Brief August 2017

VOLUME 44 | NUMBER 7 | AUGUST 2017

The Community of Courts in the Asia Pacific Region The Hon Susan Kiefel AC, Chief Justice of Australia

Volume 44 | Number 7 | August 2017

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CONTENTS

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DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed

by Brief.

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

ARTICLES 08

The James Spigelman Oration 2016

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Legal Change — The Role of Advocates

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.

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Sleeker, faster, cheaper: IP litigation under the New Federal Court of Australia Intellectual Property Practice Notes

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Existing trusts as beneficiaries of wills

Published monthly (except January)

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Welcome to the Honourable Justice Gail Archer SC

Communications and Media Officer: Andrew MacNiven

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2016 National Profile of Solicitors

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Opening of Murray Chambers

Editor: Jason MacLaurin

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Reflecting on the Practice of Non-adversarial Justice

Editorial Committee: Gregory Boyle, Rebecca Collins, Robert French, Melissa Koo, Jason MacLaurin, Alain Musikanth, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor

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The Community of Courts in the Asia Pacific Region

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Mental Health Law Centre celebrates 2017 Law Week

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YLC: Mental Health Hypothetical

Advertising enquiries to Manager Marketing and Communications: Moira McKechnie Tel: (08) 9324 8650 | Email: mmckechnie@lawsocietywa.asn.au Communications and Design Officer: Brett Syme RRP $16.00 incl GST. Printed by Scott Print

Deputy Editor: Moira Taylor

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REGULARS

Submission of articles: Contributions to Brief are always welcome.

For details, contact communicationsofficer@lawsocietywa.asn.au

02 President's Report

48 Law Council Update

President: Alain Musikanth

03 Your voice at work

49 Pam Sawyer

Vice President: Greg McIntyre SC

04 Editor's Opinion

50 Professional Announcements

06 Ethics Column

51 Classifieds

46 Family Law Case Notes

51 New Members

47 Young Lawyers Case Notes

52 Events Calendar

Senior Vice President: Hayley Cormann Treasurer: Jocelyne Boujos Immediate Past President: Elizabeth Needham Ordinary Members: Jocelyne Boujos, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Elisabeth Edwards, Catherine Fletcher, Rebecca Lee, Marshall McKenna, Denis McLeod, Stefan Sudweeks, Nicholas van Hattem, Paula Wilkinson Junior Members: Deblina Mittra, Jodie Moffat, Noella Silby Country Member: Brooke Sojan Chief Executive Officer: David Price

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PRESIDENT'S REPORT Alain Musikanth President, the Law Society of Western Australia

VALE ALAN ERIC BLANCKENSEE AO The Society was saddened to learn of the passing of former President Alan Blanckensee AO on 1 July 2017.

Alan was admitted to the Western Australian legal profession in 1949, was a partner at Stone James, now King & Wood Mallesons, and served as President of the Society from 1977 to 1979. He also served for some two decades as Honorary Consul of Germany in Western Australia.

The Society extends its sincere condolences to Alan’s children, grandchildren, family and friends.

Performance of legal work by nonpractitioners I am pleased to report that the comprehensive study into the performance of legal work by non-practitioners, foreshadowed in this column in the February edition of Brief, has now been completed.

The study involved extensive work by the Society’s advocacy team and a number of its committees, and has resulted in a paper entitled People Unlawfully Engaging in Legal Work: Protecting the Community.

As noted in February, it is for good reason that the Legal Profession Act 2008 (WA) makes clear who may perform legal work and who may not. The relevant provisions exist to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified, and to protect consumers by ensuring that persons carrying out legal work are entitled, to do so.

Unregulated non-lawyers pose a potential risk to the public where they engage in legal practice. Their clients do not enjoy the benefit of legal professional privilege, nor is confidentiality guaranteed in respect of their communications. Further, unregulated non-lawyers are, generally, not required to maintain professional indemnity insurance; regulated as to the manner and form of costs disclosures; required to hold trust accounts; or bound by codes of professional conduct and ethics (including, significantly, duties to avoid conflicts of interest). These and other important distinguishing features which provide significant protection to the public are often not readily apparent to all but the most sophisticated of clients.

The paper canvasses the main issues associated with legal practice undertaken by non-practitioners and explores a variety of actual or potential manifestations of the phenomenon including: the activities by professionals qualified in other disciplines; non-legal practitioners providing

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representation as agents or advocates in proceedings; online generation of legal documents; artificial intelligence and multidisciplinary partnerships.

activities of the QPS committee and the QPS auditors will otherwise continue to operate as per normal pending the outcome of the review.

The paper also advances a series of recommendations, including that:

Golden Gavel

• Legislative amendments be enacted to: ensure consistency with the provisions relating to the undertaking of legal work by non-practitioners applicable under the Uniform Law regulating the legal profession in New South Wales and Victoria;

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address expressly the performance of legal work through artificial means.

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• The Society: raise public awareness of the risks of instructing unqualified persons, and the advantages of instructing legal practitioners;

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prepare and publish guidelines relating on unqualified practice;

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liaise with the Legal Practice Board, and/or the Legal Profession Complaints Committee, as to the adequacy or otherwise of current arrangements for regulation of multidisciplinary partnerships in Western Australia; and

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actively encourage its members to report instances of non-lawyers performing legal work, and the provision by the Society of such information to the Legal Practice Board for further investigation.

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The paper was approved by the Society’s Council at its July meeting. It may be viewed at lawsocietywa.asn.au/law-reform-andadvocacy.

Quality Practice Standard Members will be aware that the Society has, for over 20 years, operated a Quality Practice Standard (QPS) scheme.

At its June meeting, the Society’s Council resolved that a strategic review of QPS be undertaken. The primary term of reference of the review is to consider “where the strengths and weaknesses lie for the Law Society in offering the QPS programme as a service or benefit to members”.

It is intended that a report reflecting any conclusions and recommendations arising from the review will be presented to Council for consideration at its August meeting.

While no new applications for QPS accreditation will be approved pending completion of the review and consideration

by Council of the foreshadowed report, the

On Friday, 14 July, the annual Golden Gavel competition was held at the Pan Pacific Perth. Courageous young lawyers put their public speaking and comedic skills to the test in front of 300 guests.

The Society extends its congratulations to Daniel Sutherland of Jackson McDonald, who has won the chance to represent Western Australia at the National Golden Gavel. The Society also expresses its thanks to the Honourable Chief Justice Wayne Martin AC, Tom Percy QC and Hayley Cormann for graciously agreeing to serve as the panel of judges.

NAIDOC Week On Wednesday, 19 July, a screening of the ground-breaking musical documentary Prison Songs was held at the Society in celebration of the recent NAIDOC Week and as part of the Society’s Reconciliation Plan. This moving and amusing documentary casts light on the issues surrounding the incarceration of Aboriginal and Torres Strait Islander peoples.

Mandatory e-lodgement of land transaction documents delayed As mentioned recently in Friday Facts, since Landgate announced the introduction of mandatory electronic lodgement of land transaction documents from 1 August 2017, the Society has on behalf of the profession worked actively to have this date extended to ensure practitioners have adequate time to make changes to their practices.

Last month, I wrote to Minister for Lands restating the Society's position that an extension of time was required. Landgate has now agreed to extend the mandatory deadline from 1 August to: • 1 December 2017 for all mortgages, discharges of mortgages and refinances; and • 1 May 2018 for all eligible documents (including transfers, caveats and withdrawal of caveats and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats).

Transactions currently in progress will be unaffected by the regulations.

The Society once again acknowledges and thanks the Minister for agreeing to support the Society’s position on this important matter, given the implications for the public and the profession.

Your voice at work A summary of recent media statements and Society initiatives

The Society congratulates the Hon Jane Crisford SC on appointment as chair of the Legal Aid Commission of WA Society President Alain Musikanth said, “The Hon Jane Crisford SC is an excellent choice as the new chair of the Legal Aid Commission. She has a wealth of experience, accumulated over decades of legal practice.

“Ms Crisford is highly regarded within the legal community, having served as a judge of the District Court of Western Australia from 2004 to 2006, and as a judge of the Family Court of Western Australia and the Family Court of Australia from 2006 to 2016,” Mr Musikanth said.

“On behalf of the Law Society and its members, I warmly congratulate the Hon Jane Crisford SC and wish her the very best in her new role.”

The Society welcomes restoration of funding for Employment Law Centre The Society welcomes the recent announcement by the State Government that funding will be restored to the Employment Law Centre of WA. The State Government announced that $990,000, or $330,000 per year, will be provided to the central business district office in the next three financial years.

“The Society is delighted that the State Government has committed to restoring funding to the Employment Law Centre,” said Society President Alain Musikanth.

“In May 2015, the Society expressed its concern that Budget measures by the then-State Government had included the non-renewal of funding for the Employment Law Centre. It is pleasing to now receive confirmation that funding for the Employment Law Centre will be restored at least for the next three financial years.

“Most importantly, this is great news for the clients of the Employment Law Centre, who include vulnerable and lowpaid workers, young and older workers, people with a disability, migrant workers and Aboriginal and Torres Strait Islander workers.

“The Employment Law Centre plays an important role in advising its clients in

matters such as dismissal, discrimination and workplace bullying. The Society is delighted that the Employment Law Centre can now get on with its work without fear of losing funding,” Mr Musikanth said.

The Society congratulates the Hon Robert French AC on appointment as UWA Chancellor The Society congratulates the Hon Robert French AC on his appointment as Chancellor of The University of Western Australia.

“The Society was delighted to learn of the Hon Robert French AC’s appointment as UWA Chancellor,” said Society President Alain Musikanth.

“He has had a significant influence both on the legal profession in Western Australia and nationwide, and is a tremendous role model for any practising or aspiring lawyer. I have no doubt that his wealth of experience and skills developed over many decades will make him well suited to this respected office.”

The Hon Robert French AC was appointed Chief Justice of the High Court of Australia in September 2008. At the time of his appointment he was a judge of the Federal Court of Australia, having been appointed to that office in November 1986. He retired as Chief Justice in early 2017.

The Hon Robert French AC joined the Society in 1972, is a Life Member of the Society and a former member of its Council. He is also known for his work on behalf of Indigenous Australians, having chaired the Justice Committee of the New Era Aboriginal Fellowship in the early 1970s and the Aboriginal Legal Service of Western Australia from 1973 to 1975.

The Society congratulates the Hon Justice Archer on Supreme Court appointment The Society congratulates the Hon Justice Gail Archer on her appointment as a Judge of the Supreme Court of Western Australia.

Her Honour commenced legal practise at the Crown Solicitor’s Office (as it then was), before joining the Office of the Director of Public Prosecutions in 1993, remaining there until 2002.

From 2002 to 2004, Justice Archer was Principal Counsel of Legal Aid WA. In July 2004, she began practising as a barrister at Francis Burt Chambers and was appointed Senior Counsel in 2007.

“Her Honour was an eminent and respected senior member of the legal profession at the time of her appointment.

She has also been a valued and engaged member of the Society since being admitted to practise law in 1990, having served the Society in a variety of capacities including as Deputy Convenor of its Ethics Committee and as a member of its Continuing Professional Development (CPD) – General and Commercial Litigation Committee,” said Society President Alain Musikanth.

“On behalf of the Society I warmly congratulate Justice Archer on her appointment to the Supreme Court,” said Mr Musikanth.

A transcript of Justice Archer’s recent ceremonial welcome to the Supreme Court is reproduced in this issue of Brief.

The Society congratulates the Hon Justice Beech on Court of Appeal appointment The Society congratulates the Hon Justice Andrew Beech on his appointment as a Judge of the Court of Appeal. His Honour’s appointment fills the vacancy left by the retirement of the Hon Justice David Newnes.

“On behalf of the Society, I warmly congratulate Justice Beech on this welldeserved appointment,” said Society Senior Vice President Hayley Cormann.

“Justice Beech has been a judge of the Supreme Court of Western Australia for a decade, having been appointed in 2007, and brings a vast amount of experience to this new position.”

Justice Beech was admitted to practise law after obtaining a Bachelor of Jurisprudence with Honours in 1983 and a Bachelor of Laws in 1984 from The University of Western Australia.

His Honour completed articles in 1985 and worked for a number of years as a solicitor at Parker and Parker before becoming Crown Prosecutor in 1992.

In 1994, His Honour joined Francis Burt Chambers as a barrister and was appointed Senior Counsel in 2004.

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

The feature article, the Hon Chief Justice Kiefel AC’s presentation upon the Community of Courts in the Asia Pacific Region, addresses the collaboration between, and history of, the global community of courts in the Asia Pacific region.

This is of particular interest to Western Australian practitioners, given the importance of that region to Western Australians and our connection to it.

In the era of the Society’s formation, this was less the case, given the isolation of Western Australia and Perth in particular.

One still sees reference to Perth as the most isolated city on the world, though this label has surely been laid to rest by the frequency with which Bruce Springsteen comes to perform, and that Adele chose to tour here (and Perth managed to not, as had been predicted, descend into a dystopian nightmare by destroying its road and public transport system in response).

And, even isolated Western Australia of old can boast to being the home, for some time, of a President of the United States, Herbert Hoover.

Hoover, who also worked as a mining engineer in China, spent much time in Western Australia in the very late 1890’s and early 1900’s, contributing much to the local mining industry, including as manager of the Sons of Gwalia gold mine near Leonora.

Hoover was a prominent and worldrenown engineer, administrator and financier. He also translated into english a classic mining text, originally in latin, De Re Metallica. It is unclear whether De Re Metallica is available for purchase on the internet, though if it is, it probably results, upon delivery, in some very disappointed middle-aged heavy metal rock fans.

(In semi-legal news, the band Metallica was recently in the headlines, complaining about Kylie and Kendall Jenner selling vintage style Metallica t-shirts with their own images and Instagram photos superimposed. The Jenners have withdrawn the t-shirts and issued an apologetic statement saying that it “was not a well thought out idea”.

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Which some may suggest is a motto they should give consideration to for their/the Kardashian Coat of Arms).

Returning to Hoover, of everything that is recorded about his time in Western Australia, a prominently reported episode may well be one of the earliest examples of Presidential ‘fake news’.

Hoover is famously attributed with writing a rollicking love poem to a Kalgoorlie barmaid.1 However, there are real doubts raised as to whether it was penned by Hoover.2 In any event, it would not be the first time there was a denial of attribution of love messages sent to a Goldfields barmaid.

As an attempt at a tie-in to events in August 1927 (the significance of 1927 being familiar to Brief readers) Hoover’s rise to President was assisted in no small part by US President Calvin Coolidge, in what was perhaps an early precursor to the current presidential mode of Twitter-style communications with journalists. On August 2 1927 while on holiday, Coolidge (formerly a lawyer) summonsed newspapermen to his office and handed each a folded slip of paper with a single typewritten statement: “I do not choose to run for president in 1928”. This announcement is of course comfortably within the 140 character Twitter limit. A reporter then asked “Does the President care to comment further?” and Coolidge reportedly replied “no” and left the room (again, about as short as you can get).

On this version of events, it is unclear what caused Coolidge to resign so promptly in the manner he did.

Perhaps he had found out that he held dual citizenship.

On another account, Coolidge did later explain, with the perfectly Twitter-esque: “If I take another term, I will be in the White House till 1933 … Ten years in Washington is longer than any other man has had it—too long!”.

Recent controversies about dual citizenship have no doubt resulted in journalists and lawyers rushing to ancestry websites with more fervour then ever, aside from frantic searches about whether “Kushner” is a Russian

name.

As to including more items concerning the lighter side of the law, this is still a work in progress.

An open enquiry about entertaining stories concerning curious or interesting episodes with lawyers resulted principally with mention of Russian lawyer Natalia Veselnitskaya and a meeting with the son of a certain prominent politician. It appears that congressional subpoena may be required to find out the full details about that lawyer-story, as some segments don't seem to find the incident all that amusing.

Having said that, Brief may indeed have been initially skeptical about a story about a Russian lawyer who arranges a meeting with the son of the world’s most powerful man, through a mutual friend who is a music agent for an Azerbaijani pop singer, touting adverse information about a rival political party, which then apparently descends into farce.

In any event, please feel free to send through any contributions to Brief, whether on the more serious or the lighter side of the law.

This edition of Brief contains a number of items by and about members of the judiciary or former judiciary. It has the Hon Justice Virginia Bell AC’s James Spigelman Oration on Judicial Legitimacy and the Limits of Review, the Hon Robert French AC’s Sir Maurice Byers Lecture upon the Role of Advocates, the Hon Chief Justice Wayne Martin AC Reflecting on the Practice of Non-adversarial Justice, the Welcome to the Hon Justice Gail Archer SC, and a note by John McKechnie QC on the opening of Murray Chambers. It also has, amongst other items, Katerina Peiros and Christine Smyth on Existing Trusts as Beneficiaries of Wills, along with Intellectual Property Practice Notes

by David Stewart and Professor Dal Pont on Client Capacity.

NOTES: 1.

On display at the Palace Hotel in Kalgoorlie.

2.

Including in the Australian Dictionary of Biography and academics from Hoover’s alma mater, Stanford University.

CURRENT MARKET SNAPSHOT KBE Human Capital is Western Australia’s leading Legal Recruitment firm.

