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VOLUME 43 | NUMBER 2 | MARCH 2016

What does it take to repudiate one's allegiance to Australia?


MONDAY, 16 MAY – FRIDAY, 20 MAY 2016

LAW WEEK 2016 A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY Embracing the law as part of our daily lives is important. From knowing our rights under the law, creating employment contracts, and to knowing how a mediation works, through to setting up a business, having a will prepared or simply knowing what to do and where to go for need legal assistance, the law plays a vital role. Each year, Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and build a shared understanding of the role of law in society. It is an excellent opportunity for the profession to promote its role in enabling an open, independent and unbiased judicial system. The Law Society of Western Australia showcases a series of events and information sessions focusing on law and justice in the community. Save the Date • Law Week Breakfast – Monday, 16 May 2016 at Parmelia Hilton • Law Week Cocktail Evening and Lawyer of the Year Awards – Thursday, 19 May 2016 at Bankwest Visit lawsocietywa.asn.au/law-week for more information and to register for these events.

With thanks to Law Week supporters and sponsors

Lawyer of the Year Award and Community Events Sponsor

Lawyer of the Year Award Sponsor

Cocktail Evening Host Sponsor

lawsocietywa.asn.au Law Week 2016


Contents

GO DIGITAL!

Volume 43 | Number 2 | March 2016

Take me with you.

14

20 02

President's Report

35

New leadership elected

Elizabeth Needham

37

Quality Practice Standard

03

Your voice at work

38

YLC Ball 2015: A Dance with Dragons

04

Editorial

Brooke Sojan

Jason MacLaurin

39

YLC Inter-Profession Networking Event

06

The boundaries of client discourtesy

Shea Lukey and Courtney Furner

Gino Dal Pont

39

YLC: A View from the Bench

10

Law Access celebrates 1st birthday with Lotterywest grant

Alexander Noonan

Matthew Keogh

40

Congratulations to recent Family Law Accredited Specialist appointees

12

New award to honour pro bono work in WA

42

Protection of Religious Liberty: International Norms

14

Ethical Issues for Defence Counsel on a Plea of Guilty

Elizabeth F. Defeis

The Hon Justice Robert Mazza

45

28th LAWASIA Conference

Mark Trowell QC

20

FEATURE What does it take to repudiate one's allegiance to Australia?

46

Family Law Case Notes

48

Law Council Update

Peter Lochore

49

Pam Sawyer

50

Classifieds

51

New Members

51

Professional Announcements

52

Events Calendar

25

Judicial Conference of Australia Colloquium 2015

The Honourable Wayne Martin AC, Chief Justice of Western Australia

32

From barbed wire to bar table

Ann Kay

34

2015 Young Lawyer/Law Student Mentoring Programme

Brooke Sojan

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: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications Moira McKechnie Tel: (08) 9324 8650 Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer Andrew MacNiven Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

Editor Jason MacLaurin

President Elizabeth Needham

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Jason MacLaurin, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Verginia Serdev-Patterson, Julian Sher, Moira Taylor, Lorilee Yu

Senior Vice President Alain Musikanth

Proofreaders David Garnsworthy, Ann Kay 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: 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 Hayley Cormann Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Marie Botsis, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Immediate Past President Matthew Keogh Chief Executive Officer David Price

01


report

President's Report Elizabeth Needham, President, The Law Society of Western Australia NATIONAL LEGAL ASSISTANCE FUNDING The Society has resolved to support the Law Council of Australia's National Legal Assistance Funding Campaign. The campaign calls upon the Commonwealth Government to: • develop a National Partnership Agreement with the States/Territories which is based on national objectives, as distinct from Commonwealth or State goals; • restore Commonwealth funding to Legal Aid Commissions to a 50 percent share (up from 35 percent) on a constant per capita basis. In the 20152016 budget, this would have required an additional $109 million (actual budget figure was $208 million); • immediately provide 50 percent of the further $200 million called for by the Productivity Commission to fund civil law assistance; and • make Commonwealth increases conditional on States and Territories at least maintaining their funding levels. Members may have seen the Society's media statement, which can be found in the 'Your Voice at Work' section of this edition of Brief, or on our website. The statement calls upon all stakeholders to join forces to encourage Federal and Western Australian Parliamentarians to help end the legal assistance funding neglect. The Society will continue to work with the LCA, Legal Aid, Community Legal Centres and Law Access to persuade Federal and State governments to address what is reaching a crisis point for access to justice. PUBLICATION OF DECISIONS OF WORKCOVER WA ARBITRATORS ONLINE In January of this year, the Society sent a letter to WorkCover WA regarding the publication of Arbitrators' decisions online. The letter outlined the Society's view that it would be beneficial to the public and to the legal profession if online access to Arbitrators' decisions was made available. The Society expressed the view that the ability to review Arbitrators' reasons for decision would provide both the public and the legal profession with a better understanding of the current interpretation

02 | BRIEF MARCH 2016

and application of the relevant law. This could well aid the early resolution of matters and even result in proceedings not being commenced or defended unnecessarily. WorkCover WA has now responded to the Society's letter. In the response WorkCover WA noted that section 199 of the Workers' Compensation and Injury Management Act 1981 (WA) provides that hearings before an arbitrator are to be conducted in private. This requirement can be dispensed with at the discretion of the arbitrator conducting the hearing. WorkCover WA noted that it was cognisant of the potential benefits of online publication and this issue was raised at a recent meeting of the Dispute Services User Group convened at WorkCover WA. The Society's views will be considered as WorkCover WA continues in its attempts to innovate and improve the functioning of arbitrations. CPD PROGRAMME FEBRUARY-JUNE 2016 The Society's Continuing Professional Development (CPD) programme for February to June is out now. There are a wide range of seminars available to ensure you meet the 31 March deadline for CPD compliance. Just a gentle reminder that this year is the first year of the 4th category, Practice Management, for which we must acquire points, so please ensure that you have covered this area. To access the programme and to register for seminars online, please visit lawsocietywa.asn.au.

executive director and Chair, MercyCare Ltd and the Chair of the State training provider, Durack Institute of Technology. Mary holds a Bachelor of Laws, Masters of Public Health, Bachelor of Arts (Hons) and is a Fellow of the Australian Institute of Company Directors. Mary commenced at the Society on Monday, 29 February 2016 and will formally take up the General Manager role upon the retirement of Andrea Lace on 31 March. LAW WEEK 2016 Law Week returns in 2016, running from Monday, 16 May to Friday, 20 May. Each year, Law Week showcases a broad range of events that provide a chance for both the legal profession and the wider community to engage in open dialogue. The events that run throughout Law Week aim to foster an improved understanding of the essential role that the law plays in our society. Law Week also gives the profession a chance to promote our own role in enabling an open, independent and impartial legal system. Law Week will commence with the Law Week Breakfast, which will be held on Monday, 16 May 2016 at the Parmelia Hilton in Perth. Members who attended last year's Law Week Breakfast will recall an inspiring, challenging and thoughtprovoking address by Deidre Willmott, Chief Executive Officer of the Chamber of Commerce and Industry of Western Australia.

I am pleased to announce that Mary Woodford has been appointed to the position of General Manager Advocacy. Mary is currently Senior Legal Counsel at the University of Western Australia, having previously held the role of Consultant, Corporate & Commercial with Jackson McDonald Lawyers, Special Counsel at Deacons and Director of Legal and Policy at the Australian Medical Association (WA).

Another highlight includes the Law Week Cocktail Evening, which will again be hosted and sponsored by Bankwest. The Cocktail Evening will also feature the prestigious WA Lawyer of the Year Awards, which are sponsored by Murdoch University and Profile Legal Recruitment. The WA Lawyer of the Year Awards recognise those practitioners who have made particularly noteworthy contributions to the legal profession in our State, going over and above expectations in the course of their employment.

Mary has held a number of senior legal positions in the public and private sector as well as company secretary and chair for not for profit organisations and statutory authorities. She is currently a non-executive director of HBF Health Limited, non-

Law Week 2016 is presented by the Society with financial assistance from the Public Purposes Trust. I look forward to seeing many of you at our events throughout the week. You can find out more online at lawsocietywa.asn.au/community/law-week/.

NEW GENERAL MANAGER ADVOCACY APPOINTED


your voice at work

Your voice at work A snapshot of recent Society initiatives THE LAW SOCIETY OF WESTERN AUSTRALIA CALLS UPON PARLIAMENTARIANS TO TACKLE LEGAL AID CRISIS The Law Society of Western Australia has announced its support for the National Legal Assistance Funding Campaign, launched today by the Law Council of Australia to draw attention to the nationwide crisis in legal assistance funding. Law Society President Elizabeth Needham said, "The current funding crisis is a direct result of successive cuts to legal assistance funding over a number of years by both the Western Australian and Federal Governments. "The underfunding of legal assistance bodies continues to significantly affect access to justice for the most disadvantaged members of the community. The result is an increasing number of people in the court system who are being denied access to basic legal representation." Over the past two years, Legal Aid WA has had to absorb budget cuts of $4.1 million. In the 2015 State Budget, the WA Government included the following measures:

AS DISTRICT COURT JUDGE The Law Society of Western Australia congratulates Michael Gething on his appointment as a Judge of the District Court of Western Australia. Mr Gething has had a lengthy and distinguished career as a legal practitioner and as Principal Registrar of both the District Court and the Supreme Court. Law Society President Elizabeth Needham said, "Michael Gething is a fine addition to the District Court Bench. He possesses a vast wealth of experience and knowledge of the law. "Mr Gething is already well known to – and respected by – the profession, having been in the role of Principal Registrar at either the District Court or Supreme Court for more than a decade." Mr Gething has been a member of the Law Society since 1990. He has served on a number of Law Society committees, including the Criminal Law, Education and Courts committees.

The Accredited Family Law Specialist programme provides family law practitioners the opportunity to be formally recognised as having a high level of competency in their field. Accredited Specialists have the added benefit of being able to use the Accredited Family Law Specialist logo and branding on their marketing material to promote their high standing in the area. Appointment as an Accredited Family Law Specialist is based on sufficient prior and current practice in family law and successful completion of the Family Law Accreditation Assessment Programme. The Family Law Accreditation Assessment Programme is open to Law Society members and is run every two years – the next programme will commence in March 2017. LAW SOCIETY CALLS ON GOVERNMENT TO REPLACE SUPREME COURT JUDGES The Law Society of Western Australia is concerned by the Government's announcement that Justice Ralph Simmonds will not be replaced when he retires in June 2016.

the non-renewal of funding to the Employment Law Centre; and

Mr Gething has graciously donated his time as a speaker for the Law Society's Continuing Professional Development (CPD) programme. Recent CPD seminars have included The role of subpoenas in modern practice and Advocacy: An Introduction.

cuts across the board to Community Legal Centre funding.

LAW SOCIETY WELCOMES APPOINTMENT OF NEW MAGISTRATE

The Courts have had 21 judges for the past decade and with increases in population during this time, the number of judges required to ensure justice is not delayed is more not less.

The Law Society of Western Australia congratulates Mr Evan Shackleton on his appointment as a magistrate of the Magistrates Court of Western Australia.

Law Society President Elizabeth Needham said, "The courts require adequate resourcing to minimise the wait times to trial and improve access to justice."

Mr Shackleton is an experienced legal practitioner who has practised in the area of criminal law since 1997. He has, since 2012, also been a member of the Liquor Commission of Western Australia.

"Delays have a significant affect on all those involved. Depending on the type of trial, a long wait time can result in additional financial losses and costs in the case of civil trials or in criminal cases increase the emotional toll on the complainant, defendant, witnesses and families." Mrs Needham said.

Over the last 20 years, successive Federal Governments have cut the Commonwealth's share of legal aid from 50% to just 35%. The result is that vulnerable individuals (including young people, people with low socio-economic standing and people with disabilities) face well-resourced corporate opponents, abusive former partners, government agencies and well-armed prosecution teams with little or no legal assistance or representation. Pleas for greater Federal Government funding to legal aid have gone unanswered, despite successive government and publicly funded inquiries recommending substantial increases. The Law Society calls upon all stakeholders to join forces in demanding that Federal and Western Australian Parliamentarians end the funding neglect in 2016. THE LAW SOCIETY OF WESTERN AUSTRALIA CONGRATULATES MICHAEL GETHING ON APPOINTMENT

Law Society Senior Vice President Alain Musikanth said, "The Law Society congratulates Mr Shackleton on his appointment which reflects a step towards the adequate resourcing of courts in this State." LAW SOCIETY CONGRATULATES NEW ACCREDITED FAMILY LAW SPECIALISTS The Law Society congratulates Denby Kerr of DCH Legal, Jane Johnson of Kim Wilson & Co and Julia Mansfield of Kennedy Partners on their recent appointment as Accredited Family Law Specialists.

The Law Society calls on the Government to replace not only Justice Simmonds but all retiring judges, magistrates and registrars in a timely matter to ensure there is no delay in appointments. JANUARY 2016 SOCIETY SUBMISSIONS •

Decisions of WorkCover WA Arbitrators – Letter to WorkCover WA regarding the publication of Arbitrators' decisions online

03


editorial

Editorial Jason MacLaurin, Barrister, Francis Burt Chambers, Editor, Brief Journal This month's feature article poses the question: What does it take to repudiate one's allegiance to Australia? Regrettably, a "Family Feud" style general survey upon this question is more likely to yield responses such as "the underarm incident", "the behavior of some of our tennis players" or "a loss to Scotland in the upcoming ICC World Twenty20 tournament", rather than referencing the serious issues arising from the recently passed Australian Citizenship (Allegiance to Australia) Act which is the subject of Peter Lochore's feature article. The Australian Citizenship (Allegiance to Australia) Act, which provides for the loss of Australian citizenship for dual citizens who are determined to have participated in terrorism-related offences, was, and is likely to continue to be, the subject of legal controversy. Indeed, the Act (when a Bill) was the subject of submissions by, amongst other bodies, the Australian Bar Association – covering the WA Bar Association. The submission raised concerns including the constitutionality of the proposed Act. While amendments were made to the Bill, prior to it being passed, to attempt to address constitutional issues, there are still questions being raised about its operation and constitutionality. The feature article should be of interest to all practitioners, given the likelihood of significant challenges to its implementation and the ongoing controversies concerning the Government's responses to the challenges presented by domestic terrorism. Whilst renunciation of citizenship has been an issue in the past, during wartime, the advent of modern terrorism has introduced new complexities. In simpler times, renunciation of citizenship has been more overt and often either for tax reasons, or the traditional (if not reliably followed through-with) incantation around election time that "If [x] is elected, I will leave the country and renounce my citizenship". Being a presidential election year in the USA, the latter is well and truly in play. Tina Turner reportedly repudiated her United States citizenship, in favor of Swiss citizenship, seeking to avoid US taxes. As things turned out, this was apparently unsuccessful in avoiding having to pay

04 | BRIEF MARCH 2016

substantial amounts of those taxes, demonstrating that the effective reach and power of revenue authorities is indeed River Deep and Mountain High. Actor Gerard Depardieu repudiated his French citizenship, again for tax reasons, and was granted Russian citizenship. Depardieu praised Russian President Vladimir Putin saying: "I like this man very much, he is a very powerful political activist". These are sentiments that even a very fatigued late night reading of Sir Robert Owen's independent enquiry report into the assassination of Mr Alexander Litvinenko is unlikely to yield.

have been Canada. Prominent examples of Australians revoking their citizenships have been rarer. The advantages of an Australian citizenship are considerable, as would be evident to anyone who has gotten into trouble overseas or, for instance, if you happen to be holed up – sorry, arbitrarily detained - in an Ecuadorian embassy in London. Perhaps the most prominent renunciation of Australian citizenship in favour of US citizenship was Rupert Murdoch. And look how badly that decision turned out to be for his commercial and business interests.

Actress Elizabeth Taylor attempted to renounce her United States citizenship but reportedly failed to do so, because at the last minute she balked and, though commencing the renunciation oath, failed to complete the essential part of it. Previously, actually making such supposedly lifelong vows did not seem to present a difficulty, though keeping them did.

This edition also contains articles dealing with important issues of principles as well as practice.

Turning to election-based threats to renounce citizenship, Cher has declared that if Donald Trump becomes President she will move to Jupiter. Given Cher's history of plastic surgery, and Jupiter's gravity being 2.5 times that of Earth, this might not be the wisest destination.

Justice Robert Mazza's article on Ethical Issues for Defence Counsel on a Plea of Guilty provides importance guidance in a difficult area, and should be of interest, not only to criminal law practitioners, but also all practitioners.

Samuel L Jackson has nominated South Africa as his preferred destination in the event of a Trump win. If you want to know the odds of that occurring, consult your Bet 365 website closer to November. Sean Penn has not yet declared his intentions. Given his Rolling Stone interview with notorious (and at the time on-the-run after a prison escape) Mexican drug lord "El Chapo" Guzman was cited by authorities as having been instrumental in El Chapo's capture, one suspects that, regardless of the result of the US election, he might be adopting the "Cher plan" - or even favoring a more remote location. Although not from a celebrity, an outstanding declaration was made by a US Democrat supporter that, in the event of a Trump win, she would leave America to move "to Hawaii".1 Given previous 'birther' controversies, why a Democrat would assert Hawaii is not part of America is bemusing. Perhaps, given current 'birther' controversies involving Republican candidate Ted Cruz, a better choice might

We have Chief Justice Wayne Martin's presentation to the Judicial Conference of Australia upon Freedom of the Press and the Courts, which is a topic of enduring concern and interest to all practitioners.

We also have an article by Elizabeth Defeis on the important area of the Protection of Religious Liberty: International Norms. Finally, as at the time of writing, the sad news recently broke of the death of United States Supreme Court Justice Antonin Scalia. Justice Scalia was a titan of the United States Supreme Court and a powerfully influential jurist, known for his prodigious intellect, writing style and wit. The accolades for Justice Scalia speak as one as to these qualities and to his incredible qualities as a person. Unfortunately (though inevitably) Justice Scalia's death has resulted in an intense political debate about his replacement, given the US election season. I hope to include, in a subsequent edition of Brief, more about Justice Scalia and his life and work. NOTES 1.

This took place on Social Media- but then again, what doesn't.


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ethics

The boundaries of client discourtesy Gino Dal Pont Professor, Faculty of Law, University of Tasmania

In my October 2015 column, I concluded by remarking that '[t]here is … a price of membership of the legal profession, which in this and other instances is extracted via an expectation that members suppress otherwise prevailing human nature'.1 This remark was made in the context of dealing with or responding to difficult clients, including those who show disrespect or discourtesy to their lawyer, or make seemingly unreasonable complaints or allegations against their lawyer. And it was made against the backdrop of a longstanding expectation of lawyer courtesy implicit in professional status. Beyond the 'good business' notion of not antagonising clients, lawyer courtesy can be located as one of the counterbalances to the position of knowledge and power most lawyers hold over their clients, while concurrently speaking to the independence that a lawyer must bring to the representation. As to the latter, lawyer attempts to maintain the professional relationship on a courteous basis represents a means of walking the tightrope between partisanship and independence. Lawyer independence that comes with keeping some distance from the client, and the client's cause, may make it less likely that the lawyer will personalise client disrespect or discourtesy. Expectations of lawyer-client courtesy, though, should not be confused with a perpetually 'meek and mild' lawyer. Good representation may sometimes require some degree of forcefulness visà-vis the client, especially for clients in need of a 'reality check'. Occasions will arise where the lawyer may legitimately (or even must) interact with a client — whether because of the circumstances and/or the nature of the client — in strong or blunt terms. Dovetailing into the preceding paragraph, moreover, for a lawyer to simply ignore or blithely tolerate client disrespect or discourtesy towards him or her raises the risk of the lawyer appearing unduly weak

06 | BRIEF MARCH 2016

and capable of being bullied by the client. Neither perception is necessarily amenable to good legal representation. That client disrespect or discourtesy should not breed in the lawyer a 'tit for tat' response, being the upshot of my earlier column, does not mean it should be ignored or even tolerated. Bearing in mind the manifold personality and interpersonal dynamics that span human interaction, and thus also those between lawyer and client,

a racist or sexist form — may not be grounded in any genuine dislike for the lawyer. This in turn raises the question whether a lawyer should be expected, as a matter of professional ethics — or, perhaps even more tellingly, at a risk of being in some way prejudiced by way of costs recovery — to remain a 'punching bag' for client verbal abuse. Should the ethics of a profession, and the entire contract rules relating to costs recovery (including liens), demand of

" ... professional relationship on a courteous basis represents a means of walking the tightrope between partisanship and independence." there is evidently scope for lawyers to legitimately react to client disrespect or discourtesy. The question relates to the nature of and, perhaps even more importantly, the motive for, this reaction. The latter, if measured, and driven by an attempt to restore the relationship to a professional basis, is entirely apt. Indeed, a lawyer's failure to respond here may convey to the client not only lawyer weakness, but some understanding that the client's behaviour is acceptable in the circumstances. A written communication, expressed in non-inflammatory language, bringing to the client's attention the inappropriateness of the conduct and requesting that it cease or be moderated, will in most circumstances be an appropriate response.

lawyers a non-emotional response? Or should lawyers be granted some leeway in being released, without adverse ethical or costs consequences, from representing clients who persist in discourteous, disrespectful or offensive behaviour vis-à-vis their lawyer? There are difficult issues of policy here, traversing into the importance of a person being able to secure legal representation, irrespective of his or her character and attitudes. The significance of latter, as a core value in free society, can hardly be downplayed. Whether it should always represent an entirely oneway street, however, may be queried.

1.

G E Dal Pont, Eschewing 'Tit for Tat' in Client (Dis) Courtesy (October 2015) 42 Brief 6.

What if the client nonetheless persists in being disrespectful, discourteous or even offensive to the lawyer? A client whose behaviour is driven by a dislike of the lawyer, or a lack of confidence in the lawyer, may reasonably choose to terminate the retainer, or request another lawyer within the firm to act.2 But instances remain where client misbehaviour in this regard — including disrespect or discourtesy that can attract legal sanction, such as vilification in

2.

I am grateful to a reader of my October column for raising the issue of clients wishing to change lawyers within a firm for what are ostensibly racist or sexist motivations. In this context, it seems, client choice must prevail, and it is not up to individual lawyers to 'block' that choice merely because it appears driven by illegitimate motivations.

NOTES


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2015 WA Lawyer of the Year Awards Life Membership recipient, Dudley Stow Practitioner with more than five years’ experience, John Fiocco Practitioner with less than five years’ experience, Callum Hair

WA LAWYER OF THE YEAR AWARDS

WA Lawyer of the Year award recipients

In the lead up to Law Week each year, the Law Society invites members to submit entries to the WA Lawyer of the Year Awards.

Practitioner with more than five years’ experience

The WA Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment.

2014 – Melanie Cave

2015 – John Fiocco 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier 2009 – Steven Penglis

Do you someone who could be WA Lawyer of the Year?

2008 – Dr Johannes Schoombee

Nominations for WA Lawyer of the Year Awards are now open until Friday, 22 April 2016.

Practitioner with less than five years’ experience

Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 year’s experience) and Lawyer of the Year (less than 5 years’ experience).

2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack

Winners are announced at the Law Week Cocktail evening, hosted by Bankwest on Thursday, 19 May 2016.

2012 – Tammy Solonec

For full criteria and further information, please visit lawsocietywa.asn.au/law-week

2008 – Anna Rakoczy

2011 – Breony Allen 2009 – Toni Emmanuel

Proudly sponsored by Lawyer of the Year (more than 5 years’ experience)

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lawsocietywa.asn.au Law Week 2016


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Corporate Lawyer 2-4 Years: Leading WA Practice

Real Estate Lawyer 3-6 Years: International Firm, Gun Partner

New opportunity to work alongside a global authority within Oil & Gas and Energy Law upon cutting edge projects.

