with homeless offenders. The courts must perform their fundamental function of enforcing the laws of the State and imposing punishments which are commensurate to the seriousness of any offence committed. However, there are, I think, three points which emerge from this brief overview of the legal dimensions of homelessness. First, because of the demonstrated association between homelessness and other criminogenic factors, the intersection of a homeless person with the criminal justice system should be seen as an opportunity for beneficial intervention aimed at addressing those criminogenic factors, together with that person’s homelessness. If those factors and the person’s homelessness are not successfully addressed, further offending is inevitable. A solution‑focused approach to offenders with these characteristics is much more likely to protect the community from reoffending behaviour than an approach based on punishment or deterrence. Second, as I have said many times, the old saying that, ‘An ounce of prevention is worth a pound of cure’ is nowhere truer than in the criminal justice system. Money spent on programmes aimed at reducing homelessness and the problems often associated with homelessness, 30 | Brief October 2014

like mental illness, substance abuse and domestic violence, is much more likely to reduce crime and make our community safer than the vast amounts of money we are spending on police, courts and prisons. Leaving to one side issues of morality and humanity, simple economic rationalism suggests that we should be focusing much more effort and money on the front end, the causes of crime, than on the back end - punishing crime after it occurs.

homelessness programs: a first assessment (Volume 1 - main report, 2008); Matthew Willis, Ex-Prisoners, SAAP, Housing and Homelessness in Australia (2004); Julian M Somers, Stefanie N Rezansoff1, Akm Moniruzzaman, Anita Palepu & Michelle Patterson, ‘Housing First Reduces Re-offending among Formerly Homeless Adults with Mental Disorders: Results of a Randomized Controlled Trial’ 8(9) PLoS ONE (2013) e72946. doi:10.1371/ journal.pone.0072946. 12.

Dr Eileen Baldry, Dr Desmond McDonnell, Peter Maplestone & Manu Peeters, Ex-prisoners and accommodation: what bearing do different forms of housing have on social reintegration? (August 2003) pp 11, 12; and see also AIC, ‘The post-release experience of prisoners in Queensland’ Trends & Issues in crime and criminal justice (No 325 September 2006).


AIC, ‘Homeless people: their risk of victimisation’ AICrime Reduction Matters (No 66, 15 May 2008).


Note 13.


National Youth Commission Inquiry into Youth Homelessness, Australia’s Homeless Youth (2008) p 12; National Crime Prevention, Living Rough: Preventing Crime and Victimisation among Homeless Young People (1999) pp 3-5.


Note 13.


AIHW, Children and young people at risk of social exclusion: links between homelessness, child protection and juvenile justice (15 November 2012).


Law and Justice Foundation, No Home, No Justice? The Legal Needs of Homeless People in NSW (May 2005) p iv.


Department of Corrective Services, Annual Report 2012-13 (2013) pp 98, 103.


Paul Flatau, Kaylene Zaretzky, Michelle Brady, Yvonne Haigh & Robyn Martin, The costeffectiveness of homelessness programs: a first assessment (Volume 1 – main report, 2008) p 146. The estimated health costs were almost three times higher (p 143).


St. Vincent’s Mental Health Service & Craze Lateral Solutions, Homelessness and Mental Health Linkages: Review of National and International Literature (May 2005) p iv.



AIHW, Indigenous child safety (2014) p 16.



Note 22.


As at 30 June 2013, Indigenous adults comprised 27.4% of the prison population (Note 3, Table 14 Prisoners, selected characteristics); On an average night during the June quarter in 2013 Indigenous young people comprised 51% of juveniles in detention (AIHW, Youth detention population in Australia 2013 (2013)).


Dr Lorana Bartels, Emerging issues in domestic/ family violence research (April 2010) p 6.


Homelessness Australia, ‘Homelessness in Western Australia – Fact Sheet’ (30 April 2013).


National Youth Commission Inquiry into Youth Homelessness, Australia’s Homeless Youth (2008) p 9.


Note 21.


Dr Lauren Costello, Dr Melanie Thomson & Dr Katie Jones, Mental Health and Homelessness - Final Report (June 2013) p 1.

The third conclusion I would draw from this brief review is that the various people and organisations represented at this important Conference, who are working at the coalface providing much‑needed support to homeless people, are much better equipped and much more likely to achieve practical and beneficial outcomes for the homeless than I and my colleagues working in the criminal justice system. We can strive to do less harm, and provide opportunities for beneficial intervention, particularly through our solution‑focused specialty courts, but ultimately properly planned and developed programmes delivered by trained and experienced professionals provided with adequate public resources to address the multifaceted issues associated with homelessness are the only effective means of addressing those problems.

I am indebted to Dr Jeannine Purdy for her assistance in the preparation of this paper. However, responsibility for the opinions expressed and any errors is mine.


Australian Institute of Health & Welfare (AIHW), Homelessness among Indigenous Australians (2014) p 13.


As at 30 June 2013, the Aboriginal imprisonment rate in WA was 4,022.1 per 100,000 while the non-Aboriginal rate was 157.1 (Australian Bureau of Statistics, 4517.0 Prisoners in Australia (13 June 2014) Table 20 ‘Crude Imprisonment Rate - Aboriginal and Torres Strait Islander status, 20032013’).


Aboriginal and Torres Strait Islander Social Justice Commissioner, Fourth Report (1996) pp 69, 70.


Emily Schindeler, ‘A Genealogy of the Problematic of Homelessness and the Homeless in Australia’ (PhD Dissertation, School of Justice, Faculty of Law, Queensland University of Technology) p 40.


Note 5, p 51.


Note 27, p 10.


Law Reform Commission WA, Police Act Offences Report (1992) p 30. Section 66(9) of the Police Act 1892 (WA) stated: ‘Every person wandering about or lodging in any outhouse, deserted or unoccupied building, or in the open air, or in any vehicle, not having any visible lawful means of support, and not giving a good account of himself’ committed an offence.


‘Synopsis - Obsessive Hope Disorder’ available at: www.sfnsw.org.au/Awareness---Education/MentalHealth-Reports/Mental-Health-Reports (accessed 16 September 2013).


The Honourable Wayne Martin AC, ‘At the crossroads of criminal justice and mental illness: where to from here?’ (Rural and Remote Mental Health Conference 2013, Northam, 18 September 2013) p 7.


Paul Flatau, Elizabeth Conroy, Catherine Spooner, Robyn Edwards, Tony Eardley & Catherine Forbes, Lifetime and intergenerational experiences of homelessness in Australia (February 2013) p 4.


Note 33, pp 8, 9.


Note 33.


Note 33, p 2.


Daniel Emerson, ‘Court order “a waste of time”’ The West Australian (3 December 2013).


Bropho v Harrison [2013] WASC 250 [34].


See the Criminal Law Amendment (Simple Offences) Act 2004 (WA).


See the Criminal Law Amendment (Simple Offences) Act 2004 (WA), s50. The provision is now found in the Criminal Investigation Act 2006 (WA) at s27.


Monica Taylor, ‘Overcriminalisation and the Dilution of Crime: A Homeless Perspective’ (Workshop Presentation 20th Annual International Conference of the International Society for the Reform of the Criminal Law Brisbane, 2 ‑ 6 July 2006).