Our team has long established relationships with national/international and boutique law firms and our objective is to provide WA’s lawyers with an unrivalled level of knowledge and exceptional level of service.

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Salaried/Equity Partnership Opportunities Partner – Commercial – Take over $1M to $1.5M practice from Retiring Partner. This a rare opportunity for a Commercial Lawyer at the Partner or SA/SC level to join a long established firm and take over the practice of a retiring Equity Partner.

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Partner/SA – Commercial Litigation/Commercial – Take over $500k practice – Margaret River. Our client, a Margaret River law firm, is seeking a Senior Litigation Lawyer (ideally with some exposure to Commercial Law) to take over a practice from a Partner in retirement phase. The successful applicant will work closely with one remaining Partner, several mid-level lawyers and a team of support staff. The firm services clients across Litigation, Commercial Law, Wills and Estate Planning, with a small amount of Criminal and Family Law completed by other lawyers within the team. Representing clients in the Supreme/District Courts and occasionally taking on matters within the Magistrates Court, you will need a strong background in General Commercial Litigation, and be comfortable providing high level advice across Commercial/Property Law and Wills and Estates. The successful applicant will inherit a $500k+ practice and enjoy the change of lifestyle/pace that comes with practicing law in the southwest. The firm will provide accommodation in the short term to assist with your relocation.

Partner – Corporate/M&A/ECM – international firm.

This international firm continues to grow rapidly and gain market share across Australia. With an established and core group of highly motivated toptier Partners, the firm has committed to doubling in size in Perth within 24 months. Joining as Head of Corporate/M&A/ECM in WA and playing a lead role in building the practice nationally, you will work with Partners throughout the firm’s Singapore, Hong Kong, China and European offices and advise

on corporate transactions across SE Asia, the UK, Europe, Africa, the Middle East, and Australia.

Transportable practice of $750k+ required.

Partner – Head of Family Law. A leading suburban firm seeks a senior lawyer to join as the Head of Practice in building and leading the Family Law team.

The practice attracts a significant volume of high quality work with a loyal referral base of accountants and financial planners, and no fee base is required to take on this leadership position. Innovative Partnership that continues to experience growth in both revenue and profit.

Partner – Projects and Infrastructure – international firm. Having established a core group of highly motivated top-tier Partners, our client now seeks a Head of Projects in WA to play a lead role in building/leading the practice nationally. The firm is committed to doubling in size over the next 24 months and is in the process of adding several key practice areas in WA. You will work with Partners throughout the firm’s Singapore, Hong Kong, China and European offices and bring expertise across E&R, natural resources and renewables, and major infrastructure projects. You will advise clients on sales and acquisitions, project finance, structured finance and leasing, development projects, sale and purchase of assets, and advise government agencies on a range of regulatory issues. Transportable practice of $750k+ required.

Partner – Property – mid-tier firm. Our client is a large and well regarded mid-tier firm with a strong and robust reputation across Commercial Law, Property and Litigation. As part of the firm’s strategic plan, they now seek an established Senior Property Lawyer to move directly into a Partnership role. You will have a $250k+ transportable fee base with the drive to take on some overflow work/clients from the firm’s existing Partners. You will have experience advising government, listed and private clients across commercial, industrial and retail property, off the plan developments, acquisitions and disposals, drafting and negotiating real estate JV transactions, with the ability to oversee an efficient leasing practice. The culture of this firm is collegiate, transparent and meritocratic, with equity available depending on the size of your transportable practice.

Junior to Mid-Level Roles Banking and Finance Lawyers for three top-tier firms. KBE Human Capital is working with several leading Banking and Finance teams to secure B&F Lawyers with 3-7 years’ PAE. With opportunities at both national and international firms, the successful candidates will have experience from top-tier/international firms dealing with complex transactions, with an interest in mining and energy project financing across Australia and various emerging markets.

Corporate Lawyers for national/international and boutique firms. 2-4 years’ PAE and 4-9 years’ PAE to join a number of Perth’s leading Corporate/M&A teams. These client facing roles will provide the successful candidates with high levels of responsibility and extensive client contact. You

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Family Lawyer –2IC leadership role. KBE Human Capital is currently working with a highly respected boutique firm based in West Perth to secure a Family Lawyer with 5+ years’ PAE. Working as part of a collegiate team, you will play a lead role in managing junior lawyers, overseeing litigation strategy and ultimately step into a 2IC role. Working closely with two Partners, you will assist to drive BD activity and continue to lift the profile of the firm through implementing a structured BD/brand development plan. This will be an exciting opportunity for an outgoing lawyer who is ready to step into a leadership role.

In-House Counsel – Corporate/Commercial Lawyer. 2-6 years’ PAE. Join a highly collegiate team of lawyers and take on an important role providing a range of Corporate/Commercial law and general advice to key stakeholders within the organisation’s diversified company portfolio. The successful candidate will have experience advising in relation to Corporate/ASIC/ASX compliance issues and a working knowledge of the Corporations Act, with the ability to advise decision makers with a high level of autonomy.

Insurance Lawyer – growing national firm – diverse role. KBE Human Capital has been briefed by a long term client to source an Insurance Lawyer with 2-5 years’ PAE. This national insurance team is widely regarded as one of Australia’s strongest, and includes a number of Award Winning Partners.

Working across a diverse range of Insurance matters, including PI, D&O, Liability and high quality Workers’ Comp, you will be supervised by Senior Partners who genuinely enjoy mentoring junior lawyers.

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Litigation Lawyers for national and international top-tier firms. Opportunities for junior and mid-level Litigation Lawyers to join progressive national/ international firms. Both teams are seeking lawyers with 2-6 years’ PAE and experience in mining Litigation and some exposure to Insolvency.

Workplace Relations Lawyer to join a high profile mid-tier practice. Opportunity for a Senior Associate to step into a leadership role and manage a team of junior lawyers whilst overseeing the strategic direction of key matters. Joining a highly functional and supportive senior management team, you will represent listed and large private clients across the full spectrum of Workplace Relations matters. Fee base of $50k+ and/or BD skills required.

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Client capacity makes one free Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

• Lawyers who fail to take appropriate steps to ensure client capacity for an enduring power of attorney risk disciplinary sanction.

• There are nonetheless pressures on lawyers to ‘cut corners’ when it comes to matters of client capacity.

• But yielding to those pressures risks not only professional discipline but undermining the freedom to dispose of property.

Only months ago the Queensland Civil and Administrative Tribunal declared that a lawyer who drafted an enduring power of attorney for a client, who it was later found lacked the capacity to understand its nature and effect, had engaged in unsatisfactory professional conduct.1 Of course, it is not every instance where a lawyer makes what transpires to be an inaccurate call on client capacity that disciplinary sanction ensues. Questions over capacity are fluid, time and context specific, and ordinarily not within the training and competence of lawyers. What drove the issue of a reprimand and a fine in the aforesaid Queensland case was that, inter alia, the lawyer did not interview the client alone, did not probe the client with open-ended questions directed to issues of capacity, sought no medical opinion on the point, and maintained no written record of steps taken to assess client capacity.

The lawyer had simply asked the client: "Do you know what these documents are for?" to which the client replied "It’s so that they can help me with my money".

In finding this to be an inadequate inquiry, the tribunal emphasised the need for a practitioner to "establish a reliable method of communication which will enable the practitioner to be satisfied that the client understands the instructions being given and is providing coherent instructions upon which the practitioner can rely".2 That the lawyer in question was, prior to meeting the client, advised that the client had an intellectual disability should have clearly placed the lawyer on notice in this regard, prompting what the tribunal termed "a higher level of enquiry".3 But even in (more common) instances where there is no such ‘heads-up’, the case law reveals no lackadaisical approach to capacity is justified. Indeed, in Queensland there have been at least five other instances since 2008 where a lawyer has been disciplined for failing to properly ascertain client capacity to execute a power of attorney.4

06 | BRIEF AUGUST 2017

While not so vividly represented in the disciplinary arena outside Queensland, the very same pressures that likely drove the unprofessional conduct in the Queensland cases surface for all lawyers in this context. Drafting an enduring power of attorney for a client is hardly likely to be a financially lucrative exercise, which serves in turn to explain why some lawyers may be inclined to take ‘short cuts’ when it comes to an assurance of capacity.

Moreover, raising a lack of capacity with a client will involve a degree of delicacy that some lawyers may wish to eschew. There will, in addition, be instances where effecting an enduring power of attorney, even in the face of questions over full capacity, will avoid the delay, cost and uncertainty that may accompany an application for guardianship (or the like). Assessment of the risks of a ‘pear shaped’ outcome may lead some lawyers, in this as in other scenarios, to take the risk.

After all, legal practice in reality not infrequently requires risk assessments.

The issue of client capacity, in the enduring power of attorney context as in others, is therefore usually addressed from the perspective of risk management.

But it exhibits a more fundamental value that lies at the core of legal systems, like ours, grounded in the private ownership of property: the freedom to determine what happens to one’s own property. This is reflected in freedom to contract vis-à-vis that property, the concept of testamentary freedom and, for an enduring power of attorney, freedom to confer upon another person a power to control one’s property (even) in the face of subsequent mental incapacity. And it also explains why the law provides avenues for upsetting the disposition of property where those freedoms are impinged.

In each instance, the freedom is attached to the mental capacity to exercise it; absent that capacity, the freedom is ultimately illusory. Acting on the instructions of a client who lacks the requisite capacity accordingly challenges the foregoing freedom(s). It is also apt to undermine the fundamental distinction between the lawyer’s role to advise, and the client’s role to decide,5 the latter again being premised on capacity. There are thus compelling reasons to maintain a rigorous approach to capacity assessment.

NOTES: 1.

Legal Services Commissioner v Ho [2017] QCAT 95.

2.

Ibid., at [25].

3.

Ibid., at [30].

4.

Legal Services Commissioner v Ford [2008] LPT 12; Legal Services Commissioner v de Brenni [2011] QCAT 340; Legal Services Commissioner v Comino [2011] QCAT 387; Legal Services Commissioner v Penny [2015] QCAT 108; Legal Services Commissioner v Given [2015] QCAT 225.

5.

Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 at 214 per Lord Hoffmann.

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The James Spigelman Oration 2016 Judicial Legitimacy and the Limits of Review Sydney, 22 November 2016

By The Hon Justice Virginia Bell AC Justice of the High Court of Australia

This speech will appear in a forthcoming book by the Federation Press which will be edited by Neil Williams SC.

It is a privilege to be invited to give the 2016 Spigelman Oration. Jim Spigelman's contribution to the development of Australian public law is formidable.

Not the least of it is found in the many scholarly lectures that he delivered during his tenure as Chief Justice of New South Wales. One lecture, less scholarly than the rest, he must have given around 50 times: his remarks on the admission of legal practitioners. At admission ceremonies, when I was one of the judges constituting the Court, sitting out on the left wing, I never tired of hearing it.

Spigelman CJ's theme, with which many in this audience will be familiar, was that in the basic mechanisms of governance, the rule of law and parliamentary democracy, ours is an old country.

It seemed to me that this emphasis was likely to be the product of having grown up in the Australia of the 1950s with parents who had lived through the tyranny and disruption of central Europe in the first half of the last Century. Whatever its origin, a focus of Jim Spigelman's contribution to public debate has been to make a generation of lawyers more conscious of the stability of our institutions of government and, perhaps, to reflect on the mechanisms which foster and maintain that stability.

This was the subject of the lecture on what he characterised as "the Integrity Branch of Government"1, notwithstanding he commenced it with something approaching Trumpian praise for the sumptuary rules of the Chinese Imperial civil service.

The evident contribution of the judicial branch to maintaining the integrity of government is through judicial review. Recognising its constitutional 08 | BRIEF AUGUST 2017

significance, Jim Spigelman's concern has been to caution against overreach.

He suggested that courts were apt to find Wednesbury unreasonableness too readily, evidencing a slippage from examination of the integrity of the process to mere matters of good administration. He proposed the "Integrity Branch" as a conception in which the case law on judicial review might develop without compromising judicial legitimacy2.

Against this background, it is with a degree of hesitation that I refer to the reformulation of Wednesbury unreasonableness in Minister for Immigration and Citizenship v Li3, a decision which Associate Professor McDonald points out is the first occasion on which the Court has invalidated an administrative decision on the ground of unreasonableness for many years4.

Unsurprisingly, it has attracted a good deal of commentary including, most recently, Beazley P's analysis in the context of her comprehensive review of the development of the unreasonableness ground in the Whitmore Lecture5.

As that review amply demonstrates, the requirement of reasonableness in the exercise of a statutory discretion formed part of the law long before the decision in Association Provincial Picture Houses Ltd v Wednesbury Corporation6. The majority's abandonment in Li of Lord Greene MR's circular formulation7 in favour of the standard of reasonableness indicated by the construction of the statute, will not, I trust, be seen as ushering in an inevitable slide into merits review. Nor should disavowal that the standard of reasonableness is limited to the "irrational" or "bizarre" be so seen.

Li may be thought to illustrate the point: the Migration Review Tribunal's decision not to adjourn the proceedings because in its estimate Ms Li had a sufficient opportunity to present her case may not qualify for either epithet. Nonetheless, with the exception of Collier J, who

upheld the challenge on a view that the Tribunal had failed to properly consider Ms Li's adjournment application, at each level of the hierarchy, each judicial officer seized with the matter found the Tribunal's exercise of its discretion to be legally unreasonable. The conclusion may have been arrived at more readily because the discretion was one with which, as Gageler J applying the Wednesbury test observed, courts are familiar8.

The application of the reasonableness standard to the review of reasons for attaining a state of satisfaction on which jurisdiction is conditioned may present greater difficulty. The majority in Minister for Immigration and Citizenship v SZMDS were agreed on the requirement of logically probative material to support the decision-maker's conclusion but were divided on the application of the test9.

Heydon J applying formal logic found it unnecessary to address the question10.

The challenge was to the Refugee Review Tribunal's rejection of the applicant's claim to fear persecution in Pakistan on the ground of his sexuality in circumstances in which he had admitted to having voluntarily returned to Pakistan for a holiday. The want of logic on which the applicant relied was the Tribunal's failure to explain how his sexuality might have come to be known in the course of a short holiday. The entry point in Heydon J's analysis was that it was the applicant's case that his sexuality would come to be known at some time following his return to Pakistan. While it may be less likely that it would come to be known in a short period, Heydon J reasoned that it could not be said to be illogical for the Tribunal to accept the postulate for the applicant's case. It may be that vitiating illogicality is a concept somewhat more expansive than the rules of formal logic would allow, but as the differing views of Hill J at first instance and Whitlam J, in dissent, in the Full Court of the Federal Court in Eshetu

underscore so pointedly11, illogicality will not uncommonly be a matter of opinion.

Case17, contended that the equivalent prerogative power was itself reviewable.

Earlier this year, French CJ, speaking of the reasonableness standard in administrative law, drew an analogy with Heisenberg's uncertainty principle in mathematics. Up to then my only acquaintance with Heisenberg was through "Breaking Bad", but as I grasped the gist of his Honour's analogy, it was to warn that the shades of meaning of reasonableness "can tempt courts applying it in judicial review to stray beyond their proper constitutional functions"12. The same concern led Spigelman CJ to remind his Integrity Branch audience that judicial legitimacy is the core of the scope and content of judicial review13.

Each contention received short shrift in the High Court. The purpose of s 5 was said to be to confer power of the same kind as exercised by the Attorney-General in England. These powers with respect to the institution and maintenance of proceedings on indictment were explained by Viscount Dilhorne in Gouriet v Union of Post Office Workers18:

In the field of the criminal law Australian courts have resisted the Imperial march of administrative law for reasons which reflect another aspect of our conception of judicial legitimacy. Decisions that come within the umbrella of "prosecutorial discretion": finding a bill of indictment whether ex officio or after committal for trial; offering no evidence; the entry of a nolle prosequi and the election not to call a witness are treated as insusceptible of judicial review. By contrast, for more than twenty years courts in England have reviewed decisions of the Crown Prosecution Service (the CPS) to prosecute and not to prosecute.

In one respect the difference may be surprising since the power to prosecute on indictment in the Australian jurisdictions has been sourced in statute almost since the earliest days of the colony. Section 5 of the Australian Courts Act 1828 conferred power on the Attorney-General and other officers appointed for the purpose to prosecute all crimes cognisable in the courts. It was a power which was described by Stephen CJ as vested in the AttorneyGeneral without supervision, limitation or control14. This was conformable with the view taken of the English AttorneyGeneral's prerogative power to enter a nolle prosequi or to present an ex officio information15.

This orthodoxy was challenged by Alexander and Thomas Barton following the Attorney-General's decision to file an ex officio indictments against them before the conclusion of their committal hearing16. The determination was made under the power conferred by s 5 before the establishment of the Director of Public Prosecutions. The Bartons argued that the power, being statutory, must be subject to review. Their alternative argument, which anticipated the decision of the House of Lords in the GCHQ

[The Attorney General] may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to the control and supervision of the courts.

Gibbs A-CJ and Mason J in their joint reasons in Barton considered that it had not been the Parliament's intention to make the New South Wales' AttorneyGeneral's decision to file an information subject to review. Importantly, their Honours pointed out that it was considered undesirable for the court whose function is to determine guilt or innocence to become too closely involved in the determination of whether a prosecution should be brought19.