This full service Western Australian Firm is looking for a talented and driven corporate lawyer.

This team is recognised for their expertise in all areas of Oil & Gas and Energy law and works seamlessly with the firm’s global offices. You will have key involvement in significant regional projects from conception through to completion including:

You will be working with 3 highly regarded Partners and will be encouraged to play an active role on your matters from an early stage. This position is ideally suited to a driven lawyer who is looking to fast track their development working directly alongside leading Partners.

This impressive real estate team consistently attracts the best instructions and is headed by a leading Partner. You will be joining a cohesive and relaxed team at the very top of their game.

• Exploration

Your matters will include mergers and acquisitions, capital raisings, private equity, ASX lisitings, asset sales and purchases and due diligence.

• Joint ventures, structuring and Mergers and Acquisitions • Transportation and delivery Ref: RW3400

Ref: RW3407

You will be engaged upon high level matters acting for significant corporate clients including major banks, investment trust groups, corporations and developers. The experience and contacts that you will gain in this position will be extremely highly regarded moving forward. As the ideal candidate you will have built up a minimum of 3 years of experience at a highly regarded firm. Ref: RW3331

Insurance and Workers Compensation Lawyer 3 Years + Fremantle

Wills and Estate Planning Lawyer 5 Years + Mandurah

Salaried Partner Opportunities Western Suburbs Firm

Highly regarded full service Fremantle law firm is currently looking for an insurance lawyer 3 years plus for their busy team.

This leading Western Australian commercial law practice is now looking for a wills and estate planning lawyer for their Mandurah Office.

You will be joining a full service law firm with a first class reputation across all of their key areas. They are currently looking for a talented insurance and workers compensation lawyer to work directly alongside an experienced Partner. You will play a leadership role within the team which has considerable potential for sustained growth. The Partner has an extensive client base and is widely regarded as the “go to” person for commercial and compensation matters.

You will play a key role in the growth of their Mandurah Office. In your role you will also work closely alongside leading lawyers from the firm’s other offices. Their wills and estate planning team is one of the strongest practices in Western Australia. You will have the opportunity to practice across wills and estate planning and commercial areas and the role can be tailored to your key areas of interest.

This long standing law practice is very highly regarded with strong teams across areas of law. They are in an ideal position for strategic expansion and are interested in senior lawyers who are able to bring part of a practice with them. The firm will consider lawyers in all areas of law and particularly in: Family, Property, Commercial Litigation, Tax and Employment Law.

Ref: RW3227

Ref: RW3358

You will benefit from the firm’s strong existing infrastructure, marketing and reputation. The firm is open to exploring a range of arrangements for senior lawyers including working from home. Ref: RW3408

PARKES LEGAL SUPPORT

Contact Angela Bamford on 9221 0944

Legal Secretary – Workers Compensation National firm is seeking an intermediate level Secretary to join their Workers Compensation team. Supporting three busy fee earners, this role will suit a candidate with 2-4 years experience in Insurance law.

Legal Secretary / PA – Boutique Firm Rare opportunity to join a boutique CBD law firm working in a PA Capacity for a Director. This is a sensational role for a meticulous Secretary who has a keen eye for attention to detail.

Legal Secretary – Float Role 3+ years experience as a Legal Secretary? Want more variety in your life?! Floating is a brilliant way to experience multiple areas of law and boost your resume!

Solid technical skills are paramount, with the minimum requirements of 70wpm with 98% accuracy+ combined with Advanced Word 2010 skills.

This firm is one of the best in town, offering a supportive, friendly culture with stunning office as well!!

You will need to possess a solid typing ability (minimum 60wpm), combined with intermediate to advanced Word skills. The role includes high volume complex billing, document and file management, creating a range of correspondence in addition to diary management. This is a full time role with a highly competitive salary on offer. Ref: AMB3403

The role is busy and requires an unflappable candidate who enjoys working under pressure, can work autonomously and has a flexible approach to tasks. Some reception duties will be required. This is a full time position offering a highly generous salary package which is above market rates. BE QUICK!

Ideally you will have experience in a large law firm, preferably in litigation or corporate (or both), combined with a minimum typing speed of 60wpm (95% accuracy plus), dictation and billing experience. Please note this is a full time position and you must be available on this basis. The firm offer a competitive salary, state of the art offices and numerous corporate perks! Ref: Ref: AMBFT

Ref: AMB3403

For a full list of all of our available positions please see our website www.parkesrecruitment.com.au PARKES LEGAL Ross Wheatley (BA LLB)

T: (08) 9221 4932 M: 0401 344 040 E: ross@parkesrecruitment.com.au

PARKES LEGAL SUPPORT Angela Bamford T: (08) 9221 0944 M: 0423 471 524 E: angela@parkesrecruitment.com.au

www.parkesrecruitment.com.au


Law Access celebrates 1st birthday with Lotterywest grant Matthew Keogh Chairperson, Law Access

Law Access celebrated its 1st birthday at a function hosted by Lee Rossetto, Pro Bono Partner MinterEllison on 7 December 2015. Law Access was also very grateful to be presented with a Lotterywest grant of $266,000 over three years by the Western Australian Attorney-General and Minister for Commerce, the Hon Michael Mischin MLC. The Lotterywest grant will help Law Access to implement stages two and three of our business plan, enhancing access to justice by enabling pro bono legal services to be delivered more effectively and efficiently to more Western Australians.

1.

" ... more than double the number of applications received and almost double the number of placements made in the same period last year." During the celebrations, Law Access chairperson and former Law Society President, Matthew Keogh, explained some of the history of Law Access, the work being undertaken and thanked all those that have contributed to its success. Law Access Limited was formally established by the Law Society of Western Australia in December 2015 on the recommendations of a large stakeholder advisory group and the Lotterywest funded Feasibility Study – Doing the Public Good by Kalico Consulting, which was jointly commissioned by the Community Legal Centres Association of WA and the Law Society in 2013. The feasibility study examined how to improve co-ordination and delivery of pro bono legal services in Western Australia and led to the development of a three stage business plan, starting with the transfer of the Law Society's long standing Law Access 10 | BRIEF MARCH 2016

2.

Pro Bono Referral Scheme over to Law Access Ltd on 1 July 2015.

referred to pro bono lawyers. These include:

In its less than half-a-year's operations, Law Access has already received more than 200 applications for pro bono assistance and made 80 referrals. This is more than double the number of applications received and almost double the number of placements made in the same period last year.

a referral to a large law firm regarding a trust dispute concerning a disabled beneficiary;

a small firm and barrister assisting a homosexual asylum seeker regarding domestic violence and asylum claim;

a suburban family law firm assisting a prisoner in respect of family violence and relationship breakdown; and

a large firm assisting an Aboriginal Corporation.

These lawyers take referrals, which are usually complex and time consuming, and include sole practitioners, barristers and members of small, medium or large law firms. Law Access' Principal Lawyer, Katrina Williams, says that "she loves her job because every day that she comes to work she is able to engage with generous lawyers." The type of assistance delivered through the Law Access service is diverse and best understood by describing a few of the matters Law Access has recently

Law Access would not be able to provide the service that it does without the valuable assistance and contribution of many, whose contribution was also celebrated at the function: •

all the lawyers who take our pro bono referrals;


3.

4.

5.

6. 5.

the Law Access staff, in particular Dominique Hansen and Katrina Williams;

the lawyers seconded to Law Access by MinterEllison, the Australian Government Solicitor, DLA Piper and Jackson McDonald;

Law Access' Principal Supporters, the Law Society of Western Australia and the Faculty of Law at the University of Western Australia; funding bodies, Lotterywest and the WA public that fund them, the Public Purposes Trust and the Commonwealth Attorney General's Department;

donors, such Allen & Overy, Corrs Chambers Westgarth and Jackson McDonald;

in-kind supporters such as K&L Gates;

the Law Society's volunteer CPD presenters who elected to donate to Law Access in lieu of a gift from the Society for their assistance with their CPD programme;

its Stakeholder Advisory Committee members;

the Pro Bono Coordinator Committee members; and

the Law Society of Western Australia's Access to Justice Committee.

Law Access relies on valuable donations. Law Access holds a charitable collections license and deductible gift recipient status. More donations and contributions of pro bono assistance are always welcome and encouraged.

1.

The Hon Michael Mischin MLC, Attorney-General and Minister for Commerce; Matthew Keogh, Chairperson, Law Access; and Dominique Hansen, Manager, Law Access.

2.

Alain Musikanth, Director Law Access, Senior Vice President Law Society of Western Australia; Lee Rossetto, Pro Bono Partner, MinterEllison; Angela Crombie, Law student volunteer, University of Western Australia; and Adam Ebell, Director, Law Access, Law Society of Western Australia Councillor.

3.

Katrina Williams, Law Access Principal Lawyer with pro bono lawyers Kylie Groves, Squire Patton Boggs; David Markovich, Murfett Legal; Gehann Perera, Minter Ellison; and Felicity Clarke, Squire Patton Boggs.

4.

Law Access staff and law student volunteers from the University of Western Australia: Katrina Williams, Principal Lawyer; Daniel Sutherland (rear); Angela Crombie (front); Dominique Hansen, Manager; Mallika Banerjee, Alex Antoniazzi (rear); Micah Kickett; Aiden Ricciardo; and George Onishi.

5.

David Price, Chief Executive Officer, Law Society of Western Australia; and Matthew Howard SC, President, Western Australian Bar Association.

6.

Lee Rossetto, Pro Bono Partner MinterEllison, The Hon Michael Mischin MLC, Attorney-General and Minister for Commerce, and MinterEllison secondee Lawyers: Michael McGown, Jennifer Solliss and Minal Naran.

Shearn HR Legal - Human Resource + Recruitment wishes all our Clients & Candidates a very prosperous New Year, welcoming our 18th year in exclusive legal recruitment! Call Julianna for your 2016 requirements now! Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au 11


New award to honour pro bono work in WA Law firms and legal organisations to be recognised for their free assistance The State Government has announced a new award to recognise organisations which provide pro bono legal services to members of the Western Australian community.

Fact File Nominations for the 2016 awards are now open and must be received by the Department of the Attorney General by 11am on Friday, April 15 2016. For more information, visit dotag.wa.gov.au/lawaward

Now in its 10th year, the previous winners of the individual award include: •

Adam Levine (2015) who co-ordinated pro bono work for K&L Gates Perth office and provided pro bono legal services to Manna Inc.

Elspeth Hensler (2014) who acted for refugees, foster carers and war veterans.

David Jenaway (2013) who handled the day-to-day management of Herbert-Smith Freehills' pro bono programme.

Kylie Groves (2012) who used her legal skills and experience to provide pro bono legal services to individuals, charities and not-forprofit organisations.

Attorney General Michael Mischin said there was a substantial amount of free legal happening in Western Australia. "It is important we recognise the generosity of organisations providing this valuable service for the public good," Mr Mischin said. "I am delighted to announce the inaugural Attorney General's Community Service Law Award for an organisation, which recognises the commitment of firms and other groups which contribute their expertise and support to pro bono legal work." The new award complements the existing award for an individual, presented during WA Law Week in May. Criteria for both awards focus on demonstrating an outstanding commitment to providing pro bono legal work to benefit the Western Australian community.

Attorney General Hon Michael Mischin MLC with Adam Levine, winner of the 2015 Attorney General's Community Law Service Award.

Introduction to advocacy Friday, 24 June 2016 Specifically designed for practitioners new to advocacy, Introduction to advocacy provides essential information to advance legal knowledge and advocacy skills.

profession on case presentation and theory, opening and closing statements, examination and cross examination of witnesses and what makes a good advocate.

Hear from a distinguished cast of pre-eminent members of the legal

SAVE THE DATES | Stay tuned for further details Practical advocacy weekend Friday, 5 August - Sunday, 7 August 2016 This unique intensive course offers practical exercises in small groups with guidance and constructive feedback from volunteer teachers who are experienced advocates, including barristers and members of the judiciary.

Attendees perform as advocates in a simulated courtroom environment, supported by a student/teacher ratio of six to two. Experienced teachers observe the performances and use proven techniques to deliver effective feedback. lawsocietywa.asn.au

12 | BRIEF MARCH 2016


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Ethical Issues for Defence Counsel on a Plea of Guilty1 The Hon Justice Robert Mazza Supreme Court of Western Australia, Court of Appeal

Across all criminal courts in Western Australia, the vast majority of cases are resolved by a plea of guilty. Pleas in mitigation are a vital part of the criminal justice process. Although Judges and Magistrates have the ability to obtain pre-sentence and other reports about an offender, a sentencer relies very much upon defence counsel providing him or her with information not only about the offender; but also, with submissions as to the facts of the offending, its seriousness, and how the offender might be dealt with. Underpinning this reliance is the assumption that defence counsel 14 | BRIEF MARCH 2016

will at all times act ethically. Were it otherwise, the sentencing process would be seriously compromised. DEFENCE COUNSEL'S GENERAL ETHICAL OBLIGATIONS Legal practitioners have ethical obligations to both the court and to their clients.2 Where those duties conflict, the overriding duty is to the court.3 In my experience, while the majority of defence counsel understand this, many clients do not. This is, of course, entirely understandable - sentencing proceedings are adversarial and many

clients perceive defence counsel's duty is to, at all costs, obtain the most favourable sentence possible. The most important ethical duty a practitioner has to the court is the duty of honesty and candour; in other words, to not mislead the court.4 Where a client wishes to embark upon a course which will have that effect, a practitioner's clear ethical duty is to refuse to do so. Most clients, once told of the practitioner's overriding duty to the court, will accept the situation and not press the instruction. However, where the instruction is pressed, a practitioner,


must withdraw from acting.5 The duty of a practitioner to not mislead the court prohibits defence counsel from stating facts which they know are untrue, misleading the court as to the true facts and concealing from the court facts which ought to be drawn to the court's attention.6 Further, defence counsel must never knowingly permit a client to deceive the court,7 or tell half-truths; that is, omit to say what is necessary to be said in order to prevent literally true words which have been used from misleading.8 However, so long as what is put before the court on behalf of the person to be sentenced is not misleading, defence counsel is not required to disclose to the court detrimental facts such as prior convictions or unfavourable aspects of a client's antecedents or character.9 STATEMENTS OF A PRACTITIONER'S ETHICAL DUTIES Every practitioner is expected to be familiar with the provisions of the Legal Profession Act 2008 (LPA) and the Legal Profession Conduct Rules 2010 (WA) (LPCR). These documents, particularly the LPCR, set out most of a practitioner's duties to their clients and the court, including many of their fundamental ethical duties. Although the LPCR is not an exhaustive code of conduct, it does provide examples of the conduct required of a practitioner. While no summary of the LPCR can be an adequate substitute for the careful study of the rules, in the context of pleas of guilty, the following rules are relevant: • Rule 5 (paramount duty to the court and the administration of justice); • Rule 6 (other fundamental ethical obligations); • Rule 7 (client instructions); • Rule 8 (communicating with client); • Rule 9 (confidentiality); • Rule 10 (keeping the client informed); • Rule 11 (impecunious clients); • Rules 12 to 15 (inclusive) (conflict of interest); • Rule 16 (maintaining professional integrity); • Rule 27 (termination of engagement); • Rule 32 (independence); • Rule 33 (formality before court); • Rule 34 (frankness in court); • Rule 35 (delinquent or guilty clients);

• Rule 36 (responsible use of the court process and privilege); and • Rule 43 (public comment). Under the terms of the LPA, once admitted to legal practice in Australia, a practitioner becomes an officer of the court10 and must practice to a reasonable standard of competence and diligence.11 This obligation is of primary importance and is not to be given lip service. The ethical practitioner does not take on a case beyond his or her expertise and experience. While a plea of guilty is regarded by some as an easy piece of advocacy, or one where an inexperienced practitioner can "cut his or her teeth" without much risk to the client, a plea in mitigation, particularly in a superior court, is a task which should not be taken lightly. All practitioners who take on pleas of guilty must know about and keep abreast of all relevant developments in statute, case law and court procedure in order to competently plead on behalf of their client during sentencing. It is a plain breach of the LPCR to accept instructions and continue to act in matters beyond a practitioner's competence.12 A client who intends to plead guilty to a criminal offence – particularly a serious criminal offence – is especially dependent upon a practitioner's competence and skill. If a decision is made to plead guilty, the most important question for most clients is, "What do you think I'll get?" It is a practitioner's obligation to advise a client what the likely range of outcomes is, and to provide some opinion as to what the actual outcome might be. While such advice needs to be predicated upon the basis that, in the end it is for the sentencing court to decide what sentence will be passed, a practitioner can never give this advice accurately unless they firstly, are aware of all of the surrounding circumstances of the case; secondly, have the requisite knowledge of what sentencing options are open to the court; and thirdly, know the sentencing patterns and tariffs for that particular charge (where they exist). Dissatisfaction with defence counsel in sentencing matters often arises because a client was led to believe that they would receive a lenient (usually non-custodial) sentence, when in fact they received a more severe sentence (usually a sentence of immediate imprisonment). This situation often arises because defence counsel did not fully understand the facts in the first place and/or they did not know the relevant sentencing patterns and tariffs.

If a practitioner is confronted with a case which is beyond his or her competence, the proper course is to inform the client and decline the engagement.13 Alternatively, where the client wishes, competent counsel can be briefed to act for the client. THE ROLE OF DEFENCE COUNSEL ON A PLEA OF GUILTY Defence counsel plays many important roles in the sentencing process. These roles range from confessor and adviser (when instructions are first taken); problem-solver and truth-seeker (at the fact-finding stage); negotiator and conciliator (should a plea or charge bargaining be appropriate); an eloquent special pleader; and historian and social commentator (during the plea in mitigation).14 Each of these roles must be discharged in accordance with the ethical duties and obligations owed to the client and the court. Save for the most simple of cases, specific ethical considerations arise in each stage of a plea in mitigation. THE FIRST INTERVIEW – CONFESSOR, ADVISER, PROBLEMSOLVER AND TRUTH-SEEKER The circumstances under which the first interview with a criminal client can occur vary greatly. The first interview may be done in a relatively comfortable way in the practitioner's office. It may also occur in places such as on the doorstep of a court, or in a lock-up. On some occasions, time is no object; on other occasions, very little time is available. Whatever the circumstances, it is necessary to know the precise charge(s) the client faces, the facts which will be alleged against him or her, and what the client's instructions are about these charges and factual allegations. Without knowing all of these things, it is impossible for a practitioner to advise competently and diligently as to the appropriate plea. If such a situation arises, defence counsel should apply for an adjournment in order to obtain this information. In some (perhaps most) cases, all of the information required to allow a practitioner to advise on a plea necessitates more than one interview. While time may be of the essence at the first interview, practitioners must, from the outset, disclose to a client how they will be charged.15 This is particularly important in the case of an impecunious client, where advice as to the availability of legal aid must be given.16 Defence counsel is not ethically obliged to act for a legally-aided client; however, 15


client continues to proceed is ultimately a matter for them.22 HOW STRONG CAN THE ADVICE BE TO PLEAD GUILTY?

" ... in the face of compelling evidence to the contrary, the practitioner's obligation is to point out ... the disadvantages that might flow from maintaining that position. However, a practitioner's ethical obligation in this situation will be discharged upon the giving of this frank advice." many will elect to do so. Alternatively, a client can be referred to another the practitioner who may be prepared to act upon this basis.17 A client who simply wants to get the matter 'over and done with' can often be persuaded from taking this course by being advised that, as stressful as a trial is, it might be very little compared to the stress of imprisonment or the ongoing, often lifetime, effects of a criminal conviction. At this initial interview (or as soon as possible thereafter), a practitioner should obtain from the client their account of the alleged offence. Most people suspected or charged with committing a criminal offence are only too keen to tell you what happened from their perspective. However, some clients (I think small in number) do not wish to inform a practitioner of their version of events until either, or both, of two things occur: firstly, the lawyer informs them of the possible defences to the charge; secondly, the prosecution discloses its case. A client who adopts these positions could simply be reticent; however, they could also be contemplating tailoring their version of events for the purpose of misleading the practitioner, and consequently, the court. In my opinion, a practitioner faced with such a client must encourage him or her, from the outset, to provide a full and truthful account of events as far as they are able to do so.18 Where counsel takes the view that a client is deliberately

16 | BRIEF MARCH 2016

withholding an account of events from a practitioner for the purpose of crafting a false defence, it is, in my view, sufficient justification for the termination of the engagement.19 WHAT ABOUT WHEN A CLIENT PROVIDES AN ACCOUNT OF EVENTS WHICH DEFENCE COUNSEL STRONGLY SUSPECTS IS UNTRUE? There is no obligation upon a practitioner to become a detective and to investigate a client's account of events. However, where information is obtained which contradicts, or places in serious doubt, a client's account of events, defence counsel must bring those matters to the client's attention and seek instructions.20 As a result, the account might change. At other times, the client will maintain his or her position. In most cases where the former arises, I do not think a practitioner is obliged to withdraw. However, I do recognise that there are some cases where the practitioner might have been misled to such a degree so as to justify the engagement being terminated.21 Where a client maintains their position in the face of compelling evidence to the contrary, the practitioner's obligation is to point out, if necessary in blunt terms, the position and the disadvantages that might flow from maintaining that position. However, a practitioner's ethical obligation in this situation will be discharged upon the giving of this frank advice. At the end of the day, how a

It is defence counsel's duty to advise their client about the plea to a criminal charge. Defence counsel's advice should never be couched in terms which expressly or by implication give a client the impression that they have no choice but to plead guilty. Nor should defence counsel say or suggest that they will refuse to act if the client refuses to accept their advice to plead guilty. How advice to plead guilty is understood by the client depends very much upon the particular client. However, a practitioner must, at all times, be careful not to overbear his or her client's will. When a practitioner advises a client to plead guilty, they must clearly set out the reasons why such a course is appropriate. This usually involves an analysis of the evidence, having regard to what the prosecution needs to prove in order to sustain the charge, and the advantages which may flow from a plea of guilty.23 This process also requires pointing out to the client that a plea of guilty may attract a discounted sentence, and may save both the client and the victim the trauma of proceeding to trial. A practitioner should inform the client of the effect of s9AA of the Sentencing Act 1995 (WA); in particular, that the earlier in the proceedings the plea is made, the greater the reduction in the sentence may be, and that the maximum discount (25%) is reserved for cases where the plea is indicated as having been made at the first reasonable opportunity. Where possible, all of this advice should be in writing.24 However, ultimately, defence counsel must always respect a client's right to proceed to trial, even where, in their view, a conviction is inevitable. Despite defence counsel's firm view that a plea of not guilty will be futile, every person has the right to have their case judged by a court according to law. If a client wishes to proceed to trial contrary to defence counsel's advice, that fact alone is not generally a sufficient reason for a practitioner to cease to represent that client.25 Be cautious of a client who, upon receiving advice to plead guilty, responds along the lines of "I'll plead guilty if you want me to". If this occurs, defence counsel must very clearly convey to the client that the decision to plead guilty is the client's decision and not the practitioner's.