See, for example, Australian Institute of Criminology (AIC), ‘Homelessness, drug use and offending’ Crime Facts Info (No 168, 15 April 2008); Paul Flatau, Kaylene Zaretzky, Michelle Brady, Yvonne Haigh & Robyn Martin, The cost‑effectiveness of

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Involuntary Patients and Legal Representation Sandra Boulter Principal Solicitor and General Manager of the Mental Health Law Centre (WA)1

“They call me mad, and I called them mad, and damn them, they out-voted me.” Nathaniel Lee2 Effective informed legal triage and advocacy surrounding involuntary patients puts them central to the process, in line with the new recovery model. It is an essential safeguard of involuntary patients’ rights. OVERSIGHT Professor Stokes3 found that the: 1. mental health system is under considerable stress … particularly in … endeavouring to adhere to … legislative requirements;4 and 2. governance of public mental health in WA is fragmented, variable in type and method of service delivery, and there is no robust uniform clinical accountability.5 Similar or further concerns have been articulated by the State Administrative Tribunal6 and by the Coroner.7 INVOLUNTARY ORDERS The Mental Health Act 1996 (the Act) and the Mental Health Bill 20138 (the Bill) authorise certain people9 to assess and refer a person for compulsory examination by a public service psychiatrist without reference to their current treating practitioner.10 After an examination, the psychiatrist11 can order detention and involuntary treatment of any person who satisfies the Act’s criteria. THE ACT: INVOLUNTARY ORDERS’ OVERSIGHT The Act requires Mental Health Review Board12 (Board) reviews of a person’s involuntary status and gives a right for patients to have counsel13 at Board14 reviews15 of their status.16 The Act: Representation17 (1) A party to proceedings before the Board — (a) may appear personally unless the Board, being of the opinion that the personal appearance of a person

32 | Brief October 2014

would be detrimental to the health of the person, orders that the person be represented; or


(ii) a mental health advocate; (iii) the child’s parent or guardian unless the Tribunal makes an order under section 454(2)(b) in respect of the child’s parent or guardian;

(b) may be represented in those proceedings by counsel or, with the leave of the Board, by any other person ... The Board must be ‘reasonably satisfied’ as to its decision. There is no onus of proof or ‘balance of probabilities’. Arguably, the Briginshaw18 principles apply to the level of the Board’s satisfaction.19 Legal Board members chair reviews. Only lawyers can be paid to represent a party. The Act provides statutory rights20 to examine and cross-examine witnesses, for the patient to be heard.21 The Board must act according to equity and good conscience,22 ensure the least interference with patients’ rights23 and protect patients.24 THE BILL: INVOLUNTARY ORDERS’ OVERSIGHT The Bill25 appears to reflect a perspective, which diminishes the importance and desirability of legal representation26 at Mental Health Tribunal27 (Tribunal) reviews by equating legal and lay representation, redefining representation, removing advocacy funding provisions28 and permitting non-lawyers to be paid for representation.29 The Bill: Appearances and Representation30 Clause 447 Party is an adult (1) In a proceeding, a party who is an adult — (a) may appear in person or be represented by another person; or ... Clause 448 Party is a child with capacity to consent (1) In a proceeding, a party who is a child with sufficient maturity and understanding to make reasonable decisions about matters relating to himself or herself — (a) may appear in person; or (b) may be represented by any of these people —

a legal practitioner;

(iv) any other person who, in the Tribunal’s opinion, is willing and able to represent the child’s interests; or ... Clause 449 Party is a child with no capacity to consent (1) In a proceeding, a party who is a child does not have sufficient maturity or understanding to make reasonable decisions about matters relating to himself or herself must be represented by one of these people — (a) a legal practitioner; (b) a mental health advocate; (c) the child’s parent or guardian unless the Tribunal makes an order under section 454(2) (b) in respect of the child’s parent or guardian; (d) any other person who, in the Tribunal’s opinion, is willing and able to represent the child’s interest. LEGAL REPRESENTATION Generally The need for legal representation is said to depend on the person’s background, the nature of the proceedings, and the consequences, drastic or trivial which might flow.31 Involuntary patients are particularly vulnerable to uncontested breaches of their rights. Complaints32 and reviews have pivotal roles in oversight of mental health practitioners’ obligations to observe patient rights. Factors favouring legal representation include the seriousness of the issue; any power imbalances, which import credibility issues; people who cannot adequately

self-represent; any complexity in statutory interpretation affecting liberty;33 the need for procedural fairness; and the common good. Factors which may be thought to be against legal representation include inefficiencies from lengthy hearings; no perceived legal issues; lawyers’ fees; adequate non-legal advocacy; it is cheaper and quicker; and a statutory right of de novo review.34 Early Legal Triage and Advice Orders of magnitude and reach should not be made without a person being advised of the availability of legal help.35 Early legal triage, even at the psychiatric referral stage, could see: •

better and early understanding of rights and obligations in a particular circumstance36

patients not referred

early detection of invalid exercises of power

timely and effective responses to complaints

effective early mediation between doctor, families, private practitioners and patients released before a formal review

all appropriate documents and

witnesses assembled for a review Legal Support The hearing right empowers an individual client to bring the … apparatus to a halt for a moment, so that the bureaucracy can hear out her point of view.37 Our clients report that they sense the dignity of a power rebalance sitting beside their own lawyer, and welcome the opportunity that the review provides to ask their doctor questions and have their questions answered. Lawyers articulate clients’ instructions and facilitate dignity in reviews. Procedural Fairness In an under-resourced system, pressures to minimise review time can impact on fairness. Unfair reviews from missing evidence cannot be cured by adjournment because orders continue. The High Court38 and academic commentary39 repeatedly reiterate the essential nature of preserving fairness. Nonetheless, [p]rocedural fairness … is a rubbery creature shaped by the facts and circumstances of each case …”40 Lawyers will articulate the demands of procedural unfairness in a particular set of circumstances, such as a particular Board review.41 Statutory Interpretation42 Involuntary orders lead to deprivation of

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liberty, which parliament has balanced with important protective statutory rights and obligations. Arguably, the most important role of a lawyer here is to understand the statutory context, and statutory interpretation assisted by the vast body of applicable case law. To reviews, lawyers bring a comprehensive understanding of the rights and corresponding obligations in mental illness law and policy; and rights based scrutiny of the Act.43 Tailoring In United States welfare litigation [t]he Court by declaring an oral hearing, even without legal representation, is enough to make the … process minimally fair, [and] the Court denies how power differences distort both the fairness and reliability of testimonial rituals.44 The power to tailor [proceedings] must shift to those that tailoring seeks to help. Those who have been diagnosed as disabled, must assume the power to describe their own circumstances, discover their own capacities and define their own needs.45 Many people advocate in patients’ best interests. However, the lawyer articulates clients’ instructions. Lawyers can best advocate for the tailoring of proceedings to their client, thereby promoting their

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dignity in the hearing ritual. Common Good Legal advocacy works an influence beyond each of their clients’ matters, by making a normative impact across the mental health service; thus hindering a non-compliance slippery slope. Normative ordering46 promotes the fair exercise of legislative powers, according to law. The Centre’s lawyers, [b]y mediating between broad principles and specific situations – ratcheting back and forth to reach a reflective equilibrium between justice, fairness, equality, allocative efficiency, and the particular conflict at hand – ... [they] think not only about the result in a particular case, but also about the public trail they leave behind for resolution of future situations. When [they] ratchet back and forth between broad principles and specific situations, they necessarily have one eye on the common good and the interest of society that transcend a particular situation.47 This is the core nature of community legal advocacy. SUMMARY “There is probably no function upon which lawyers have more to offer than representation of the individual when his freedom is at stake.”48 The Bill reveals a disturbing policy shift. The Bill should have enshrined, strengthened and recognised the right to and need for legal representation. People subject to involuntary orders should be entitled to rigorous, careful and timely scrutiny of their treatment. Expert counsel will ensure that the breaches of a person’s most basic human rights were, are and continue to be lawful and warranted. A civil society should demand no less.


See the report from WA Coroner into the deaths of 10 Graylands Hospital patients May 2014 at <http:// www.mhlcwa.org.au/latest-news/mental-healthbill-reaches-the-upper-house-coroner-reports-ondeaths-of-10-graylands-hospital-patients/>.


Green Mental Health Bill 2013 (WA).


Includes medical practitioners, nurses, occupational therapists, psychologists.