The foundations for the modern English approach are sourced in decisions which predate the GCHQ Case, starting with R v Commissioner of Police of the Metropolis; Ex parte Blackburn20. In the mid-1960s there was a question as to whether roulette and other games in which the bank had an advantage were made unlawful under the English gaming legislation. Pending the determination of this question in the Kursaal Casino case, the Commissioner of the Metropolitan Police issued a directive that police were to cease routine policing of gaming clubs21.

Mr Blackburn, a private citizen, moved in the Divisional Court for mandamus to compel the Commissioner to enforce the gaming laws. The motion was dismissed and Mr Blackburn appealed to the Court of Appeal. By the time the appeal came on, the unlawfulness of roulette had been confirmed by the House of Lords22 and the Commissioner had made clear that it was the intention of the Metropolitan Police to enforce the law in accordance with the decision. Mr Blackburn's appeal

was dismissed but not without the Court addressing its power to compel the Executive to enforce the law.

Lord Denning MR observed that there were many areas of the Commissioner's discretionary powers with which the courts would not interfere. However, he allowed an exception in the case of a policy decision not to enforce the law in some particular respect23.

To similar effect, Edmund-Davies LJ said that English law was not powerless against those appointed to enforce it who "merely cocked a snook at it"24. Salmon LJ, in less colourful terms, expressed the same view25.

The statements in Blackburn and two decisions in which judicial review went to supervise the exercise of discretionary powers by bodies having prosecutorial functions, the Race Relations Board and the General Counsel of the Bar26, were relied upon by the Divisional Court in holding it had the power to review the decision of the CPS to prosecute two juveniles: R v Chief Constable of the Kent County Constabulary; Ex parte L27. The decisions were sought to be impugned on Wednesbury grounds. Watkins LJ doubted the availability of judicial review of the decision of the CPS to prosecute an adult: the danger of opening the door too wide to the review of prosecutorial discretion was manifest in such cases.

This was by way of contrast with the "special position" of juveniles. The legal, as distinct from policy, basis for the distinction was not explored. In particular, there was no consideration of the compatibility of review with the separation of judicial and executive functions.

Within four years of the decision in L, the Divisional Court in R v Director of Public Prosecutions; Ex parte C28 entertained an application for judicial review to quash the decision not to prosecute an adult for the offence of buggery. The proceeding came before Kennedy LJ and appears to have been argued upon common ground that the Court had power to review the decision, albeit the power was to be "sparingly exercised"29. The Director of Public Prosecutions was required, under his statute, to issue a Code for Crown Prosecutors giving guidance on the general principles to be applied to the decision to institute proceedings.

Kennedy LJ held that it would be appropriate for the court to intervene where the Director made the decision not to prosecute applying an unlawful policy, or failing to correctly apply the policy in the Code, or if the decision was perverse.

The Code required prosecutors to consider the sufficiency of the evidence 09

to support a prosecution. Kennedy LJ found the prosecutor's decision in C was flawed because he had failed to properly assess the sufficiency of the prosecution proofs and available lines of defence30.

The decision was set aside and the matter was remitted to the Director of Public Prosecutions for reconsideration.

The issue was touched on here in Jago v District Court (NSW)31 by Gaudron J. Her Honour observed that the unreviewability of the prosecutor's discretion had been seen initially as an aspect of the prerogative power but that more recently it had come to be seen as deriving from the nature of the subject matter and the incompatibility of judicial review with the ultimate function of the court in a criminal trial32. The analysis was developed in her joint reasons with Gummow J in Maxwell v the Queen33. There the sentencing judge rejected the accused's plea of guilty to a lesser offence which had been accepted by the prosecution in satisfaction of the indictment. In question was the Court's power to do so. In the Court of Criminal Appeal, Gleeson CJ (as he then was) characterised the issue as at the margin between executive and judicial power34.

His Honour considered it fell on the judicial side of that divide.

Mr Maxwell appealed successfully to the High Court. Gaudron and Gummow JJ pointed out that there could be no doubt as to the Director of Public Prosecution's power to enter a nolle prosequi or to refuse to offer evidence35. The existence of either power denied that the court could require that the accused be tried on a more serious charge than the charge on which a plea had been accepted. Their Honours went on to say36: It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

This statement of principle was endorsed by five members of the High Court in Likiardopoulos v The Queen37.

10 | BRIEF AUGUST 2017

In separate reasons, French CJ allowed that the existence of the jurisdiction conferred on the High Court by s 75(v) of the Constitution and the constitutionally protected supervisory role of the Supreme Courts of the States raises a question of whether there is any statutory power or discretion which, as a matter of principle, can be said to be insusceptible of judicial review38.

Nonetheless, his Honour described the general unreviewability of prosecutorial decisions as resting on the impartiality of the judicial process and the separation of judicial and executive powers39.

French CJ had considered the review of prosecutorial discretion in the context of the powers conferred on the Director of Public Prosecutions under the Constitution of Fiji when he sat as a member of the Supreme Court of Fiji in Matalulu v Director of Public Prosecutions40. The claimant sought judicial review of the decision of the Director of Public Prosecutions to enter a nolle prosequi bringing to an end a private prosecution that the Director had taken over. The court said that the Director of Public Prosecutions' powers, sourced in the Constitution, were not to be treated as a modern formulation of ancient prerogative authority and were subject to established principles of judicial review.

The Privy Council approved the reasoning of the Court in Matalulu in dealing with a like challenge to the exercise of the discretionary powers of the Director of Public Prosecutions of Mauritius41. Lord Bingham gave the reasons of the Privy Council, distinguishing Gouriet as a case concerned with a non-statutory power deriving from the royal prerogative42. His Lordship observed that the Mauritian Director of Public Prosecutions' position was more closely aligned with that of the Director of Public Prosecutions in England whose decisions had been held not to be immune from review43. The reference was to Kennedy LJ's judgment in Ex parte C and the decisions following it.

The Canadian courts share the Australian concern with the incompatibility of judicial review of the exercise of prosecutorial discretion44. Recently, in R v Anderson, the Supreme Court of Canada, affirming its earlier statement in Power, said45: The Crown cannot function as a prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it.

The English courts have tended not to analyse the question in terms of the separation of powers. Underlying the English approach is a concern that immunising prosecutorial discretion from judicial review may deny the victim any means of redress. This explains why a different test of lesser stringency is applied to the review of decisions not to prosecute46.

The approach is exemplified by the decision in R v Director of Public Prosecutions, Ex parte Manning47. A prisoner died of asphyxia while being carried by prison officers following an incident. The Coroner's jury returned a verdict of "unlawful killing". The Director of Public Prosecutions considered that there was insufficient evidence against any individual to justify a prosecution for manslaughter. The Director briefed senior Treasury counsel to review his decision.

Counsel provided a detailed advice agreeing with the Director's conclusion.

In the result the Director determined not to prosecute any person.

The sisters of the deceased brought an application for judicial review. In the Divisional Court Lord Bingham observed that it will often be impossible to stigmatise a judgment whether to prosecute or not as wrong even if one disagrees with it48. Nonetheless, his Lordship cautioned that the standard of review should not be set too high, since it is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied49. His Lordship approached the application on a view that the death of a person in custody must always raise concern and where following an inquest the jury returns a verdict of unlawful killing the "ordinary expectation would naturally be that a prosecution would follow"50.

A number of flaws in the reasoning of counsel who conducted the review were identified in Manning. These were matters that should have been taken into account in assessing the prospects of a successful prosecution and the failure to do so vitiated the Director's decision.

The decision was quashed and the matter remitted to the Director of Public Prosecutions for reconsideration.

Manning is not the only occasion on which the Court has directed the Director of Public Prosecutions to reconsider a decision not to prosecute in a case in which a Coroner's jury has returned a verdict of unlawful killing51. So, too, the Court has directed reconsideration of a decision not to prosecute where the victim of an assault has been awarded damages in a civil action. The Divisional

Court held that "very careful analysis" was required if the Director of Public Prosecutions was to determine not to institute a criminal prosecution in light of the detailed findings made by the judge in the civil action52.

Analysis of the sufficiency of evidence to support a successful prosecution may strike an Australian audience as in tension with maintenance of the court's impartiality, a perspective informed by the strict separation of powers for which our Constitution provides. Equally, to an Australian audience, the concept of the victim's "right" to seek redress against a decision of the Director of Public Prosecutions not to prosecute may seem in tension with the assumptions on which our system of adversarial criminal justice proceeds.

The English approach at least in some respects reflects wider European influences. In 1985, the Committee of Ministers of the Member States of Europe adopted a recommendation that victims should have the right to seek a review of a decision not to prosecute. Such a right was incorporated as proposed Article 10 in a draft Directive of the European Parliament53.

The draft Directive was adopted by the European Parliament in October 201254. The Directive formally establishes minimum standards on the rights, support and protection of victims of crime. Article 11 requires Member States to ensure that victims have the right to a review of a decision not to prosecute.

The existence of a right of this kind was recognised by the Court of Appeal (Criminal Division) in R v Killick55. In February 2006, two complainants, who each suffered from cerebral palsy, reported to the police that Mr Killick had sexually assaulted them. In April 2006, Mr Killick was arrested and interviewed by the police. He denied the allegations. In June 2007, the CPS advised Mr Killick of its determination not to prosecute him.

Following that determination, the complainants' solicitors wrote to the CPS asserting that the decision was unreasonable, in breach of the Code of Practice for Victims of Crime and contrary to provisions of the disability discrimination legislation56. The CPS instituted an internal review which appears to have been rather elaborate.

It took two years. Independent senior counsel was briefed to advise whether all relevant considerations had been taken

into account and whether the decision was legally reasonable. In July 2009, the reviewing officer found that the decision was the correct decision57.

Following this determination, the complainants' solicitors advised the CPS of their clients' intention to commence judicial review proceedings. This advice prompted a further review. Ultimately, the Director of Public Prosecutions accepted advice that his earlier decision was wrong although not legally unreasonable. It was determined that it was in the public interest to prosecute Mr Killick. The complainants were informed of the decision in December 2009. Mr Killick was not informed of the new decision until February 2010, when he was summoned to appear before the Magistrates Court. He applied unsuccessfully for a stay of proceedings on the ground that their continuance amounted to an abuse of process.

In December 2010, Mr Killick was convicted by majority verdict of a number of counts. He was granted leave to appeal against his convictions on a ground which challenged the refusal to stay the proceedings. In dismissing his appeal, the Court of Appeal characterised the Director of Public Prosecutions' initial

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decision as in reality "a final decision for the victim"58. Their Lordships said that English law recognised the right of the victim to a review of a decision not to prosecute consistently with the right declared in the draft Directive. In the result, although the delay in the conduct of the review had been lamentable, it had not amounted to an abuse of process.

The focus on the rights of the victim is prominent in the analysis of Toulson LJ in R (B) v Director Public Prosecutions59 upholding an application for review of the Director's decision to discontinue a prosecution. The decision reflected the prosecutor's view that the victim could not be put before the Court as a reliable witness. The view was informed by a psychiatric report which set out the victim's history of psychotic illness which included that he had at times held paranoid beliefs about certain people.

In the psychiatrist's opinion, the victim was suffering from a mental condition which might affect his perception and recollection of events so as to make his account unreliable.

Judicial review was sought on the ground that the decision to discontinue the prosecution was irrational, failed to have regard to the need to promote equality of opportunity and violated the victim's rights under the European Convention on Human Rights (ECHR). Toulson LJ observed that the victim had given a coherent, and on its face credible, account of the events at a time when they were fresh in his memory. There was no evidence that he entertained hostility towards the defendant or that he had held paranoid beliefs about the defendant. His Lordship noted that the CPS had not attempted to discuss the psychiatrist's report with the victim or his solicitors. His Lordship was troubled by the logical implication of the reasons for discontinuing the prosecution: any person suffering from a mental illness might be assaulted with impunity absent independent evidence.

Toulson LJ concluded that the prosecutor's reasoning was irrational60 and that the decision to terminate the prosecution had been unlawful. It had occasioned humiliation in violation of the claimant's rights under the ECHR. While it could not be assumed that the trial would have resulted in the conviction of the defendant, the complainant was entitled to be compensated for deprivation of the opportunity of having the proceedings run their proper course. He was awarded damages for the injury to his self-respect occasioned by being made to feel that he had been beyond the effective protection of the law.

12 | BRIEF AUGUST 2017

As Keir Starmer QC, the English Director of Public Prosecutions has noted, the "right" recognised in Killick to have a decision not to prosecute reviewed does not turn on unreasonableness in the Wednesbury sense but on the less demanding test of whether the original decision was "wrong"61. He points to the far-reaching consequences of the right.

Prosecutors had been reluctant to reopen a decision not to prosecute once the decision had been communicated to the prospective defendant.

Mr Starmer observes62: [As] Killick recognises, once the interests of the victim are factored in, finality for the suspect has somehow to be adjusted to accommodate the 'right' of the victim to 'seek a review' of a decision not to prosecute.

Neither the Killick judgment, nor the draft EU Directive referred to in it, qualify that 'right' and so, presumably, it is available to all victims and not just in special or exceptional circumstances and, equally importantly, presumably the 'right' to a review can only have practical effect if it carries with it a right to have reserved any decision which, on review, is found to be wrong.

This change in approach to the finality of his decisions is said by Mr Starmer to be in line with other adjustments to criminal trial process in recent years of which the most far-reaching was the amendment to the law of double jeopardy63.

In light of Killick, the CPS has established the Victims' Right to Review Scheme (VRR). The victim is given a right to request a review of a decision not to prosecute or to terminate criminal proceedings. The right is limited to "qualifying decisions" which cover all those decisions that result in no prosecution of any person for any offence arising out of an incident. The Administrative Division has distinguished these qualifying decisions from "operational prosecutorial decisions"64.

The latter, being decisions which affect the scope of the prosecution, including the selection of the charge and the number of suspects to be charged.

Operational decisions are not susceptible of review. The Administrative Division has said that the prosecutor's independent judgment should be safeguarded rather than subjected to a generalised right of review and to the defensive considerations which could so easily result65. A right to review all cases where charges were brought against some, but not all, suspects would significantly

undermine operational prosecutorial discretion and have potentially serious resource implications for the CPS. Gross LJ considered that removal of the limitation of "qualifying decisions" under the VRR would risk disturbing the balance between what he identified as the three interests in the prosecution: the State, the defendant and the victim66.

The characterisation of the victim as having a distinct "interest" in the prosecution is notable. It is in line with the European Parliament's Directive and perhaps with changes in international criminal law under which victims are classed as participants in proceedings before the International Criminal Court and the Special Tribunal for Lebanon67.

The criminal law has long been conceived of as vindicating the interests of society generally and the prosecutor as representing those interests, as distinct from the interests of the investigating police or the victim68. It is the distinction that Blackstone drew between private and public wrongs, with the latter violating the rights and duties that are due to the whole community "in its social aggregate capacity"69. The conception of the victim as having a discrete "interest" in the prosecution under our adversarial criminal trial process is controversial.

Even more so, is the idea mooted on occasions here, as in England, that the victim should be separately represented at the criminal trial70. Among other things, it is an idea that is apt to wrongly give rise to a perception of the criminal trial as a contest between victim and the accused.

Under a system of criminal justice which requires proof beyond reasonable doubt, that is a perception which hardly does a service to the victim.

The English courts have expressed concern about the impact of judicial review on delays in the Crown court71.

One recent instance involved an application to review the decision to prosecute, which followed the complainant's successful application to review the earlier decision not to prosecute72. Notably, when the New Zealand Law Commission considered the matter in a referral on criminal procedure, it reported that judicial review of prosecutorial discretion attracted more adverse comment than any other proposals73. Concerns about delay and fragmentation of the criminal process74 have evident force but the justification for the Australian reticence lies in considerations of judicial legitimacy and the incongruity of the court supervising the decisions of one party to prospective litigation before it.

NOTES:

33.

(1996) 184 CLR 501.

1.

JJ Spigelman, "The Integrity Branch of Government" (2004) 78 Australian Law Journal 724.

34.

R v Maxwell (1994) 34 NSWLR 606 at 608.

35.

2.

JJ Spigelman, "The Integrity Branch of Government" (2004) 78 Australian Law Journal 724 at 736-737.

Director of Public Prosecutions Act 1986 (NSW), s 7(2) (b).

36.

Maxwell v The Queen (1996) 184 CLR 501 at 534.

3.

(2013) 249 CLR 332.

37.

4.

McDonald, "Rethinking Unreasonableness Review" (2014) 25 Public Law Review 117.

5.

Beazley, "Judicial Review & The Shifting Sands of Legal Unreasonableness", (12 October 2016).

(2012) 247 CLR 265 at 280 [37] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; and, see Elias v The Queen (2013) 248 CLR 483 at 497 [34]; Magaming v The Queen (2013) 252 CLR 381 at 390 [20].

38.

(2012) 247 CLR 265 at 269-274 [4].

6.

[1948] 1 KB 223 and see Minister for Immigration v Li (2013) 249 CLR 332 at 348-351 [23]-[29] per French CJ; 362-366 [64]-[73] per Hayne, Kiefel and Bell JJ.