THE CLIENT WHO SAYS "I'M NOT GUILTY, BUT I WILL PLEAD GUILTY" An ethical dilemma which arises from time to time is where a client's instructions are to the effect of "I'm not guilty, but I will plead guilty". Can a practitioner act where such an instruction is given? The situation is an uncomfortable one. It is even more uncomfortable when defence counsel forms the view that the client has a defence. In my view, while the practitioner may withdraw pursuant to LPCR r 27(1)(f), they are not obliged to withdraw and can continue to act in the event that the client pleads guilty.26 Of course, the first obligation of the practitioner in this situation is to ascertain why the client has formed the view that they are not guilty. Often, that view is erroneous and, following careful discussion with defence counsel, the client comes to this realisation. Sometimes, the reason for pleading guilty, when the client believes that they are not guilty, has more to do with matters which, while important to the client, should have no bearing upon their decision to plead guilty. Matters such as the expense of paying for a trial lawyer, and the (understandable) desire to get the matter 'over and done with', are commonly proffered by a client in this position. The question of cost is, for many, a serious one. Defence counsel will be aware that there are a number of other reasons as to why some clients proclaim their innocence notwithstanding their intention to plead guilty. An example is those clients who, although aware that they are in fact guilty, want to convey their innocence to those close to them. This sometimes occurs when a person is charged with an odious or embarrassing offence (such as a sexual offence against a child); or for fear that there will be adverse familial consequences if they do not. Other clients are realists. While, in their own minds, they believe that they are innocent, they can see that the evidence is stacked against them, and that the prospects of acquittal are slim. These clients may want to, in effect, 'cut their losses' in terms of sentence by pleading guilty. A practitioner should, as far as possible, attempt to understand the client's reasoning for doing so, emphasising to the client the practitioner's ethical duty of confidentiality.27 In the end, where a client is of sound mind, defence counsel is able to ethically represent a client who claims innocence but wishes to enter a plea of guilty; however, they must not do so

unless: 1. advice has been given that the client should not plead guilty unless they have actually committed the offence(s) charged; 2. the client has a completely free choice to plead guilty or not guilty to the charge(s); 3. they understand that the plea is an admission to 'all the world' that they have committed the offence(s), the consequences of which the client will have to live with for (perhaps) the rest of his or her life; 4. the client will be sentenced by a court upon the basis that they have committed all of the elements of the offence(s); and 5. defence counsel explains to the client that no evidence can be tendered, and no submissions can be made, which are inconsistent with an admission to the elements of the offence(s). There are a number of helpful cases which expand upon this ethical dilemma. In particular the cases of Meissner v The Queen (1995) 184 CLR 132; R v Allison [2003] QCA 125; R v MacKenzie [2000] QCA 324 and R v Turner (1970) 54 Crim App R 352. The various discussions in these cases highlight the importance that the law has attached to a plea of guilty as admission of all the elements of the offence. When in open court, in the hope of obtaining a more lenient sentence, an accused - who is of full age and mind and who, of their free choice - pleads guilty, despite maintaining their innocence, he or she cannot later complain that a miscarriage of justice has occurred. CHARGE BARGAINING NEGOTIATIONS – NEGOTIATOR AND CONCILIATOR An important part of the role of defence counsel is to negotiate pleas with prosecuting police officers or lawyers at the Department of Public Prosecutions. This is relevant where defence counsel has been instructed that their client will enter a plea of guilty to some of the charges laid against them, or where a client would be prepared to plead guilty to an alternative charge (or charges). Little has been said or written about defence counsel's ethical obligations during this process. However, in accordance with a practitioner's duty to act honestly and courteously in all dealings with clients, other practitioners and other

persons involved in a matter, where the practitioner acts for a client,28 a practitioner must not willfully mislead the other party during charge bargaining negotiations.29 Further, even where a negotiation with the prosecution has been reached to either a charge or a proposed penalty, the client must be informed that any agreement does not bind the court.30 PREPARATION AND PRESENTATION OF A PLEA – PLEADER, HISTORIAN AND SOCIAL COMMENTATOR In addition to the ethical obligations already touched upon, a clear understanding of the purpose of a plea in mitigation, the expectations of practitioners when dealing with sentencing materials, and the necessity of making a submissions on the appropriate penalty which defence counsel says should be imposed upon their client, are important ethical issues to consider during the preparation and presentation of a plea. PURPOSE OF PLEAS IN MITIGATION A plea in mitigation must not be used for the purpose of making a submission that is merely scandalous or calculated to vilify or insult any person.31 Nor can defence counsel attribute to another person the commission of an offence unless there are facts or circumstances which reasonably support such an attribution.32 These rules are relevant because, from time to time during my time as a trial judge, I heard pleas in mitigation during which gratuitous and unnecessary criticisms of people somehow associated with the case were made, or criminal conduct was alleged against a person without any factual basis to support such allegation.33 ETHICAL OBLIGATIONS REGARDING SENTENCING MATERIALS There is neither a positive duty upon defence counsel to disclose to a court a client's criminal history, nor an obligation to inform the court of any factual matter adverse to his or her interests.34 However, defence counsel must not assert, during the course of a plea in mitigation, that his or her client has no record.35 If the prosecution tenders a criminal history which is wrong, defence counsel is not obliged to correct it; however, defence counsel cannot assert that the erroneous record is accurate.36 Similarly, if there is a criminal history, but it is incomplete to defence counsel's knowledge, defence counsel is not obliged to inform the court of the complete record, but

17


equally, cannot assert that the record disclosed to the court is accurate. In any of these situations, defence counsel will usually say nothing about the record. The situation may arise where defence counsel has erroneously informed the court, although in good faith, that the record proffered by the prosecution is correct. Where defence counsel becomes aware of the inaccuracy of any such statement, defence counsel is obliged to correct the statement, even in the face of instructions from the client to the contrary.37 Occasionally, defence counsel may be asked the direct question by a Judge or Magistrate, "Is the record correct?" This may occur where the circumstances of the case indicate similar offending in the past. Where a Judge asks this kind of question, defence counsel must take instructions from the client. If the client does not wish to disclose his or her prior offending, defence counsel may respond to the question along the lines of, "I am instructed to say nothing about the record." However, defence counsel could not answer the question in a misleading way - for example, by saying outright that the client had no record.38 Frequently in the presentation of a plea, defence counsel is provided with character references and testimonials in support of their client. It is defence counsel's decision as to whether, and if so, what, sentencing material is put before the court. A practitioner's duty to not mislead the court extends to not handing up to the court a reference which is, to defence counsel's knowledge, not genuine or is misleading in its contents.39 Generally, defence counsel is entitled to accept that a reference given to him or her by a client is genuine. However, where defence counsel has reason to question the provenance of a reference, it should not be tendered to the court unless defence counsel's suspicions have been adequately assuaged.40 Ethical issues can sometimes arise in relation to expert reports obtained by the defence with a view to expert opinions being provided to the sentencer in mitigation. Very often, these reports are obtained from a psychiatrist or clinical psychologist. An expert who provides a report to a court owes an overriding duty to the court. That duty requires the expert to not knowingly mislead the court. Where the report contains information unfavourable to a client and of which was unknown to the prosecution, it would be improper of a practitioner to request the expert to excise the material 18 | BRIEF MARCH 2016

where that material has some bearing upon the expert's opinion.41 There are supporters of the view that a practitioner can ethically request an expert to redraw a report without the adverse material, but only if the material is not of significance to the expert's opinion and its omission would not mislead the court about the expert's conclusions.42 In my view, a practitioner must tread very carefully when suggesting to an expert that material adverse to a client be excised from a report to be tendered to a sentencer so as not to mislead the expert, and thereby, the court. The question of whether a report is relied upon at all is ultimately one for defence counsel. SUBMISSIONS ON PENALTY In my opinion, it is the duty of competent defence counsel during a plea in mitigation to make some submissions on penalty.43 Too often as a sentencing judge, I heard pleas in mitigation where a number of sentencing options were potentially open to an offender, but nothing was said by defence counsel about those options, and why a particular option may or may not be appropriate. It is not so unusual to hear (but might be hard to believe) a plea in mitigation being concluded with words to the effect of, "I'll leave it to your Honour". Without wanting to sound harsh, such a submission (if it can be called that), is useless. A plea in mitigation is an exercise in advocacy and so is a form of persuasion. It is no easy thing to sentence and courts welcome submissions from defence counsel on the appropriate penalty that should be imposed upon an offender. In my view, it is a part of a practitioner's ethical duty to act with diligence and competence that he or she make appropriate submissions on penalty.44 THE AFTERMATH The LPCR require a practitioner to keep his or her client informed.45 This requirement is not merely good manners; but rather, obliges defence counsel (or someone acting on defence counsel's behalf) to meet with his or her client after sentencing to explain what penalty has been imposed and, in the case of any non-custodial penalty, what the client's obligations are with respect to that penalty. A practitioner also has the duty, where appropriate, to advise about the possibility of an appeal against sentence. However, a practitioner should be careful not to act in the 'heat of the moment', or to tell a client that an appeal should be initiated merely to

placate the client's (or his or her family's) disappointment with the outcome. Save for exceptional circumstances, prudent defence counsel will rarely seek instructions from a client straight after the imposition of a sentence to appeal against that sentence. Rather, defence counsel will normally advise a client that such a possibility exists, but that they have not reached a concluded view on the merits of a sentence appeal and will be unable to do so until defence counsel has had the opportunity to calmly consider the sentencing remarks and all other relevant materials.46 ACTING FOR CO-ACCUSED ON A PLEA OF GUILTY Finally, acting for co-accused on pleas of guilty is an area where actual and potential conflicts of interest lurk.47 While it is not unethical per se to act for co-accused charged with an offence (or offences) arising out of the same event, a practitioner should be very wary before doing so and must be careful not to offend their ethical obligations relating to conflicts of interest.48 A practitioner should not act for all coaccused where one offender claims that their involvement is less than the other participant(s).49 Even where another participant accepts this to be the case, that person may not be quite so accommodating if they receive a more severe sentence than another offender. Further, it is not unusual for co-accused, who initially appear to be equal in their involvement and on good terms, to subsequently fall out and point the finger of blame at each other. In such a case, it is impossible to act for any of the offenders. If a practitioner acts for a co-offender who pleads guilty, it is impossible to act at the trial of another alleged offender in the same enterprise where the client who pleaded guilty will give evidence for the prosecution and his or her evidence is, or could be, disputed. The Full Court has made it clear that, even where a practitioner makes no use of information or knowledge gained in the course of acting for a client who pleaded guilty, there nevertheless exists a duty of professional loyalty which prevents a practitioner from acting in a way hostile to that client.50 A FINAL WORD This paper cannot provide the answer to every ethical dilemma. Some will disagree with aspects of this article. When faced with an ethical issue which is difficult to resolve, discuss the problem with a trusted colleague, or seek the advice of senior counsel.


Frequently after such discussions, those problems which initially appeared intractable become manageable.

15.

LPA, ss 260, 262.

35.

LPCR, r 34(1).

16.

LPCR, r 11.

36.

LPCR, rr 34(1), 34(3).

17.

LPCR, r 11(2).

37.

LPCR, r 37.

18.

A practitioner must advise a client having regard to LPCR, rr 5, 6, 9(3)(b), 9(3)(d), 16(1), 27(1)(c), 34, 35(1), 35(2).

38.

LPCR, r 34(2).

39.

LPCR, r 34(1).

40.

As a matter of prudence, references should not be tendered to the court unless they are signed (as opposed to emailed or faxed) and they contain a statement to the effect that the person giving the reference or testimonial is aware that the client is pleading guilty to the matter before the court.

41.

LPCR, r 39. See also, Justice Peter Hidden 'Some Ethical Problems for the Criminal Advocate' (2003) 27 Criminal Law Journal 191. For instance, if psychiatric reports are prepared in circumstances where everything the client has told the expert is included in the report without thought about its relevance. In my experience, this happens rarely. Psychiatrists and psychologists specifically refer to matters in their report because such matters are of relevance and/ or bear upon the opinions expressed in that report.

42.

Justice Peter Hidden 'Some Ethical Problems for the Criminal Advocate' (2003) 27 Criminal Law Journal 191.

43.

I do not mean that counsel needs to suggest that, for example, if a fine is to be imposed, the precise amount of that fine; or where a term of immediate imprisonment is to be imposed, the precise length of that term.

44.

I use the word 'appropriate' deliberately – submissions on penalty should be realistic and not outlandish.

45.

LPCR, r 8.

46.

Criminal Appeals Act 2004 (WA), ss 27(1), 27(2), 27(3). Any proposed ground of an appeal must have a reasonable prospect of succeeding in order to proceed to an appeal hearing.

47.

LPCR, rr 38 - 40.

48.

LPCR, Part 4.

49.

LPCR, rr 9, 12.

50.

Fordham v The Legal Practitioners' Complaints Committee (1997) 18 WAR 467, 489 - 490 (Malcolm CJ, with whom Franklyn and Wheeler JJ agreed).

NOTES 1.

This article is an adaptation of a paper presented to the Law Society of Western Australia Continuing Professional Development Seminar, Perth, 21 October 2009. The opinions I express herein are my own, and I am conscious that not all ethical issues are clear cut and that views may legitimately differ. My thanks go to my Associate, Ms Courtney Furner, and my Research Associate, Ms Rebecca Davey, for their assistance in editing this article.

19.

LPCR, r 27(1)(d); see also rr 27(1)(c), 27(1)(f).

20.

LPCR, r 35(1).

21.

See generally LPCR, rr 27(1)(d), 35.

22.

In some cases, there may need to be a trial of the issues and the merits of this course must be explained to the client.

23.

As opposed to the matter proceeding to trial.

24.

Many counsel will request that the client give written instructions of an intention to plead guilty. I believe this is a good practice to adopt.

2.

Legal Professional Conduct Rules (2010) (WA) (LPCR), rr 5, 6.

3.

LPCR, r 5; Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, 555 (Mason CJ).

25.

Although sometimes this may occur having regard to LPCR, r 27.

4.

Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 [8], Legal Profession Complaints Committee v Masten [2011] WASC 71 [19]; The Council of the Queensland Law Society Inc v Wright [2001] QCA 58; LPCR, r 34.

26.

LPCR, r 35(2).

27.

LPCR, r 9.

28.

LPCR, r 6(1)(b).

29.

Michael Corboy SC 'Ethical Values in Litigation – How Far Can You Go' (Paper presented at the Law Society of Western Australia Seminar, Perth, 10 December 2008). While Michael Corboy SC's (as he then was) comments were made in context of negotiations in a civil case, they are apt to charge bargaining negotiations. He said "… there can be no doubt that a practitioner would be guilty of serious professional misconduct if he or she deliberately misleads another party in negotiations. Deliberate misleading would include knowingly telling a half-truth that conveyed a false impression. That can occur not only by proffering an item of information but by giving a deliberately vague and misleading answer to an inquiry".

5.

LPCR, rr 27(1)(c), 27(1)(f). Where the client is charged with a serious offence, a practitioner's termination of the engagement is subject to r 27(2).

6.

R v Rumpf [1988] VR 466.

7.

Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [60]; R v Rumpf [1988] VR 466 at [47]; 29 A Crim R 252; LPCR, rr 34, 35(1), 35(2).

8.

R v Rumpf [1988] VR 466 [47]; 29 A Crim R 252 [472].

9.

R v Rumpf [1988] VR 466 [47]; 29 A Crim R 252 [472]; Richard G, Fox and Arie Freiberg, Sentencing State and Federal Law in Victoria (2nd ed, 1999) 2.212.

10.

Legal Profession Act 2008 (WA) (LPA), s29.

11.

LPA, ss 402, 403; LPCR, r 6(1)(c).

12.

LPCR, r 7(f).

13.

LPCR, rr 7(f), 27(1)(c).

14.

Janet Martin, 'A Balanced Performance on Sentence – Some comments on the modern role of defence counsel in the Sentencing Process' (1991) 15 Criminal Law Journal 261.

30.

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.

31.

LPCR, rr 6, 36(2)(c).

32.

LPCR, r 36(4).

33.

Further, it has been said, and I agree, that counsel should not be used by a client to air any political or social opinions where such views are not relevant. See generally: R v King (1973) 57 Crim App R 696.

34.

LPCR, r 34(11).

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19


What does it take to repudiate one's allegiance to Australia? Peter Lochore* On 3 December 2015 the Commonwealth Parliament passed the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance Act).1 The Allegiance Act is part of the Government's commitment to "address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related offences".2 Section 4 of the Allegiance Act states that the purpose of the statute will be to recognise:3 that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. The Allegiance Act amends the Australian Citizenship Act 2007 (Cth) so that if a person who is a national or citizen of another country acts inconsistently with their allegiance to Australia by engaging in specified conduct that person may lose 20 | BRIEF MARCH 2016

their Australian citizenship. As soon as the Bill was introduced into Parliament it was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for an inquiry. The author uses the PJCIS report,4 released on 4 September 2015, as his principal source for giving some commentary on the Allegiance Act. THE THREAT IS REAL Before considering the Allegiance Act further, I want to digress for a moment to comment upon the threat. Probably some readers doubt that the threat is real. I do not. The threat of terrorist acts in Australia is real. In the past 16 months Australia has experienced 2 terrorist attacks and 23 Australians have been charged as a result of 8 counter-terrorism operations.5 The threat from returning foreign fighters is also well established.6 That is why the current National Terrorism Threat

Advisory System assesses the present threat as Probable.7 Thus, in my view, Australian governments are fully justified in endeavouring to respond to that threat. What is considerably less clear, is whether the approach embodied by the Allegiance Act will actually achieve its stated aim of ensuring "the safety and security of Australia and its people."8 Personally, I am doubtful. LEGISLATION DIRECTED AT DUAL NATIONALS In order that Australia will not run afoul of its international commitment to not render any person stateless, the operative provisions of the Allegiance Act are directed at Australians who are also nationals or citizens of another country.9 For ease of reference I will simply refer to these people as dual nationals.


feature

The PJCIS reported that it was unable to ascertain precisely how many Australian citizens are also nationals or citizens of another country – but the number may well exceed 5 million people.10 The Department of Immigration and Border Protection explained to the PJCIS that the figure was not captured by census data because it was not a matter directly within the competency of any agency or department.11 Curiously, and troublingly, many people may be unaware that they are dual nationals as citizenship is often acquired by operation of a foreign law.12

conviction of specified offences (s34), but this only applies if you did not automatically become an Australian citizen; •

serving in the armed forces of a country at war with Australia (s35); or

being the child of a responsible parent who ceases to be a citizen, the Minister revokes your citizenship when certain criteria are met (s36).

THE STATUS QUO Part 2, Division 3 of the Australian Citizenship Act deals with cessation of Australian Citizenship. At present there are 5 ways in which a person can cease to be an Australian citizen. Specifically, you can cease to be a citizen by: •

voluntarily renouncing your citizenship (s33) (as is sometimes required to become a citizen of countries that do not permit dual citizenship); the Minister revoking your citizenship on the grounds of fraud or after

the Minister revoking your citizenship on the grounds of failure to comply with special residence requirements (s34A), but this only applies if you did not automatically become an Australian citizen;

OVERVIEW OF THE CHANGES The Hon Peter Dutton MP, in his second reading speech, explained that the Allegiance Act introduces 3 mechanisms by which citizenship may be so forfeited. These are:13 •

Renunciation by conduct (s33AA);

An expanded s35 to cover service in a declared terrorist organisation; and

An new power for the Minister to

cancel citizenship after a person is convicted of one of a range of offences, most of which are connected to terrorism or treason, and the Minister is satisfied of certain public interest criteria (s35A). I will review each measure. 1. RENUNCIATION BY CONDUCT The new s33AA – renunciation by conduct – is said to build upon the existing concept in s35. The new s33AA(1) provides that a dual citizen aged 14 or older "renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia by engaging in conduct specified in subsection (2)". Section 33AA(2) describes a range of conduct associated with terrorist offences. Subsection (6) then provides that the words and expressions in subsection (2) have the same meaning as they do in specified terrorism offence provisions in the Criminal Code 1995 (Cth).14 The explanatory memorandum makes it clear that engaging in the specified 'terrorism' conduct is what shows that the person has acted 21


inconsistently with their allegiance to Australia.15 The loss of citizenship is said to occur by operation of law.16 The Law Council of Australia submitted to the PJCIS that, absent a requirement for a conviction, somehow an assessment must be made of whether a person has engaged in what would otherwise be unlawful conduct.17 This must be so. However, it is not apparent from reading the Allegiance Act at what point an administrative decision will be made, and how that decision might be subject to any oversight. As any readers who have endeavoured to identify an administrative decision in order to challenge its legality via judicial review will appreciate this problem is one that is sadly not uncommon. Curiously, the Secretary of the Department of Immigration and Border Protection submitted to the PJCIS inquiry that the Minister is not making a decision to deprive anyone of anything.18 For my part, I am doubtful that this strategy of denying the making of a decision will withstand challenge. The Minister for Border Protection ran a similar argument in trying to suggest that his Department's processes for assessing international treaties obligations owed to the 9,258 asylum-seekers who were impacted by the infamous data breach in early 2014 did not involve the making

of a decision. The incisive analysis of the Full Federal Court in SZSSJ shows how difficult it is to avoid a conclusion that an administrative decision must be made by someone at some point.19 If a decision is made, someone must take responsibility for it. Granted, the statutory context in migration law has its peculiarities. However, even in that context, a Minister must hold ultimate responsibility for his department's decisions. The point was powerfully made by the Full Federal Court SZSSJ when, referring to s64 of the Commonwealth Constitution (Ministers of State), the Court stated:20 [This provision] reflects the orthodoxy that a Minister administers his or her Department and is responsible to the Parliament for it. Underlying the Minister's submissions in this case is an unconstitutional aspiration that administrative activity can take place within a Minister's Department for which the Minister is not to be held responsible. This is not correct. It should be noted that the Government amendments made after the PJCIS report introduced specific intent requirements that are similar, but not identical, to those in the Criminal Code 1995 (Cth).21 This appears to be an attempt to address some concerns raised with the PJCIS that the Bill as introduced may infringe

the separation of judicial power in the Constitution.22 Another issue with the new s33AA is the lack of clarity as to how it will interact with the potential for prosecution. The PJCIS spent considerable time probing the responsible agencies as to how the Commonwealth Government would act coherently when as a consequence of the same terrorism-related acts it could: •

on the one hand notify a person that he or she has lost her citizenship by conduct; and

on the other hand prepare for and conduct a prosecution, which upon conviction would trigger a loss of citizenship.

How ought these processes work together? Ultimately, the PJCIS concluded that the overlap between the renunciation by conduct and loss of citizenship upon conviction provisions may lead to undesirable consequences.23 To avoid the potential difficulties the Parliament adopted the recommendation of the PJCIS so that s33AA(7) now provides that s33AA does not apply to conduct by a person unless: •

the person was not in Australia when the person engaged in the conduct; or

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the person left Australia after engaging in the conduct and, at the time that the person left Australia, the person had not been tried for any offence related to the conduct.

2. SERVICE WITH A TERRORIST ORGANISATION Section 35 of the Australian Citizenship Act already provided for loss of citizenship by operation of law – but only in a very specific and rare circumstance. That section provided that a person ceases to be an Australian citizen if the person is a national or citizen of a foreign country and serves in the armed forces of a country at war with Australia. It is easy to understand the rationale of this provision – the conduct is treasonous.24 The Allegiance Act extends s35 so that citizenship is also lost when a dual national "fights for, or is in the service of, a declared terrorist organisation".25 However, the conduct in question must take place outside Australia. This amendment is, to my mind, an uncontroversial modernisation so that the law is consistent with the nature of today's conflicts. It also makes this provision very likely to be used. While the number of people actually fighting for declared terrorist organisations is not published, Australia's Counter-Terrorism Strategy records that as of July 2015 over 120 Australians have travelled to the Syria and Iraq conflict zones.26 While originally the wording of the Bill as introduced captured conduct by humanitarian workers (such as UNICEF and Medecins Sans Frontieres) within the scope of service of a declared terrorist organisation, the PJCIS raised a concern27 and this alarming anomaly was rectified before the Allegiance Act was passed.28 3. EXPANDING THE WAYS CITIZENSHIP CAN BE LOST UPON CONVICTION Section 34 of the Australian Citizenship Act previously allowed the Minister a power to revoke the citizenship of some citizens in very specific circumstances. The new s35A allows the Minister to determine that a dual national ceases to be an Australian citizen upon conviction of a specified offence. While originally this was intended to be an automatic process, the Parliament acceded to the recommendation of the PJCIS29 and instead gave the Minister a discretion to revoke a person's citizenship after taking into account specific criteria. Essentially, to revoke citizenship the Minister must be satisfied that this would be in the public interest and that the conviction demonstrated a repudiation of the person's allegiance to Australia.