Following lobbying by the MHLC, the Legislative Council has proposed amendments to the Bill, which include a requirement for a referrer to contact the current treating practitioner when contemplating making a referral.




All the MHLC solicitors, by their casework, contributed insights for this article, with particular thanks to Paul Pascoe for his slippery slope comment and law student volunteer, Daniel McCluskey for formatting the footnotes. Thank you to Matthew Howard SC, Chair of our Board of Management for keeping the author on point. Any errors are entirely those of the author. Nathaniel Lee, admitted to Bedlam in 1684, cited in M. Jay, The Influencing Machine: James Tilly Matthews and the Air Loom, (Strange Attractor Press, 2012) 27. Bryant Stokes AM, Review of the admission or referral to and the discharge and transfer practices of public mental health facilities/services in Western Australia (July 2012; Western Australian Department of Health and the Western Australian Mental Health Commission), (Stokes Report) <http:// www.mentalhealth.wa.gov.au/Libraries/pdf_docs/ Mental_Health_Review_Report_by_Professor_ Bryant_Stokes_AM_1.sflb.ashx>. ibid., n 3, 1.


ibid., n 3, 6.


Western Australia, Parliamentary Debates, Legislative Council, 27 June 2013 <http://www. mhlcwa.org.au/wp-content/uploads/2013/07/

34 | Brief October 2014


Lucie White, ‘Goldberg v Kelly on the Paradox of Lawyering for the Poor’ (1991) 56 Brooklyn Law Review 861, 869.


Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [11]-[15].


Very broad definition and includes medical practitioners who are not members of the College of Psychiatrists.


Not part of the State Administrative Tribunal.


Initially, the Mental Health Law Centre (WA) Inc., an independent community legal centre with charitable status, was established and funded by the WA state government to provide free legal services to involuntary patients.


D. F. Jackson and J. C. Conde, ‘Statutory Interpretation in the first quarter of the twenty-first century’ (2014) 38 Australian Bar Review, 182.


Latimer, Hocken and Marsden, ‘Legal Representation in Australia’ above n 25, 124.


The Board is a stand-alone Board, which is not part of the WA State Administrative Tribunal.



Periodic statutory, requested or Board’s own motion.

Kirby v The Prisoners Review Board [2011] WASCA 149; Seiffert v The Prisoners Review Board [2011] WASCA 148; S v SAT [2012] WASC 306.



A similar right exists for a SAT review of a Board decision. Sch 2A, sub-cl 1(1) and (2) of the Act authorise the SAT to arrange for a person to be represented in State Administrative Tribunal (SAT) reviews of Board decisions. The State Administrative Tribunal Act 2004 (WA) (SAT Act) s 39(1), relates to representation in the SAT, which must be by a lawyer unless certain statutory exemptions apply. Other Acts to which the SAT Act applies can modify the operation of the SAT Act.


Mental Health Act 1996 (WA) Sch 2, cls 3.


Briginshaw v Briginshaw [1938] HCA 34 (1938 60 CLR 336 (30 June 1938.


Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788, [217]–[264].


Mental Health Act 1996 (WA) sch 2, sch 2A.


Mental Health Act 1996 (WA) sch 2, s2.


Mental Health Act 1996 (WA) sch 2, s7.


Mental Health Act 1996 (WA) s 5(a), s6(1)(c), s6(2).


Similar provisions are adopted in the Mental Health Bill 2013 (WA).


See generally Mental Health Law Centre (WA), <http://www.mhlcwa.org.au/latest-news/mentalhealth-bill-2013/> and; Mental Health Law Centre (WA), Submission No 28 to Government of Western Australia http://www.mhlcwa.org.au/latest-news/ mental-health-bill-2013-still-needs-some-work/ and at http://www.mhlcwa.org.au/ and the Mental Health Green Bill 2012 <http://www.mhlcwa.org. au/wp-content/uploads/2013/03/FINAL-MHBILL-2012-MHLC-GENERAL-SUBMISSION-28FEBRUARY-2013-8-3-13.pdf>.

The lack of curial decisions to assist in the Act’s interpretation exacerbates the risk of unlawful exercise of powers. MM v MHRB [1998] WASC 392 in which the Court decided that he would not order a stay of the MHRB order at issue, but ordered that an appeal be listed for hearing with priority. MM v MHRB [1999] WASC 1005 (4 March 1999) in which the Court outlined the principles of statutory construction, which interferes with the liberty of the subject, and which was adopted by the Court in the EO decision, which is that such provisions must be strictly complied with. EO v MHRB [2000] WASC 203 (25 May 2000) in which the Court considered the requirements of ss 26(1)(c) & (1)(d) of the Act, procedural fairness and whether or not an involuntary order under the Act was invalid for uncertainty. LS and MHRB [2013] WASCA 128: the WA Court of Appeal reviewed the nature of de novo reviews and upheld the SAT decision in LS and MHRB [2012] WASAT 76 in which the SAT decided that it could not review whether or not previous involuntary orders were made validly, because by the time of the SAT hearing, LS was no longer an involuntary patient. The LS decision means that the maker of an involuntary order has control of whether or not there is oversight of their decision, by simply exercising their power to make the patient a voluntary patient before a hearing.


Bryan Horrigan, ‘Reforming Rights-Based Scrutiny And Interpretation of legislation’ (2012) 37(4) Alternative Law Journal 228. And see, The United Nations’ Principles for the Protection of Persons with a Mental Illness and for the Improvement of Mental Health Care adopted by the Board are internationally accepted guidelines. Principle six includes, “The person whose capacity is at issue shall be entitled to be represented by a counsel.” The Convention on the Rights of Persons with Disabilities articulates the right to measures to enjoy legal capacity on an equal basis with others: Article 12(2; and for support to exercise their legal capacity: Article 12(3) The Convention on the Rights of the Child at Article 37(d) articulates the right to prompt legal advice to children deprived of their liberty. The Human Rights Committee draft general comment on the International Covenant on Civil and Political Rights Article 9 articulates the right for involuntary detained patients to have “Access to independent legal advice; adequate procedural and substantive safeguards established by law; [Access] to procedures ... [that] respect ... the views of the patient, and should ensure that any guardian or representative genuinely represents and defends the wishes and interests of the patient and prompt and regular access … to independent ... lawyers.”


For a helpful discussion about what the right to legal representation means in this context, see: Paul Latimer, Michael Hocken, & Stephen Marsden, ‘Legal Representation in Australia before Tribunals, Committees and other Bodies’ (2007) 14(2) Murdoch University E Law Journal, 122.


Replaces Mental Health Review Board.


The Act Part 8 – Community Support Services, s172(e).


It is unclear whether or not this is an intended amendment to the traditional position, which is enacted by the Legal Profession Act 2008 (WA), s12.


The Bill, cls 447-449.


Latimer, Hocken and Marsden, ‘Legal Representation in Australia’ above n 25, 127.


The Board has a complaint jurisdiction, but the Tribunal does not.


Latimer, Hocken and Marsden, ‘Legal Representation in Australia’ above n 25, 138; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 514.



certain and clear … and that people must be able to know in advance whether their conduct might attract … a civil penalty.” Key principle four is that, “Everyone should have access to competent and independent legal advice … in order to defend their rights. Furthermore: The state should provide adequate resources … to retain a lawyer … Lawyers should be given timely access to relevant information and documents about their client in order to enable them to provide effective legal assistance to their clients;” and Key Principle Seven is the “No Person should be subject to treatment … which is inconsistent with respect for the inherent dignity of every human being.” (emphasis added).


Latimer, Hocken and Marsden, ‘Legal Representation in Australia’ above n 25, 140.


S v State Administrative Tribunal of Western Australia & Ors (No 2)[2012] WASC 306 (‘S v SAT’).