39.

(2012) 247 CLR 265 at 269 [2].

40.

[2003] 4 LRC 712.

41.

Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343 at 3348 [11].

7.

Minister for Immigration v Li (2013) 249 CLR 332 at 364 [68].

42.

8.

Minister for Immigration v Li (2013) 249 CLR 332 at 377 [112].

Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343 at 3350 [14].

43.

9.

(2010) 240 CLR 611.

Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343 at 3351 [14].

10.

(2010) 240 CLR 611 at 628[57]-[58].

44.

11.

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300.

Kostuch (Informant) v Attorney General of Alberta (1995) 128 DLR (4th) 440 at 449; R v Power (1994) 1 SCR 601 at 622-623.

12.

R French, "Rationality and Reasonableness", (27 April 2016, ANU Canberra).

45.

R v Anderson (2014) 2 SCR 167 at 184 [32] citing R v Power (1994) 1 SCR 601 at 627.

13.

JJ Spigelman, "The Integrity Branch of Government" (2004) 78 Australian Law Journal 724 at 737.

46.

14.

R v Macdermott (1844) 1 Legge 236 at 237; and see R v McKaye (1885) 6 LR (NSW) 123.

Ex parte Kebiline [2000] 2 AC 326; R (Corner House Research & Another) v Director of Serious Fraud Office [2009] 1 AC 756; R (E) v Director of Public Prosecutions [2012] 1 Crim App R 6 at [50].

15.

R v Allen (1862) 1 B & S 850 [121 ER 929]; R (on the Prosecution of Tomlinson) v Comptroller-General of Patents, Designs and Trademarks [1899] 1 QB 909 at 914 per AL Smith LJ.

16.

Barton v The Queen (1980) 147 CLR 75.

17.

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

18.

[1978] AC 435 at 487.

19.

(1980) 147 CLR 75 at 94-95.

20.

[1968] 2 QB 118.

21.

Crickitt v Kursaal Casino Ltd [1968] 1 WLR 53.

22.

Crickitt v Kursaal Casino Ltd [1968] 1 WLR 53.

23.

R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 136-137.

24.

R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 148.

25.

R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 138-139.

26.

R v Race Relations Board; Ex parte Selvarajan [1975] 1 WLR 1686; R v General Council of the Bar; Ex parte Percival [1991] 1 QB 212.

27.

R v Chief Constable of the Kent County Constabulary; Ex parte L (a minor) [1993] 1 All ER 756.

55.

R v Killick [2012] 1 Crim App R 10.

56.

R v Killick [2012] 1 Crim App R 10 at [27].

28.

[1995] 1 CR App 136.

57.

R v Killick [2012] 1 Crim App R 10 at [28], [34].

29.

[1995] 1 CR App 136 at 140.

58.

R v Killick [2012] 1 Crim App R 10 at [48].

30.

[1995] 1 CR App 136 at 144-145.

59.

[2009] 1 WLR 2072.

31.

(1989) 168 CLR 23.

60.

32.

(1989) 168 CLR 23 at 77.

R (on the application of B) v Director of Public Prosecutions [2009] 1 WLR 2072 at 2088 [55].

61.

Starmer QC, "Finality in Criminal Justice: When Should the CPS Reopen a Case?", [2012] Criminal Law Review 526 at 527.

62.

Starmer QC, "Finality in Criminal Justice: When Should the CPS Reopen a Case?", [2012] Criminal Law Review 526 at 528.

63.

Starmer QC, "Finality in Criminal Justice: When Should the CPS Reopen a Case?" [2012] Criminal Law Review 526 at 530-531.

64.

R (On the application of Abida Chaudhry) v Director of Public Prosecutions [2016] EWHC 2447 (Admin) at [46] (iv).

65.

R (On the application of Abida Chaudhry) v Director of Public Prosecutions [2016] EWHC 2447 (Admin) at [46] (i).

66.

R (On the application of Abida Chaudhry) v Director of Public Prosecutions [2016] EWHC 2447 (Admin) at [46] (iv).

67.

Rome Statute of the International Criminal Court, 2187 UNTS 90, art 68(3); Statute of the Special Tribunal for Lebanon, S/RES/1757, art 17. Victims may apply to become civil parties before the Extraordinary Chambers in the Courts of Cambodia; McAsey, "Victim Participation at the International Criminal Court and its Impact on Procedural Fairness" (2011) 18 Australian International Law Journal 105 at 105-106.

68.

Beccaria, An Essay on Crimes and Punishments, New edition (1872) at 16; Ashworth, The Criminal Process: an evaluative study (1994) at 34-37; Cowdery, Challenges to Prosecutorial Discretion (2013) 39(1) Commonwealth Law Bulletin 17 at 19.

47.

[2001] QB 330.

48.

R v Director of Public Prosecutions; Ex parte Manning [2001] QB 330 at 344 [23].

69.

Blackstone, Commentaries on the Laws of England, 1st ed, Vol 4 at 5.

49.

R v Director of Public Prosecutions; Ex parte Manning [2001] QB 330 at 344 [23]; and, see R (Corner House Research & Anor) v Director of Serious Fraud Office [2009] 1 AC 756.

70.

50.

R v Director of Public Prosecutions; Ex parte Manning [2001] QB 330 at 347 [33].

51.

R v Director of Public Prosecutions, Ex parte Jones (Timothy) [2000] Crim LR 858.

52.

R v Director of Public Prosecutions, Ex parte Treadaway (unreported, 31 July 1997, DC).

53.

European Commission, Brussels, 18 May 2011, Proposal for a Directive of the European Parliament and of the Council Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, COM(2011) 275 final at 8.

Ashworth, "Punishment and Compensation: Victims, Offenders and the State", (1986) 6(1) Oxford Journal of Legal Studies 86 at 120; Braiden, "The Case for Separate Legal Representation for Rape Victims", (1999) 93(1) Law Society Gazette 5; Currie and Kift, "Add Victims and Stir? Or Change the Recipe?

Achieving Justice for Victims of Crime in Queensland" (1999) 6 James Cook University Law Review 78 at 107; Kirchengast, "The Integration of Victim Lawyers Into the Adversarial Criminal Trial", paper delivered at the Australian and New Zealand Critical Criminology Conference at the University of Sydney, 1–2 July 2010; Braun, "Legal Representation for Sexual Assault Victims – Possibilities for Law Reform" (2014) 25 Current Issues in Criminal Justice 819.

71.

R v A(RJ) [2012] 2 Crim App R 8 at [80].

54.

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, 2012 OJ L315/57.

72.

R (S) v Director of Public Prosecutions [2016] 1 WLR 804 at 813 [31].

73.

Law Commission (NZ), Criminal Prosecution, Report 66, October 2000 at 27 [64].

74.

R (Corner House Research & Anor) v Director of the Serious Fraud Office [2009] 1 AC 756; R (E) v Director of Public Prosecutions [2012] 1 Crim App R 6 at [50]; R v Director of Public Prosecutions; Ex parte Kebiline [2000] 2 AC 326 at 371 per Lord Steyn, 372 per Lord Cooke of Thorndon; R v Panel on Takeovers and Mergers; Ex parte Fayed [1992] BCC 524; R v Inland Revenue Commissioners; Ex parte Allen [1997] STC 1141.

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13

Sleeker, faster, cheaper IP litigation under the New Federal Court of Australia Intellectual Property Practice Notes

be dispensed with and substituted by a summaries outlining the nature of the dispute, the issues and the contentions. This Fast Track note has been revoked and replaced by an apparently broader direction that, read in conjunction with a new Central Practice Note, the parties should engage in innovative processes to expedite and abbreviate the interlocutory process.

Request for Expedition (previously Fast Track)

By David Stewart Principal, Williams + Hughes

4.4 The Court notes that “parties may seek an expedited or truncated hearing process and a tailored or concise pleading process in any proceeding.”

The Federal Court of Australia has implemented innovative ways of dealing with interlocutory processes, especially in the field of intellectual property.

4.5 The former Fast Track mechanisms permitted parties to seek a quicker or truncated hearing process than usually available and to use more informal pleadings than usual.

The Fast Track procedure, or other effective and commercially sensible methods of commencing or expediting a proceeding or introducing informal pleadings processes, remains open to the parties in this NPA.

The new IP Practice Note took effect from 25 October 2016. Some important new issues for practitioners come out of this: a. There is now a Intellectual Property NPA (national practice area), under a National Coordinating Judge, with dedicated judges allocated IP matters in an effort to perpetuate, amongst other things, a “consistent national practice”. b. The Federal Court had a ‘Fast Track’ regime, where by pleadings can 14 | BRIEF AUGUST 2017

4.6 If a Fast Track or other expedited proceeding process is appropriate, the Court will attempt to provide a judge who has the necessary time available to devote to an expedited process and hearing. The parties

should make David Stewart plain at the time of filing any request for a truly expedited procedure and hearing.

4.7 The parties should otherwise make plain at the first case management hearing any request for an informal or abbreviated pleadings process. c. the parties must now inform the Court prior to the Case Management Conference of the intellectual property subject matter of the dispute: 4.3 at least 7 days prior to the first case management hearing (or earlier if the docket judge so requires), copies of the following documents are filed and served:* any patent upon which the applicant sues;* any trade mark registration or certificate of registered design upon which the applicant sues;* any patent application which is the subject of the appeal;* any application for a registered trade mark or application for a registered design that is the subject of the appeal;* any written record of the decision (including any reasons) the subject of the appeal.

The last class of documents refers to appeals from the written decisions of the Trade Marks Registrar, the Designs Registrar, and the Patents Commissioner. d. Extensive (and accordingly expensive) discovery now seems not just unlikely, but very unlikely.

With an eye focussed especially upon copyright, the Note says, “In most cases there will not be any need for discovery except where it directly relates to proof of copying, knowledge or intention by or on the part of the party alleged to have infringed or other specific topics directly relevant to an issue in the proceeding. However, the Court is unlikely to make an order requiring extensive discovery unless satisfied that it is necessary for the just disposition of the proceeding.”

Given the apparently weary observations in 2011 of His Honour Justice Applegarth this should not be too surprising. e. Patent litigation receives special attention. Australian courts have been regarded as sitting on the edge of innovation in respect of dealing with evidence provided by patent experts in the ‘hot tub’ method. The new practice note opens the door to the parties applying to the Court for the appointment of a Court expert – on the face of it a very European approach, but one with a basis in section 217 of the Patents Act 1990

which permits a court to appoint an assessor at trial.

f.

Other new rules affecting patents apply to: a. Case management especially relating to experiments and investigations, no doubt to partly mitigate the court’s discretion to exercise of s 135 of the Evidence Act 1995, under which the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing or cause or result in an undue waste of time; b. An early, agreed primers for judges and an agreed glossary of key terms; c. A ‘Position Statement on Infringement’; d. An ‘unambiguous’ description of the product, method or process, which intended to cut across the complexity of interpreting often esoteric patent drafting; e. Early dealings with validity issues to do with priority dates and secondary indicia of inventiveness.

Survey evidence again receives special attention. The utility of survey evidence especially in trade mark matters has been questioned many times by Australian courts and in this note the Court observes surveys’ sometimes ‘questionable utility’.

** The issue of the IP Practice Note coincides with the issue of many other practice notes, including a Central Practice Note. Some of these have obvious and immediate application to intellectual property issues: for example, in considering the question of written evidence the parties should attempt to eliminate the use of unnecessary or prolix affidavits, parties should consider exchanging proofs of evidence of witnesses at an early stage – again, an echo of Justice Applegarth’s sentiments.

Such proofs do not have to be in admissible form and may not require large expense in preparation. They can be exchanged to show the nature of the case to be met; and they will usually be exchanged under order of the Court that prohibits cross-examination upon them or their tendering, except with the leave of the Court.

Master Y O U R P R A C T I C E W I T H T H E L L M ( A P P L I E D L AW )

The coursework has been absolutely relevant to my daily practice. The material that was provided to us throughout the course is constantly being used throughout my practice.

– ADELINE SCHIRALLI

A S S O C I AT E , W I L L I S & B O W R I N G A N D S T U D E N T, T H E C O L L E G E O F L AW L L M ( A P P L I E D L AW )

NEXT SEMESTER COMMENCES 7 AUGUST ENROL ONLINE: collaw.edu.au/alp / 1300 506 402 / alp@collaw.edu.au

15

The Community of Courts in the Asia Pacific Region International Association of Women Judges Conference Amora Jamison Hotel, Sydney, Friday 28 April 2017

Paper by The Hon Susan Kiefel AC Chief Justice of Australia

One of the objectives of the International Association of Women Judges (IAWJ) is to “develop a global network of women judges and create opportunities for judicial exchange”1. The IAWJ Asia Pacific Regional Conference promotes this goal by providing a forum for judicial officers from different legal systems to discuss challenges their courts face in delivering justice and how those challenges might be met. This 2017 Conference focuses upon topics such as how legal systems might better recognise the effects of gendered violence and deal with environmental issues in an age of climate change.

Collaboration between judges from different jurisdictions through conferences of this kind has been described as a feature of an emerging “global community of courts”2. Members of this community are said to recognise one another as participants in a common judicial enterprise, which transcends national borders. They recognise that they “face common substantive and institutional problems; they learn from one another’s experience and reasoning”3.

At a basic level, judicial exchanges foster an understanding between courts and through that understanding, trust and respect may develop. They may provide encouragement and support for judges in countries where the rule of law has come under assault4.

At another level, a benefit of participation in conferences of this kind is exposure to possible legal solutions to emerging legal problems. One writer, speaking in the 1970s in defence of comparative law as an academic discipline, suggested that, at least in the Western world, legal borrowing was the “usual way of legal development”5. A moment’s reflection on the history of the common law and equity would bear this out.

16 | BRIEF AUGUST 2017

The courts of the Asia Pacific region could be regarded as amongst the most collaborative in the world. The region is said to have been the first to secure widespread adoption of a set of principles on judicial independence6. This event occurred in the 20th century and close collaborations between the courts of the region continue today. I will return to this later. At this point it is worthwhile, I think, to consider some earlier historical events.

Legal borrowing is not a novel experience for countries in the Asia Pacific region.

The dialogue between judges of the Asia Pacific region may in part be attributable to the region’s unique history of legal borrowing in the late 19th and early 20th centuries. This historical experience has left an imprint on the modern law of various Asia Pacific countries. It may also have contributed to a world view that is open and receptive to dialogues with the courts of other countries.

Perhaps the most prominent example of legal borrowing is Japan’s transplantation of French and German law during the Meiji Restoration7. In the late 19th century Japanese scholars and officials were travelling to Europe, to survey and discuss the legal codes which had been established or were in the process of being drafted. In the early 1870s two French jurists8 were engaged by the Japanese Ministry of Justice to advise on the drafting of new legal codes. The draft civil code based on the Napoleonic Code, the Code Civil of 1804, did not come into force in Japan but was nevertheless adopted by Japanese judges as “legal principle” until the new code, based on German law, was finalised in 1896.

Japan’s attention shifted to German law in the 1880s, which was about the time that the first draft of what was to become the BGB, or German Civil Code, was being discussed. We can speak of legal

borrowings here too, for the German Code was based upon Roman law. Three German jurists9 prepared a Commercial Code, a Code of Civil Procedure and a Law of Organisation of Courts10 for Japan. Japan’s Civil Code of 1898 was largely modelled on the 1887 draft of the German Civil Code. It is said, even today, that a “stable interest in German law persists” in Japan11.

Japan’s transplantation of European law attracted the interest of Korea and of China. In 1881, King Kojong of Korea ordered a group of senior officials to travel to Japan to observe its society and culture firsthand. The officials who were designated to visit Japan’s Ministry of Justice returned with copies of Japan’s criminal procedure and penal codes.

Although they criticised Japan’s reception of Western laws and civilisation as lacking critical evaluation12, they proceeded to translate its codes. Korea subsequently employed a German diplomat as its first foreign legal adviser13. Laws governing the organisation of the courts and the Constitution of Korea, which were passed at the turn of the 20th century, reflected the growing influence of German and Japanese law in Korea.

China likewise took an interest in Japan’s legal reforms. In the early 1900s, the newly established Law Codification Commission invited Japanese jurists to assist in drafting its new legal codes14. The first three chapters of the Commission’s draft civil code (the “Qing Code”) were drafted by a Judge of the Tokyo Court of Appeals and were modelled on German law as adopted in Japan. Although it did not take effect, on account of the fall of the Qing Dynasty in 1911, later codes were similarly heavily reliant on German and Japanese law15.

Last year I was a member of a delegation comprised of members of the High Court of Australia, the Federal Court of Australia

17

and the Law Council of Australia to China, at the invitation of the President of the Supreme People’s Court of the Republic of China. During that visit we met law professors from universities in Beijing who, to our embarrassment, displayed a not inconsiderable knowledge of both civilian law and the common law. The influence of European law on China’s current civil laws is well recognised. At the same time, the Supreme People’s Court has expressed an interest in the common law’s use of precedent. It will be interesting to observe if the Chinese courts are able to meld this aspect of the common law with their civilian-based codes.