Sydney, Australia - December 16, 2014: Various newspapers reporting on the Sydney Siege, where a gunman held 18 people hostage in a 17-hour siege.

The Bill as introduced would have resulted in the automatic loss of citizenship for the specified offences including 2 that are punishable by a maximum penalty of only 5 years.30 One submitter to the PJCIS inquiry made the astute observation that as the High Court held that a custodial sentence of less than 3 years should not lead to the loss of the right to vote, it would be surprising if the High Court would allow the more fundamental right of citizenship (upon which the right to vote is based) to be removed for conduct that has not resulted in a lengthy prison sentence.31 In its final form, the Minister's power to cancel citizenship only applies where a person has been sentenced to a least 6 years imprisonment. Fortunately the amendments prompted by the PJCIS removed from the list of offences in s35A the offence of destroying or damaging Commonwealth property (s29 Crimes Act 1914 (Cth)). At first glance this might sound a serious offence, but my quick review of reported decisions relating to this offence revealed that prosecutions are usually against asylumseekers for minor damage to detention facilities such as a fence,32 a ceiling,33 a roof,34 light-bulbs35 or dinner plates.36 It was also used to prosecute the act of destroying tax returns.37 Given the exclusion of this offence, breaking a chair or even a pen at a Centrelink Office will no longer put dual nationals at risk of losing their citizenship despite the offence not being serious enough for jail!38 The PJCIS was asked to advise on whether s35A should be applied retrospectively. It decided that it should have some retrospective application,

subject to some qualifications.39 The Act as passed allows for a citizenship to be lost on the basis of a conviction recorded up to 10 years prior to the Allegiance Act's commencement. EFFECTIVENESS It is apparent that the Allegiance Act intends to influence behaviour by acting as a deterrent. Given that the conduct in question already creates serious risks of: •

death or injury (from involvement in the armed combat or terrorismrelated activities);

prosecution (with potentially lengthy sentences on conviction);

the cancellation of one's passport; or

the imposition of a control order,

it is seriously doubtful that adding the consequence of a loss of citizenship will be any further deterrent to those engaging in terrorism-related activities!40 However, as Professor Gillian Triggs, President of the Australian Human Rights Commission, points out the language and structure of the Allegiance Act could easily have a chilling effect on dual nationals more generally.41 Expressed another way: the Allegiance Act may have a social impact by marginalising parts of Australian society comprised principally of dual nationals.42 KEEPING PROBLEMS OFFSHORE One consequence of the Allegiance Act is that Australia may not be able to prosecute some dual nationals who commit offences overseas, potentially 23


undermining our ability to fulfil our international commitments to do so.43 However, the Australian Federal Police and ASIO explicitly accepted this consequence.44 These agencies were unapologetic in their support for this outcome, as they prioritise keeping problems offshore and thereby reducing the direct threat to Australia.45 CONSTITUTIONAL ISSUES Submitters to the PJCIS inquiry, including eminent constitutional lawyers, raised concerns about the constitutional validity of the Allegiance Act.46 The Attorney General advised the Committee that the opinion of the Solicitor-General was that there is a good prospect that a majority of the High Court would reject a constitutional challenge to the core aspects of the draft Allegiance Act.47 A majority of the Committee was satisfied by this advice. The minority members of the PJCIS concluded that the Committee ought to rely upon the assurances of the executive that the Allegiance Act is able to withstand constitutional challenge, and therefore still recommended that the Allegiance Act be passed with the amendments proposed.48 Although the amendments made after the PJCIS report removed some of the most controversial aspects, Professor Anne Twomey contends that vulnerabilities remain, and she points particularly to the retrospective application of s35.49 INTERNATIONAL COMPARATORS In June 2015 Canada empowered its Minister for Citizenship and Immigration to:50 •

revoke citizenship upon conviction of terrorism, treason, etc with particular minimum sentences; and seek a declaration from the Federal Court of Canada that a person has served as a member of an armed force or organised armed group engaged in armed conflict with Canada (the declaration operates as a revocation of citizenship).

New Zealand's Minister of Internal Affairs is able to deprive a person of New Zealand citizenship if satisfied the person is also the citizen of another country and, while over 18 and of full capacity, has acted in a manner contrary to the interests of New Zealand.51 The Secretary of State for Foreign Affairs of the United Kingdom can deprive a British dual citizen of citizenship if the Secretary is satisfied that deprivation would be conducive to the public good.52 The same UK law also provides for the citizenship of sole (naturalised) 24 | BRIEF MARCH 2016

UK citizens to be revoked provided the Secretary of State for Foreign Affairs is satisfied that a citizen has "conducted themselves in a manner which is seriously prejudicial to the vital interests of the United Kingdom".53 On 23 December 2015 the French Government announced its intention to proceed with plans to strip dual citizens of citizenship after they are convicted of a terrorism offence and have served out their sentence.54 While each regime is different, it is arguable that Australia's provisions for cancelling citizenship are now the most far-reaching. 'WATCH THIS SPACE' Legal challenges to some of these provisions appear highly likely as the courts are called upon to grapple with that question: What does it take to repudiate one's allegiance to Australia?

decision is under appeal to the High Court. 20.

Ibid at [83]-[84].

21.

Section 33AA(3) of the Australian Citizenship Act (introduced by Schedule 1, cl 3 of the Allegiance Act).

22.

Sangeetha Pillai, 'Improved citizenship bill still invites criticism and High Court challenges', The Conversation (online), 12 November 2015 https://theconversation. com/improved-citizenship-bill-still-invites-criticismand-high-court-challenges-47153. Note also the final wording of subsection 33AA(6).

23.

For discussion of the issues see PJCIS Report, [5.106] to [5.123], above note 4.

24.

The Macquarie Dictionary defines treason as "violation by a subject of allegiance to his or her sovereign or to the state" (accessed online 9 September 2015).

25.

Section 35(1)(b)(ii) of the Australian Citizenship Act 2007 (as amended by Schedule 1, cl 3 of the Allegiance Act).

26.

Council of Australian Governments, Australia's CounterTerrorism Strategy: Strengthening our Resilience (July, 2015), p13 http://nationalsecurity.gov.au.

27.

PJCIS Report, Recommendation 5, above note 4.

28.

Section 35(4) now excludes actions that are unintentional and anything done when the person is providing neutral and independent humanitarian assistance.

29.

For discussion of the issues see PJCIS Report, [6.27] to [6.30], above note 4.

30.

Advocating terrorism (s80.2C, Criminal Code 1995 (Cth)) and Unlawful drilling (s27(1) of the Crimes Act 1914 (Cth)).

31.

The NSW Society of Labor Lawyers, referring to Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43, quoted by the PJCIS at [6.15], above note 4.

32.

In Al-Saleh v Clarson [2002] WASCA 122 detainees charged with destroying dinner plates and damaging a fence. These events were said to be precursors to a riot that endangered many people. On appeal the damage to the dinner plate was the subject of a 1 month sentence and the damage to the fence was punished by 15 months in prison.

33.

WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292, [8] to [10]. The offender received a 1 year good behaviour bond, but his protection visa application was refused on character grounds due to this conviction.

NOTES *Barrister, Francis Burt Chambers. The author formerly worked for the State Solicitor's Office where he advised on national security matters from 2004 to 2014. In 2008/09 he studied national security law at Columbia University School of Law in New York City as part of his LLM and at the University of Virginia’s National Security Law Institute. 1.

Available online at https://www.comlaw.gov.au/Details/ C2015A00166. The Act commenced on 12 December 2015.

2.

Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 24 June 2015, p. 7369.

34.

Urahman v Semrad (2012) 229 A Crim R 11. Damaging a roof and a light at an immigration detention centre resulted in a 1 year good behaviour bond.

3.

Note though, that this purpose clause is not carried through and inserted into the principal statute, the Australian Citizenship Act.

35.

Urahman, ibid and Abbott v Hussain [2003] WASCA 58.

36.

See Al-Saleh above, at note 32.

Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Allegiance Act 2015 (Report) (released 4 September 2015), available for download from the PJSIC website: http://www.aph.gov. au/pjcis.

37.

Allegedly to conceal fraud: PJCIS Report, at [6.6], above note 4.

38.

No prison sentences were served for the majority of the examples provided to the PJCIS: see PJCIS Report, at [6.6], above note 4.

39.

See PJCIS (above note 4) at [6.82] to [6.88].

Submission of the Department of Immigration and Border Protection to the PJCIS Inquiry into the Allegiance Act. The submission is quoted by the PJCIS Report at [4.23]. The Inquiry submissions are available for download at the PJSIC website: http://www.aph.gov. au/pjcis

40.

See generally the discussion by the PJCIS (above note 4) at [4.25] and [4.26].

41.

Discussed by the PJCIS (above note 4) at [4.27].

42.

PJCIS Report (above note 4) at [4.29] to [4.35], especially at [4.33] to [4.35].

6.

Australian Security Intelligence Organisation (ASIO), Submission to the PJCIS Inquiry into the CounterTerrorism Legislation (Foreign Fighters) Allegiance Act 2014 (October 2014), pp. 2-3.

43.

Professor Ben Saul and other submitters make this point. It is discussed by the PJCIS Report (above note 4) at [4.36] and [4.94].

7.

As at 8 December 2015. See http://www. nationalsecurity.gov.au/ for up to date information on the National Terrorism Threat Advisory System.

44.

The PJCIS (above note 4) references these agencies positions at [4.95] and [4.96] respectively of its Report.

45.

Ibid.

8.

Explanatory Memorandum, p1.

46.

9.

The many years of litigation relating to the Hong Kong 'right of abode' in the United Kingdom, as well as the many recurrent debates about residency in taxation law, suggest that it may not always be clear if someone is a national of another country.

Chapter 3 of the PJCIS Report is devoted to constitutional issues.

47.

See PJCIS (above note 4) at [3.39].

48.

See PJCIS (above note 4) at [3.41] to [3.43].

49.

Professor Anne Twomey, 'Citizenship bill still vulnerable to high court challenge – constitutional lawyers', The Guardian Australia (online), 12 November 2015 <http:// http://www.theguardian.com/australia-news/2015/ nov/12/citizenship-bill-still-vulnerable-to-high-courtchallenge-constitutional-lawyers?CMP=oth_baplnews_d-3 >.

50.

Citizenship Act 1977 (Canada), s10(2), as discussed by PJCIS Report (above note 4) at [2.41].

51.

Citizenship Act 1977 (New Zealand), s16, as discussed by the PJCIS Report at [2.43] (above at note 4).

52.

British Nationality Act 1981 (UK), ss40(2) and 40(3), as discussed by the PJCIS Report, above note 4, at [2.46].

53.

British Nationality Act 1981 (UK), s40(4A), as introduced by the Immigration Act 2014 (UK).

54.

Reuters / AFP, 'France to pursue plans to strip dual citizens' nationality in terrorism cases', ABC Online, 24 December 2015 ><http://ab.co/1NM7r44>.

4.

5.

10.

PJCIS Report, above note 4 at [4.12].

11.

Ibid at [4.15].

12.

Ibid at [4.13].

13.

Hon Peter Dutton MP, above at note 2.

14.

Though the amendments made before passage added words to expressly state that the fault elements under the Criminal Code do not apply.

15.

Explanatory Memorandum, p7.

16.

The idea that something can be surrendered by operation of law is well established. See for e.g. Bagnall v White (1906) 4 CLR 89, at 94.

17.

PJCIS Report, [5.55], referencing the Law Council of Australia's Submission at p 10, above note 4.

18.

Ibid, quoting Mr Michael Pezzullo on 10 August 2015 at [5.24], above note 4.

19.

SZSSJ v Minister for Immigration and Border Protection (2015) 326 ALR 641; [2015] FCAFC 125, [66]-[87]. This


Judicial Conference of Australia Colloquium 2015 Freedom of the Press and the Courts The Honourable Wayne Martin AC, Chief Justice of Western Australia Transcript of speech delivered in Adelaide on Friday, 9 October 2015 I would like to commence by acknowledging the traditional owners of the lands on which we meet, the Kaurna people. I pay my respects to their Elders past and present and acknowledge their continuing stewardship of these beautiful lands. OPEN JUSTICE Unfettered public access to proceedings in our courts, often described as the principle of open justice, has been accepted as a fundamental aspect of the conduct of our courts since the very early days of the colonies that became Australia. It is a principle inherited from England and it is shared with many other justice systems that have a similar origin. ACCOUNTABILITY In my view, open justice is not merely cosmetic or aesthetic, but has profound constitutional implications which are capable of being measured in at least three dimensions. The first is that of accountability. The justice system and the courts exist to serve the community. They give effect to the community interest in the rule of law, including the enforcement of the law and the maintenance of order in our community, the resolution of disputes between members of the community, and between members of the community and the State. The public has a very real and legitimate interest in knowing whether or not the courts do in fact achieve these vital objectives and in knowing whether the courts do so fairly - in the sense of treating equally all who come before the court, whatever their wealth, their colour or their creed; in knowing whether the courts do so justly in the sense of providing adjudication in accordance with law; and in knowing whether the courts do so efficiently in the sense of the efficient utilisation of the substantial public and private resources that are invested in our justice system. Open justice provides a mechanism by which the courts can be held accountable to the communities which we all serve. PUBLIC CONFIDENCE

The second vital interest served by open justice is that of public confidence. That great American judge, Felix Frankfurter, famously observed: The Court's authority - possessed of neither the purse nor the sword ultimately rests on sustained public confidence in its moral sanction.1 In my view, public confidence depends to a significant extent upon transparency. No reasonable person could be expected to have confidence in a system or process which he or she cannot see in operation. That is why democracies born of the English tradition insist that their legislatures conduct their proceedings in public, although in Europe there might sometimes be different views. An aphorism is often attributed to Otto von Bismark who said that there are two things that the public should never see being made and they are laws and sausages. However, the tradition of legislative transparency that evolved in England was transported to Australia with the colonists and convicts. People are naturally and understandably suspicious of things that they cannot see in operation. Courts that have operated behind closed doors such as the much maligned Court of Star Chamber have always been the subject of public suspicion. Contemporary experience shows that corruption and crime commissions and royal commissions which conduct their activities in public often engender greater public confidence than those which operate in private. The Chief Justice of the Family Court of Australia, the Hon Chief Justice Diana Bryant AO has referred on a number of occasions to the adverse effect which the understandable prohibition upon the identification of parties to Family Court proceedings has had upon the public awareness of the procedures and principles which are applied in that Court, because of the inevitable effect which it has upon the reduced reporting of those proceedings. I do not understand her Honour to be suggesting that the prohibition should be removed, but rather to draw attention to the need to pursue

other means of informing the public about the operation and activities of that important Court. THE INDEPENDENCE OF THE JUDICIARY The third dimension of constitutional significance served by the principle of open justice is the preservation of the independence of the judiciary. Reverting again to Felix Frankfurter, he wrote: A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other, both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.2 So there is symbiotic mutual interdependence between an independent judiciary and a free media. When the independence of the judiciary has been threatened in various parts of the world, the media has demonstrated that it can come to the aid of the embattled judiciary, galvanising public opinion so as to discourage undue government interference with a free and independent judiciary. These three values, accountability, public confidence and judicial independence are not merely cosmetic aspects of our justice system - they are fundamental to its successful operation - indeed, to its very existence in the form in which we know it. In my view, all depend significantly upon the principle of open justice and the effective operation of that principle depends significantly upon productive collaboration between the courts and the media for reasons I will explain. JUSTICE MUST BE SEEN TO BE DONE We have all heard the aphorism that justice must not only be done but must also be seen to be done. It is often 25


attributed to the judgment of Lord Chief Justice Hewart in R v Sussex Justices Ex Parte McCarthy, in which his Lordship said: … it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.3 Hewart was a Chief Justice of some distinction, as Lord Devlin observed in 1985 when he said: Hewart … has been called the worst Chief Justice since Scroggs and Jeffries in the seventeenth century. I do not think that this is quite fair. When one considers the enormous improvement in judicial standards between the seventeenth and twentieth centuries, I should say that, comparatively speaking, he was the worst Chief Justice ever.4 THE DOORS OF THE COURT ARE OPEN A lofty sentiment with respect to the importance of open justice was expressed by Lieutenant-Colonel John Lilburne at the time he was under trial for high treason in 1649 at the Guildhall of London. If you were under trial for high treason in London in 1649, your future was not looking bright. Colonel Lilburne nevertheless described open justice as the first fundamental liberty of an Englishman. He observed: … by the laws of this land all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place, where the gates are shut and barred, and guarded with armed men …5 The problem, of course, is that simply leaving the door of the courtroom open is insufficient of itself to provide meaningful public access to the proceedings of the Court at a time in which most people rely for their information upon secondary sources such as the media. So if we are serious about providing public access to the proceedings of the Court, the media must be the means through which that access is provided. That concept has been rather more eloquently put by Justice Park of the United Kingdom when he observed (writing at a time when the press was a more prominent medium of public communication): It is an excellent thing that any member of the public can walk into any courtroom, watch the 26 | BRIEF MARCH 2016

proceedings and listen to what is said. But for the public as a whole to be informed about important or interesting matters which are going on in the courts the press is crucial. It is through the press identifying the newsworthy cases, keeping itself well informed about them and distilling them into stories or articles in the newspapers that the generality of the public secure the effects and, I trust, the benefits of open justice.6 MEDIA DIVERSITY It is vital for the Courts to recognise and appreciate that the media are precisely what the word connotes, that is, the medium by which the principle of open justice is effectively communicated to the community which we all serve. Since Justice Park's judgment, the pool of media organisations which can provide information to the public has diversified very significantly. The information available to me some time ago suggested that in Australia there are about 90 television stations, 130 ethnic newspapers, 300 radio stations, 700 newspapers and 1300 magazines, and online providers of information too numerous to even attempt to count. If open justice is to achieve the benefits to which I have referred, we have to develop a healthy and cooperative relationship between the Courts and all of those outlets. I will come to the particular issues posed by online media later. STRAINS IN THE RELATIONSHIP Given the importance of a collaborative and instructive relationship, it is most regrettable that the relationship is so strained. In his address to this colloquium, journalist Chris Masters has provided an insight into the many reasons why that relationship has become so strained. Why do the media seem to be so critical of the judiciary? Why are judicial officers, when they gather together, so often critical of the media? Why do we commonly complain to each other that the media do not understand what we do or why? The Judicial Conference of Australia owes its existence in part to the notion that the judiciary needed a vehicle through which to speak to the media in a context in which my Western Australian colleague Attorney General, Daryl Williams, decided that it was no longer the role of the Attorney General to speak on behalf of the judiciary. Why is there this tension? Why is there this unresolved strain between us? Forty years of engagement in the business of dispute resolution suggests to me that misunderstanding is very often at the heart of any dispute or tension, and I think that is so in the

"It is vital for the Courts to recognise and appreciate that the media are precisely what the word connotes, that is, the medium by which the principle of open justice is effectively communicated to the community which we all serve." strained relationship between the media and the Courts. MISUNDERSTANDING In order to address these misunderstandings, I would like to start by looking at the nature of news. I would like to do so by drawing upon an analogy first used by Chief Justice Gleeson,7 and observe that it is very unlikely that you would read on the front page of the Sydney Morning Herald an article recording that the Sydney Harbour Bridge stayed up again last night, but, of course, if the bridge collapsed then that would be news. The nature of news is that it has to be sensational in order to attract interest and attention. You are unlikely to pick up The West Australian and read an article which reports that Martin CJ took account of all relevant considerations and imposed a sentence that was eminently fair and reasonable, reporting the comments of the victim's and offender's associates on the steps of the court who said, 'That judge is really in touch with community standards - he really gets it'. As Chief Justice Gleeson observed, to complain about articles that reflect the nature of news is a bit like complaining about the weather. Judges and magistrates must come to terms with the fact that the nature of news necessarily influences what is reported and the manner in which things are reported. PUBLIC PERCEPTION The nature of news has an impact upon public perception. Sentencing is one of the most common topics of criticism of the judiciary in the media. Only sentences that are newsworthy are reported. Commonly they are newsworthy because outrage has been expressed as to their asserted leniency. The most avid consumer of news might read or view 30 such items each year but because they are the only items on sentencing which they see, they gain the false perception that the sentences about


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"We can have no objection if the media comment upon our work provided that they provide the consumers of the information with the facts upon which they can base their own opinion." which they have read or heard reflect what occurs in our courts generally. In most Australian jurisdictions, sentences have increased; prison populations have increased significantly while crime rates have generally gone down over the medium term, but public perception is precisely opposite. In my view, that false perception does not arise from deliberate media manipulation, generally speaking. It is simply attributable to the nature of news. This is not to say that media manipulation to attract public attention is unheard of. A few years ago, a newspaper in Western Australia8 published a front page story in which comments were attributed to a member of the family of a homicide victim which were stridently critical of the sentence imposed when in fact the person concerned was not at all critical of the sentence. Following complaint and investigation, it transpired that the sense of the comments made had been deliberately altered in order to make the story newsworthy, not to pursue some political agenda of the paper.9 The danger with these misconceptions is that they can influence government policy, given that politicians tend to be more influenced by public opinion than objective facts. We must accept that judges and magistrates will be criticised by the media - it goes with the turf. However, we are entitled to expect a proper distinction between commentary and fact. We can have no objection if the media comment upon our work provided that they provide the consumers of the information with the 28 | BRIEF MARCH 2016

facts upon which they can base their own opinion. INTEMPERATE LANGUAGE We sometimes get sensitive about the terms in which criticism of the judiciary is expressed. There is nothing new about strident criticism. I mention two admittedly parochial examples going back to the first Chief Justice of Western Australia, Sir Archibald Burt. In 1870 the Melbourne Argus described him in the following terms: We have read and heard of many singular freaks of men dressed in a little brief authority, but we have never yet met with such a case.10 At the same time, the Melbourne Age wrote of my first predecessor in these terms: The new theatre of operations, in the effort to silence the Press and to crush public journalists, is the heretofore penal colony of Western Australia I digress to observe that this was at a time when Victoria was crowing about never having been a penal colony - that was before convict heritage became a badge of honour And the angry potentate who hurls his thunderbolts against those who dare to impugn the doings of official authority, is not the sovereign ruler of the State as represented by the local head of the Executive in the person of the Governor of the colony, but the Chief Justice in the Supreme Court of this despotically governed

Little Peddlington ... The Chief Justice, in a tone and style of speech the most intensely redolent of the Pecksniff spirit that our experience has ever been cognisant of, at once commenced his bitter vengeance by extolling his own conscientiousness.11 Despite engaging with the media in a manner which your President has described as courageous (in Sir Humphrey terms), I have never been described in terms like that. It is significant that this outpouring of vitriol was triggered predictably enough by the imposition of imprisonment and fines on the two editors of a local newspaper for contempt of court. FREEDOM OF THE MEDIA INCLUDES THE RIGHT TO CRITICISE The courts must accept that the media can and will say things with which we disagree and publish things that we think should not be published. That was put quite neatly by Lord Justice Hoffman (as he then was) when he observed: â&#x20AC;Ś a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right thinking people' regard as dangerous or irresponsible.12 PRACTICAL OBSCURITY At least in the civil work of the courts, there has been markedly increased reliance upon documentary materials which are made available to the participants in the court proceedings but which are not generally made available to the media. This has created what some


have described as a "practical obscurity" in relation to the work of the courts. As long ago as 1983, Lord Scarman referred to this phenomenon. After referring to the aphorism that justice must not only be done but be seen to be done, he went on: … there is … [an] important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading of the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.13 Since 1983 the movement towards documentary trials has increased quite significantly. The New Zealand Law Commission has observed that that trend of reliance upon increasingly documentary material creates serious practical problems for the media.14 Material that would previously have been read aloud in open court is not now available to the media. Trying to gain access to materials through the rules of Court during the hearing results in delays in reporting and can be costly; the application may be contested and ultimately unsuccessful. There is certainly a practical problem for the media reporting civil cases because of reduced access to information and materials. As Counsel Assisting the HIH Royal Commission from 2001, I am aware of the efforts made by the Commission to

address this problem. We took the view that a Royal Commission is different to a court proceeding. It does not make determinations of right or obligation - rather the fundamental obligation is to tell a story. We thought it would be best if we told the story as it unfolded rather than simply at the end. We set up a lot of systems that were designed to encourage accurate media reporting. We had a media room that was adjacent to the hearing room but separate from it, with live feeds of vision from the hearing room, so that the media could be in the hearing room having coffee and chatting amongst themselves, posting if they wished from that media room, watching the witnesses on live feed. Because it was an electronic trial we could also put up on a screen in the media room the document that the witness was being asked about. We had real time transcript which was available to the journalists in the media room. By 6 pm each evening we had corrected transcript posted on the Royal Commission's website. Perhaps a little more controversially after each day's hearing, Counsel Assisting would conduct what we called a backgrounding session with the media. We were open about this and we invited any representatives of any of the parties with an interest in the day's proceedings to participate in that session. We would explain to the journalists what had happened during that day and what its implications were, but on a background basis - that is, not for quoting. As a consequence of these various steps, I think the quality of the reporting of that Royal Commission was of a standard that I have never seen before. If the courts are serious about open justice, we have to be willing to take those sorts of steps to improve the capacity of the media to report accurately. There is no point complaining about inaccurate reporting when the courts do not assist the media to get it right.