Key principle one of the Law Council of Australia Limited’s Policy Statement on ‘Rule of Law Principles’ published March 2011 is that: “The law must be both readily known and available, and


White, ‘Goldberg v Kelly’ above n 36, 883.


ibid., 886-7.


Kathleen Sullivan, ‘The Good that Lawyers Do’ (2000) 4(7) Journal of Law and Policy 7, 15.


ibid., 19.


Justice Michael Kirby, ‘Mental Health Law Reform’ (1980) Barton Pope Lecture 23 < http:// www.michaelkirby.com.au/images/stories/ speeches/1980s/vol6/1980/187-SA_Association_ for_Mental_Health_-_Mental_Health_Law_Reform. pdf>.

Enhance your Law career Study a Graduate Certificate in Chinese Law in Shanghai, China In the contemporary legal and corporate sphere, it is important for lawyers to function effectively in the international arena. Murdoch University offers a Graduate Certificate in Chinese Law, a unique and innovative course to be studied in Shanghai, China. This course contains one compulsory unit, Introduction to the Chinese Legal System, and a choice of three or four elective units including Chinese Contract Law, Chinese Commercial Law, Doing Business in China and Chinese Trade and Shipping Law. These units are taught at the East China University of Political Science and Law, the largest and most prestigious law school in East China. Each unit is available individually on a nonassessed basis and attracts 7 Continuing Professional Development (CPD) points in Competency Area 1. All units are delivered in English by qualified Chinese academics and lawyers and are taught over four consecutive classroom days during January 2015. Assessment includes a research paper due in May 2015. This course gives students a unique and enriching experience, allowing them to gain valuable knowledge of the commercial and legal system of Australia’s largest trading partner while also allowing them to immerse themselves in Chinese culture. The Graduate Certificate in Chinese Law costs $8,400 and individual units on a non-assessed CPD basis cost $2,500 each. To apply to start in January 2015, or to find out more information contact Dr Stephen Shaw, Program Director. Email: s.shaw@murdoch.edu.au Telephone: (08) 9360 6242 Visit: www.murdoch.edu.au/School-of-Law CRICOS Provider Code 00125J MD9107_09/14


W E D N E S DAY, 3 D E C E M B E R 2 0 14 Come join us at the Parmelia Hilton to wrap up 2014 with drinks, canapés and socialising over a summer’s night. This event sells out so register your attendance today! To book go to lawsocietywa.asn.au

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Ann-Margaret Walsh Principal Solicitor, Street Law Centre

36 | Brief October 2014

Vidya Rajan CLE Project Officer, Street Law Centre


Street Law’s core vision is to enable equity and dignity in access to justice for its clients. The organisation’s service delivery is conducted through outreach legal clinics – currently at Ruah Centre, Tranby Day Centre, St Patrick’s Community Support Centre, and Passages Resource Centre. Volunteer lawyers from a number of commercial law firms, supervised by Street Law’s principal solicitor, assist in service provision by attending the legal clinics. Street Law further relies on pro bono services of private practitioners and the WA Bar Association. The Public Purposes Trust Funding has also recently enabled the expansion of Street Law’s Community Legal Education programme through the appointment of a Community Legal Education Officer. WHO ARE THE HOMELESS? To provide its services, Street Law uses the most widely accepted definition of ‘homelessness’ in Australia, which categorises homelessness into three types: 1. Primary homelessness – includes those who are sleeping rough or are living in an improvised dwelling. 2. Secondary homelessness – includes those staying with friends or relatives and with no other usual address and people staying in specialist homelessness services. 3. Tertiary homelessness – includes people living in boarding houses or caravan parks with no secure lease and no private facilities, both short and long-term. Statistics from the last financial year indicate that a majority of our clients are male (75%) and aged between 45 – 54 (29%). Young persons make up a not insignificant proportion of our clients at 19% and approximately 10% of

Street Law Centre (WA) Inc (Street Law) was set up in response to an identified need for the provision of free, specialist community-based legal advice that addresses holistically the unique needs of persons experiencing or at risk of homelessness. The organisation commenced operations in 2010 with the assistance of pilot funding from state and Commonwealth governments through the Commonwealth Community Legal Services Programme and the Legal Contribution Trust Fund. More recently, funding from the Public Purposes Trust Fund has enabled an expansion of services.

our clients were identified as being of Aboriginal or Torres Strait Islander origin. Approximately 57% of our clients were recorded as having a disability and nearly 33% of these clients identified as having psychiatric disabilities. Primary and secondary levels of homelessness were experienced by 44% of our clients. In addition, a large portion (23%) were also recorded as ‘sleeping rough’. As the Chief Justice, the Hon Wayne Martin AC, highlighted in his recent paper for the Homeless Persons Week Conference,1 circumstances leading to and staying in homelessness are varied and complicated. Disproportionately, persons experiencing or at risk of homelessness appear more likely to have experienced adverse life events such as childhood trauma and family and domestic violence. Instances of mental illness and substance misuse are also much higher in those experiencing longterm homelessness. Further, the state of being homeless can both create and exacerbate existent vulnerabilities and physical and mental trauma. However, it should also be stated that in our experience there is not always a single story of homelessness. Cases can range from individuals with a history of substance misuse experiencing longterm homelessness, to recent immigrant families who find themselves jobless and unable to access – or sustain themselves on – benefits. Indeed, the common factor between all persons experiencing homelessness, whether they are receiving welfare or not, is the fact they cannot afford to access stable shelter and housing. COMMON LEGAL ISSUES There is a societal perception that persons experiencing homelessness are most likely to be involved as perpetrators and, to a lesser degree, as victims in

criminal law matters. Certainly, as the Chief Justice articulated at the Homeless Persons Week Conference, homeless persons experience disproportionate contact with the justice system. They are more likely to be both convicted and imprisoned for crimes, and to be victims of violence and crime, than non-homeless persons. However, our experience also indicates that persons experiencing or at risk of homelessness have a varied range of legal needs. In particular, our records indicate that in the last financial year, 61% of Street Law’s cases were civil in nature. Criminal matters constituted 26% of the work load and Family Law matters constituted the remaining 13%. A key insight from our work at Street Law goes some way to explaining the disproportionate contact homeless persons have with the justice system. We repeatedly see clients who, by the very fact of experiencing homelessness, are forced to commit acts in public that others would usually be able to commit in private. Laws and law enforcement measures that criminalise or target these (often unavoidable) human behaviours thus disproportionately affect our client group. Examples in Western Australia include laws prohibiting street drinking, disorderly conduct, public urination, anti-camping laws and breaches of move on notices. It should also be noted that homeless persons’ existence in public space can render them more visible to law enforcement in the first place. A common case scenario that emerges in our work relates to clients who enter a spiral of increasing infringements and fines to the point of heavy and insurmountable debt. Simon’s case is a recent example: Simon is a 48 year old man. He has experienced prolonged alcohol 37

dependence, depression and primary homelessness. He used to work full-time and own his own business, but stopped working full time in 2012 due to his addiction and has been sleeping rough since. He moved to Western Australia as a youth and has no family support here. As of 2014, he has accrued fines of around $17,000 for more than 50 separate offences. The majority of fines have accrued since he became homeless. Most are for infringements and court-ordered fines relating to disorderly behaviour when he was drunk. For instance: public urination, swearing, damage to property, stealing alcohol, street drinking, transit fines and failure to obey move on orders. These incidents would often occur in quick succession, particularly the breaches of move on orders. Simon has found himself unable to stop drinking due to his addiction, and states he was too intoxicated during most incidents to properly obey orders or control his behaviour. Simon was required to attend court several times. Further fines have subsequently accrued from breaches of bail that arose out of a failure to attend court, which Simon explained was because he was too confused to do so. Simon was able to reduce approximately $7,800 of his fines with the Fine Enforcement Registry due to some time he had served in prison. However, he still has a large amount outstanding and is still seeking employment. He is also seeking assistance to find affordable, secure accommodation. Simon explained to Street Law that most of his offences would not have happened if he had accommodation. Simon is not wrong. If he had accommodation, his intoxication would rarely have led to disorder in a public space. His case especially illustrates some of the shortcomings of enforcement-based approaches. The blanket application of punitive or deterrent measures without a consideration of the circumstances can exacerbate states of homelessness. Simon suffered from a debilitating alcohol dependence (among other issues), and he was unable to have this addressed. Meanwhile, as his fines accrued, his ability to end his homelessness through his own means was further reduced. Contact with the court system also served to increase his overall debt. Indeed, Justice Hall’s comments last year in the case of Lynette Bropho2 are also 38 | Brief October 2014