There are other, lesser known, examples of legal borrowing in the Asia Pacific region. They include Nepal’s use of French law as a model for reform in the mid-19th century and Thailand’s borrowing of German and Japanese civil law in the early 20th century. In 1849 the founder of the Rana Dynasty of Nepal travelled to France and Britain. He was inspired by French law and on his return established a “Law Council” to draft a new legal code16. The “Country Code” was adopted in 1854 and remained the principal source of Nepalese law until 1963.

Thailand’s King Rama V appointed a Commission in 1908 to draft civil and commercial codes with the assistance of French jurists. When disputes arose within the Commission as to how Thai and French law should be integrated, King Rama VI established a new Committee and instructed it to draft a code based on the German and Japanese civil codes17.

The extent to which the history of legal borrowing has shaped the development of the relevant legal system varies. These examples however serve to confirm that the borrowing of legal solutions from 18 | BRIEF AUGUST 2017

other countries is not a new phenomenon in the Asia Pacific and that jurists and governments in the past have found ways to collaborate despite barriers such as language, culture and distance.

The major reforms in Japan, Korea and China were not simply passive transplantations of French and German law. That is almost impossible for any legal system which must adapt foreign legal codes to its own society with its unique history and culture. Despite the Korean official’s criticism of the Japanese, Japan’s reforms were in fact heavily debated. By way of example, the draft civil code based on French law was criticised for its failure to take account of Japanese customs such as the traditional extended-family system. The later Chinese Kuomintang Civil Code retained aspects of Chinese social customs and provided for the application of custom in the absence of specific provision in the Code.

The motivation for these reforms and the borrowing of European law by Japan was in large part as a precondition to renegotiation of the “unequal treaties” of the mid-19th century18. Similar treaties are said to have prompted reforms undertaken by China and Thailand. And it is suggested that the Nepalese reforms were attempts to protect the nation from British imperialism19.

It must also be acknowledged that the transplantation of the British and European legal systems in the region was not always the result of a choice exercised by countries in the region.

Nevertheless it has allowed those courts to feel some affinity with other courts beyond their own borders and that has provided a basis for dialogue today. In the common law world the example of India comes to mind. The High Court of Australia and the Supreme Court of India

meet every few years and, by reason of our shared heritage, are able to discuss legal problems common to our systems.

Modern judicial exchanges are not motivated by pressures of the kinds which had been felt by Japan and China. They are undertaken as a matter of choice because of the benefits perceived to flow from them, for example, exposure to other legal solutions and the strengthening of shared norms such as judicial independence and the rule of law.

Contemporary interaction between judges within the global community of courts is characterised by a far greater degree of dialogue than has historically been the case. Conferences such as this provide a forum for judicial officers across the region to collectively reflect on possible solutions to important transnational challenges confronting legal systems. The first session of the 2017 Conference – “The impact of judging on gendered violence” – will address an important issue that is the subject of the Family Violence Best Practice Principles published by the Family Court of Australia and Federal Circuit Court of Australia, the fourth edition of which was released in December 2016.

The success of IAWJ in the Asia Pacific region is perhaps no surprise in light of the growing collegiality between courts in the region. Six years prior to the establishment of IAWJ, the first LAWASIA Conference of Chief Justices of Asia and the Pacific was held in Malaysia in 1985. The goal of the Conference of Chief Justices is to provide an opportunity for “open exchange of views and information amongst Chief Justices”20. Justices of the High Court of Australia regularly attend the Conference and in 2015 the Court co-hosted the 16th Conference which was attended by Chief Justices (or their representatives) from 38 countries.

A significant achievement of the LAWASIA Conference of Chief Justices was the adoption at the 6th Conference in 1995 of the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region. That Statement was adopted by the Chief Justices (or representatives thereof) of 20 nations and has subsequently garnered further support and been referred to in judgments by Justices of the High Court of Australia21 and other courts throughout the region22. In 1997, Chief Justice Brennan of the High Court of Australia described the Statement as “remarkable” in its ability to express “ideals common to legal systems of very different kinds”23.

Chief Justice Gleeson later described the Statement as reflecting “the significance of international co-operation among judges”24.

The Statement was recently reaffirmed by the “Colombo Declaration” signed last August at a Roundtable Meeting of Chief Justices of the Asia Pacific Region in Sri Lanka. That Declaration was signed by the Chief Justices (or representatives thereof) of 15 nations, including by Justice Bell on behalf of the Chief Justice of Australia. The Declaration recommends consideration of “amplification” of the principles in the Statement in light of “social, economic, political and global developments and challenges which affect the maintenance and protection of independence of the judiciary” that have arisen in the past two decades.

There are many other important forums for interaction between judiciaries emerging in the Asia Pacific region.

One is the Asia Pacific Judicial Reform Forum (APJRF), the Secretariat of which is currently chaired by Justice Bell of the High Court of Australia. An important contribution of the APJRF was the publication in 2009 of Searching for Success in Judicial Reform: Voices from the Asia Pacific Experience, a compilation of case studies discussing modern challenges in delivering justice such as delay and corruption. Contributors to the text include current and former judicial officers from Australia, Cambodia, Indonesia, Nepal and the Philippines.

The Asian Business Law Institute was launched in January 2016. Amongst other things, it aspires to provide a forum for members of the legal profession, including judges, to discuss and collaborate in developing business law in the region.25 The High Court of Australia regards dialogue with overseas judiciaries through these forums and other modes of exchange as a priority. The Court has

recently established an International Committee to facilitate dialogue with other judiciaries with a particular focus on our region.26 The Council of Chief Justices is also working to develop a more coordinated approach to interactions between the Australian judiciary and overseas judiciaries and has recently established a Working Group to that end.

There are some courts with whom the High Court will talk but which do not share the same values as other courts such as the rule of law. To courts of some countries in our region, judicial independence means freedom from the pressures of corruption rather than reflecting a separation of powers. Judges of these courts may nevertheless strive to do justice by the people who come before them, within the confines of their legal system. From our perspective, it is preferable to maintain a dialogue about changes which are possible.

I have mentioned the delegation, in 2016, led by the High Court to the Supreme People’s Court of China. A Letter of Exchange was entered into between our courts by which it was agreed to explore opportunities for the development of mutual understanding, education and cooperation between our judiciaries.

This is not to say that an engagement with another court involves the acceptance or legitimisation of any inhumane or unequal treatment of persons coming before that court. These are matters which, if possible, should be discussed.

In discussions I have had in recent times with courts in Malaysia and Brunei, it would appear that Sharia Law is to be applied in some courts. The recent adoption of classic Sharia evidentiary principles stipulating the number and gender requirements of witnesses in the Sharia Evidence Order of the courts of Brunei Darussalam and its Sharia Penal Code27 would appear to disqualify women as witnesses and make it harder to prove gender-based violence28. Given that a focus of this Conference is on violence of this kind, the operation of Sharia Courts in the region might warrant discussion.

The High Court and the Council of Chief Justices recognise the importance of being part of a global community of courts. Forums such as the IAWJ Asia Pacific Regional Conference encourage judges to think of themselves in a similar way. I am sure that its attendees will have a stimulating and productive Conference.

2.

Anne-Marie Slaughter, “A Global Community of Courts” (2003) 44(1) Harvard International Law Journal 191.

3.

Anne-Marie Slaughter, “A Global Community of Courts” (2003) 44(1) Harvard International Law Journal 191 at 193.

4.

Anne-Marie Slaughter, A New World Order (Princeton University Press, 2009)120.

5.

Alan Watson, Legal Transplants: An Approach to Comparative Law (Scottish Academic Press, 1974) 7.

6.

David Malcolm, “Judicial Reform in the 21st Century in the Asia Pacific Region” (2000-2001) LAWASIA Journal 72 at 74 referring to the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.

7.

(1868-1912).

8.

Georges Bousquet and Gustave Boissonade. See Meryll Deane, Japanese Legal system (Cavendish Publishing, 2nd ed 2002) 62.

9.

Carl Friedrich Hermann Roesler, Hermann Techow and Otto Rudorff.

10.

Meryll Dean, Japanese Legal System (Cavendish Publishing, 2nd ed, 2002) 62-67; Professor John H Wigmore, “Legal Education in Modern Japan” (1893) 5 Green Bag 17 at 18.

11.

Harald Baum, “Teaching and researching Japanese law: a German perspective” in Stacey Steele and Kathryn Taylor (eds), Legal Education in Asia: Globalization, Change and Contexts (Routledge, 2010) 89 at 91.

12.

Chongko Choi, “On the Reception of Western Law in Korea” (1981) 9 Korean Journal of Comparative Law 141 at 146.

13.

Chongko Choi, Law and Justice in Korea: South and North (Seoul National University Press, 2005) 17.

14.

Philip C Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford University Press, 2001) 16.

15.

Huixing Liang, The Draft Civil Code of the People’s Republic of China (Martinus Nijhoff Publishers, 2010) xiv.

16.

Professor Kanak Bikram Thapa, “Religion and Law in Nepal” in J Martinez-Torron and W C Durham (eds), Religion and the Secular State: National Reports (Complutense Universidad de Madrid, 2014) 517 at 518.

17.

Alessandro Stasi, General Principles of Thai Private Law (Springer, 2016) 3-4.

18.

Harald Baum, “Comparison of law, transfer of legal concepts, and creation of a legal design: The case of Japan” in John O Haley and Toshiko Takenaka (eds), Legal Innovations in Asia: Judicial Lawmaking and the Influence of Comparative Law (Edward Elgar, 2014) 61 at 68.

19.

Andras Hofer, The Caste Hierarchy and the State in Nepal: A Study of the Muluki Ain of 1854 (Universitatsverlag Wagner, 1979) 40.

20.

http://www.lawasia.asn.au/chief_justices_of_asia_and_ pacific.html.

21.

See, e.g. North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [3] per Gleeson CJ (“The fundamental importance of judicial independence and impartiality is not in question … It was declared in Art 2.02 of the Universal Declaration of the Independence of Justice and in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region”).

22.

See, e.g. Vishaka v State of Rajasthan (1997) 6 SCC 241 (Supreme Court of India); Supreme Court Advocates on Record Association v Union of India (2016) 5 SCC 1 (Supreme Court of India); Republic of the Marshall Islands v American Tobacco Company [2001] MHSC 2 (Republic of the Marshall Islands Supreme Court).

23.

Chief Justice Brennan, “The Significance of the Beijing Statement of Principles of the Independence of the Judiciary” (Speech delivered at the 15th LAWASIA Conference, Manila, 30 August 1997).

24.

Chief Justice Gleeson, “Global Influences on the Australian Judiciary” (Speech delivered at the Australian Bar Association Conference, Paris, 8 July 2002).

25.

Chief Justice French, “Convergence of Commercial Laws – Fence Lines and Fields” (Paper presented at the Doing Business Across Asia – Legal Convergence in an Asian Century Conference, 22 January 2016, Singapore).

26.

High Court of Australia Act 1979 (Cth) s 17(5) provides for the establishment of committees.

27.

Ann Black, "Informed by ideology: A review of the court reforms in Brunei Darussalam" in Andrew Harding and Penelope Nicholson (eds), New Courts in Asia (Routledge, 2010) 337.

28.

Muswah Oral Statement: Brunei Darussalam (presented at the 59th Session of the CEDAW Committee, 27 October 2014), available at http://www.muswah.org/sites/default/files/ MuswahOralStatement59CEDAWBrunei_1.pdf

NOTES: I acknowledge the assistance of the High Court’s Legal Research Officer, Sarah Pitney, in the preparation of this paper.

1.

www.iawj.org/.

19

Mental Health Law Centre celebrates 2017 Law Week Mental Health Law Centre (MHLC) celebrated 2017 Law Week by promoting the Centre’s work and how it assists people with mental illnesses.

MHLC started Law Week with a spot on local radio Heritage FM 107.3 by Principal Legal Officer Faith Cheok, followed by a panel discussion on the Criminal Law (Mentally Impaired) Accused Act 1996 (WA) by lawyer Robert Chasland.

The main event was a seminar on the specialist mental health court Start Court, with keynote speaker Her Honour Magistrate Felicity Zempilas; and finally, a presentation to the psychiatric registrars at Graylands Hospital.

Heritage FM 107.3 Saturday, 13 May 2017 Principal Legal Officer Faith Cheok was interviewed by James Wray, who runs In Your Neighbourhood on HFM 107.3 every Saturday. Faith spoke about MHLC’s advocacy role and Law Week.

CLMIAA panel Monday, 15 May 2017 Lawyer Robert Chasland contributed to a community panel discussion on the reform of the Criminal Law (Mentally Impaired) Accused Act 1996 (WA) (CLMIAA), hosted by Mental Health

Matters 2. Robert joined an expert panel made up of Rowena Davis (Director of Reviews from the Office of the Inspector of Custodial Services), Taryn Harvey (CEO of Developmental Disability WA), Dr Edward Petch (Consultant Forensic Psychiatrist and Director of the State Forensic Mental Health Service), Shaun Nannup (Aboriginal representative who also provided the Welcome to Country) and Margaret Doherty (MHM2 convener and family member speaker). The panel speakers gave nuanced perspectives about the importance of reforming CLMIAA. The diverse audience comprised of distinguished guests, mental health care providers, consumers as well as supporters of reform.

Hon Chief Justice Wayne Martin AC, Chief Psychiatrist Dr Nathan Gibson, Mental Health Tribunal President Michael Hawkins and Chief Mental Health Advocate Deborah Colvin. Guests heard from Magistrate Zempilas (Start Court’s dedicated magistrate), Mark Edmunds (clinical nurse manager) and MHLC lawyer William Stops. Will gave a moving account of how Start Court supported his client through a difficult time in her life.

Lunchtime seminar on Start Court Tuesday, 16 May 2017

Finally, MHLC presented a lecture to Graylands Hospital’s psychiatry registrars.

CEO David Kernohan and Faith Cheok were accompanied by law graduate paralegals Luke Cassidy and Rachael Doraisamy, who spoke about MHLC’s role to help people with mental illnesses, its relationship and dealings with psychiatrists and the medical profession and its experiences with the Mental Health Act 2014 and Mental Health Tribunal.

Presenters discussed the tension that often arises in the relationship between doctors and lawyers as each profession strives to perform its respective role.

The highlight was a full-house lunchtime seminar on the role of the Start Court, the specialist mental health court that operates out of Perth Magistrates Court.

Hosted by MHLC Chair Dylan McKimmie at Norton Rose Fulbright’s offices, the seminar highlighted Start Court’s very important work. Start Court aims to divert and support offenders who suffer a mental illness, thus reducing recidivism rates. Besides keynote speaker Her Honour Magistrate Felicity Zempilas, special guests included the

The Start Court is distinctive in the criminal justice system through its holistic approach to offenders.

Presentation to Psychiatry registrars at Graylands Hospital Thursday, 18 May 2017

YLC: Mental Health Hypothetical

By Alex Noonan Lawyer, Macdonald Rudder; Deputy Convenor, Young Lawyers Committee On Monday, 15 May 2017 the Society's Young Lawyers Committee hosted the YLC: Mental Health Hypothetical, a free CPD event run as part of Law Week. This event demonstrates the Society's ongoing commitment to addressing mental health in the legal profession.

Chance; Jenny Thornton, a partner at Clyde & Co; Libby Fulham, the Deputy Executive Director of Legal Practice Board of Western Australia; and Dr Patrick Michalka, an orthopaedic surgeon who presents on skills and strategies to help overcome anxiety.

The event was run as a panel discussion chaired by Sarah O'Brien-Smith, a lawyer at Hunt & Humphry and Convenor of the Young Lawyers Committee. The panellists were Jenni Hill, a partner at Clifford

The panel discussed three hypothetical scenarios targeting junior lawyers that covered a number of issues including how better to deal with stressful situations, how law firms can better organise

20 | BRIEF AUGUST 2017

themselves, and how lawyers should avoid having work stress creep into their personal lives. Key takeaway points from the seminar were the importance of proper diet and exercise, the need to have proper handovers for files (including when lawyers go on leave), and how better to prioritise workflow.

The Young Lawyers Committee thanks the panellists for their time and insights as to how to improve the mental health of junior practitioners.

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22 | BRIEF AUGUST 2017

Legal Change — The Role of Advocates Sir Maurice Byers Lecture Wednesday, 22 June 2016, Sydney

By The Hon Robert French AC

Introduction I learned from Maurice Byers a great advocate's perspective on the High Court — 'they're just chaps Bob, just chaps' — or so he told me, as we prepared for the hearing in Koowarta v Bjelke-Peterson1 in 1982. As a description of the gender of the Court it was accurate. I learned from him in Fencott v Muller2 in 1983 that one line of dismissive humour could do more for a wide view of the corporations power than an hour of earnest argument. In 1986 on my appointment to the Federal Court he sent me a note expressing confidence that I would eventually be appointed to the High Court. Perhaps he was encouraging me to stay on for the long haul and was relying upon the proposition, a little like the one about monkeys typing Shakespeare, that given enough time almost anything has a finite probability of happening.