THE INTERNET We are, of course, all aware of the internet revolution. It has changed the media world dramatically. The media world used to be print, then it became print and broadcast, and now there is a major third force, the internet, which is dominating each of the two earlier segments. The internet is a multi-headed beast. It includes agencies which are involved in providing information through the internet; it includes commentary, and it includes social media. Reuters recently produced a report identifying the sources to which people look for information and news in about 12 developed countries.15 In Australia, the internet is the most frequent source of news. 44% of Australians responding to the survey got their news from the internet, compared to 35% from television, 12% from social media and 7% from newspapers. In terms of reliance upon online information, Australia was the second highest of those countries surveyed - second only to Finland. In terms of reliance upon TV news, Australia was the second lowest, again second only to Finland.16 These things are, of course, age related so that the younger people are, the more inclined they are to gather their information on the internet, whereas the older they are, the more likely they are to go to traditional sources. These trends are also gender related in the sense that women are more likely to rely upon social media as the source of their news. ANYONE CAN BE A PUBLISHER The internet revolution has had a number of quite profound consequences for the principle of open justice. The first is that anybody can now publish to the entire world. Everybody can be a publisher and anybody has the entire world as their potential audience. You do not have to own a television station or a newspaper in order to communicate to the entire planet. This means that the arrangements

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that courts have entered into in the past with trained journalists employed by responsible media organisations may not work with people who are publishing in their own right and who may lack training, and who may lack the responsibility that goes with being employed by an agency with a reputation and a balance sheet that has to be protected. COURTS HAVE BECOME PUBLISHERS The second consequence is that the Courts have themselves become publishers. Many of the higher courts in Australia publish reports of all of our cases in full. A lot of us publish in full the observations made at the time sentence is passed. We all publish on our websites our Court lists each day, (although these may still be published in the local newspapers). Some courts are also using social media to communicate with court users. Courts have become competitive with the media, or at least supplement the information provided to the public by the media. When we move to the next phase of open justice, which I think is inevitable, and increase the webcasting of court proceedings, then we will become even more competitive with media organisations than we have in the past. REDUCED MEDIA RESOURCES The third consequence of the internet revolution is that at least the print media has experienced very significantly reduced human resources, and I think soon the free to air broadcast media will also experience reductions in resources. During my time in the law, the number and experience of court reporters despatched to courts has reduced very significantly. That has a number of consequences. The first is that it is even more important for us to make it easier for untrained and time poor court reporters to get it right. The second is that media organisations are hungry for pre-prepared content. Anything they can do to reduce money spent on developing content is in their financial interests. This offers opportunities for the courts to provide information to the public in a form which serves the public interest. SENSATIONALISM The fourth consequence is that internet information providers and broadcasters are competing with each other to catch the eye in an increasingly competitive environment. One way to catch the eye is through sensational headlines and content, and particularly through the use of striking visual images, including images drawn from court proceedings if they can get them. Graphic exhibits tendered in a criminal trial may be very 30 | BRIEF MARCH 2016

effective in catching the eye of the viewer or online subscriber for whom commercial rivals are competing. This also can lead to reporters being recruited by reference to appearance and visual image, rather than by reference to skill or training. TYPES OF INTERNET PUBLICATION In an article by Judge Judith Gibson recently published in the Judicial Review by the Judicial Commission of New South Wales, her Honour very conveniently described the various different types of communication routinely provided through the internet.17 FACEBOOK

JURY COMMUNICATIONS

There are sites which provide mechanisms for exchanging information between members of designated groups. Many courts have addressed the question of whether judges should have Facebook accounts. In the Supreme Court of Western Australia, we decided there was nothing wrong with judges having a personal Facebook account although they should, of course, be very cautious about the material put on their pages. The media very commonly harvest information from social media sites. Indeed, on the front page of this morning's Australian and in other newspapers, material was published relating to people who had been arrested in connection with the shooting of a police worker in New South Wales.18 It had plainly been harvested from social media sites that those people had used.

There have also been problems with jurors using Facebook to communicate with others, and in obtaining information from the internet. Many jurisdictions have struggled with these problems. In Western Australia, the Supreme and District Courts considered the question of whether there should be criminal offences specifically dealing with such things. We decided against suggesting changes to the law on the basis that we would prefer to encourage disclosure of these things if and when they occur rather than what we concluded was likely to be an ineffective attempt to prevent them from ever occurring by criminalising them.

Some courts use social media sites by reference to what is called the outputinput model, so that the courts put out information, but also receive it in. In WA, we investigated that possibility. The problem is that if you become a billboard for anybody who wants to post something on your site, you need to monitor the site constantly lest you become a publisher of scandalous material. Many of our courts simply do not have the resources to enable that degree of monitoring. There can also be some undesirable uses of this form of medium. For example, a mediation was conducted in our court in relation to a family dispute in a probate case. The mediation was complex and there were eleven parties. During the break, one group of parties decided to take a photograph in the mediation room including an image of the whiteboard on which the various possible avenues of settlement had been written. They then posted those images on Facebook, accompanied by derogatory comments about other members of the family.

SHARED VIDEO SITES In addition to the Facebook type sites, there are shared video sites such as YouTube. Like all courts around Australia, we deal with some organised groups of self-represented litigants who join in the recurrent assertion of dubious propositions, some of them said to derive from Magna Carta; some from the Constitution, and others are said to have their origins in divine law. Recently a member of one such group used the video camera that we all have in our pockets in the form of our phone in order to surreptitiously record what was happening in court. The video was later posted on YouTube. Shared video sites also present an opportunity for courts to provide information to people in a way in which they have become accustomed to receiving it. We can show people in moving images what to expect when they get to court; or what is likely to happen in their mediation in a format which many contemporary Australians prefer and have come to expect. BLOGS Then there are the blog sites which enable anybody to express a view on


any subject to anybody interested in receiving it. Twitter is perhaps the most well-known example of such a site, albeit a 'Microblog'. This morning's Australian reports that a man in Queensland took his own life after a blog accused him of sexual interference with a child.19 The importance of this means of communication cannot be overstated. They provide a mechanism for unconstrained commentary. We have to get used to the fact that people will say whatever they like about what happens in our courts. Some courts are using Twitter to advise interested people of forthcoming judgments, although there is a limit to how much information one can meaningfully convey in the very limited space available. A number of courts including the courts of Western Australia have made it possible for journalists to tweet during the course of Court proceedings or to post reports online without having to leave the courtroom before using their devices. GROUP CHAT SITES The final form of social media I will mention are what are called group chat sites, where people can communicate with each other in a group. I think these are very dangerous sites for judicial officers to become involved with for obvious reasons. WEBCASTING AND BROADCASTING I would like to finish by saying a bit about webcasting and broadcasting. Anyone interested in this area could do no better than to look at the issues paper recently published by the Supreme Court of Queensland which covers these issues very thoroughly.20 The advantages of these techniques include responding to a community that increasingly expects information to be available in relation to all manner of things through electronic media. These systems have the capacity to take open justice to new levels. They might also diminish media enthusiasm for the scrum waiting at the door of the court to pursue people walking in and out. These systems enable the transparency of court proceedings to be much improved and presented to a much wider audience. On the other hand there are real issues in relation to intrusion into privacy, and the possible intimidation of witnesses if they are recorded giving their evidence. In some States it is illegal to identify jurors, so camera angles have to be assessed carefully. It is also undesirable to discourage members of the public from attending proceedings in court by the prospect that they might be captured by vision while they are there.

Hearings are generally too dull to capture public attention for any length of time. It follows that it is only the sensational or brief broadcast that is likely to be viewed and that poses the question of whether short bites of information really do provide valuable information to the public, and poses the risk that overemphasis on sensationalist material may trivialise the process. There is also the problem of how to deal with gruesome evidentiary material that we often see in homicide and other types of cases. There is the possibility of interference with an order for witnesses out of court. In the Oscar Pistorius case, which was famously broadcast to the world, the judge who decided that case expressed the view that the credibility of virtually all the witnesses that she heard had been damaged by the fact that they had seen on television many or all the witnesses who preceded them. There is also the possibility of distraction or grandstanding. In New Zealand television cameras in the courtroom have been quite regular features of criminal trials for some years now. A survey was conducted of participants to see whether they thought it had influenced behaviour. Many of the respondents reported that they were sure it had not modified their behaviour, but they were a bit concerned about other participants in the process whose behaviour might have been modified. There is also the risk of selective editing so as to distort the sense of the proceedings, so that, for example, if you juxtaposed some graphic evidence with some vision of the accused person smiling, you could quite significantly distort what actually occurred. There is also the risk of future misappropriation or misuse of visual images recorded during court proceedings. I believe many of these problems can be overcome with planning and preparation. Cameras have been in courtrooms in other comparable jurisdictions like New Zealand for some time and the sky has not fallen in. We have allowed cameras into court in Western Australia on a number of occasions without adverse consequences, but there are issues that have to be addressed in planning for such occasions. The problems are most easily resolved at appellate level where a number of the issues to which I have referred do not arise. However, there is the danger at appellate level that the kind of robust interchange that occurs between bench and bar could be misconstrued by members of the public who might construe a question posed by a judge as the expression of a preliminary view.

JUDICIAL CONTROL One thing is clear about webcasting and broadcasting of proceedings in the courtroom and that is that judicial control of the process is absolutely vital. Any system that delegates control of the output to somebody other than the court or the judiciary is fraught with hazard. The problem which this conclusion poses is the difficult issue of providing the time and the resources necessary to judicially supervise webcasting or broadcasting. I think it is inevitable that modern technology will be used to improve public access to court proceedings whether the judiciary like it or not. I think it is important that the judiciary control the terms upon which this form of access is provided rather than have inflexible rules embodied in legislation imposed upon us. In order to avoid legislative intervention, the judiciary must take the initiative carefully and responsibly. Doing nothing in the face of contemporary expectations of electronic access to proceedings in our courtroom is simply not an option, in my view, because whether we like it or not, the internet revolution has occurred, and we have to deal with it. NOTES 1.

Baker v Carr 369 US 186 (1962) at 267.

2.

The Hon JJ Spigelman AC, 'The Principle Of Open Justice: A Comparative Perspective' (2006) UNSW Law Journal 29(2):147, citing at 155 Justice Frankfurter in Pennekamp v State of Florida 328 US 331 (1946) at 355.

3.

R v Sussex Justices Ex parte McCarthy [1924] 1 KB 256 at 259.

4.

Lord Patrick Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (1985), 92 , cited in n 2 above, at 148.

5.

Reprinted in A Complete Collection of State Trials (TB Howell ed), 1816) vol IV, 1270 at 1273. A reference to this passage appears in Chris McLeod, 'Wrestling with access: Journalists covering courts' (2004-05) 85 Reform 15.

6.

Re Guardian Newspapers [2005] 3 All ER 155 at 162.

7.

Murray Gleeson, 'Public Confidence in the Court' (National Judicial College of Australia, 9 February 2007) 14-15.

8.

Which is now under different management.

9.

Which is not to deny that some media outlets may have a political agenda relating to sentencing.

10.

'Saturday 26 November 1870', The Argus, (26 November 1870) 4, quoted in Enid Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, (1980),at 86.

11.

The Age (26 November 1870) 2, quoted in note 10, at 86 - 87.

12.

R v Central Independent Television plc [1994] Fam 192 at 202.

13.

Home Office v Harman [1983] AC 280 at 316.

14.

(New Zealand) Law Commission, Access to Court Records (Report 93, June 2006) par 7.18.

15.

Reuters Institute, Digital News Report 2015: Tracking the Future of News (2015).

16.

Note 15, 10.

17.

Her Honour Judith Gibson, 'Judges, cyberspace and social media' Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales (March 2015)12( 2): 237-266.

18.

See for example, Gus Bruno with AAP, 'If you donâ&#x20AC;&#x2122;t like Australia, leave it': Parramatta Mosque chairman' The West Australian (9 October 2015).

19.

Michael McKenna, 'Grammar school teacher suicides after blog pedophile allegation' The Australian (9 October 2015).

20.

Supreme Court of Queensland, Electronic Publication of Court Proceedings: Issues Paper (June 2015).

31


From barbed wire to bar table An interview with Reem Al-Bahadiri Reem Al-Bahadiri was admitted to legal practice in the Supreme Court of Western Australia on 2 November 2015. She came to Australia from Iraq as an 'unauthorised maritime arrival' in 1999. She told her story to Ann Kay from Perth Chambers. Ann Kay, Perth Chambers Where and when were you born? I was born in 1992 in Baghdad, Iraq where I lived for the first seven years of my life. My mother was a medical doctor. My father was an electrical engineer. Why did your parents decide to leave Iraq? My parents wanted a better life for us. They wanted us to live in a country where we could have a freer, more normal life. My father was an officer in the Iraqi army and had different political views. He decided it was best for us to leave Iraq, but he was forbidden to travel outside Iraq. Once we left Iraq there was no going back. Going back would mean certain persecution and death. My father told us that we had to apply for a humanitarian visa. Tell me about your family's flight from Iraq. One night while I was asleep in my grandparents' home, I was woken up at 4am and told that we were leaving the house. My father put me, my mother, older brother and younger sister in a van and said goodbye to us. He did not leave with us. We were driven to Jordan where we stayed in a unit that my father had organised for us as we waited for him to join us. It was three months before he could leave Iraq to be reunited with us. Describe you and your family's journey from Jordan to Australia. We had been living in Jordan for a while and my parents' money was running out. My father made contact with a people smuggler because he said we could not wait any longer for our humanitarian visa applications to be approved. The man told us that we had to leave Jordan for Malaysia within the week. We caught a flight to Malaysia where we stayed a few days. Then we went to Surabaya in Indonesia where we stayed for another few days. We and other refugees were taken in 32 | BRIEF MARCH 2016

vans to the jungle and then to the coast where we were to board a boat for Australia. The people smugglers told my parents that the boat would have life jackets, plenty of food and water and that it would be fitted with a GPS. The boat we boarded was a small, creaky old boat with dubious seaworthiness qualities. We slept in an airless, wet and mouldy hold with rats and 55 other people. There were no toilets, no life jackets, no GPS and after three days, no more clean drinking water or food. After being at sea for three days, we landed on an island near Timor. A local fisherman saw our boat approaching and very kindly came to our rescue with food and water. He also made contact with the Australian Navy which came to the island and towed our boat to Darwin. We landed in Australia in December 1999. Where did you go after you arrived in Australia? We were taken to the Woomera Detention Centre on Christmas Day 1999. We did not expect to be taken to a detention centre. Indeed we did not know what a detention centre was. We were told that we would be living at the centre while our visa applications were being processed, and that we would probably leave the centre within a couple of weeks or a month at the most. We left the detention centre on Christmas Day 2000. We had lived there for exactly 12 months. Tell me about your life in Woomera Detention Centre. There were no facilities for us at Woomera. No books, no television, no pencils or paper, no means of learning or continuing our education. It was very boring as there was nothing to do, other than play with some toys that the Salvation Army had kindly given us. Upon arrival, we were assigned numbers and referred to by those numbers. I was TUM 51, my younger sister who was

two years old at the time, was TUM 52. In fact for the first couple of years after we left Woomera, my sister thought her name was TUM 52 and referred to herself as such. There were five roll calls a day. Even in the middle of the night, someone would open our caravan door and call out, "TUM 51," and I would have to answer, "Present." We lived in and shared a caravan with another family. It was hot, stuffy and very cramped. Tensions were very high at Woomera. There were lots of riots, people were throwing fire bombs, the police had to come in with tear gas to break up the riots, and the young men were inflicting wounds on themselves. After six months, the adults got together and turned a caravan into a play room where all the toys were kept. The adults also organised themselves into groups to teach us English. Also after six months we were finally able to contact our family in Iraq and advise them that we were in fact alive. I remember that after eight months of being in detention, all the children were taken on an outing to the movies and the zoo. That was a real treat!! For the first time in my life I saw a child with white blonde hair. I could not help staring at her and I wanted to talk to her, but we were forbidden to interact with other children outside the detention centre. What happened after you were released from Woomera Detention Centre? On Christmas Day 2000, we were taken to Adelaide where we stayed for five days. We did not know anyone in Adelaide. My father contacted his cousins in Sydney and we travelled to Sydney where we lived for a year and a half. During that time, my father worked at any and every job he could find to provide for us while my mother re-sat her medical examinations so that her Iraqi medical degree would be recognised in Australia.


interview

"We were taken to the Woomera Detention Centre on Christmas Day 1999. ... We were told ... we would probably leave the centre within a couple of weeks or a month at the most. We left the detention centre on Christmas Day 2000. We had lived there for exactly 12 months." Reem Al-Bahadiri

It was very difficult for my mother to find a job on a temporary visa. Eventually in 2002, my mother secured a job in King Edward Memorial Hospital and we moved to Perth. I was 10 years old at the time. What was it like adjusting to life in Australia after your release from detention? There was little knowledge of the concept of multiculturalism or acceptance of new cultures and people in Australia in the early 2000's. I was bullied throughout my primary and high school years because I looked different and I was a Muslim. I remember one incident in high school when a boy hit me on my leg and told me, "Get out of my country you Muslim." I went home and I cried, as I didn't understand why he would say this to me. When were you and your family granted Australian visas? Initially our applications for humanitarian visas were rejected. We appealed the decision and on Christmas Eve 2000, we were granted temporary residence visas. We were on temporary visas for five years. We were then granted permanent visas and subsequently became Australian citizens.

niche in my second year and I enjoyed the rest of my time at university. I graduated from law school in 2014 and did not know what area of law I wanted to practice in. So, I postponed the decision by enrolling at the College of Law for my PLT. I loved College of Law, as it was very practical. Have your experiences as a refugee influenced your legal career choices? Yes, migration law is my passion. However right now, I do not have the strength of heart or adequate compassion to become a migration lawyer. I hope I will acquire the strength as I mature in my professional life. I went to Geneva in 2014 to study migration law and international refugee law, but I did not complete the postgraduate migration certificate. I would like to do that someday as it would give me the knowledge to pursue a career in that area.

Why did you decide to be a lawyer?

While I was doing my degree I worked in Communicare Humanitarian Settlement Services for three and a half years. During my time there, I helped refugees settle in Australia by teaching them skills they needed like how to go shopping and how to call 000 in an emergency. I enjoyed the fact that I was making a positive difference in these peoples' lives by helping them.

Initially, I wanted to be an engineer. I applied for and was accepted into Curtin University, but later my father pressured me to go into law. He said he had always seen me as a lawyer and suggested I study law. I hated my first year in law school. But then miraculously I found my

My two main goals as a lawyer are to assist immigrants and refugees settle in Australia and to help Australians tolerate, understand and accept that these people come from a different culture with different values. Australians don't necessarily have to accept these

new peoples' values, rather they need to realise that the values that these people hold are those that they have grown up with, and that it will take time for new immigrants to integrate into Australian society. Where are you working now? I am working with Go To Court Lawyers in civil litigation and family law. I love practising in family law as it is more personal and I like to think I am helping clients navigate through what is a confusing and tumultuous time for them. I also like to think that I am assisting the children of the marriage to secure their rights. My long term goals are to be able to assist the helpless and to inspire people to strive to be better. What advice would you give to refugees arriving in Australia? Do not give up your identity or culture, but be flexible enough to embrace Australians, the Australian culture and way of life, and integrate into Australian society. Australia has kindly accepted you and given you a home. In turn you have to accept and respect Australia's laws, systems and beliefs. I truly believe in the Australian legal system and its structure, and I am honoured to be part of it and to call myself an Australian Lawyer with an Iraqi heritage.

33


2015 Young Lawyer/Law Student Mentoring Programme Brooke Sojan, Solicitor, Legal Aid (WA); Co-Chair, YLC Sport and Social Working Group; Convenor, Law Society Country Practitioners Committee; Junior Member, Law Society Council The Young Lawyers/Law Student Mentoring Programme has come to a close after another successful year. Since its inception four years ago, the Young Lawyers Committee has successfully partnered law students with junior lawyers to allow the latter to share their wisdom on and insight into 'lawyering' at this crucial time when the former are entering the legal world. As most of the readership may recall, this transition can often feel like a minefield and any guidance from the profession is welcomed with open arms!

for mentors to develop mentoring and leadership skills of their own, as well as to share knowledge and experiences with mentees. Mentors are helped along the way with helpful tips and constant 'checkins' from the Law Society to ensure that their mentees are notified of all relevant academic, social and networking events throughout the year. The year was brought to a close with further networking opportunities, for both mentors and mentees, at the Small Firms Networks Drinks held at Lot 20.

This year, the Young Lawyers Committee partnered with Edith Cowan University and the University of Notre Dame to mentor 28 eager students. The programme was jam-packed and allowed for invaluable interaction between mentees and the wider profession.

The programme presents an ideal opportunity for junior lawyers not only to give back to the profession but also to assist student mentees in their transition into the legal profession. Junior lawyers experienced this exciting and stressful time not that long ago and are therefore well-placed to share their highs and lows in an informal and collegiate environment. The mentoring programme also assists mentees in establishing connections in the workforce before commencing work and having someone to ask those confusing and difficult questions.

The academic year was launched with an event comprising information sessions for both mentees and mentors, followed by networking for mentees, mentors and their peers. As in previous years, the 'next steps' in the programme will be driven primarily by the mentees. However, the programme offers many opportunities along the way

34 | BRIEF MARCH 2016

All junior lawyers who are members of the Society are encouraged to become involved in the programme for 2016!