relevant for Simon. Commenting on the frequent and blanket issuing of move on orders, his Honour suggested that such measures “are futile” in cases concerning those who continually reoffend due to “deepseated problems”, and that “if that offending is not in itself deserving of imprisonment it is wrong to use such a sentence in order to try to achieve some socially desirable change in behaviour”.3 Arguably, Simon has ended up not merely in the same place he began, but in a worse financial and emotional circumstance, with his vulnerability to future homelessness exacerbated. In cases like Simon’s, it is not just the cost to the individual that is at stake. There exists a significant cost to society as well. When enforcement measures do not work and perpetuate the conditions of homelessness, there is an increase in emergency hospital interventions, a strain on police resources and a clogging of the court process. Further, trust between homeless persons and law enforcement is eroded – making future cooperation and social order more difficult. ALTERNATIVE MEASURES There are strong alternatives to approaches that favour criminalisation and law enforcement measures. Alternative approaches to the issue tend to try and address the root causes of homelessness as a priority and to minimise contact with the justice system. As was outlined in a recent report by the United States-based National Centre for Poverty and Homelessness,4 these alternate measures, in addition to addressing underlying issues of homelessness, are likely to be lower cost in the long-term. In particular, the report advocated the ‘housing first’ approach, which prioritises providing immediate housing for homeless persons regardless of any pre-existing problems (such as substance misuse) that they might be experiencing. A similar approach, with the provision of intensive support services post-housing, is also endorsed by the Community Housing Coalition of WA.5 In Victoria, pilot programmes such as the Sacred Heart Mission’s ‘Journey to Social Inclusion’ project are also beginning to test the housing first approach with early signs of positive outcomes.6 Other examples of alternative measures include expanding alternative sentencing options, developing approaches to law enforcement that prioritise referral pathways over the issuing of infringements and developing protocols such as the New South Wales government’s ‘Protocol for Homeless People in Public Places’ that directs government agencies to adopt supportive, best practice approaches.

It is important also to acknowledge that stakeholders rarely intend criminalisation measures and law enforcement practices to cause further harm to the homeless, or to sustain conditions of homelessness. Rather, these measures are often responding to other perceived or actual community concerns. The recent debate over proposed anti-begging laws in Perth is an example of this. It is commendable, however, that the stakeholders concerned have committed to establishing a joint working committee to assess the efficacy of any such laws.7 Law enforcement measures can often be a knee-jerk reaction to a complex problem. As Lucy Adams of Justice Connect highlights in her recent paper on the negative impacts of criminalisation,8 the first step to addressing the issue of homelessness is to avoid such reaction by undertaking evidence-based analysis and comparison of any proposed measures. In terms of contributing to the reduction of contact between homeless persons and the justice system, Street Law is particularly looking to focus on developing its community legal education programme. Through a focus on education – not only for persons experiencing or at risk of homelessness, but also for the general public, service providers and law enforcement officials – we hope to provide insight into the complicated condition of homelessness and the need for nuanced and preventative approaches going forward. NOTES


The Honourable Wayne Martin AC. ‘The Cost of Homelessness – A Legal Perspective’. Paper presented at the Homeless Persons Week Conference, Parmelia Hilton, 6 August 2014. www. supremecourt.wa.gov.au/_files/Homeless%20 Persons%20Week%20Conference%202014%20 Martin%20CJ%206%20Aug%202014.pdf.


Bropho v Harrison [2013] WASC 250.


ibid., para 6.


National Law Center on Poverty and Homelessness. No Safe place: The Criminalisation of Homelessness in U.S. Cities. 2014. http://www.nlchp.org/ documents/No_Safe_Place.


Community Housing Coalition WA. ‘Reducing the Cost of Homelessness through Housing-Led Initiatives’. August 2014. www.communityhousing. com.au/wp-content/uploads/2014/08/Reducingthe-Cost-of-Homelessness-through-Housing-LedInitiatives.pdf.


Johnsnon G, Kuehnle D, Parkinson S, Sesa S, Tseng Y. Resolving Long-Term Homelessness: A Randomised Controlled Trial Examining the 36 Month Costs, Benefits And Social Outcomes From The Journey To Social Inclusion Pilot Program. Sacred Heart Mission, St. Kilda. www. sacredheartmission.org/Assets/Files/J2SI_2014_ web.pdf.


Croy L. ‘Group to tackle begging’, The West Australian. 18 August 2014. au.news.yahoo.com/ thewest/a/24737577/group-to-tackle-begging/.


Adams L. Churchill Fellowship Report. In the Public Eye: Addressing the Negative Impact of Laws Regulating Public Space on People Experiencing Homelessness. Justice Connect 2014. www. justiceconnect.org.au/sites/default/files/In%20 the%20Public%20Eye%20-%20Churchill%20 Report.pdf.

society events

YLC Practical Advocacy Weekend 2014 James Graham Principal, Graham & Associates

Emma Cavanagh Solicitor, Minter Ellison

The Young Lawyers Committee’s annual Practical Advocacy Weekend is a unique opportunity for young lawyers to work directly with, and learn from, a number of extremely talented and experienced advocates including justices, judges and senior members of the bar. This year we had an incredible line up of coaches who were willing to give up their weekend in order to share their collective wealth of experience. Along the way, they imparted some pearls of wisdom gleaned from a lifetime behind the bar table (and/ or the bench) to guide the attendees through some of the common traps that snare junior lawyers in the Courtroom. As always, the weekend was a sell-out with 42 attendees from a wide range of practice areas including prosecution, criminal defence, commercial litigation, personal injuries, family law and local government, all with diverse backgrounds and different levels of experience. With 15 coaches and 42 students, it is easy to see why the advocacy weekend is so popular, providing young lawyers a unique KBE-Brief-Final.pdf



opportunity to work with and learn from judges and respected barristers in a relaxed and collegial setting. That being said, all of the attendees were expected to make the most of the opportunity by working hard, preparing thoroughly and weathering the sometimes direct, but always constructive feedback given by the coaches. We thank: the Honourable Justice Mazza, the Honourable Justice Hall; the Honourable Justice Chaney; the Honourable Christine Wheeler AO QC, Her Honour Judge Mary Ann Yeats AM, Her Honour Judge Felicity Davis; Linda Petrusa SC; Amanda Forrester; Linda Black, Stephen Davies SC, Craig Colvin SC; Brendan Ashdown; Paul Yovich; Carmel Barbagallo and in particular His Honour Judge Patrick O’Neal. The time and effort invested by the coaches, many of whom are willing to

volunteer their time year after year, is indicative of the generosity of the Western Australian legal profession. To see so many senior practitioners and members of the judiciary giving up not just their weekend, but a significant amount of time beforehand preparing for the event, is truly humbling. Special mention in this regard should go to His Honour Judge O’Neal, who goes above and beyond the call of duty every year to ensure that the feedback, guidance and mentoring received by the participants is consistently exemplary. This event is always one of the annual highlights on the YLC Calendar, and 2014 was no exception thanks to the hard work and time invested by the coaches, Law Society staff, YLC volunteers and (last but not least) the participants themselves.