Six years later, in 1993, I barely found the strength, when he appeared before me for the plaintiff in Newcrest Mining (WA) Ltd v Commonwealth,3 on remitter from the High Court in all respects save for the constitutional question, to resist his siren song invitation to have a go at the constitutional question anyway. Our encounters were brief, but each a delight in its own way. I have been invited to present many lectures named after significant legal personalities. None has given me greater pleasure than the invitation to present this the 16th Lecture in the series established by the New South Wales Bar Association to honour his memory. There are few public lectures named for advocates. Maurice Byers is properly honoured. He was an important figure in the development of Australian constitutional and public law. He was an unforgettable advocate and as those who had the privilege of working with him know he was a man of integrity, modesty and humour.

A search of the Commonwealth Law Reports discloses that Maurice Byers appeared in the High Court in more than 200 cases between 1946 and 1996. His first reported appearance was as junior

to Spender KC representing one Caldwell who had been convicted of selling meat on the black market contrary to the National Security (Prices Regulations). The meat comprised two pounds and three ounces by weight of gravy beef and four lamb kidneys sold for three shillings and eight pence, being a greater price than the maximum of two shillings and four pence which was fixed in relation to those goods under the Regulations. Mr Caldwell was sentenced to three months imprisonment and hard labour for that offence. The relevant regulation, however, was found invalid on appeal to a Court of Quarter Sessions and the conviction quashed. The informant, represented by two King's Counsels, Mason KC, an uncle of Sir Anthony Mason, and Badham KC, leading Benjafield as junior counsel, appealed by special leave to the High Court. The appeal was allowed and the conviction restored.4 From a small and inauspicious beginning in Horsey v Caldwell, a beginning of the kind familiar to many advocates, Maurice Byers rose to answer the description that Sir Gerard Brennan applied to him in the first of these Lectures as 'one of the towering figures of the Bar'.5 Of his ability to persuade the High Court, Sir Gerard spoke from personal experience: The High Court was his milieu. He knew its members well — indeed, he had led several of us at the Bar. He knew its cast of mind and, I suspect, its internal dynamics. His enjoyment of advocacy there evoked a corresponding judicial response. His forensic triumphs were notable. May I repeat the estimate I made from the bench on an earlier occasion: 'His participation in the work of this Court was perhaps no less on that side of the Bar table than it would have been on this.'6 And in his 2007 Byers Lecture, Justice Heydon remarked on what he called Maurice Byers' 'mesmeric powers over the High Court' and his extraordinarily high rate of victory and correspondingly great influence on constitutional development.7 23

Sir Anthony Mason cast some light on the relationship between Byers at the Bar table and the Justices on the Bench in a paper on the 'Role of Counsel in Appellate Advocacy', delivered to the Australian Bar Association in 1984. Sir Anthony warned his listeners against reading lengthy passages from the Court's decisions saying it was suggestive of a belief that the members of the Court were ravaged

by Alzheimer's disease. He added: The belief is unfounded. It is not shared by Sir Maurice Byers QC. Instead, he attributes to us an elephantine recollection of the most obscure decisions. Almost invariably he introduces a reference to authority by saying: 'Your Honours will forgive me for reminding you of ...'. He often delights in then mentioning a case which is a total stranger.8 My personal encounters with Maurice Byers were relatively few and relatively brief and I have already mentioned most of them, save one which I will mention in closing. It is in part through the prism of his work that I want to say something about advocacy and legal change, perhaps opening with his own modest disclaimer in his 1987 article 'From the Other Side of the Bar Table: An Advocate's View of the Judiciary', when he wrote: [The advocates'] effect upon the law, and thus upon society is second hand, contingent and transmuted; occasionally burlesqued. It is manifested in the judgments of those he has addressed; sometimes it emerges more powerful, subtle and convincing because of its passage through the prism of another reflecting mind. Sometimes not.9

Koowarta, the external affairs power and the Racial Discrimination Act 1975 (Cth) There were many cases in Sir Maurice's long career which could be chosen as a basis for talking about legal change.

For sentimental reasons, I will refer to Koowarta, in which I was briefed as one of two junior counsels led by Sir Maurice as Commonwealth Solicitor-General. It was our first substantive engagement.

The legal question was whether provisions of the Racial Discrimination Act 1975 (Cth) prohibiting discrimination based on race, colour, nationality or ethnic origin, were laws with respect to external affairs. The Preamble to the Act recited that it had been passed to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination to which Australia was a party. The external affairs power had 24 | BRIEF AUGUST 2017

not previously been considered by the Court with respect to a subject so sharply focussed on the domestic behaviours of members of the Australian community in dealing with each other and others.

An expansive interpretation had been foreshadowed in dicta in Burgess' Case in 1936.10 Chief Justice Latham thought it impossible to say a priori that any subject was necessarily such that it could never properly be dealt with by international agreement.11 Starke J, in similar vein, accepted that the power was comprehensive in terms and must be commensurate with the obligations that the Commonwealth may properly assume in its relations with other Powers or States.12 He floated the criterion that the matter should be 'of sufficient international significance to make it a legitimate subject for international cooperation and agreement'.13 Dixon J said that it could not be supposed that the primary purpose of the external affairs power was to regulate conduct occurring abroad. However it seemed an 'extreme view' that merely because the Executive Government undertook with some other country that the conduct of persons within Australia should be regulated in a particular way, the legislature thereby obtained the power to enact that regulation.14 Evatt and McTiernan JJ approached what Dixon J regarded as the extreme view when they said: the fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement.15 Sir Owen Dixon's 'extreme view' epithet was to be deployed by Daryl Dawson QC, the Solicitor-General for the State of Victoria intervening in support of Queensland in Koowarta, when submitting that the logical conclusion of that view was that there were no limits to the external affairs power. It might, over the course of time, be the vehicle for the obliteration of legislative powers of the States.16 Although there were other decisions on the external affairs power between Burgess in 1936 and Koowarta in 1983,17 no case had dealt with the application of the external affairs power to legislation with such a wide-ranging application to purely domestic conduct. Koowarta was the beginning of a watershed moment in Australian constitutional history. It came before the Court at a time when the question whether the external affairs power extended to the subject matter of all treaties or was confined by a requirement that the subject matter be

international in character or of sufficient international significance was unresolved.

Koowarta set the stage for its resolution.

It had not come squarely before the High Court previously because Commonwealth Governments had generally not ratified treaties on subjects outside their heads of legislative power unless there were State laws in conformity with the treaty.18 Subject to an elusive exclusion of 'colourable treaties' Mason, Murphy and Brennan JJ found the existence of the Convention sufficient to give rise to an external affair.19 Stephen J, the fourth member of the 4-3 majority, maintained a requirement that the Convention had to be on a topic of sufficient international concern.20 A more definitive exposition emerged from the Tasmanian Dam Case,21 decided 14 months after Koowarta. Provisions of the World Heritage Properties Conservation Act 1983 (Cth), giving effect to the Convention for the Protection of the World Cultural and Natural Heritage, were held to be within the external affairs power.22 Again, Maurice Byers appeared for the Commonwealth defending the validity of its legislation against a challenge by Tasmania, represented by Robert Ellicott QC and Murray Gleeson QC, among others, supported by David Jackson QC for Queensland and JD Merralls QC for the Hydro Electric Commission of Tasmania. Byers invoked the views of Mason, Murphy and Brennan JJ in Koowarta as to the scope of the power. Leslie Zines was one of the junior counsel, for Tasmania, uncharitably characterised by some of his academic colleagues as having gone over to the dark side of the force. He described the decision in the case as resolving the issue left unresolved in Koowarta. As he put it: This time a clear majority (Mason, Murphy, Brennan, and Deane) held that the Commonwealth could give effect to any international obligation imposed by a bona fide treaty or by customary international law.

They all indicated that the power was not limited to the fulfilment of obligations.23 Koowarta was a step in a process of change in the interpretation of the scope of the external affairs power. It had a more particular consequence. The Racial Discrimination Act, coupled with s 109 of the Constitution, was later to play a central role in conferring a constitutional protection, as against State and Territory Parliaments, upon the customary native title which was to be recognised by the High Court in 1992. That consequence is discussed later in this Lecture. One of its most politically and socially charged sequelae was the decision of the High

Court in Wik Peoples v Queensland24 that statutory pastoral leases granted under State laws before the enactment of the Racial Discrimination Act did not necessarily extinguish native title.

The possibility therefore arose that native title could be asserted over large areas in which it was thought to have been extinguished by historic leases. If such native title subsisted beyond the time of enactment of the Racial Discrimination Act it would be protected against uncompensated and therefore discriminatory extinguishment

by State laws. The implications for indigenous claimants as well as for the pastoral and mining industries were obvious. In Wik Maurice Byers appeared as leading counsel for the Thayorre People alongside Walter Sofronoff, who represented the Wik Peoples, claiming that the relevant pastoral lease had not extinguished native title.

Factors in legal change There are many variables at play when legal change is effected through the courts, not the least of those variables being their composition at different times.

Generally, however, change occurs within broadly understood boundaries of judicial law-making applicable to the interpretation of the Constitution and statutes made under it and in the development of the common law. For the most part it is incremental. Caseby-case a body of law is built up and evolves through that process. Evolution may be quickened in response to new classes of case thrown up by changing political, social and economic conditions, commercial practice and new technologies. When the possibility of major development arises, be it in the interpretation of the Constitution, in the common law and equity, or a new application of an important statute, more than one plausible choice may be presented.

Where the Constitution and statutes are concerned, any development must take place within the limits set by their texts. Within those limits, even those set by the most tightly drafted statutory text, there are nuances and shades of meaning and sometimes silences. There is no interpretive equivalent of 19th century Newtonian physics to provide complete and determined answers. The uncertainty principle which lies at the heart of much 20th and 21st century physics, expressed mathematically as Δp.Δx ≥ h/2, can roughly be translated as 'nothing in the universe can be nailed down'. Nevertheless it is a principle, not a prescription for cosmic anarchy. Similarly, when it comes to texts, uncertainty underpins meaning, but meaning is not at large. If a constructional choice is identified and made according to rules which reflect the proper function of the interpreter, it can be regarded as legitimate even though reasonable minds may differ about which choice is preferable. This is the case with the Constitution, which uses broad language and has gaps and silences which, according to perspective, leave room for or require implications. The point was made with respect to statutory interpretation and the discernment of legislative intention in a joint judgment of six Justices of the High Court in Lacey v Attorney-General (Qld)25 when they said: Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.26 Textual, contextual, purposive and historical factors will be in play and called upon in advocacy about the interpretation of a constitutional text.

To use a metaphor borrowed from the almost equally difficult area of contested

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market definition in competition law, construction may involve something analogous to a purposive focussing process. The preferred construction may be that which appears to the judge to present the sharpest picture of meaning having regard to the question which is posed. This is a cognitive aspect of judicial decision-making. There is also a volitional aspect for there may in the end be more than one clear and obvious answer to a question and one must be chosen. Advocacy resides in sharpening for the judge a preferred picture and offering reasons for one choice over others. There are many variables in play and it is rarely that one can say that advocacy was determinative as distinct from instrumental. One thing is clear, however. Timid, pedestrian, narrowly focussed or muddled advocacy is likely to have little effect on the outcome of the case, save to allow superior advocacy to make the difference where the choice is a close call.

The dynamics of the interaction Although there has been much literature on the role of the academic writer in influencing judicial decision-making, there is much less on the role of the advocate.

In 2001, Stephen Gageler wrote of the heavy emphasis placed by the adversary system on the role of counsel.27 Ideally, as he described it, the system relies upon all available arguments being put on behalf of the parties or by amici curiae leaving it to the court to evaluate the competing arguments and choose between them. That is an ideal conception and perhaps one which casts the court as a kind of passive receptor.

As he went on to say however: The system in reality has always seen the Court take a significant part in shaping the form of the arguments presented to it. The Court has also been inclined—to different degrees at different times—to formulate

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25

its own solutions to problems independently of the arguments presented.28 A recent example of that phenomenon arose in the course of argument in Williams v Commonwealth,29 which concerned the validity of funding arrangements entered into by the Commonwealth for a National School Chaplaincy Program. In the early stages of the argument for the plaintiff, the Court questioned what became known in the judgment as 'the common assumption' among the parties that the Executive Government of the Commonwealth had power to expend money on activities without statutory authority if they concerned a matter within a head of Commonwealth legislative power. The report of the argument in Volume 248 of the Commonwealth Law Reports shows an unusually high number of questions on that point directed to their beneficiary, senior counsel for the plaintiff in the Special Case.30 Heydon J in his dissenting judgment described, with the aid of colourful metaphor, what ensued: The extent to which the Common Assumption was actually common began to break down when Western Australia began its oral address. It withdrew the relevant part of its written submissions.

Victoria and Queensland followed suit. In due course, the plaintiff and most government interveners withdrew their assertion of the Common Assumption and lined up against the defendants. This great renversement des alliances created a new and unexpected hurdle for the defendants. So the Court was as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night – although the parties were more surprised than ignorant.31 The task of the advocate beneficiary in such a circumstance is to seize the moment. On the other side of the argument it may be to persuade the Court that it is heading in a wrong direction.

Sir Anthony Mason made the point in his paper on advocacy: It sometimes happens in argument that the Court demonstrates a propensity to go off suddenly on a wild frolic of its own. It will express a view which, though not explicitly rejected by the cases, is nevertheless not entirely consistent with the approach which they take.

When this disturbing propensity is manifested counsel is justified in reading the relevant passages from the judgments until all outward signs

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of heresy have been extirpated.32 A picture of the adversarial system which would present the Court as passive receptor of argument, is a caricature.

In the High Court today when the parties come before it for oral argument extensive written submissions in chief and in reply have been filed. The Court has read the submissions. What follows should be an adversarial endeavour as between the parties and an interactive endeavour as between the parties and the Court in which the Court seeks a path to the outcome of the case and principles, pre-existing or developed in the decision itself, which support that outcome.

It is no purpose of this Lecture to discuss the techniques of good appellate advocacy. They are generally well known and Maurice Byers was a master of them, including the use of light touch humour which was not always self-deprecating.

He did demonstrate, however, that it helps to have an established track record and a degree of natural authority with the Court. When, in Fencott v Muller I sat down after presenting my submissions for the respondent in support of an expansive approach to the accrued jurisdiction of the Federal Court and to the corporations power, Maurice Byers rose, intervening for the Commonwealth in support of our side of the argument.

It was not my imagination that the Court suddenly seemed more attentive and more pens seemed to be at the ready. He did not disappoint. I had been taxed in argument by Justice Dawson about the validity of accessorial liability provisions of the Trade Practices Act 1974 (Cth) with the affecting example of an office boy taking a misleading and deceptive message from one company to another.

Maurice Byers observed of what he called 'that wretched office boy' that 'he probably hailed from Victoria' and that he proposed to say nothing further about him. The decision in that case followed the 4-3 divide of a number of important judgments around that time. It was important for what it had to say about the ability of the Federal Court to entertain non-federal claims which were closely connected to the federal claim or claims grounding jurisdiction. That decision and subsequent expositions of the accrued jurisdiction took a lot of the sting out of the failure of the State to Federal crossvesting system as a result of the decision of the High Court in Re: Wakim; Ex parte McNally.33 It was also, I think, conducive to a strengthening of the notion of a national integrated judicial system which was to play a part in the Kable decision,34 another product of the advocacy of Maurice Byers, and the cases which

followed on from it. The Federal Court moved further from its original conception as a court of specialised statutory jurisdiction and in functional terms closer to a court of general civil jurisdiction.

A tipping point for change — Engineers For an advocate to effect a development or change in the law, it is generally necessary that he or she first perceive the existence of possibilities for development. It may be the case that a proposition which has emerged from a line of decisions may be under stress in dealing with novel circumstances to which it nominally applies. Sir Anthony Mason in his paper on advocacy pointed out that persuasion calls not only for mastery of the materials but also for an element of constructive imagination and boldness of approach. He added that it remained a matter of surprise to him that controversial propositions, though supported by some authority, were not subjected to earlier challenge.35 The particular example he chose was R v Marshall; Ex parte Federated Clerks' Union of Australia36 in which the High Court indicated that it might be prepared to reconsider the prevailing narrow interpretation of 'industrial disputes' in s 51(xxxv) of the Constitution.37 However the point was not argued in the Court until the Australian Social Welfare Union Case38 some eight years later.

A paradigm example of a major change whose time had come, although the allocation of credit for the change is somewhat obscured by the passage of time and the paucity of records, was the decision of the High Court in the Engineers' Case39 in 1920. The particular question was whether a Commonwealth industrial award could bind Western Australian State entities. The question could have been answered in favour of the Commonwealth even within the existing doctrine of inter-governmental immunities on the basis that the State entities were engaged in trading activities.40 Instead, the Court took the opportunity to overturn that doctrine along with the doctrine of reserve State powers which was a kind of implied carve-out from Commonwealth heads of power.

There is no transcript of the argument in the case, which took six days. Some credit for the change was later claimed

by Robert Menzies who at the age of 25 as a barrister of two years standing, appeared for the Amalgamated Society of Engineers. In his book Central Power in the Australian Commonwealth published in 1967,41 he recounted that

he was putting the argument that the State entities were trading enterprises when Starke J intervened saying '[t] his argument is a lot of nonsense.'