Student feedback Janet West Student, Notre Dame Law School; Mentee, 2015 Law Student Mentoring Programme As a mature age/post graduate student, I came into my degree with a fairly strong idea of what I want to do when I graduate. However, I had many questions about my proposed studies, and what happens, post-graduation. I was encouraged to apply for the programme, and I'm so glad I did. I was assigned two mentors, one with employment law, and the other with family law experience. We had a number of face-to facemeetings and email discussions throughout the year, and I now have a much clearer idea of my pathway. The programme provides great networking opportunities, valuable insight into working life, as well as access to fantastic seminars by the Law Society.


New leadership elected Introducing the Law Council of Australia's new Executive for 2016 This article was first published in Law Council Review, Issue 13, December 2015

Following the Law Council's AGM in November, the following directors were elected to the Executive to commence 2016. PRESIDENT, STUART CLARK AM, Solicitor, New South Wales Stuart Clark is a partner in Clayton Utz and based in its Sydney office. His practice focuses on class actions, investigations and inquiries acting for clients in Australia, the US and Europe. He has been a director of the Law Council of Australia since 2011. Mr Clark is a graduate of Macquarie University and practised at the New South Wales Bar prior to joining Clayton Utz. He has served in a range of leadership roles, including Chief Operating Officer and Managing Partner International of Clayton Utz, as a Director of the NSW Legal Aid Commission, Chair of the Large Law Firm Group (now known as Law Firms Australia) and Chair of the Australian Legal Sector Alliance Ltd. Mr Clark has a strong academic interest in the law, publishing and speaking in Australia and overseas on class actions and complex litigation. He is an Adjunct Professor at Macquarie Law School and a Fellow of both the Australian Institute of Company Directors and the Australian Academy of Law.

appointed Senior Counsel in 2003. Ms McLeod is currently the President of the Australian Bar Association and was the Chair of the Victorian Bar in 2013. She has been a Director of the Law Council since 2010 and was elected to the Executive in November 2012. She was the Chair of the Law Council Equalising Opportunities before the Law Committee, the Human Rights Committee, the Corporate Governance Committee, the Finance and Risk Committee and the Recruitment and Retention of Lawyers Working Group. She has previously been a President of Australian Women Lawyers. Ms McLeod holds a number of appointments including as Chair of the Appeals Committee of the College of Surgeons and is a member of the advisory committees of the University of Melbourne and Sir Zelman Cowen Centre, Victoria University. She is a council member of the Commonwealth Lawyers Association and a fellow of the Australian Academy of Law and International Academy of Trial Lawyers. Ms McLeod has been recognised with numerous awards for excellence and leadership, for her work in supporting diversity and equality and her work in pro bono and human rights matters including human trafficking.

Mr Clark was made a Member of the Order of Australia in 2015 for significant service to the law and the NSW Rural Fire Service and is still a member of the NSW Rural Fire Service after 42 years.

Ms McLeod was inducted onto the Victorian Honour Roll for Women in 2014 and is a recipient of a prestigious inaugural Commonwealth Government Anti-Slavery Australia Freedom Award.

He is married to Narelle and has two sons, one a solicitor and the other a law student. He runs (slowly) in a desperate attempt to stay fit, and has a love of early European and Byzantine history

She likes to swim, dive and walk in wild places, especially with husband Livio and their two daughters, Lilly and Emily.

PRESIDENT-ELECT, FIONA MCLEOD SC, Barrister, Victoria Fiona McLeod SC practises at the Victorian Bar, appearing in trials and appeals in public law, human rights, commercial, constitutional and common law matters. She has practised at the Victorian Bar since 1991 and was

TREASURER, MORRY BAILES, Solicitor, South Australia Morry Bailes was the President of the Law Society of South Australia and Law Council of Australia Director in 2014 when he was elected onto the Law Council Executive in November the same year. Mr Bailes graduated with a Bachelor of Laws from the University of Adelaide and

began working at Tindall Gask Bentley in 1987 during his final year of studies. He has been Managing Partner at the firm for 14 years, overseeing its significant expansion into Western Australia and the Northern Territory. Mr Bailes' firm is the largest family law and plaintiff practice in South Australia, also practising in the areas of succession, workplace and criminal law. His clients include the Police Association of South Australia, the Western Australian Police Union, the Northern Territory Police Association as well as the Correctional Officers' Legal Fund, the South Australian State School Leaders Association, Nunkuwarrin Yunti, the Aboriginal Sobriety Group and the CFS Volunteers Association. Mr Bailes is a member of the Australian Institute of Company Directors and was the 2013 recipient of the Brian Withers award for services to the legal profession in South Australia. He is married to Melanie and his spare time is spent attempting to catch up to his young sons Hugo and Charlie, reading whenever possible and writing whenever necessary, including publishing a regular column about law and law-related issues in South Australia. MEMBER, ARTHUR MOSES SC, Barrister, New South Wales Arthur Moses SC has been practising at the NSW Bar for more than 20 years and, in 2008, was appointed Senior Counsel in the State of NSW. He is currently the Senior Vice-President of the NSW Bar Association and has been a director of the Law Council since July 2014. He practises in a wide range of areas including administrative law, coronial inquests, corruption inquiries, work health and safety prosecutions, employment and industrial law, discrimination, restraints of trade, commercial and equity cases. Mr Moses regularly appears before the Full Bench of the Industrial Relations Commission of NSW, Full Bench of the Fair Work Commission, Full Court of the Federal Court, the NSW Court of Appeal, 35


The Law Council's Annual Report for 2014/15 was approved at the AGM and is available online. Available online (under media tab) at www.lawcouncil.asn.au

Supreme Court of NSW as well as appellate Courts in other States. He is a Squadron Leader in the Royal Australian Air Force Specialist Reserve. MEMBER, KONRAD DE KERLOY, Solicitor, Western Australia Konrad de Kerloy was the President of the Law Society of Western Australia and a director of the Law Council of Australia in 2014. He is a senior disputes partner of Herbert Smith Freehills. He specialises in commercial litigation and corporate insolvency. His practice ranges from banking and contractual disputes, and contentious and non-contentious

insolvency, to corporate restructuring, professional negligence, and reviews and disputes involving government departments and agencies. During a law career spanning three decades, Mr de Kerloy has worked on assignments in Chile, France, Germany, Indonesia, the United Kingdom and the United States, and has published numerous articles in legal journals. MEMBER, MICHAEL FITZGERALD, Solicitor, Queensland Michael was admitted in 1981 and is president of the Queensland Law Society (QLS). He has been a member

of Council since 2010 and was deputy president in 2014. Michael is the Society's nominee director to the Law Council of Australia. He is a member of the QLS Council Executive, Audit and Investment Committee and Committee of Management. Michael is also a consultant for Ashurst (formerly Blake Dawson) having been with the firm since 1982. His area of expertise is banking and finance law, advising banks, listed companies and statutory corporations. He is a member of the Law Council of Australia's Financial Services Committee and the Banking and Financial Services Law Association. Michael is a graduate of the Australian Institute of Company Directors. He holds membership of a number of community organisations including Rotary Club of Kenmore Inc (Past President 2005/06), Coeliac Queensland (currently Vice President having served for four years as President until September 2015) and Our Lady of the Rosary Parish Kenmore (member parish finance council).

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36 | BRIEF MARCH 2016


Quality Practice Standard (QPS)

Craig Slater, QPS Convenor; Francesca Giglia, QPS Co-ordinator; Camillo D'Angelo, Main Legal Studio Pty Ltd; Aaron McDonald, Pragma Legal; and Elizabeth Needham, President of the Law Society.

Following the Law Society of Western Australia's launch of the Quality Practice Standard (the Standard) on 19 June 1996, 232 legal practices have registered for certification to the Standard. The Society wishes to congratulate the following firms who were recently presented with Approved Quality Practice certificates: •

Squire Patton Boggs (AU) -

-

accreditation for the Sydney office makes this firm the first QPS firm on the east coast. Squire Patton Boggs (AU) Perth Office achieved QPS certification on 18 September 2012 and the Society is pleased that two years later they have achieved QPS accreditation for their Sydney Office.

Main Legal Studio Pty Ltd

Pragma Legal

Squire Patton Boggs (AU); Main Legal Studio Pty Ltd and Pragma Legal join 43 other Western Australian legal practices that are QPS certificated. View the Society's website to get a complete listing of current QPS legal practices. The Law Society of Western Australia commends all of the legal practices for their commitment to quality practice. The QPS Stamp of Quality The Law Society of Western Australia's Quality Practice Standard reflects

excellence in legal practice management. It is a means by which firms and practices can enhance competitiveness, deepen client relationships, mitigate risk and ensure that accountability in service excellence is upheld.

Brooke Sharpe, Executive Assistant and Campbell Davidson, Office Managing Partner at Squire Patton Boggs (AU) Sydney.

The next series of workshops to be held at the Society are scheduled for:

Quality Practice Standard Accreditation workshop two An elective unit to gain QPS accreditation Quality Practice Standard Accreditation works hop one Prerequisite workshop to gain accreditatio

n

Thursday, 16 June 2016 3:45pm – 6:00pm Law Society of Western Australia, Level 5, 160 St Georges Terrace Perth 1 point, Competency 1, Practice Management

1 point, Competency 3, Ethics and Professional Responsibility

REGISTRATION FORM OVERLEAF Did you know that accredited QPS firms can also take advantage of reduced professional indemnity

Thursday, 9 June insurance premiums? A 7% discount 2016 3:45pm – 6:00pm Law applies for the first year and 5% Society The Law Society of of Western Australia’s Quality Practice Western REGISTRATI Australia, ON FORM OVERLEAF Level 5, 160 St Georges discount for subsequent years. Standard (QPS) reflects excellence in legal practice Terrace Perth 1 point, Competency 1, Practice Management management. It is a means by which firms and practices 1 point, Did you know that Competency 3, Ethics accredited QPS Responsibility can enhance competitiveness, deepen client relationships, and Professional firms can also take SPEAKER advantage of mitigate risk and ensure that accountability in service reduced professional The Law Society of indemnity Peter Liron Western Australia’s insurance premiums? excellence is upheld. Quality A 7% discount Standard (QPS) reflects Practice Principal Consultant, Pace Enterprises applies excellence in legal for the first year and practice Completed the QPS Accreditation workshop one? This Itelective workshop is management. 5% is a means Peter Liron has diplomasdiscount in Training for subsequent years. by on which for legal practices on the pathway towards QPS accreditation. It builds the firms and practices can enhance competitivene Assessment Systems, Quality ss, further deepen client and key learning gained in the first workshop,mitigate and offers your team relationships,for Business Exellence and riskyou andand Management ensure that accountability inOccupational excellence is upheld. support and coaching. service Health andSPEAKER Safety. He is This workshop is the a RAB/QSA registered Quality and OSH Peter Liron first step in the pathway KEY REASONS TO ATTEND: Principal Auditor, a RAB/QSA registered and participation is Principal Consultant, Pace Enterprises compulsory for all legal towards QPS accreditation Associate Food Safety Facilitator and a practices distinction. • Learn how to introduce and document new procedures, systems and pursuing this Peter stamp Worksafe Liron has diplomas of registered Plan Assessor. in and Assessment Systems, Training processes into the practice KEY REASONS TO Management for Business Quality ATTEND: • Assess and review your progress to date Exellence and Occupational Health • Learn and Safety. He is • Ensure that your practice ismore audit about ready the QPS accreditation a RAB/QSA registered process and the value Quality and OSH to your practice Principal Auditor, a it will bring • Understand important changes to the Standard that applied from 2013 RAB/QSA registered • Discover how to Associate Food Safety interpret the Standard Facilitator and a in a manner relevant registered Worksafe • Gain the tools to COST: to your firm Plan Assessor. develop and capture procedures, systems Assess ENHANCE YOUR and processes $224 per person for •the first twoyour delegates audit and accreditation CHANCE readiness Understand $123 per person for •subsequent delegates The elective QPS Accreditation important changes to the Standard that workshop two is also applied from 2013 Would you prefer toCOST: do the training in-house? A group booking discount scheduled for 16 June 2016. It is designed applies when we conduct the workshop on your premises for larger teams, at as a followup to deal with issues $224 per person for arising from a time that suits you. the first two delegates workshop one and to provide further $123 per person guidance on achieving subsequent Contact QPS Coordinator Francescafor Giglia for moredelegates information on QPS status. Would you prefer to (08) 9324 8606 or qps@lawsocietywa.asn.au do the applies when we conduct training in-house? A group booking discount the workshop on your a time that suits you. premises for larger teams, at Contact QPS Coordinator Francesca Giglia for (08) 9324 8606 or qps@lawsocie more information on tywa.asn.au

The Standard also serves to enhance the status of the profession and provides legal practices with an opportunity to qualify for a 7% discount for the first year on professional indemnity insurance premiums and 3.5% discount thereafter. The WA State Supply Commission (now part of the WA Department of Finance) is responsible for much of the tendering for outsourcing of Government Services in WA. It recognises the Society's Quality Practice Standard as a quality assurance scheme. This means that accredited law firms can, in submitting their tenders to the Commission, expect full credit for having a quality assurance regime in place (which is often a requirement in the tendering process). The first steps to becoming an Approved Quality Practice Standard firm, is by registering your firm for QPS and then attending the workshops. QPS workshops are for firms that would like to pursue QPS status.

• Thursday, 9 June 2016 – QPS Accreditation workshop one – Prerequisite seminar to gain accreditation; and • Thursday, 16 June 2016 – QPS Accreditation workshop two – an elective unit to gain accreditation.

Registrations start from 3:45pm with the workshops running from 4:00pm – 6:00pm, attracting two CPD Points. Please save the dates and registration forms can be found on the Society's website. Alternatively in-house training in your office can also be arranged at a time to suit your firm and QPS trainer. The following CPD points apply for participants who attend in-house training: •

CPD Points: 2.5 points, Competency 1, Practice Management

CPD Points: 2 points, Competency 3, Ethics and Professional Responsibility

To register your firm for QPS and for more information, visit the Society's website lawsocietywa.asn.au/qps or contact Francesca Giglia on (08) 9324 8606 or qps@lawsocietywa.asn.au 37


YLC Ball 2015: A Dance with Dragons "When you play the game of thrones, you win or you die. There is no middle ground." Brooke Sojan, Solicitor, Legal Aid (WA); Co-Chair, YLC Sport and Social Working Group; Convenor, Law Society Country Practitioners Committee; Junior Member, Law Society Council

The typical scene at a Kings Landing soirĂŠe is a trial by combat, honoured by a feast of food and wine. This is usually followed by the habitual backstabbing and bloodied feud during which the most beloved character dies. While there was certainly no middle ground on 17 October 2015, it was decided to stick to the foodand-wine-part of the customary festivities. The Hyatt Grand Ballroom was transformed into a castle fit for the King of Westeros where young lawyers and members of their

extended noble houses gathered to join the Lannisters, Targaryens, Starks and Baratheons for a night of feasting, chalice-toasting, jousting and gamboling on the d(ragon)-floor to the fiery beats spun by DJ Iain McIntyre. Keep an eye out for more information on our events, at lawsocietywa.asn.au/committee/ young-lawyers/ and on the YLC's Facebook page.

Supporting Sponsor

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38 | BRIEF MARCH 2016

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YLC Inter-Profession Networking Event Shea Lukey, Solicitor, Ernst & Young; YLC Member Courtney Furner, Associate to the Hon Justice Mazza, Supreme Court of Western Australia, Court of Appeal; Deputy Convenor, YLC

In late November 2015, the Law Society's Young Lawyers Committee launched its inaugural inter-profession networking event. The objective of the event was twofold: first, to equip young professionals with the fundamentals of networking in an informal setting; and second, to allow young lawyers to interact [read: apply their newfound networking skills] with their counterparts in other professions. The event was co-hosted by Ernst & Young in collaboration with the Institution of Engineering and Technology and the Institute of Electrical & Electronic Engineers. A great mix of lawyers, engineers and accountants gathered at Ernst & Young's offices to brush up on their soft skills and, in the process, mingle

with some unfamiliar faces against the picturesque backdrop of the Swan River. The evening kicked off with a lighthearted introduction from Reagan Gruenthal, a senior tax lawyer at Ernst & Young. This set the scene for the engaging and instructive session delivered by special guest and networking guru, Ron Gibson. With countless years of experience coaching professionals on relationship building, Ron 'I-hate-the-term'networking'' Gibson was a memorable presenter, offering countless juicy morsels of advice, offering instructive insights on 'relationship building' and reminding those in attendance that relationship building is all about finding common

ground, not expecting to strike a chord with everyone and that a few meaningful relationships are worth much more than an abundance of business cards gathering dust at the bottom of one's drawers. Attendees were then afforded the opportunity to hone their skills and try out some of the presenter's 'favourite tricks'. By the end of the evening, business cards had been exchanged and, more importantly, the foundation for many career-long relationships had been laid. The event was the first in a series of further networking events to come. Keep an eye on YLC's Facebook page, and check your email inbox, for updates on future events in the series.

YLC: A View from the Bench Alexander Noonan, Lawyer, Macdonald Rudder; Chair, YLC Education and Advocacy Working Group The Law Society concluded 2015 with the CPD event "YLC: A View from the Bench".

(Magistrates Court), Her Honour Judge Sweeney SC (District Court) and Registrar C Boyle (Supreme Court).

Attendees were fortunate to learn from esteemed speakers from the bar and judiciary â&#x20AC;&#x201C; John Prior (Francis Burt Chambers), Chief Magistrate Heath

The seminar involved the sharing of practical tips for appearing in court including on how to dress, advocacy skills and courtesy to other practitioners. Most

insightful was the brutal honesty about what is expected from lawyers when appearing in court, and how lawyers can assist their clients. This was, however, tempered by some amusing examples of 'judicial wit' and court banter.

39


Congratulations to recent Family Law Accredited Specialist appointees I found the Accreditation Programme challenging but rewarding, and feel proud of my achievement. The programme helped me to realise just what a wide variety of knowledge we accumulate as family lawyers and how it has application in so many areas. Well worth the loss of three months of weekends and evenings. Jane Johnson

L-R: Accreditation Committee Convenor, Trevor O'Sullivan; Julia Mansfield; Jane Johnson; Denby Kerr; and Society President Elizabeth Needham.

The Law Society's 2015 Family Law Accreditation Assessment Programme has been completed and from the nine candidates who participated in the programme, the Law Society congratulates Denby Kerr of DCH Legal, Jane Johnson of Kim Wilson & Co and Julia Mansfield of Kennedy Partners on their successful completion of the programme and their appointment as Family Law Accredited Specialists.

The assessment programme is a challenging but rewarding process as attested to by the following comments from the successful candidates:

To successfully gain accreditation candidates must first have sufficient prior and current practice in family law and obtain a satisfactory mark in each of the three parts of the assessment programme namely a mock file, written examination and a simulated client interview.

I found the Accreditation Programme challenging but highly rewarding. Although the programme is time consuming and sometimes difficult to manage with full time practice, I think it is a fantastic thing to do. My knowledge of family law was increased through study and I also consider I was able to refine my skills as a solicitor, for exampling writing a mock letter to a client with a strict word limit!! I would encourage anyone with a keen interest in family law to sit the programme. Julia Mansfield

The Accreditation Programme has been a roller coaster. It was an intensive and challenging process which I started perhaps with some naivety as to its time demands. Being named an accreditation specialist following my completion of the programme was something for which I was both grateful and proud. Denby Kerr The Law Society's Accredited Family Law Specialist programme provides family law practitioners the opportunity to be formally recognised as having a high level of competency in their field. Accredited Specialists have the added benefit of being able to use the Family Accredited Specialist logo and branding on their marketing material to promote their high standing in the area. Family Law Accreditation Assessment Programme is open to members and is run every two years – the next programme will commence in March 2017. Enquiries on the programme can be made to accreditation@lawsocietywa.asn.au

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding. E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth. We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

40 | BRIEF MARCH 2016

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.


YOUr EssENTIaL mEmbErshIP sUPPOrTING YOU

Advocating on issues that matter to you and the profession through submissions and advisory initiatives.

CONNECTING

Supporting you professionally and personally through professional development, networking events and keeping you up to date with the latest news.

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Representing the profession through community engagement, access to justice initiatives and community programmes.

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P: (08) 9324 8600 | E: membership@lawsocietywa.asn.au | W: lawsocietywa.asn.au


Protection of Religious Liberty: International Norms Elizabeth F. Defeis Dean Emerita and Professor of Constitutional and International Law, Seton Hall University School of Law, New York

Religious Liberty is a fundamental human right, recognised and protected in international law and commitments. Pope Francis has repeatedly stressed the importance of Religious Freedom. At a conference in 2014 in Rome, sponsored by St. John's University, Pope Francis stated: Legal systems, whether state or international, are called upon to recognize, guarantee and protect religious freedom, which is an intrinsic right inherent to human nature, to the dignity of being free, and is also a sign of healthy democracy and one of the principal sources of the legitimacy of the State. [Further, he said that it is] incomprehensible and alarming that still today discrimination and restrictions of rights continue for the single fact that one belongs to publicly profess an unwavering faith. It is unacceptable that real persecution is actually sustained for reasons of religious affiliation! Wars as well! This distorts reason, attacks peace and humiliates human dignity.1 More than Fifty years ago, Vatican II addressed the status of religious liberty in a landmark document supported by Pax Romana. The "Declaration on Religious Freedom" states: "[T]he right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself. This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right."2 Earlier this year, before a national prayer breakfast, President Obama stressed that the right to religious freedom is an essential human right that "matters to our national security."3 And yet, intolerance, discrimination and violence suffered by religious minorities are rampant. In a report recently issued by the Pew Forum, it is estimated that three quarters of the world's population live in countries with high government restrictions or high social hostilities 42 | BRIEF MARCH 2016

involving religion. Government actions that were measured include an outright ban on some religions, preaching or conversions. Actions of private individuals or groups measured include mob violence and harassment. The report indicates that Christians are most at risk and are the subject of such intolerance in over 110 Countries.4 Since the issuance of that report, attacks on religious minorities have escalated. This includes attacks on Christians, Muslim, Erbil's and other religious groups. Indeed, as Pope Francis noted: It causes me great pain to know that Christians in the world submit to the greatest amount of such discrimination. Persecution against Christians today is actually worse than in the first centuries of the Church, and there are more Christian martyrs today than 1,700 years after the edict of Constantine, which gave Christians the freedom to publicly profess their faith.5 Persecution on the basis of religion violates international law and international commitments. International treaties adopted under the auspices of the United Nations and Declarations of U.N. bodies provide the international standards against which actions of governments and individuals should be measured. Many legal scholars have commented that, until very recently, religious rights have, to a large extent, been neglected by the international human rights community. For example, in 1993, a World Conference on Human Rights was held in Vienna under the auspices of the United Nations. Its purpose was to review the current status of human rights worldwide. Following the Conference, a Declaration and Programme of Action, consisting of over one hundred paragraphs was adopted by the General Assembly. There were numerous paragraphs dealing for example, with rights of women, rights of the disabled and the migrant worker. These groups had been seriously neglected in the past as international human rights norms developed and therefore, the focus

on these groups was very welcome. Importantly, however, there was only one rather weak paragraph in the Declaration that dealt with religious liberty. That paragraph simply called on states to respect their international obligations with respect to religion.6 Another example of that neglect is the decision of the European Court of Human Rights that upheld a Turkish law that prohibited female university medical students from wearing the hijab at the University. The students claimed that the ban violated their right to practice their religion. In a much criticised opinion, the Court held the state was justified in banning the veil in the interest in promoting secularism and equality.7 Religious freedom as a fundamental human right predates the system of international human rights that was developed through the United Nations system. The Treaty of Westphalia of 1648 is the foundation of the modern state based system of international law. That Treaty provided guarantees of religious freedom to religious minorities in the member states and put an end to wars of religion â&#x20AC;&#x201D; at least for that time. Of course, these peace treaties were not concluded for purely moral or humanitarian reasons. Rather, the opposing powers found that it was necessary to guarantee a minimum level of reciprocal religious tolerance in order to maintain peace.8 In the United States of America Freedom of worship was one of the Four Freedoms identified by Franklin D. Roosevelt in his famous 1941 address to Congress just prior to World War II. Roosevelt's emphasis on Freedom of worship was given at a time when religious liberty was threatened by both Fascism and Communism.9 After the devastation and atrocities committed proceeding and during World War II, some perpetrated in the name of religion, protection of human rights was paramount in the planning of the United Nations. One of the first actions of the U.N. General Assembly was the adoption of the Universal Declaration of Human


Rights. This Declaration was the first human rights instrument that was open to all states to affirm.