4:32 pm










case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – ‘Big money cases’ – Full Court holds that financial contributions are not more important than other contributions In Hoffman [2014] FamCAFC 92 (27 May 2014) the Full Court (Faulks DCJ, Murphy and Watts JJ) dismissed the husband’s appeal against a property order made by Brewster FM by which a $10m pool after a 36 year cohabitation was divided equally. The husband sought a contributions adjustment in his favour due to his “special skills and entrepreneurial flair” in his substantial investments in real property and the share market (para 5). The Full Court said (para 21) that “[t]o the extent that his Honour’s judgment is … that there is no binding rule of law relating to ‘special contributions’ his Honour is, in our view, correct”, concluding (para 61): We consider that the true position is … put correctly and succinctly by O’Ryan J in D & D [2005] FamCA 1462 at [271]: ‘… the notion of special contribution has all been a terrible mistake … what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement’ … without adjectival qualification … Thereafter the court must undertake the exquisitely difficult task of assessing how those respective contributions, often of differing types (a task which his Honour referred to … as a comparison of apples and carrots), find expression in qualitative assessments … In the context of [this] case … the duration of the marriage … has an important influence upon what evidence is relevant … There is no need to conduct a minute forensic examination of the details of contributions over many years with each party extolling their own efforts and attempting to diminish the other’s. Property – De facto relationship existed despite absence of common residence or joint accounts – Mock wedding ceremony In Clark & Ors [2014] FCCA 234 (11 March 2014) the parties had for 10 years regularly spent weekends at each other’s homes and travelled overseas together. The parties had a child, the father describing conception as “a fling” (para 14). He said that after the birth he agreed to a mock

40 | Brief October 2014

wedding ceremony so as to ensure that people in their community would not attach “the stigma of illegitimacy” to their child (para 21). A DVD of the ceremony was played to Judge Burchardt who found that it “sits … uneasily with the [father’s] assertion that the parties were not in a [de facto] relationship” (para 77), as did other evidence of “something more than ordinary friendship” (para 47) including photographs, a Valentine’s Day card, “a wedding invitation”, a draft financial agreement and a family Medicare card. The Court concluded (para 115): … While there are clearly some indicia that would point against [the existence of a de facto relationship] such as the lack of permanent joint residence, the non-intermingling of bank accounts … and the fact of whatever relationship the applicant continued with [his former wife] these are all vastly outweighed by all the other numerous factors … Property – Undervaluation of gift of real estate from wife’s father referred to OSR (NSW) for investigation – Wife not protected by certificate under s128 Evidence Act granted after admitting fraud In Kern [2014] FCCA 1108 (30 May 2014) a nine year marriage produced one child and a pool of $1,347,761 of which $458,000 was superannuation. During the marriage the wife’s parents gave the wife a block of land. The transfer consideration was given for stamp duty purposes as $110,000 which the wife said was “the developer’s cost price”. Her father (whose company was the developer) gave evidence that its market value was $150-160,000. The wife deposed that the average price of blocks in the development was $179,000 but argued that (as her financial contribution) it should be treated as being worth its ultimate sale price of $325,000, which Judge Riley (para 52) accepted, applying Williams [2007] FamCA 313. However, the Court decided (para 113) that it would refer the matter to the NSW Office of State Revenue for investigation, after saying (para 112): The wife and her father asked for and were given certificates under s 128 of the Evidence Act 1995 [(Cth)] in relation to the possible fraud on the revenue. However, the evidence given by the wife … was given by [her] of her

own free will and preceded the giving of those certificates. Consequently, that evidence stands and is not affected by the certificates. Children – Equal time for two young children (in place as a parental compromise) set aside In Willis & Field [2014] FCCA 514 (20 March 2014) the parties had entered into a week about arrangement for children of 2 and 4 which neither party favoured but was imposed as a compromise 11 months before the appointment of the psychologist and family consultant. While the father and ICL proposed continued equal time the mother sought an order that the children live with her and spend time with the father on alternate weekends, failing which the children live with the father and spend alternate weekends with her. The wife’s case was (para 28) that “at their ages the children were spending too long away from each parent” and that “[m]aybe for X and Y it is not so much about who is best placed to parent the children but who is prepared to engage with and be guided by professional support services”. Judge Phipps found (para 36) that the parties were “hostile to each other” and (para 41) lacked “capacity to communicate … and solve difficulties that might arise in … an arrangement of equal time” to the extent that “equal time [was] not reasonably practicable” (para 44). The Court found (para 63) that “[t]he history of the mother’s engagement with professional services shows that she is the one who was better attuned to X’s problems and prepared to seek the help needed”, adding (para 67) that the fact that “[s]he would rather the children were living with the father … than [that] they have equal time” shows that “the mother is focused on the children’s needs” and “that she is better placed to care, particularly for the emotional and psychological needs of the children”. It was ordered that the children live with the mother and spend alternate weekends and other time with the father. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. www.thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol.






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case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Admiralty Collision between ships near China – whether Federal Court appropriate forum In CMA CGM SA v Ship ‘Chou Shan’ [2014] FCAFC 90 (1 August 2014) a Full Court allowed an appeal against the conclusion of the primary judge that the Federal Court in Australia was a clearly inappropriate forum to determine liability for the collision of two ships near China. Appeal allowed. Evidence Summons to witness – documents produced to lawyers for party to assess claim for legal privilege – whether privilege waived In Von Stieglitz v Comcare [2014] FCAFC 97 (22 August 2014) a Full Court concluded legal professional privilege in documents produced on subpoena was not waived when the documents were produced first to lawyers acting in the proceedings to ascertain whether the privilege was to be claimed. Human rights Unwanted sexual advance – circumstantial evidence – ‘workplace’ In Vergara v Ewin [2014] FCAFC 100 (12 August 2014) a Full Court found the primary judge had not erred in finding Mr V had engaged in sexual intercourse (contrary to s28 of the Sex Discrimination Act 1984 (Cth)) with Ms E (a co-worker) based on circumstantial evidence and notwithstanding neither had any direct memory of it. The Court found the primary judge had not erred in accepting a hotel where after work drinks occurred was a ‘workplace’ for the Act as in force in 2009 or awarding damages of $476,163. Appeal dismissed. Industrial law Further claims – amendment of existing Enterprise Agreement In Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84 (18 July 2014) a Full Court considered when a proposal by an employer to vary the terms of an enterprise agreement was contrary to the terms of the agreement and or

section of the Fair Work Act 2009 (Cth) that permitted the employer to propose variations. Appeal allowed. Native title Excluded land – pastoral lease – whether land subject to resumption process In State of Western Australia v BP (Deceased) [2014] FCAFC 95 (1 August 2014) a Full Court concluded the primary judge did not err in finding the state did not have an intention of resuming land when it granted a pastoral lease over it with the effect that the extinguishing effect on native title of pastoral leases required by s47B of the Native Title Act 1993 (Cth) was to be disregarded. Appeal dismissed. Patents Multiple claimants In AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 (12 August 2014) a Full Court reviewed authority as to the granting of a patent where more than one person claimed to be entitled to the patent for making the relevant inventive step. Ports and harbours ‘Port operator’ In Sino Iron Pty Ltd v Secretary of the Department of Infrastructure and Transport [2014] FCAFC 103 (20 August 2014) a Full Court allowed an appeal against the conclusion of the primary judge in the Administrative Decisions (Judicial Review) Act proceedings as to who was the ‘port operator’ of the Port of Cape Preston in Western Australia for the purposes of the Maritime Transport and Offshore Facilities Security Act 2003 (Cth). HIGH COURT Constitutional law Judicial power – state provisions authorising indefinite detention for sex offenders In Pollentine v Bleijie [2014] HCA 30 (14 August 2014) P and R separately pleaded guilty in Queensland in 1984 to sexual offences committed against children. The respective sentencing judges found that P and R were incapable of controlling their sexual instincts within Part IV of the Criminal Law Amendment Act 1945 (Qld).