Menzies, in what he said was an 'inspired moment', agreed. Chief Justice Knox asked why he was putting the argument if he agreed it was nonsense. Menzies replied '[b]ecause ... I am compelled by the earlier decisions of this Court. If your Honours will permit me to question all or any of these earlier decisions, I will undertake to advance a sensible argument.'42 He was given leave to challenge the decisions, the case was adjourned to allow for interveners to participate and the rest, as they say, was history. Sir Gerard Brennan in a paper entitled 'Three Cheers for Engineers',43 observed that Menzies account did not seem to accord with the entries in the notebooks of Chief Justice Knox and Sir Isaac Isaacs at the time. Isaacs made a particularly detailed note of the argument of counsel for the Commonwealth, Leverrier KC, recording it thus: We say that what is called the reciprocal doctrine in Railway Servants Case is not only not derivable from the Constitution but is inconsistent with it. The powers of the Commonwealth must be ascertained externally by the ordinary rules of construction applied to the Constitution as a Constitution.44 Sir Gerard Brennan commented, '[i]t seems quite clear that Menzies lit the fuse in Melbourne, though the main charge for exploding the notion of reciprocal supremacy seems to have been provided

by Isaacs and Rich JJ in the earlier Municipalities Case. Yet it was Leverrier's rather than Menzies' advocacy which seems to have had the greatest impact on the putative author of the majority judgment.'45 More recently, and following the discovery of Robert Menzies' handwritten notes made before and during his appearance as counsel, Professor Gerard Carney has essayed a reassessment of his role in the case.46 Menzies' notes included a passage, the last sentence of which, as Carney says, 'resonates across the decades of Australian constitutional history'.47 It was embedded in point 10 of a series of numbered propositions: For certain purposes one country and one people. No answer to say that States reserve their independence on those matters. Contrary argument based on a distrust of Federal Govt.

Abuse of power no argument against existence of powers.48 The Engineers' Case took six days to hear. This was an era in which

much more time was allowed for the development of oral argument than is the case today. Menzies later recounted that Sir Edward Mitchell KC, principal counsel for the States, when asked about a point on Tuesday afternoon, said he proposed to deal with it on Thursday afternoon.49

appears from the decision of the Court in D'Arcy v Myriad Genetics Inc.53 A related question is whether what appears to be an established principle is in truth a factor to be weighed in the application of some larger principle.

If one of the worst written judgments of the High Court in its long history, Engineers' was nevertheless the most important in terms of the direction it set for the Australian Federation.

Notwithstanding that the young counsel who at the very least 'lit the fuse that led to the explosion of the notion of reciprocal supremacy' was later to establish Australia's major conservative party, it is regularly denounced by conservative commentators.50 Whether one agrees with that criticism or not, the direction set in Engineers informed the expansive ambulatory approach to the external affairs power developed through Koowarta and Tasmanian Dams and the approach to the corporations power reflected in the Work Choices Case.51

Overruling earlier decisions

New readings of old cases Not every legal change is flagged by a helpful judicial tipoff or initiated by an inspired response to an intervention from the Bench. There are, however, indicators of the existence of opportunities for change which arise from time to time.

One such is a subsisting interpretation of an authority or line of authorities as defining necessary or sufficient conditions for the existence of some right, obligation, liability, immunity or for application of some legal characterisation. It is not unusual for judicially developed principles to be so read because under those characters they offer tick-box answers to pressing legal questions. Sometimes, however, a careful reading of the judgments from which those conditions are said to emerge, will demonstrate that they are properly applicable in some but not all circumstances. The question has arisen now and again about the activities test for characterisation of a corporation as a financial trading corporation. Is it necessary or sufficient?

The question was raised in Fencott v Muller concerning a corporation which had not begun to trade. Another example of recent occurrence was the question whether it is enough to characterise a claimed invention as patentable that it answered the description of an 'artificial state of affairs', a term derived from the High Court's decision in National Research Development Corporation v Commissioner of Patents.52 In the great majority of cases that will be a sufficient criterion. That is not always so as

The advocate should also be astute to observe whether circumstances exist which might persuade the High Court to overrule or depart from a previous decision. An example from a few years ago was the decision of the Court in Wurridjal v Commonwealth54 that the just terms requirement in s 51(xxxi) limiting the powers of the Commonwealth to make laws with respect to the acquisition of property, could apply to laws in relation to the Territories made pursuant to s 122 of the Constitution. The Court overruled its earlier decision in Teori Tau v Commonwealth,55 decided in 1969, in which it had held that the guarantee did not extend to laws made in the exercise of that power. The decision had always been under a degree of pressure.

Gummow J pointed to some of the difficulties in his judgment in Newcrest when the constitutional question was being considered in its proper forum.

In particular, as he said, a construction of the Constitution which treated s 122 as disjoined from s 51(xxxi) produced absurdities and incongruities particularly with respect to the people of the Northern Territory, which was formerly part of the State of South Australia and was surrendered to the Commonwealth in 1910.56 Criteria for overruling a previous decision of the Court were set out in John v Federal Commissioner of Taxation57. They were: 1. W hether the earlier decision rested upon a principle carefully worked out in a succession of cases.

2. W hether there was a difference between the reasons of the justices constituting a majority in the earlier decision.

3. W hether the earlier decision had achieved a useful result or on the contrary caused considerable inconvenience.

4. W hether the earlier decision had been independently acted upon in a way that militated against reconsideration.

It is not necessary in applying those criteria to ascertain some 'error' in the earlier decision. Where a constitutional decision is concerned, there is the additional factor that, short of a

27

referendum, only the High Court can correct what comes to be perceived as a wrong turning or a misinterpretation or a construction not to be preferred. Any invitation to the Court to depart from a previous decision of course confronts the threshold of the cautionary conservative principle that the Court will not lightly depart from an earlier decision.

In his 1987 paper, Maurice Byers spoke of the common law as contingent and temporary because it is embodied in the judges. Coherence was mostly maintained because judicial techniques had been developed to make it so. Predictability ensued, but it was only approximate.

Past decisions are beacons to indicate the future path but do so only broadly.

He went on to say '[t]oo assiduous a respect for what has been said in the past cripples the law's development and hamstrings both the advocate and the judge.'58 He referred to Sir Owen Dixon's approach to arriving at departures in principle. His example was the judgment of the Court in Commissioner for Railways (NSW) v Cardy59 departing from the notion of an implied licence as a criterion of an occupier's liability to a trespasser in favour of a duty of care.

Byers characterised Dixon's approach as achieving change by the tools of legalism and a kind of inspired semantics.60 He contrasted this with what he called the 'fresh and welcome voice' of Sir Anthony Mason in his Wilfred Fullagar Memorial Lecture in 1987, in which he described the proper function of the courts as to protect and safeguard the democratic process.

That process was an evolving concept moving beyond an exclusive emphasis on parliamentary supremacy and majority will and embracing a notion of responsible government which respects the fundamental rights and dignity of the individual and calls for the observance of procedural fairness in matters affecting the individual.61 Sir Anthony's observation was directed to public law and constitutional law. Byers generalised it to suggest that the means of change in the future would be different in the sense that the only recognised agent of change need no longer be found implicit in the past. The judge would be left free to perform his task guided by such values as Sir Anthony had indicated in the passage he quoted and able to employ a freer, less arthritic judicial process still yielding that predictability which the system demands.62 The proposition is pitched at what we are accustomed to call 'a high level of abstraction'. Nevertheless, in the style of Byers' advocacy it inspires reflection on fundamental ideas for judicial function.

28 | BRIEF AUGUST 2017

A constitutional shift — Mabo I mentioned earlier that the Racial Discrimination Act, upheld against constitutional challenge in Koowarta, had a part to play in the rather convoluted history which led to the recognition of native title at common law. That history can be traced back to a significant litigious failure in Milirrpum v Nabalco Pty Ltd.63 Blackburn J, applying the decision of the Privy Council in Cooper v Stuart,64 held that there was no common law doctrine of native title in Australia. Cooper had entrenched as a proposition of law for the Australian colonies a particular view of history, namely that the colony of New South Wales was 'a tract of territory practically unoccupied, or without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions'. That was notwithstanding Justice Blackburn's finding that the evidence before him disclose a subtle and elaborate system highly adapted to the country in which the people led their lives, a system he was prepared to describe as a government of laws, not of men.65 The counsel who argued for the Aboriginal plaintiffs in resisting the grant of bauxite mining leases did not take it further. That may well have been a piece of inspired and disciplined restraint on their part. Had they taken the matter on appeal through to the High Court they may well have had a negative answer from that Court as then composed. Instead of appealing, senior counsel, AE Woodward QC, accepted appointment to a Royal Commission into land rights in the Northern Territory.

As a result of the Report of the Woodward Royal Commission the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was enacted. Its object as described by the first Commissioner appointed under the Act, Toohey J, was 'to give standing, within the Anglo-Australian legal system, to a system of traditional ownership that has so far failed to gain recognition by the courts.'66 It was a statutory land rights scheme based upon an administrative recognition by the Aboriginal Land Commissioner of traditional Aboriginal owners of land under claim. Grants under the Act are made by the GovernorGeneral acting on the recommendation of the relevant Commonwealth Minister following a report by the Commissioner.67 The Northern Territory Government litigated the Act in the High Court on numerous occasions in relation to a variety of issues, many focussing on the jurisdiction of the Commissioner and legal limits on the class of land available for claim. There were no less than 14 reported decisions of the High Court touching matters connected with the administration of the Act before the

Court's decision in Mabo v Queensland (No 2).68 In those cases the Court was involved in the construction of a Commonwealth statute. But it was a statute in which the concept of traditional land ownership was firmly embedded.

Members of the Court who took part in the Mabo (No 2) decision, in particular Justices Mason, Brennan, Deane and Dawson, heard many of those cases.

Justice Toohey of course had been the first Aboriginal Land Commissioner and had conducted on-country inquiries into traditional ownership. It would be drawing a long bow to propose a direct causative relationship between the High Court's recognition of native title at common law in 1992 and its exposure to a decade of land rights litigation out of the Northern Territory. But the values underpinning the Act could not have been lost on the Court. There was a strong normative element in the Mabo (No 2) judgment.

It is not unreasonable to suppose that some of it may have been informed by the experience of the contentious land rights statute. However, another very strong and more explicit normative input, which also had significant practical consequences for native title law was the Racial Discrimination Act.

Mabo and the Racial Discrimination Act The Racial Discrimination Act was critical to the ultimate success of the Mabo litigation. After the claim had been instituted in the High Court and remitted for trial of factual issues to the Supreme Court of Queensland, the State of Queensland enacted the Queensland Coast Islands Declaratory Act 1985 (Qld) which effectively purported to extinguish the rights which Mabo and other plaintiffs claimed in respect of the land and waters of their home island, Mer. In Mabo v Queensland69, decided in 1988, the High Court held that the Act was invalid for inconsistency with s 10 of the Racial Discrimination Act. The invalidation of the Queensland law foreshadowed large consequences if the Court were to ultimately recognise native title at common law. All State or Territory laws or executive acts done after the Racial Discrimination Act came into effect were in question if they operated in a discriminatory fashion in relation to native title. For the Commonwealth there was the further question whether its laws or its executive acts might have operated to effect acquisitions of native title rights without just terms and therefore contrary to the requirement of s 51(xxxi).

The process of historic change with respect to indigenous customary title came to fruition with the decision of the

High Court in Mabo (No 2).70 If one has to assign an instrumental role to advocacy in that litigation, it can be assigned to the late Ron Castan QC, who appeared for the plaintiff, in particular, and his legal team in general. Maurice Byers did not appear in Mabo but, as mentioned earlier, took an important part in the Wik litigation which led to the setting aside of the assumption that historic pastoral leases extinguished native title. So that which was thought to have been extinguished now came under the protection of the Racial Discrimination Act. That protection was, of course, affected by the 1998 amendments to the Native Title Act but the foundation for more extensive assertions of native title rights and interests throughout Australia than previously imagined had been laid.

Conclusion Maurice Byers as Solicitor-General and as a member of the New South Wales Bar played an instrumental role in Australian legal history. In 1992 he led my colleague, Stephen Gageler, appearing for the plaintiffs in Australian Capital Television Pty Ltd v Commonwealth71 which, coupled with the decision of the Court in Nationwide News Pty Ltd v Wills,72 established an implied freedom of communication on matters relevant to political discussion. The implications of that implication are still being worked out. Of equal if not greater importance, as it turned out, was the decision of Kable in which he appeared as leading counsel for the appellant, Gregory Wayne Kable. The report of his argument in the Commonwealth Law Reports begins with the proposition that the Community Protection Act 1994 (NSW) was not a valid law of the Parliament of New South Wales. That was on the basis that the Act prescribed no rule and allowed no defence. He invoked Austin's Lectures on Jurisprudence for the proposition that essential to a law is a command which obliges a person or persons to a course of conduct. A law which in substance directs the judicial arm to imprison a particular individual is specific to the point of absurdity. It is about one aspect of one person and is there exhausted.73 It was not the argument which succeeded. At our last encounter before the hearing of the Kable case we had a conversation about it. It was the argument in which he was most interested and about which he was almost excited.

It was, as they say, right up his alley.

However, his argument which laid the foundation for the decision in Kable and the cases which followed appears at page 54 of the Report:

Chapter III of the Constitution applied to State courts from 1 January 1901; they were impressed with the characteristics necessary for the possession and exercise of Commonwealth judicial power.

No legislature, State or federal, might impose on them jurisdiction incompatible with the exercise of that judicial power. Nor could it control the manner of the exercise of judicial power whether conferred by the Commonwealth or States.

Since Ch III envisages State courts as being capable of investiture with and exercise of the judicial power of the Commonwealth, it grants to them or prevents their deprivation of those characteristics required of recipients of that power.

The rest, as they say, is history. Maurice Byers' personal history demonstrates that advocacy can be instrumental in effecting legal change. It is rarely solely determinative for there are many other factors at play and sometimes, as is demonstrated in the Milirrpum, good advocates will keep in reserve an argument whose time has not yet come.

Once again, my thanks for the opportunity to deliver this Lecture in honour of a man fondly remembered and greatly admired by all who knew him.

legislation included the race power (Constitution, s 51(xxvi) and the corporations power (Constitution, s 51 (xx)).

23.

Zines, above n 18, 263.

24.

(1996) 187 CLR 1.

25.

(2011) 242 CLR 573.

26.

Ibid 591–92 [43] (footnote omitted).

27.

Stephen Gageler, 'Role of Counsel' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 167.

28.

Ibid.

29.

(2012) 248 CLR 156.

30.

Ibid 161-2.

31.

Ibid 296 [343].

32.

Mason, above n 8, 539.

33.

(1999) 198 CLR 511.

34.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

35.

Mason, above n 8, 538.

36.

(1975) 132 CLR 595.

37.

Ibid 608–9.

38.

R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297.

39.

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

40.

Kevin Booker and Arthur Glass, 'The Engineers Case' in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 34-61.

41.

Sir Robert Menzies, Central Power in the Australian Commonwealth: An examination of the growth of Commonwealth power in the Australian Federation (University Press of Virginia, 1967).

42.

Ibid 38–39.

43.

Gerard Brennan, 'Three Cheers for Engineers' in Michael Coper and George Williams (eds) How Many Cheers for Engineers? (The Federation Press, 1997).

44.

Ibid 148.

45.

Ibid.

46.

Gerard Carney, 'Reassessment of Robert Menzies' Contribution in the Engineers Case' (2015) 89 Australian Law Journal 331.

47.

Ibid 345.

NOTES:

48.

Ibid (emphasis in original).

1.

(1982) 153 CLR 168.

49.

Ibid.

2.

(1983) 152 CLR 570.

50.

3.

(1993) 119 ALR 423.

4.

Horsey v Caldwell (1946) 73 CLR 304.

5.

Sir Gerard Brennan, 'Strength and perils: The Bar at the turn of the century' in Nye Perram and Rachel Pepper (eds) The Byers Lectures 2000–2012 (Federation Press, 2012) 4, 4.

See, for example, Professor Geoffrey de Q Walker, 'The Seven Pillars of Centralism: Engineers' Case and Federalism' (2002) 76 Australian Law Journal 678, 714.

For an extended critique of Engineers and its sequelae and the role of the High Court see James Allan and Nicholas Aroney, 'An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism' (2008) 30 Sydney Law Review 245.

6.

Ibid citing Sir Gerard Brennan, 'Retirement of Chief Justice Sir Gerard Brennan' (1988) 193 CLR v, vi.

51.

New South Wales v Commonwealth (2006) 229 CLR 1.

52.

(1959) 102 CLR 252.

7.

The Hon Justice JD Heydon AC, 'Theories of constitutional interpretation: A taxonomy' in Perram and Pepper (above n 5) 132, 133.

53.

(2015) 325 ALR 100; 89 ALJR 924.

54.

(2009) 237 CLR 309.

55.

(1969) 119 CLR 564.

56.

Newcrest Mining (WA) Limited v Commonwealth (1997) 190 CLR 513, 600–1.

8.

The Hon Justice AF Mason, 'The Role of Counsel and Appellate Advocacy' (1984) 58 Australian Law Journal 537, 539.

9.

Sir Maurice Byers, 'From the Other Side of the Bar Table: An Advocate's View of the Judiciary' (1987) 10 UNSW Law Journal 179, 179.

57.

(1989) 166 CLR 417, 438–9.