Earlier this year, before a national prayer breakfast, President Obama stressed that the right to religious freedom is an essential human right that "matters to our national security."3

Article 18 of the Universal Declaration of Human Rights provides: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. The Human Rights Committee of the U.N., the United Nations body charged with monitoring the Convention has stated that this right is far-reaching and profound; it encompasses freedom of thought on all matters and personal conviction whether manifested individually or in community with others. The terms 'religion' and 'belief' are construed broadly and protect atheistic beliefs as well as newly established or religious minorities. The right is considered so fundamental in international law that unlike other human rights guarantees, such as speech rights, it cannot be derogated from â&#x20AC;&#x201C; even in times of public emergency.10 The Universal Declaration of Human Rights, considered the Magna Carta of international human rights, also includes freedom to change ones religion or belief or adopt another religion. However, this Declaration of Human Rights is a Resolution of the General Assembly and therefore, at the time that it was adopted, it was not considered binding on member states. Rather it was viewed as a standard of achievement towards which states should aspire. Translating this principle, that is the right to change ones religion, into a binding legal obligation on the part of member states proved difficult. There was an attempt by some states, to delete this phrase entirely. The final text of the Covenant on Civil and Political Rights that converts the guarantees of the Declaration into legally binding obligations is a compromise and recognizes the individual's right "to have or to adopt a religion or belief of his choice." At least since 1993, the right to change one's religion has been recognized as a protected right under the Convention by the Human Rights Committee. More than 165 States are parties to the Convention and are bound by its provisions. However, despite this, countless persons today are persecuted or even killed for converting to another religion in violation of all international agreements and commitments. There have been efforts to draft a

more specific stand-alone international convention protecting religious liberty similar to the Convention on the Elimination of All Forms of Racial Discrimination Racial Convention. These have not been successful. Nevertheless in 1981 the U.N. General Assembly did adopt a declaration on the subject. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief. The central provision of this Declaration provides: Article 2 1. No person shall be subject to discrimination by any State, institution, group of persons, or person on grounds of religion or other beliefs. 2. For the purposes of the present Declaration, the expression "intolerance and discrimination based on religion or belief" means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose of effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis. Although declarations are not legally binding at the time of its adoption, the Declaration was considered an important breakthrough. In addition to the international agreements, regional human rights instruments, such as the African Charter on Human Rights and Peoples Rights, the American Convention on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as the Charter of Human Rights for the European Union all protect religious freedom in standards that are consistent with the international standards.

Despite this declaration, religious liberty continues to be a fragile right and religious intolerance increases. What can we conclude? We can deduce from these initiatives and instruments that sufficient legal instruments exist that purport to guarantee religious liberty. However, like many of the human rights guarantees, implementation is lacking. However, two recent developments could impact religious liberty rights; the acceptance of the norm of Responsibility to Protect, so-called (R2P) and the development and acceptance of criminal responsibility for violating international law. The responsibility to protect is not a new concept. In his address to the United Nations General Assembly in 2008, Pope Benedict XVI noted that while the "responsibility to protect has only recently been defined, it was always present implicitly at the origins of the United Nations, and is now increasingly characteristic of its activity." Further, he described the responsibility to protect in these terms: Recognition of the unity of the human family, and attention to the innate dignity of every man and woman, today find renewed emphasis in the principle of responsibility to protect. Every State has the primary duty to protect its own population from grave and sustained violations of human rights as well as from the consequences of humanitarian crises. If States are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter and in other instruments. The action of the international community and its institutions provided that it respects the principles undergirding

43


the international order, should never be interpreted as an unwarranted imposition or a limitation on sovereignty.11 However, it is only in this century that the norm of Responsibility to Protect has come to the forefront and has gained international acceptance. R2P was, partly a response to the genocide and crimes against humanity, sometimes based upon religious hatred that occurred in Rwanda and the former Yugoslavia at the close of the last century. In 2005, one hundred and fifty world leaders came together at the U.N. World Summit and recognized a responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The primary responsibility rests with the individual State to protect its vulnerable population. When a State fails in its responsibility to protect its nationals from mass atrocities, other States, through the United Nations are committed to "use appropriate diplomatic, humanitarian, and other peaceful means" to protect threatened populations. If these means fail, the Security Council may authorize collective measures to deal with the situation. R2P involves a three-fold responsibility: (1) to prevent mass atrocities, (2) to react to them, and (3) to rebuild following such horrific events.12 Violence directed against civilians, because of religious practices and beliefs, can rise to the level of crimes against humanity and trigger the R2P response. The Special Advisor to the SecretaryGeneral on Prevention of Genocide and the Special Advisor on the Responsibility to Protect noted that the situation in Iraq "constitute grave violations of human rights and international humanitarian law and may amount to war crimes and crimes against humanity" and "may also point to the risk of genocide." The Special Advisor also urged all actors to fulfill the commitment reached by the heads of state and government at the 2005 World Summit to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and to cooperate in fulfilling their collective responsibility to protect.13 One hopes and urges that this responsibility is taken seriously by the international community to alleviate the suffering of the religious minorities worldwide. The second development that might enhance protection of religious freedom is the recognition that under international law, individuals not only have human rights, but also have responsibilities under international law and can be held criminally liable for violating international law. 44 | BRIEF MARCH 2016

Following the Second World War and the genocide that was the holocaust, the resolve was heard "never again." However, we have witnessed genocide "again and again" in our age â&#x20AC;&#x201C; for example, in Rwanda and the former Yugoslavia in the 1990's. The immediate response to the genocide was not to prevent genocide but to react, to punishthrough the creation of special ad hoc international criminal tribunals and the creation of the Permanent International Criminal Court. This Court has jurisdiction over crimes of genocide, crimes against humanity and war crimes and when sufficient ratifications are obtained, it will have jurisdiction over the crime of aggression. These international criminal courts are designed to ensure that there is no impunity for this most grave human rights violation such as persecutions on the basis of religion. At least since Nuremburg, it is accepted that individuals can be held criminally liable for violating international law.14 Persecution and violence directed against religious minorities are clearly the challenges of the human rights community today. Discrimination on the basis of religion is a violation of a fundamental human right and violates principles of equality which form the basis of the international human rights regime. The horrific attacks directed specifically against religious minorities constitute a grave crime against humanity and risks genocide. Diplomatic and political efforts as well as legal efforts are needed to confront this issue. Since some States seem to shy away from religious liberty issues it might be more effective and garner more support is these initiatives were characterized as human rights or minority issues rather that religious liberty issues. In August 2014, Pope Francis wrote to the Secretaryâ&#x20AC;&#x201C;General of the United Nations: I place before you the tears, the suffering and the heartfelt cries of despair of Christians and other religious minorities of the beloved land of Iraq. In renewing my urgent appeal to the international community to take action to end the humanitarian tragedy now underway, I encourage all the competent organs of the United Nations, in particular those responsible for security, peace, humanitarian law and assistance to refugees, to continue their efforts in accordance with the Preamble and relevant Articles of the United Nations Charter. The tragic experiences of the Twentieth Century, and the most basic understanding of human

dignity, compels the international community, particularly through the norms and mechanisms of international law, to do all that it can to stop and to prevent further systematic violence against ethnic and religious minorities.15 Let us hope that an agreed binding international legal framework can be an effective instrument to counter these new threats to peace and security. NOTES 1.

"Pope Francis Opens St. John's Conference on International Religious Freedom." St. John's University Law Magazine, Fall 2014. Available at: http://www. stjohns.edu/about/news/2014-07-25/pope-francisopens-st-john-s-conference-international-religiousfreedom.

2.

Paul VI, Declaration on Religious Freedom Dignitatis Humanae on the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious Promulgated by his Holiness, December 7, 1965. Available at: http://www.vatican.va/archive/ hist_councils/ii_vatican_council/documents/vatii_decl_19651207_dignitatis-humanae_en.html.

3.

Hudson, David. "President Obama Praises Freedom of Religion at the National Prayer Breakfast." The White House. The White House, 6 Feb. 2014. Available at: http://www.whitehouse.gov/blog/2014/02/06/presidentobama-praises-freedom-religion-national-prayerbreakfast.

4.

Grimm, Brian. "Rising Tide of Restrictions on Religion." Pew Research Centers Religion Public Life Project RSS. 20 Sept. 2012. Available at: http://www.pewforum. org/2012/09/20/rising-tide-of-restrictions-on-religionfindings/.

5.

Paul VI, supra note 2.

6.

United Nations, General Assembly, Vienna Declaration and Programme of Action, A/CONF. 157/23, (14-25 June 1993), Available at: undocs.org A/CONF. 157/23.

7.

Leyla Sahin v. Turkey, 44774 Eur. Ct. H.R. 98, (2005).

8.

Defeis, Elizabeth. Religious Liberty and Protections in Europe, 45 Cath. Leg. Stud. 73 (2006).

9.

Roosevelt, Franklin Delano, "The Four Freedoms," Congressional Record, 1941, Vol. 87, Pt. I. Available at: http://www.digitalhistory.uh.edu/disp_textbook. cfm?smtID=3&psid=4061.

10.

Human Rights Committee, General Comment 22. Article 18 (Forty-eighth session, 1993), U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 155 (2003).

11.

Benedict XVI, Apostolic Journey to the United States of America and Visit to the United Nations Organization Headquarters, New York, April 18, 2008. Available at: http://www.vatican.va/holy_father/benedict_xvi/ speeches/2008 /april/documents/hf_ben- xvi_ spe_20080418_un-visit_en.html.

12.

United Nations, General Assembly, 2005 World Summit Outcome, para. 139, A/60/L.1 (15 September 2005), Available at: http://www.unis.unvienna.org/pdf/A60L. pdf. Defeis, Elizabeth, The Responsibility to Protect and International Justice, 10 Hostra J. Int'l Bus. & L. 91(2011).

13.

United Nations, Department of Public Information, Statement of Adama Dieng, Special Advisor of the Secretary- General on the Prevention of Genocide, and Jennifer Welsh, Special Advisor of the Secretary-General on the Responsibility to Protect on the situation in Iraq, New York, 12 August 2014, Available at: http://www. un.org/en/preventgenocide/adviser/pdf/2014-08-12. Statement%20of%20the%20Special%20Advisers%20 on%20Iraq.pdf.

14.

The Rome Statute of the International Criminal Court, 1 July 2002, A/CONF. 183/9 Available at: http://www. un.org/law/icc/index.html.

15.

Francis, Letter of the Holy Father to the Secretary General of the United Nations Organization Concerning the Situation in Northern Iraq, Vatican City, 9 August 2014, Available at: http://w2.vatican.va/content/ francesco/en/letters/2014/documents/papafrancesco_20140809_lettera-ban-ki-moon-iraq.html.


28th LAWASIA Conference Sydney 6-9 November 2015

Since its inception in 1966, the Law Association for Asia and the Pacific (LAWASIA) has built an enviable reputation among lawyers, business people and governments, both within and outside the region, as a committed, productive and genuinely representative professional association of representatives of bar councils, law associations, individual lawyers, law firms and corporations principally from the Asia Pacific region. It has achieved this through its establishment of a strong and effective professional network of lawyers who come together to exchange ideas and information on regional issues and to establish a network of working relationships in the important region of the Asia Pacific. The 28th Conference of LAWASIA was recently held in Sydney on 6-9 November 2015. The Conference was held in conjunction with the biennial Conference of Chief Justices of Asia and the Pacific. The Law Council of Australia and Law Society of NSW assisted in organising the conference held at the Hilton Hotel in George Street. The Chief Justice of Australia Robert French opened the conference together with a keynote address by the Australian Attorney General George Brandis QC. A highlight of the conference was the plenary session given by former High Court Justice Michael Kirby on the subject of "why LAWASIA's lawyers have

responsibilities to help reform anti-LGBT laws in the region". He demonstrated yet again what a tremendous ambassador he is for the Australian legal profession and his ability as a great communicator. Former NSW DPP Nicholas Cowdry QC gave an excellent paper about the Australian legal response to terrorism. Another plenary session of interest to delegates was a session concerning 'Lawyers, Protests and Politics' with the former presidents of the law associations of Sri Lanka and Malaysia speaking about the use of the law in their countries to stifle dissent. Another session involved the judicial section chaired by the Chief Justice of the Federal Court James Allsop AO discussing the interaction between the judiciary and the profession. The Chief Justice of NSW Tom Bathurst chaired a session on commercial law and arbitration. The number of delegates attending was in the vicinity of more than 400 from diverse member nations and affiliates including across the Asian-Pacific region. The retiring President of LAWASIA, Mr Isomi Suzuki (Japan), welcomed delegates saying: The conference theme of Crossborder law and practice in the Asia Pacific region encompasses discussion of developments in black letter law and of issues that arise in the intersects between the law,

Mark Trowell QC Albert Wolff Chambers

the legal profession and the wider community. LAWASIA, in response to that challenge, has prepared many instructive sessions to focus on the latest developments in the areas of business law, labour law, family law, criminal law, human rights law and more with many distinguished speakers drawn from the region. The conference dinner was held at the Hilton Ballroom at which the speaker was the former governor of Victoria Alex Chernov AC QC. He spoke on "the role of governor in former British colonies in the Asia-Pacific Region in maintaining the democratic process." The Conference was a great opportunity for delegates to exchange views, share experiences and to network with delegates throughout the Asia/ Pacific region and beyond. It was truly a rewarding experience and the next conference should not be missed. Prospective delegates should note that LAWASIA conferences are accredited for CPD points with the Legal Practice Board. The new President of LAWASIA is Mr Prashant Kumar from India who is hoping there will be many more delegates from Australia next year. The next LAWASIA Conference is to be held at Colombo, Sri Lanka on the 12-15th August 2016.

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case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – Transfers of land by husband's father – Assessment of contributions In Bagby [2015] FamCAFC 209 (6 November 2015) the Full Court (Bryant CJ, May & Thackray JJ) dismissed the husband's appeal from a property order made by Magistrate Moroni of the Magistrates Court of WA. The asset pool mainly comprised 'Property A' ($610,000) transferred by the husband's father to the parties jointly and 'Property B' ($1.95m) transferred by him to the husband as trustee of a trust for the children's benefit. The magistrate adopted an asset by asset approach, assessing the parties' contributions to Property A as equal ([47]) and the wife's interest in Property B at 30 per cent. No s75(2) adjustment was made despite the wife being a Centrelink pensioner. On appeal the husband argued that the order was unjust, the outcome being more than the wife had applied for or "outside the range". Thackray J (with whom Bryant CJ agreed) disagreed, saying that the husband's counsel "conceded that it was open to the magistrate to award the wife more than she sought" ([127]), concluding ([164]-[166]): It should also be noted that his Honour found that the majority of the s75(2) factors favoured the wife but decided not to make any adjustment in her favour on account of that fact 'mainly because of the reasonably substantial size of the asset pool under consideration and to the practical results of the Court's determinations on the subject of contributions' … ( … ) In effect, the magistrate was saying that whatever the wife might have lost on the contributions' swings, she would have made up on the s75(2) merry-goround. Given the length of the marriage [25 years] and the parties' ages, health and employment prospects, I consider that view was well open to his Honour. Property – Declaration that property husband transferred to new wife was held on trust – Business valuation impossible due to his 'dishonest' dealings In Lynch & Kershaw & Ors [2015] FCCA 2712 (13 October 2015) a business valuer "declared himself unable to arrive at a value … because the husband failed to provide all the information requested of him and … the records he did provide were unreliable" ([4]). The husband had also transferred

46 | BRIEF MARCH 2016

$100,000 from the business to the second respondent, his new wife (Ms [K]), after separation which was used to buy 'Property F' (later sold and the proceeds used to buy 'Property J2' registered in Ms [K]'s name). The wife sought a declaration under s78(1) FLA that Property J2 was held on trust for the parties. Judge Terry found ([197]) that "[a]lmost immediately after separation the husband with the assistance of Ms [K] embarked on a deliberate scheme to remove money from the businesses and acquire properties which he hoped could be put beyond the reach of the wife". Upon finding ([196]-[207]) that all purchase moneys had been provided by the husband, that he treated Property F as his own property and that it was he, not Ms [K], who made the mortgage payments on both properties, the Court declared that Property J2 was beneficially owned by the husband under a resulting trust and should be included in the pool. The Court said ([190]) that it was "impossible … to come to a firm conclusion about what has gone missing from the companies since separation". As to the order made, the Court said ([285]-[286]): If the businesses are worth $310,000 as the husband asserts and nothing else is missing then he is receiving about 38% of the asset pool when an amount slightly over 50% might otherwise have been ordered in light of his inheritance and the age difference between himself and the wife. If the businesses are worth $645,425 as the wife asserts and nothing else is missing then he is receiving 53.5% of the asset pool which is within a range of just and equitable outcomes. Children – Father took child from mother for 'respite', disappearing with paternal grandmother and child for five years In McLeod & Needham & Anor [2015] FCCA 2808 (1 October 2015) Judge Terry heard a case between mother and paternal grandmother of an 8 year old child (X). The parents began living together when the mother was 17 and the father 20, the mother deposing to violent and coercive conduct by the father ([6]). The case did not relate to their older child (Y). The father did not take part in the proceedings except to appear in person on the first day of the hearing to say that he supported his mother. It was found ([10]-[15]) that the mother was unhappy in her relationship, did not cope

well after X was born, that when X was three or four months old the father took X with the mother's agreement to give her some 'respite' but instead (in conjunction with the paternal grandmother who at trial claimed the mother had given the child up) "stole X away" to Queensland, remaining out of touch with the mother for the next five years. In that time the mother "struggl[ed] with alcohol abuse and began using cannabis" and, "struggling with her own issues", "did not make very strenuous efforts" to find the child ([21]). The Court found, however, that "gradually over time the mother got her life back on track. She sought assistance for her depression and anxiety, she obtained a job and in due course she bought a house … subject to a mortgage and re-partnered with Mr C" ([23]). She began parenting proceedings and to spend time with X after hearing from Child Support that the father was in jail ([24]). X expressed a wish "to stay with the paternal grandmother [who] … needed her because the paternal grandfather had died", the report writer's view being that the child "had been coached to say that" ([94]-[95]). The Court declined to place weight on the child's views as she had had "insufficient experience of the alternative offered by the mother" ([100]). Upon ordering that the child live with the mother and that the grandmother have supervised time for the next 12 months, the Court said ([210]-[211): There is a very high risk that if X remains with the paternal family her relationship with her mother will fail to thrive due to the antagonism the paternal family feel for the mother and the mistaken beliefs they hold about her which could in turn lead to a failure to take X to changeovers and a failure to facilitate telephone communication. My major concern is that nobody in the [paternal] family is capable of protecting X from exposure to the father's drinking, drug use and violence. ( … ) Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.


FIND A LAWYER The Law Society’s Find a Lawyer database is the perfect place to connect your business to the community.

Key reasons to be on Find a Lawyer: • Search by area of law, location and language • Locate Approved Quality Practices • Locate Accredited Family Law Specialists • Directly access contact information • Mobile friendly website To ensure your firm is eligible for the Find a Lawyer database, at least 50% of your firm’s legal practitioners must be members of the Law Society.

P: (08) 9324 8600 | E: info@lawsocietywa.asn.au | W: lawsocietywa.asn.au


law council update

COMMITTEE REPORT ON COUNTERTERRORISM BILL WELCOME, HOWEVER CONCERNS REMAIN The Parliamentary Joint Committee on Intelligence and Security's (PJCIS) report on the Counter-Terrorism Bill 2015 is a welcome step, but concerns remain and should be carefully addressed by Parliament, according to the Law Council of Australia. The changes proposed by the Bill are significant and, if enacted, would include: permitting control orders for children as young as 14; establishing a strict monitoring compliance with control order regime; preventing an affected individual from accessing evidence used against them in control order proceedings; and lowering the threshold for the issuance of preventative detention orders (PDOs). The Law Council noted that the PJCIS report proposes important amendments to the Bill, which accord or partly accord with recommendations of organisations such as the Law Council of Australia. These include: •

clarifying that the best interests of the young person are to be a 'primary' consideration in determining the terms of the control order; clarifying that the parents or guardian of a child are also to be notified of control order applications or variations; expressly providing that a young person has the right to legal representation in control order proceedings; introducing a system of special advocates to represent control order subjects who do not have access to information withheld from them; requiring a minimum standard of information to be disclosed to a control order subject to allow effective instructions to be given in relation to allegations; requiring issuing officers for monitoring powers to have regard to whether the measures constitute the least interference with the liberty or privacy of any person that is

48 | BRIEF MARCH 2016

necessary in all the circumstances; •

an additional 'reckless' threshold for the offence of advocating genocide and to remove the requirement of 'public' advocacy; and enhanced reporting requirements.

However, Law Council of Australia President-elect Fiona McLeod SC said issues remained with the legislation. "The proposed monitoring control order regime would involve significant intrusions into the privacy of individuals, potentially unrelated to the subject of a control order. For example, it may impact on monitoring computers in educational institutions where the privacy of many students may be affected," Ms McLeod said. "Before a proposed monitoring warrant is issued there must — as a minimum — be a reasonable suspicion that a control order is not being complied with, or that the individual who is the subject of a control order is engaged in terroristrelated activity. Ms McLeod also highlighted the proposed system of 'special advocates' under which a panel of security-cleared barristers and solicitors could act on the subject's behalf in closed material proceedings.

advocates must also be appointed under a process that is subject to the full and free discretion of the court." Ms McLeod raised concerns about a PJCIS recommendation that the amended test for the issuing of a preventative detention order (PDO) no longer require that there be an 'imminent' terrorist act, which is capable of being carried out within a 14-day period. "PDOs are a form of imprisonment without charge, trial or conviction, which has always been justified on the basis of an imminent threat to public safety," she said. "If the PDO regime is to be retained, it should continue to require the imminence threshold and the terrorist act should be one that is likely to occur, within the next 14 days. Otherwise, a person may be detained without charge on the basis of a mere theoretical possibility that a terrorist act could occur." LAW COUNCIL REGARDING REPORTS THAT A LACK OF PENSION ACCESS IS AFFECTING THE RETENTION AND RECRUITMENT OF FEDERAL JUDGES: The following statements can be attributed to Stuart Clark AM, President, Law Council of Australia:

"The Law Council remains concerned that a subject of a control order may not have access to information used against them in a control order proceeding," she said.

It is vital that federal court appointments are made so as to avoid a lack of continuity in the courts.

"The proposed system of special advocates, requires careful consideration by the Parliament to ensure that this concern is mitigated as much as possible.

Delays in the replacement of judges creates severe knock-on effects through the legal system.

The federal government should investigate whether judicial pensions for federal appointees who do not currently have access to them would make the retention and recruitment of federal judges easier.