The Part made provision for indeterminate detention and probation of offenders convicted of sexual offences and provided for certain offenders to be detained until the Governor-in-Council was satisfied by medical reports that release was expedient. The High Court rejected a ‘Kable’ challenge to the provisions: French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ jointly; sim Gageler J. Questions in case stated in the original jurisdiction answered accordingly. Criminal law DNA evidence In Fitzgerald v The Queen [2014] HCA 28 (13 August 2014) the High Court in a joint judgment allowed an appeal and set aside a conviction for murder where the only evidence linking F to the crime scene was a DNA sample on a didgeridoo and there was doubt as to how the sample came to be there: Hayne, Crennan, Kiefel, Bell, Gageler JJ. Appeal allowed. Evidence Opinion evidence – expert evidence – evidence of anatomist as to characteristics of person in CCTV photos – whether specialised knowledge In Honeysett v The Queen [2014] HCA 29 (13 Aug 2014) H was convicted of robbing a hotel. The prosecution relied on evidence of an anatomist who gave evidence of anatomical characteristics common to H and one of the offenders. The NSW Court of Criminal Appeal (NSW) rejected an appeal by H that contended the evidence was not an opinion based on specialised knowledge that satisfied s79(1) of the Evidence Act 1995 (NSW). H’s appeal was allowed by the High Court in a joint judgment: French CJ, Kiefel, Bell, Gageler and Keane JJ jointly. The High Court concluded the evidence was not based on specialised knowledge and should not have been admitted. Appeal allowed. Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au


law council update

LAW COUNCIL WELCOMES LAW SOCIETY OF WA RECOMMENDATION TO ADOPT LEGAL PROFESSION UNIFORM LAW The Law Council of Australia welcomes the recommendation by the Law Society of Western Australia to the AttorneyGeneral for Western Australia that the Legal Profession Uniform Law be adopted as law in the state. New South Wales and Victoria have enacted legislation for the Legal Profession Uniform Law which is set to commence in early 2015. President of the Law Council of Australia, Mr Michael Colbran QC, said it is encouraging to see that Western Australia is now also considering participation in the scheme which will provide a number of benefits for consumers of legal services and the community generally. “The intention of the Legal Profession Uniform Law is to eliminate the regulatory differences between states and territories that are impeding the profession both domestically and internationally. “The differences that currently exist stand in the way of a seamless, nationally competitive legal profession and also create a barrier to negotiating reciprocal access to international legal services markets,” Mr Colbran said. “Giving effect in Western Australia to the Legal Profession Uniform Law will help to ensure that lawyers operate under the same rules and professional standards; consumers have access to the same consumer protections; the market for legal services is open to all practitioners regardless of jurisdiction; and the regulatory system supports participation in the international legal services market. “The Law Council supports the development of a consistent approach to regulation of the legal profession across Australia and is hopeful the work done to date by the Victorian and New South Wales Governments on the design of the legislation and regulatory framework 44 | Brief October 2014

will be seen by other jurisdictions as a good basis for considering the merits of participating in a consistent and integrated system of regulation,” Mr Colbran concluded. LAW COUNCIL CALLS ON GOVERNMENT TO RELEASE FEDERAL COURT FUNDING REPORT The Law Council of Australia has called on the Government to release the KPMG report into the funding of the Federal Courts for public comment. The KPMG report was presented to the Government in March, but its contents have not been made public until a report in The Australian on 29 August 2014 provided some information regarding the contents of the Report. President of the Law Council of Australia, Mr Michael Colbran QC, said that now a media outlet has obtained a copy of the report, and quoted from it, it is appropriate for the Government to release the entire report for public comment and consultation. “If real progress is to be made in addressing the funding crisis facing the Federal Courts, the Government needs to review the recommendations of the report with input from key stakeholders, including the legal profession,” Mr Colbran said. According to the media article, the KPMG report warns that the Federal, Family and Federal Circuit Courts face the prospect of having to make ‘significant cuts’ to service and staffing levels, potentially leading to increased delays in litigation, the closure of smaller registries, and cutbacks of services to regional Australia. The article quoted the KPMG report as saying that ‘the pool of potential efficiencies’ within the courts ‘has already been tapped’. “If media reports as to the content of the KPMG report are accurate, then it appears that the report confirms what the legal profession has said for some years – that the Federal Courts

are drastically underfunded, and that the public is suffering as a result,” Mr Colbran said. Chair of the Law Council’s Family Law Section, Mr Rick O’Brien, said the problems are particularly severe in the Family Law sector. “Successive Governments have focused their efforts on searching for ways to effect more savings in an already inadequately funded Family Law system. “The Family and Federal Circuit Courts are under-resourced, and the problems are only getting worse. “These Courts deal every day with those families in our community which are most in need, and those children who are most at risk. “A continued failure to adequately resource the Family Law system will only create a snowballing effect, the social and economic cost of which will continue to be felt by the community for years to come,” Mr O’Brien said. Mr Colbran urged the Government to make a commitment to address the recommendations of the KPMG report, and to consult with the Courts and the legal profession to formulate a clear plan for the future. “The Government is now armed, it seems, with a comprehensive report confirming the financial crisis facing Federal Courts, and proposing a range of possible solutions. “The time has come for proper consultation, and prompt action to alleviate the crisis, secure the future of the Courts, and enable them to provide to the public access to justice. “Access to effective representation in adequately resourced courts is a critical responsibility of government. “The rule of law in Australia is undermined without effective access to adequately resourced courts,” Mr Colbran concluded.

pam sawyer



Professional Announcements Career moves and changes in your profession Peel Legal

IRDI Legal

Peel Legal is pleased to announce that Robert Lombardi has joined its firm as Special Counsel, practising in criminal law and civil litigation.

IRDI Legal announces the appointment of Lauren Rathbone as Senior Litigation Lawyer.

Robert Lombardi

Robert was previously a barrister at the Victorian Bar in Melbourne before moving to WA in 2014. Francis Burt Chambers

Lauren, previously of Sydney firms Moray Lauren Rathbone & Agnew Lawyers and McCourts Solicitors, practises predominantly in the areas of commercial litigation and commercial dispute resolution.

Watermark Intellectual Property Lawyers Watermark Intellectual Property Lawyers is delighted to announce the appointment of Guy Provan as Legal Director. Heading up the legal Guy Provan team in Perth, Guy joined Watermark in November 2013. With more than 25 years' experience, Guy previously spent 10 years at Freehills and also ran his own practice.

Dr Jessica Henderson has commenced practice as a Barrister. Dr Henderson formerly practiced as Dr Jessica Walker.

LOOKING LOOKING FOR FOR AA PRACTICAL APPROACH PRACTICAL APPROACH YOUR LLM? LLM? TOTOYOUR The Collegeâ&#x20AC;&#x2122;s LLM (Applied Law) can give you the edge you need to take your career to the next level. Choose from awards and subjects in Commercial Litigation, Commercial Transactions, Family Law, In-house Practice, Property Law and Wills & Estates.


to request a 2015 program handbook today.

46 | Brief October 2014

new members & classifieds

New Members New members joining the Society


Rio Tinto Ltd

Mr Meo Beyan Miss Zoe Bush Miss Ashley Carvalho Miss Maree Casey

Ms Tara Sykes Ms Clare Tunney Ms Shannon Walker Mrs Carolyn White Mr Daniel Yazdani

DCH Legal Group

Miss Pearl Chong ORDINARY MEMBERSHIP Mr Rhett Williamson Ms Erica Dobson Mr Trent O’Neill

Maurice Blackburn Jarman McKenna

Ms Diane Hunter Miss Shakira Johnson-Scott Miss Eloise Langoulant Miss Tanya Le


Integra Legal Pty Ltd

Miss Kirsti Monks Miss Alexandra Mould Mr Craig Schneider Miss Yolanda Schuurmans Mr Jordan Soresi Ms Jackie Stewart

RESTRICTED PRACTITIONER Mr Alexandar Panev Mr Simon Caldwell Avon Legal Mrs Lucy Dickens Birman & Ride Miss Chenara Holford Avon Legal

Miss Felicity Cowcill Mr Bryden Dalitz Miss Madeleine De Leo Miss Lana Diianni Ms Nicole Farrar

Hardy Bowen

Miss Catherine Graville




Suite 169, Level 4 580 Hay Street, Perth WA 6000 (Equus, opposite the Perth Town Hall)

Anyone having knowledge of any Will made by TYRON PAUL HONEYWOOD late of Unit 2, 45 Cope Street, Midland, Western Australia, is requested to contact:

BARRISTERS’ ROOMS AVAILABLE Centrally located for all courts Includes use of the Equus gym, pool & spa Very reasonable rates Application enquiries to: Andrew Monisse, ph 9225 6618

Butlers, Barristers & Solicitors 45 Stirling Highway, Nedlands Tel: (08) 9386 5200 Email: legal@butlers.com.au

For advertising opportunities in Brief 2014 please contact:

BRIEF 2014

Eleanor Jackson Business Development Executive T: (08) 9324 8639 E: ejackson@lawsocietywa.asn.au lawsocietywa.asn.au


events calendar

Events Calendar Date




Thursday, 9 October

Sale of strata title properties â&#x20AC;&#x2DC;off the planâ&#x20AC;&#x2122;

The Law Society of Western Australia


Tuesday, 14 October

The Native Title Act; an introduction to future act procedures

The Law Society of Western Australia


Tuesday, 14 October

Third party involvement in environment and planning

The Law Society of Western Australia


Tuesday, 14 October

2014 Law Office Convention: Sustainability in your practice

Parmelia Hilton Perth


Thursday, 16 October

Fundamentals of assessing damages in personal injury matters

The Law Society of Western Australia


Friday, 17 October

Ethics on Friday: Professional Courtesy

The Law Society of Western Australia


Tuesday, 21 October

In The Black: Essential Financial Literacy

The Law Society of Western Australia


Tuesday, 21 October

In the Black: Budgeting and Financial Analysis

The Law Society of Western Australia


Wednesday, 22 October

Financial planning and the banks

The Law Society of Western Australia


Thursday 23 October

YLC Hypotheticals

The Law Society of Western Australia


Saturday, 25 October

Lawyers for a Cause

Royal Perth Yacht Club


Wednesday, 29 October

Constitutional recognition of Aboriginal People and Torres Strait Islanders

The Law Society of Western Australia


Tuesday, 4 November

Computer app businesses

The Law Society of Western Australia


Wednesday, 5 November

The academic and the practitioner conversation: Interpretation of statutes and contracts

The Law Society of Western Australia


Thursday, 6 November

Criminal property confiscation and proceeds of crime laws

The Law Society of Western Australia


Friday, 7 November

Distressed directors: an introduction to advising directors of financially troubled companies

The Law Society of Western Australia


Friday, 7 November

YLC Netball

Matthews Netball Centre


Tuesday, 11 November

Avoiding burnout and understanding vicarious trauma

The Law Society of Western Australia


Tuesday, 11 November

Sole Practitioner & Boutique Firm Forum

The Law Society of Western Australia


Friday, 14 November

Disclosure and costs agreement

The Law Society of Western Australia


Friday, 14 November

Public Private Partnerships Conference

Duxton Hotel Perth


For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8600 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8600 48 | Brief October 2014

Auto Classic

Sales Finance Service Parts


Because of where you work, you could be eligible to enjoy the many rewards of BMW Advantage, an employee benefit programme that gives you the opportunity to get behind the wheel of the Ultimate Driving Machine. The exclusive ownership benefits include complimentary BMW Service Inclusive for up to 5 years/80,000kms and corporate pricing,* to name but a few. To find out how you could start a rewarding journey with BMW Advantage, visit bmw.com.au/advantage or contact Keith McDaid at Auto Classic on (08) 9311 8332 today.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0409 803 586. autoclassic.com.au

LMCT 2271

Keith McDaid Corporate Manager Auto Classic

*Benefits apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply, and can be viewed at bmw.com.au/advantage.

08-146 | Hudson Global Resources (Aust) Pty Limited ABN 21 002 888 762

our brief is your career It’s no secret, accessing the wide variety of job opportunities enables you to accelerate your development at every stage of your legal career. And at Hudson Legal, opportunities abound. We work with diverse local and international clients to offer you the widest range of public sector, private practice and in-house roles available. As specialist legal recruiters, we work closely with you to understand your goals and advise how you can best achieve your career objectives. Backed up by more than 20 years’ experience at the forefront of Australian legal recruitment, you can be sure that we can find the ideal role for you every time.




Senior Lawyer


Established Perth boutique firm in CBD. Senior lawyer required to assist busy commercial & property team. Work autonomously and enjoy the support of two senior Partners. Outstanding salary and benefits. Ref: 6B/15266

Established Perth boutique. Lawyer with 1–3 years’ front-end experience required for large construction team. Opportunity for disputes work also exists. Superb salary on offer. Ref: 6B/15262


Large, independent firm. Substantial team servicing mid-tier construction principals and contractors. Mix of front- and back-end work. Excellent team dynamic with opportunity to be client-facing and autonomous. Ref: BX/40879

Specialist corporate boutique firm with a robust client base in the midcap mining and energy sector. Collegiate and supportive culture. 3–5 years’ PAE required. Above-market remuneration& benefits on offer. Ref: 6B/15323

Mid-Level Lawyers

Associate/Senior Associate


Well-regarded, mid-tier firm in expansion phase. Two reputable Partners seeking lawyers at or approaching Senior Associate level. Varied and interesting corporate M&A and general commercial matters. Ref: BX/42403

Premier international top-tier firm. Front-end lawyer sought for large team servicing blue chip construction and infrastructure principals and owners, operating primarily in resources industry. 2–4 years’ PAE required. Ref: BX/42754





Thriving, recently established litigation boutique firm. Ex-top-tier Principals. Superb “top-tier” quality construction litigation matters. Unique opportunity to be part of this firm’s success story. 1–3 years’ PAE required. Ref: BX/42933

Prestigious, international firm. Lawyer with 3–5 years’ PAE sought for an evolving property and infrastructure team. Work on cutting-edge energy & resources matters. Business development experience highly sought after. Ref: 6B/15225

Associate/Senior Associate

Associate/Senior Associate

Premier, top-tier firm seeking general commercial litigation lawyer with 3–5 years’ PAE. Varied matters, including white collar crime and product liability. Guidance from Partners with specialist industry knowledge. Ref: BX/41768

Dynamic, independent, WA firm. Leasing lawyer with 5+ years’ PAE and an appetite for business development required. Highly sought-after firm culture, promoting autonomy and individuality. Ref: BX/41748


National firm. Commercial property work flowing from international infrastructure and real estate matters. 2–5 years’ PAE required. Enjoy career progression on merit at a firm recognised for upholding diversity. Ref: 6B/14711

Commercial disputes lawyer required for top-tier, international firm. 3–4 years’ PAE required. Energy and resources litigation focus. Collegiate culture in a progressive and friendly environment. Ref: BX/42457


The above roles are just a few examples of the many current opportunities Hudson Legal can assist you with. For further information, please contact Aoife Stapleton on 08 9323 0200 or email your CV to aoife.stapleton@hudson.com.

Profile for The Law Society of Western Australia

Brief October 2014  

Brief October 2014  

Profile for lswa