Given the current delays in the replacement of federal judges the Law Council suggests that the Attorney-General should urgently make an open call for expressions of interest.

"It must include a minimum set of standards that addresses difficulties encountered with such schemes in other comparable overseas jurisdictions. For example, practical support must be available and adequate funding should be provided without burdening existing legal aid funding. "The appointment of the special advocate should be a last resort, where the trial judge is satisfied that no other alternative will adequately meet the interests of fairness to the affected individual. Special


pam sawyer

49


classifieds

Classifieds FOR SALE OR LEASE

FOR SALE OR LEASE

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Quality offices for sale/lease in the heart of City centre

· 7th Floor, 124sqm (approximately) · Central Law Court Precinct · 1 car bay available (under separate contract) (additional parking available across the road) · On CAT bus route · Asking $39,000 pa gross plus electricity

PARTITIONED OFFICES 12 St Georges Tce Perth • • •

4 Adjoining Strata Suites Areas from 81m2 to 271m2 Legal Precinct location

Greg Radin 0411 883 995

Tim Tyler

0418 946 970

tim@tylerandsons.com.au

Any person or firm having knowledge of any Will made by LORETTA MARY TROY born 30/01/1979 died on or about 23/07/2015 late of 18 Phillips Street, Dianella, please contact Kealeigh Barker of D’Angelo Legal, PO Box 1953, West Perth 6872. Telephone: (08) 9381 1147

MISSING WILL Would any person or firm holding or knowing the whereabouts of a will or other document purporting to embody the testamentary intentions of CHRISTINE LEANNE HEADING (AKA CHRISTIE). Formerly of 35 Portofino Crescent, Pelican Point in the State of Western Australia who died on 9th January, 2016 please contact Easton Lawyers, P O Box 255, Maleny Qld 4552 Ph: (07) 5494 3511 Fax: (07) 5494 2477 Email: sharon@eastonlawyers.com.au

Navitas, founded in 1994 and an S&P/ASX 100 company, is a diversified global education provider that offers an extensive range of educational services for students and professionals including university programs, English language training and settlement services, creative media education, workforce education and student recruitment. We are seeking a Legal Counsel with 3+ years’ relevant post admission experience. The role will involve providing timely, practical and cost effective legal advice to senior management of Navitas Limited and its subsidiary companies with an emphasis on mergers & acquisitions (M&A), corporate governance, ASX Listing Rules, partner university agreements, joint venture agreements and general commercial contracts. For more information on the position, please visit www.Navitas.com/Careers. Please send applications to Matthew.Rumpus@navitas.com by Monday 14 March 2016.

Any person holding or knowing the whereabouts of the last Will and Testament of the late CARL RAYMOND STEVENS of 25 Howlett Ramble, ARGYLE, WA 6239 who died on 28/08/2015, please contact FourLion Legal at Ground Floor, Suite 16, 185 High St, Fremantle on (08) 9335 6643 or cjoss@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 15381.

50 | BRIEF MARCH 2016

• Well established in rapidly growing area • Steady growth with minimal marketing required • Well placed, newly furbished office with high foot traffic • Opportunity for rapid expansion • Predominately family law with commercial litigation, wills, estates matters, conveyancing, criminal law

LAW REPORTS Anyone interested in acquiring sets of law reports up to around 1990, please contact Anne Payne at anne@paynes.com.au, (08) 9221 1771. They include All England, Federal, West Australian, Australian and Commonwealth Law Reports

AUS-EXPERTS

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Opportunity for 1-2 principals to operate profitable firm with huge growth potential.

Enquiries to northjoondaluplawfirmforsale@outlook.com

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MISSING WILL

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For advertising opportunities in Brief 2016 please contact: Moira McKechnie Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au

lawsocietywa.asn.au

Computer, Internet, and Telephony experts Civil and Criminal Matters. Expert Witness Services including all types of criminal prosecutions District Court and Federal cases including Customs prosecutions 15 years experience in Western Australian Courts Ph: 08 6280-0008 | aus-experts.com

Volume 42 | Number 9 | October 2015

BRIEF 2016

"MISCARRIAGES OF JUSTICE" Volume

Volume

42 | Number

10 | Novembe

42 | Number

r 2015

11 | Decemb

er 2015

VOLUME 43 | NUMBER 1 | FEBRUARY 2016

Aboriginal Alcohol and Drug Service Launch of Strategic Plan 2015 - 2020

THE IMPORT ANCE OF LGB INCLUSIVENE TIQ SS IN LAW FIRM S

COMMER

CIAL ARB ITRA EDITION

TION


new members and announcements

New Members New members joining the Society (January 2016) Associate Membership

Part-time Membership

Mr Daniel Gazzard

Murdoch University

Mr Geoffrey Roberson

Miss Karen Bamforth

Murdoch University

Ms Ruth MacLennan

Ms Aisha Novakovich

University of Western Australia

Mr Steven Bell

Edith Cowan University

Aston Reid Lawyers

Restricted Practitioner

Mr James McGeoch

Mr Damjan Siljanoski

Mountains Lawyers

Miss Emily Logan

Mr Bartholomew Primrose

Orion Law Pty Ltd

Miss Karri Coles

Miss Sarah Hassen

PricewaterhouseCoopers

Ms Clare Ward

Tottle Partners

Miss Chilufya Lwando Sinkala

Mr Peter McKay

University of Notre Dame

Mr Graeme Brentson

Mr Heath Harley-Bellemore

Murdoch University

Ms Deva Kunjari Ramasamy Menon

BIS Industries Ltd

Mr Cowan Finch

Murcia Pestell Hillard

Mr Ben King

Carr & Co Divorce & Family Lawyers

Ordinary Membership Ms Melissa Raftis

Perth Family Lawyers

Mr Matt Wilson

Lavan Legal

Professional Announcements Career moves and changes in your profession

Pragma Legal is pleased to announce that Sophia Kailis has joined the Sophia Kailis firm. Sophia's contact details are sophia.kailis@ pragmalegal.com.au and (08) 6188 3342.

Dwyer Durack Peter Fraser was appointed Managing Director of Dwyer Durack on 1 February 2016. Peter, a senior Peter Fraser association since 2010 and a director since 2011, heads the Liquor Licensing and Criminal Law Department.

Corrs Chambers Westgarth

Solomon Hollett Lawyers

Corrs Chambers Westgarth are delighted to announce new senior level promotions including Rachael King to Special Counsel.

Morgan Solomon and Craig Hollett are pleased to announce they founded Solomon Morgan Solomon Hollett Lawyers in October 2015. The firm offers legal advice and representation in all areas of commercial and business law, commercial litigation and dispute resolution, Craig Hollett wills and estates (including estate planning, estate administration and estate litigation), debt recovery, bankruptcy and insolvency law.

Rachael King

Rachael joined Corrs' Litigation team in March 2014. Rachael's diverse litigation and alternative dispute resolution experience extends to both private and public sector clients. Prior to joining Corrs, Rachael worked for the State Solicitor's Office of Western Australia and a global law firm. Rachael holds a Master of Laws degree specialising in international dispute resolution from the University of Cambridge.

51


events calendar

Events Calendar DATE

EVENT

LOCATION

MARCH MEMBERSHIP EVENTS Friday, 11 March

Society Club

Dog Rock Motel, Albany

Friday, 18 March

Society Club

Quality Hotel Lord Forrest, Bunbury

MARCH CPD SEMINARS Tuesday, 8 March

Practical tips for effectively representing clients in mediations

The Law Society of Western Australia

Thursday, 10 March

An exploration of current issues in the medico-legal world

The Law Society of Western Australia

Friday, 11 March

Country Roadshow: Albany

Dog Rock Convention Centre, Albany

Monday, 14 March

Contaminated sites and property transactions

The Law Society of Western Australia

Tuesday, 15 March

Business and personal finances: managing the risks

Conference Room, Ground Floor 235 St Georges Terrace, Perth

Tuesday, 15 March

Understanding financial statements for family lawyers

The Law Society of Western Australia

Wednesday, 16 March

Planning and Development (Local Planning Schemes) Regulations 2015: a practical overview

The Law Society of Western Australia

Wednesday, 16 March

Debt recovery litigation

The Law Society of Western Australia

Thursday, 17 March

Rules of engagement

The Law Society of Western Australia

Friday, 18 March

Country Roadshow: Bunbury

Lord Forrest Hotel, Bunbury

Tuesday, 22 March

Maximising your billable hour: managing your time and building resilience

The Law Society of Western Australia

Wednesday, 23 March

Hiring and retaining Western Australiaâ&#x20AC;&#x2122;s best legal talent

The Law Society of Western Australia

Wednesday, 23 March

Grants of aid from Legal Aid WA

The Law Society of Western Australia

Wednesday, 30 March

Criminal practice in rush hour: advocacy in the Magistrates Court

The Law Society of Western Australia

Thursday, 31 March

Becoming a skilled communicator

The Law Society of Western Australia

APRIL CPD SEMINARS Wednesday, 6 April

Preparing for your next performance and salary review

The Law Society of Western Australia

Wednesday, 13 April

Strata Title Reform update

The Law Society of Western Australia

Wednesday, 20 April

Re-engagement and re-invention: your career, your direction

The Law Society of Western Australia

52 | BRIEF MARCH 2016


events calendar MAY MEMBERSHIP EVENTS Monday, 16 May

Law Week Breakfast and 2016 Attorney General's Community Service Law Awards

Parmelia Hilton, Perth

Monday, 16 May

Youth Civics Leadership Day – by invitation only

The Law Society of Western Australia, The Old Court House Law Museum

Wednesday, 18 May

Law Week Panel Discussion presented by the Young Lawyers Committee

Supreme Court of Western Australia

Wednesday, 18 May

Alfred Hawes Stone Talk: Early Lawyer and Photographer, with Dr Pamela Statham-Drew

The Old Court House Law Museum

Wednesday, 18 May

Lifeline WA: Domestic Violence Alert Session

The Law Society of Western Australia

Wednesday, 18 May

Sole Practitioner and Small Firm Forum

The Law Society of Western Australia

Thursday, 19 May

Law Week Cocktail Event and Lawyer of the Year Awards

Bankwest, Perth

MAY CPD SEMINARS Wednesday, 18 May

Mental Health Matters: Technology and its effect on the practise of law – Panel Discussion

The Law Society of Western Australia

Thursday, 19 May

Refugee matters: a seminar for lawyers and non-lawyers

The Law Society of Western Australia

Friday, 20 May

Mental Health Matters: Review of the Mental Health and Depression in the Profession Report

The Law Society of Western Australia

JUNE MEMBERSHIP EVENTS Friday, 17 June

Society Club

Ocean Centre Hotel, Geraldton

Thursday, 30 June

Society Club

Perth CBD

JUNE CPD SEMINARS Thursday, 9 June

QPS Accreditation workshop one

The Law Society of Western Australia

Thursday, 16 June

QPS Accreditation workshop two

The Law Society of Western Australia

Friday, 17 June

Country Roadshow: Geraldton

Ocean Centre Hotel, Geraldton

Friday, 24 June

Introduction to advocacy

The Law Society of Western Australia

AUGUST CPD SEMINARS Friday, 5 August Sunday, 7 August

Practical advocacy weekend

Seashells Resort Mandurah

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 For all upcoming events and further information please visit lawsocietywa.asn.au

�egister online at lawsocietywa.asn.au�cp�

S������S � �uil�ing

�hurs�ay� �� �ebruary �.��pm � �.��pm �uilding disputes� trouble in the suburbs

�ember � ���� �on�member � ���� ��� �cti�e � ��

�he �on �ustice �enneth �artin � �hair �upreme Court of �estern �ustralia San�y �an�all� Director of Compliance� �uilding Commission� Department of Commerce �ob Shaw� Partner� �avan �egal �eter Verrall� Complaints Manager� �uilding Commission� Department of Commerce �i�i Visscher� �arrister� �rancis �urt Chambers �abil �a��ani� �tandards Manager� �uilding Commission� Department of Commerce

�ractice �anagement

�ri�ay� �� �ebruary ��.��am � ��.��pm �or� smarter not harder� enhancing personal management for healthy high performance �u�e �imasi Director� �arrior �ellness �or�an �alph Director� �arrior �ellness

1�

�state �lanning Succession

�e�nes�ay� �� �ebruary �.��pm � �.��pm �ature of evidence and presumptions in probate actions Susan �iel�ing � �hair Consultant� �ac�son McDonald

�e�el� �nterme�iate����ance�

�he �on �ric �eenan ��

� points� Competency �� �ubstantive �a�

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�egal practice is challenging and unfortunately burnout is common. �our longevity in the industry and your capacity to sustainably perform at close to your full potential is dependent on ho� you regulate your �or� around your natural energy levels� your emotions� stress levels� s�ills and interests. The best performers do not simply �or� harder. The best performers recognise �hen and ho� they �or� most effectively� �hat tas�s they e�cel at� and ho� to maintain resilience against the rigours of a busy life and career. �ind out �hat it means to �or� smarter rather than �ust �or�ing harder.

�thics

�thics on �riday� reducing your ris� pro�le �ith ethical practice

2016

�e�el� �eneral

�ael �oberts �a� Complaints �f�cer� �egal Profession Complaints Committee �ohn �ogers �eneral Manager� �a� Mutual ����

�anya �easlip �roup �eneral Counsel� �right Prospecting Pty �td

The management of ris� and ethical practice is very closely lin�ed. �s a self�regulated profession it is in our interest to �eep the number of complaints and claims against practitioners to a minimum. from 1� �ael ����oberts ��������� the �egal Profession Complaints Committee and �ohn ��������� ��������–���� �ogers from �a� Mutual ���� discuss real life case ��1� e�amples �here the �egal Profession Complaints Committee and �a� Mutual ���� have had �oint dealings �ith practitioners. �pea�ers �ill discuss ho� better ris� management can reduce the chance of a claim�complaint and the best approach to ta�e �hen a claim�complaint is made.

�ar� �oller � �hair �arrister� �rancis �urt Chambers �ary �ean �arrister� �r�in Chambers

����� ��� ��

1 point� Competency 3� �thics and Professional �esponsibility

�n�house la�yers fre�uently engage �ith busy senior e�ecutives regarding comple� and urgent matters. �amie Prell provides practical techni�ues for getting your point across �uic�ly as in�house counsel and for ma�ing comple� messages simple.

Treading the �ne line bet�een �adviser� and �shado� director� and managing your professional ris� and protecting your legal role. Tim �avenagh e�amines the la� in relation to shado� and de facto directors and dra�s on his role as in�house counsel at t�o different mining companies to give some practical tips on ho� not to stray into a director�s role.

B� ��������

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1 point� Competency �� �ubstantive �a�

�ednesday�

�oondalup

�itigation

� revie� of ��1� �igh Court decisions �atthew �owar� S� � �hair �arrister� �rancis �urt Chambers �enry �ac�son �arrister� �rancis �urt Chambers

an� Small

1� �ebruary

�eception

Sole �ractitioner

�ednesday�

1� May

�ember � ��� �on�member � ��� ��� �cti�e � ��

ACTIVATE

1 point� Competency �� �ubstantive �a�

1 point� Competency �� Professional ��ills �.� point� Competency �� �ubstantive �a�

ORIGINAL NET�OR�

���������

�each Volleyball

�riday� 1� �ebruary

�and�ports

The �niversity

�irm �orum

Club� �ac�ett

�ee�bac�

�itigation

�ntrance �1�

Perth C�D

�une

This informative seminar chaired by the �on �ustice �eil Mc�erracher provides a timely overvie� and update on �ustralian Consumer �a� including misleading or deceptive conduct and unconscionable conduct. The �ustralian Competition and Consumer Commission highlights the regulator�s compliance and enforcement priorities for ��1� and some �ey developments in competition and consumer la�.

� points� Competency �� �ubstantive �a�

CONNECTED

R������� ���������� Society �lub

� �lbany

�riday� 11 March

Dog �oc�

Motel

Society �lub � �unbury

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r online

at lawsoci

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sn.au/c

pd

�etwor�ing an� business �e�elopment

��ents an� �iscussion

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�cean Centre

�otel

�riday� 1� March

�uality �otel

�ord �orrest

�������� P��������

E��������� L��

Perth

�outh �i�ics �ea�ership �ay Monday� 1� May

The �a� �ociety of �estern �ustralia� The �ld Court �ouse Museum – �a� by invitation only

�aw �ee� �anel �iscussion presente� by the �oung �awyers �ommittee �ednesday� 1� May

�upreme Court

of �estern

�ustralia

�lfre� �awes Stone �al�� �arly �awyer an� �hotographer � with �r �amela Statham��rew �ednesday� 1� May

The �ld Court

�ouse �a�

of �estern

�ccre�itation

PERSONAL AND PROFESSIONAL

Perth

�ccess to �imitation of �iability Scheme

���

�ustralia

�aw �ee� �oc�tail ��ent an� �awyer the �ear �war�s of Thursday� 1� May

�an��est�

T�E VISION

�in� a �awyer

Museum

�ifeline ��� �omestic Violence �lert Session �ednesday� 1� May

The �a� �ociety

ADVISORY

�uality �ractice Stan�ar�

�ewsletters� social me�ia� website

����

�aw �ee� �rea�fast an� ���� �ttorney �eneral’s �ommunity Ser�ice �aw �war�s Monday� 1� May

Parmelia �ilton�

����������

ADVOCACY AND

The 31 March deadline for CPD compliance is almost here – register for one of our seminars to ensure you achieve compliance before the deadline. View the full programme on the Society’s website. ��� �ommittees

�entoring

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�ember � ���� �on�member � ���� ��� �cti�e � ��

The �a� �ociety ��1� to provide �ill continue its partnership members �ith �ith ��� in through the free events �ellness Programme. and initiatives include yoga The Programme and pilates sessions� employee chec�s and �ill seminars focused �ellness and �ellbeing. on improving mental health �or more information on �a� �ebsite and vie� our �ee�ly �ociety events� please visit our email ne�sletter� -YPKH`-HJ[Z.

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*VTWL[P[PVUHUK*VUZ\TLY(J[ and more particularly the �ustralian Consumer �a� are fundamental areas of la� that have a signi�cant impact on both the �ustralian economy and society in general.

Cra�ley

Society �lub to �nancial year celebrate the en� of the

Thursday� 3�

�achel �oseph �arrister� �rancis �urt Chambers �ember � ���� �on�member � ���� ��� �cti�e � ��

�epresentation on �aw �ouncil �ustralia

�ournament

�ustralia� �edlands

Society �lub �hurs�ay� � �arch

�.��pm � �.��pm �riday� �� �ebruary

an� Small

1.� points� Competency �� The �a� �ociety �ubstantive �a� of �estern �ustralia

1 point� Competency 1� Practice Management 1 point� Competency �� Professional ��ills 1 point� Competency 3� �thics and Professional �esponsibility

Many la�yers deliver pleas in mitigation and act on violence and misconduct restraining orders as part of their day�to�day practice. Mara �arone provides practical guidance to practitioners on ho� to deliver more effective pleas in mitigation to ensure better outcomes for clients. �elinda �onsdale provides an essential overvie� of the la�� practice and procedure for violence restraining orders and misconduct restraining orders. This seminar is highly recommended for la�yers �ho represent clients in these t�o �ey practice areas. �e�el� �un�amental

C������ ���

�irm �orum

Centre

�nternational �omen’s �ay �eynote an� �uncheon ���ress

Chair Matthe� �o�ard �C� �enry �ac�son and �achel �oseph discuss several hand�pic�ed cases� outline their �ndings� e�plain their signi�cance and see� to dra� Thursday� themes and emerging trends. This seminar is open to 3 March all practitioners and provides the opportunity to hear Parmelia �ilton� discussion about the more notable and interesting �igh Perth Court decisions in the past year. �e�el� �eneral

CONTINUING PROFESSIONAL DEVELOPMENT PROGRAMME

�ic� Cooper summarises the la� regarding legal professional privilege. �sing case e�amples� he e�plores the hurdles in�house counsel face in trying to properly maintain privilege including in the conte�t of dealing �ith commercial teams and investigations. The presentation concludes �ith practical tips to help maintain privilege.

�e�el� �ll

�riminal

�e�nes�ay� � �arch �.��pm � �.��pm

�pea�ers share practical tips on �hen to issue a statutory demand� the ve�ed �uestions of �hether there is �a genuine dispute� and a debt �due and payable� and �hether �inding up a company is al�ays the most appropriate option for a creditor client.

�ember � ���� �on�member � ���� ��� �cti�e � ��

�ues�ay� �� �ebruary �.��pm � �.��pm

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�tatutory demands can be an effective tool in chasing company debts but are often misused and confused �ith standard �debt collection�. Mar� �oller and �ary Dean provide an essential overvie� of the la�� practice and procedure on issuing� enforcing and setting aside statutory demands.

Sole �ractitioner

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The delicate balancing act bet�een providing fran� and fearless legal advice and playing a constructive role in the core business of the company. Tanya �easlip and �an Macpherson dra� on their in�house e�perience and �ill present and discuss practical steps on ho� to address this balance� be part of the solution and become trusted advisors that play an integral part in board strategy.

�an �acpherson �eneral Counsel� �roo��eld �ail �amie �rell �egal Director� �dvent�alance

E����� �����

�e�el� �eneral

�ember � ���� �on�member � ���� ��� �cti�e � ��

�nsol�ency �ractice an� �roce�ure

�on�ay� �� �ebruary �.��pm � �.��pm �tatutory Demands� an overvie�

testamentary capacity� due e�ecution� simultaneous deaths� order of succession� intestacy or partial intestacy� validity of aged documents� effect of undue in�uence� revocation of a lost �ill� statutory hotchpot for certain intestacies. 1 point� Competency �� �ubstantive �a�

�ic� �ooper Partner in Charge� Clayton �t�

1.� points� Competency 1� Practice Management

�ember � ���� �on�member � ���� ��� �cti�e � ��

3,.(3(5

This seminar e�amines �amongst others� presumptions relating to�

�n�house forum� a spotlight on in�house counsel �lisabeth ��war�s � �hair �enior �egal Counsel� CP� Contractors Pty �imited

�im �a�enagh Principal� �unt � �umphry

�ri�ay� �� �ebruary �.��pm � �.��pm

Y–JUNE

L ESSIONA E NG PROF CONTINUI ENT PROGRAMM DEVELOPM

The �on �ric �eenan �C addresses a series of presumptions or doctrines �hich may be encountered in many situations but� more so� especially in contentious and also non�contentious succession cases.

� � � � � � � �

�e�el� ���ance�

The in�house forum focuses upon the important issues and topics speci�cally for in�house la�yers�

�e�nes�ay� � �arch �.��am � �.��pm

�ember � ���� �on�member � ���� ��� �cti�e � ��

FEBRUAR

FEBRUARY–JUNE 2016

��� ��������� ��������� ��������–���� ��1�

Chaired by the �onourable �ustice �enneth Martin� )\PSKPUNKPZW\[LZ![YV\ISLPU[OLZ\I\YIZ covers the practical operation and effect of the )\PSKPUN(J[ ���� and related legislation on neighbourhood building disputes. Particular focus is on the provisions in the �uilding �ct relevant to the obligations of builders and others to neighbouring properties as �ell as the rights of people �ho have disputes �ith their o�n builder. This seminar �raps up �ith an open panel discussion by the spea�ers and �uilding Commission representatives �ho help demystify the operation of the �uilding �ct.

�ccess Seminar �apers

CONTINUING PROFESSIONAL DEVELOPMENT

�nlimite� ��� e�ents for annual fee� �nline �earning

PROFESSIONAL

PRACTICE

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Brief March 2016  
Brief March 2016