58.

Byers, above n 9, 181.

59.

(1960) 104 CLR 274.

10.

R v Burgess; Ex parte Henry (1936) 55 CLR 608.

60.

Byers, above n 9, 182.

11.

Ibid 641.

61.

12.

Ibid 658.

Sir Anthony Mason, 'Future Directions in Australian Law' (1987) 13(3) Monash University Law Review 149.

13.

Ibid citing Westel W Willoughby, The Constitutional Law of the United States (Baker, 2nd ed, 1929) 519.

62.

Byers, above n 9, 183.

63.

(1971) 17 FLR 141.

14.

Ibid 668-9.

64.

(1889) 14 App Case 286.

15.

Ibid 681.

65.

(1971) 17 FLR 141, 267.

16.

(1982) 153 CLR 168, 171.

66.

17.

For example, R v Sharkey (1949) 79 CLR 121; Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54; New South Wales v Commonwealth ('Seas and Submerged Lands Case') (1975) 135 CLR 337.

Report on Yingawunarri (Old Top Springs) Mudbura Lands Claim, Report No 5 (Canberra, Australian Government Printing Service, 1980) [70].

67.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Pt II and s 50.

68.

(1992) 175 CLR 1 ('Mabo (No 2)'). For a list of cases see Robert French, 'The Role of the High Court in the Recognition of Native Title' (2002) 30 Western Australian Law Review 129, 136.

69.

(1988) 166 CLR 186.

70.

(1992) 175 CLR 1.

18.

Leslie Zines, 'External Affairs Power' in Tony Blackshield, Michael Coper and George Williams (eds) The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 263.

19.

(1982) 153 CLR 168, 231 (Mason J), 241–2 (Murphy J), 260 (Brennan J).

20.

Ibid 216–7.

71.

(1992) 177 CLR 106.

21.

Commonwealth v Tasmania (1983) 158 CLR 1.

72.

(1992) 177 CLR 1.

22.

Other heads of power supportive of aspects of the

73.

(1996) 189 CLR 51, 53.

29

Existing trusts as beneficiaries of wills

Katerina Peiros Incapacity, Wills and Estates Lawyer Hartwell Legal Christine Smyth Partner, Robbins Watson Solicitors

Disadvantages of gifting assets by will to an existing trust (rather than to a trust established in the will) far outweigh the advantages of doing so.

That ‘a person may give his or her property by will to trustees of a preexisting discretionary trust’1 is a well established principle, having been canvassed by judges and legislature in various Australian jurisdictions over the years2, the issue arising before them in the context of whether such a gift would be delegation of testamentary power, which, of course, is not permissible (subject to some narrow exceptions relating to charitable gifts)3.

Gifting assets by will to a pre-existing or inter-vivos trust is not a breach of the rule against delegation so long as the trust is ‘sufficiently constituted according to the rules of certainty in trust law4’, in particular, it can be determined with certainty whether ‘any given individual is or is not a member of the class’ of beneficiaries of the trust5.

Any properly constituted existing trust, whether discretionary or fixed, may be a beneficiary under a will of a valid gift. A trust that is not yet in existence cannot be the recipient of a valid gift6.

In Gregory v Hudson, the deceased left his entire estate of approximately $14 million to the trustee of a family trust to hold on the terms of that trust for the benefit of his family (and a wider pool of

30 | BRIEF AUGUST 2017

beneficiaries). The deed of the trust was a typical discretionary trust deed with a wide class of beneficiaries. By disposing of his estate in this way, the deceased, who had terminal cancer, consolidated his wealth in one entity and appointed independent trustees to manage the wealth with the wish that the deceased’s widow, former wife, adult sons from first marriage, his step-son and his grandchildren all benefit. It was intended that the independent trustees would preserve peace between all the various members of this acrimonious blended family and make distributions of income and capital according to the individual needs of each person. The deceased had put considerable thought into the memorandum of wishes which he left to the trustees and which the trustees undertook to follow faithfully.

The widow brought the proceeding to have the gift declared invalid on the grounds that it contravened the rule against delegation of testamentary power – in that the deceased did not make the gifts to his family himself, but vested the choice of who would benefit from his estate in the hands of the trustees of the trust. It was in her interests to have the gift set aside as the money would then pass on intestacy to her and to the deceased’s children, which would be outright entitlements as compared to her having, for the rest of her life, to approach the trustees for payments of her expenses, which she resented. The widow was unsuccessful on this account and the gift was confirmed as valid by Young J7.

Advantages of leaving a gift to an established trust The deceased’s rationale for disposing of his estate in this way makes good commercial sense – instead of establishing a new trust under his will, he consolidated his wealth into one entity, thereby relying on a trust deed that had withstood the test of time and circumstances and reducing the administrative and management costs and trouble.

An existing trust holding a testamentary gift does not deprive the gift of the benefit of the concessions in section 102AG of the Income Tax Assessment Act 1936 (Commonwealth). Provided the trust deed permits the trustees to accept excepted trust property and the holding of such property separately from the other trust assets, minors may receive distributions of income from the trust generated by the excepted trust property and be taxed at normal adult marginal tax rates on those distributions.

If there were concerns about the deceased’s testamentary capacity or his ability to understand the complexities of a testamentary trust, then incorporating the inter vivos trust as a beneficiary may have overcome these concerns.

This estate planning technique is frequently proposed by willmaker clients and preferred by them over establishing a testamentary trust in the will. Despite the advantages of doing so, willmaker clients should be counselled

against such a course in almost all circumstances.

Risks and disadvantages of leaving a gift to an established trust In order of significance: 1. A careful review of the terms of the trust deed is required to ensure that: a. the intended person or entity controls or takes control of the trust on the death of the willmaker, for example, succession in the role of trustee or appointor or in the directors of the trustee company should be carefully considered by the willmaker and it should be maintained unchanged to the date of death to give effect to the intentions of the willmaker; b. the deed contains sufficient powers for the trustee to undertake what the willmaker envisages the trustee may need to do in the future; and c. the intended person or entities are eligible beneficiaries of the trust and this remains unchanged to the date of death to give effect to the intentions of the willmaker (or the trustee has sufficient powers to add or exclude beneficiaries). This would include consideration of whether a family trust election has been made and a review of any resolutions made by the trustee previously, which may limit who can benefit from the trust.

If the careful review is not undertaken and appropriate paperwork is not prepared, the wishes of the willmaker may not be given effect to. This would cause not only upset and disappointment, but also expensive litigation to attempt to give effect to the wishes of the willmaker.

2. In all Australian jurisdictions (other than South Australia), a trust can exist for up to 80 years. If the inter-vivos trust is in existence for some time before it receives the testamentary gift or if the intervivos trust is set to vest earlier than 80 years, the gift will not enjoy the trust environment for the full 80 years but only for the remaining life of the trust.

3. Unless the will is prepared shortly before death:

to the testamentary gift, unless the changes were executed in accordance with the requirements for a valid will or the willmaker re-signed the will after the changes were made to the trust deed.

a. the trust may be wound up between the date of the will and the death of the willmaker; b. the trust may cease being appropriate to receive the testamentary gift after the will is signed and before the date of death of the willmaker, such as by having exposed itself to risk, by the function it serves in the wealth structure of the willmaker or by the liabilities and obligations it incurred; and c. the control of the trust or the beneficiaries of the trust may be changed for an unrelated reason between the signing of the will and the date the trust receives the testamentary gift.

Changes which may defeat the intention of the willmaker could lead to the professional advisor being exposed to an accusation of negligence.

4. In order to take advantage of the s.102AG concessions: a. the trust deed must provide the trustee with the power to retain the testamentary gift (excepted trust property) as a separate fund; b. the trustee must keep the excepted trust property separate from other trust assets and be able to clearly identify the income derived from that property. There is a risk that the trustee may mix the testamentary gift with the other assets; and c. trustee must accurately account for the income derived from the investment of the testamentary gift.

Practically, this could mean that a second trust would come into existence when the willmaker died (notwithstanding that the willmaker specifically tried to avoid that scenario). The first trust would be the existing trust with the terms as changed from time after the date of signing of the will and the trust assets would be held on those terms. The second trust would be the one trust with the terms that existed at the time the will was signed and the testamentary gift would be held on these terms.

6. Extreme care must be taken not to fall foul of the anti avoidance rules in ss.102AG(3) and (4).

Conclusion These risks and disadvantages would not be relevant to a trust drafted into the terms of the Will as the terms would be drafted to complement the wishes of the willmaker and would not be inadvertently changed or overlooked. A trust drafted in the Will and established by the Will would be untainted by any history and as such as is the preferred estate planning strategy.

NOTES: 1.

Young J in Gregory v Hudson [1997] NSWSC 140.

2.

For example see Wills Acts in ACT, Victoria, Queensland, NT, Lutheran Church of Australia SA District Inc v Farmers' Co-operative Executors & Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628, Cracken v Attorney General [1995] VICSC 78; [1995] 1 VR 67.

3.

Gregory v Hudson [1997] NSWSC 140 and Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639.

4.

Young J in Gregory v Hudson quoting Mahoney JA in Horan v James [1982] 2 NSWLR 376 "A man must exercise and not delegate his testamentary power.

This principle has been established by decisions of the High Court of Australia, the House of Lords and the Privy Council: ... A testator does not exercise his testamentary power if, in effect, he empowers his executors or others to say what persons or objects are to be his beneficiaries: see Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639 ; and a delegation may, in my opinion, be unacceptable because it delegates the power to determine the quantum of the benefit which a selected beneficiary may take ...".

5.

House of Lords in Re Gulbenkian's Settlements [1970] AC 508 and McPhail v Doulton [1970] UKHL 1; [1971] AC 424.

6.

Re Jones [1942] Ch 328.

7.

She succeeded in a claim for further and better provision under the NSW family provision legislation in effect at the time in Gregory v Hudson (No 2) [1997] NSWSC 413.

8.

Re Edwards Will Trusts [1948] Ch 440.

It would be easy for the trustee to overlook or inadvertently mix capital or income. This would be difficult to undo or correct, and thereby the intentions of the willmaker could be defeated.

5. The law treats the terms of the existing trust as being incorporated by reference into the will, so the trust must be clearly identified in the will and the terms that exist at the date of the will are the terms taken to be incorporated8.

Accordingly, if a change is made to the terms of the trust after the signing of the will, these changes will have no effect with respect

31

Welcome to the Honourable Justice Gail Archer SC Transcript of Proceedings Perth, Monday, 19 June 2017

MARTIN CJ: The Court sits this afternoon to welcome the Honourable Justice Gail Archer to the bench. Her Honour took the oath of office and received her commission as a member of this Court on Monday, 29 May, and is now, therefore, something of an old hand when it comes to the business of judging. I would like to particularly welcome this afternoon her Honour’s family, her husband, his Honour Judge Patrick O’Neal, and her brother, Mr Rob Ashton, and her Honour’s many friends.

I would also like to welcome the Honourable Malcolm McCusker AC CVO QC, former Governor of Western Australia, Mr Peter Quinlan SC, Solicitor General, the Honourable Justice Simon Moncrieff, representing Chief Judge Thackray of the Family Court of Western Australia, his Honour Chief Judge Kevin Sleight of the District Court, his Honour Judge Denis Reynolds, President of the Children’s Court, Chief Magistrate Steven Heath, Dr Adam Tomison, the Director General of the Department of the Attorney General, and other distinguished guests, including many past members of this and other courts.

I would also like to particularly welcome those who will address the Court this afternoon, being the Honourable John Quigley MLA, Attorney General of Western Australia, Mr Alain Musikanth, President of the Law Society of Western Australia, and Mr Matthew Howard SC, President of the Western Australian Bar Association.

Her Honour graduated in jurisprudence and law from the University of Western Australia in 1988, receiving a prize in jurisprudence in her final year.

Although I am sure that jurisprudential theory is of great assistance in resolving the many issues which arise in our courts on a daily basis, it must be conceded that the works of H.L.A. Hart and Professor Wesley Newcomb Hohfeld are not given as much attention in the published decisions of this Court as they deserve. I have only been able 32 | BRIEF AUGUST 2017

to find two references to Hohfeld in the published reasons of the court. I am sure people will not be surprised to hear that one is by Edelman J in Minerology Limited v Chief Executive Officer, Department of Environmental Regulation.

That case was concerned with a transhipment licence and a desalination licence relating to the operation of an iron ore project in the Pilbara. His Honour found that to be fertile ground for an analysis of the fundamental distinction between the creation of a freedom on the one hand and the conferral of a right on the other, praying in aid the principles enunciated by the good professor. No doubt, that reference reflects the attention which both parties to that case would attach to the Hohfeldian analysis of corresponding rights and duties in the performance of their daily tasks.

The other reference to Hohfeld’s work which I have been able to find provides rather less encouragement to those with a penchant for jurisprudential analysis.

In Barminco Investments Proprietary Limited v O’Brien, Pullin J cited with approval a passage from the judgment of Windeyer J in Mathieson v Burton where his Honour observed that in considering whether a right exists the court is, and I quote: …not engaged in an exercise in analytical jurisprudence, or with the classification expressed, in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld.

Now, your Honour, I am sure that in your three weeks on the Court you have already learned that the expression of divergent views is one of the enduring and endearing characteristics of any court, but I fear that I digress. In common with many other members of this Court past and present, your Honour commenced your legal career at the Crown Solicitor’s Office in 1989. You were exposed to a wide variety of work

in widely different jurisdictions until you joined the Office of the Director of Public Prosecutions in 1993.

In the nine years you worked for that office, you conducted well over 150 jury trials and represented the State in numerous matters in the Court of Criminal Appeal (as it then was). Your Honour’s capacity to walk both sides of the street was evident when in 2002 you took up the position of Principal Legal Counsel at the Legal Aid Commission of Western Australia. In that capacity, you also appeared in many jury trials and appellant matters, albeit on a different side of the bar table to that which you had occupied as a prosecutor.

Your Honour joined the Independent Bar in 2004, working in a variety of fields, including civil penalty proceedings, administrative law, consumer protection, occupational health and safety, coronial inquests and disciplinary proceedings.

As a barrister, your Honour has regularly appeared in many and varied jurisdictions right up to the High Court of Australia.

Your Honour’s abilities as counsel were recognised in November 2007 when you were appointed Senior Counsel on the recommendation of the committee

which provides advice in relation to such appointments.

As would be expected, since that appointment you have appeared in a number of the most significant cases in the jurisdictions in which you regularly practised. Your Honour has had a taste of judicial life having served as a Commissioner of the District Court for more than three months in total. You have also had a significant association with the Corruption and Crime Commission, having served as Acting Commissioner of that commission for three years and having conducted the statutory review of the legislation establishing that commission in 2007.

Your Honour has a long-standing interest in and commitment to forensic advocacy and has regularly participated in the teaching of that important skill throughout Australia and occasionally internationally. You have served as a coach in the Bar Reader's Advocacy Module, including periods as course director of that module, and as a coach in the Australian Bar Association Advanced Advocacy Course.

In 2011, your Honour was one of two barristers in Australia selected to teach at the Advanced International Advocacy

Course held at Keble College, Oxford over six days. In 2015, your Honour was one of three Australian barristers selected to teach at the Singapore Law Society Intermediate Forensic Advocacy Course in Singapore. And your Honour has also taught forensic advocacy to students at The University of Western Australia and at Murdoch University.

Hopefully all the efforts which your Honour has put into the teaching of forensic advocacy will be rewarded by the skills of those who appear before your Honour in the next phase of your legal career. However, no doubt, there will be those who appear before your Honour who lack the skills of advocacy which you acquired and taught. I would, however, encourage your Honour to develop the patience, which regrettably sometimes I find in short supply, and would discourage your Honour from using the trial process as an opportunity for advocacy instruction.

It has never worked for me, although, of course, I bow to your Honour’s greater expertise in the field of advocacy training.

This Court enjoys very good relations with our friends and colleagues at the District Court. However, your Honour

has taken that relationship into a whole new realm, although, happily, this is a realm sanctified by the bonds of matrimony. I am sure that I speak on behalf of the entire court when I welcome your Honour and Patrick into the community of the court and in the confident expectation that Patrick will refrain from using our social occasions to ventilate the exasperation which busy trial judges occasionally feel as a result of the decisions of the Court of Appeal.

It only remains for me to again congratulate your Honour upon your appointment to this Court and to wish you every success and satisfaction in your endeavours as a member of this Court. Mr Attorney.

QUIGLEY, MR: May it please the court.

Of course, it’s one of the greatest pleasures that I have as the Attorney General to nominate someone to the Cabinet of Western Australia to join the 33

bench of the Supreme Court of Western Australia. Premier Mark McGowan likes to run his Cabinet on a consensus basis, but I can say that in presenting Justice Archer’s nomination to the Cabinet it was met with unanimous acclaim. Her reputation is well known throughout all of the members of the Parliament, and especially of the Cabinet, for her work in – not only in the courts, but in her very important work in the statutory review of the Corruption and Crime Commission legislation which she undertook in 2008 and presented that report in 2008.

I will lament that not all of Justice Archer’s recommendations were taken up by the ensuing administration, but we’re getting to work on that now, Justice. I’m indebted to you, Chief Justice, for setting out in such detail the very storied career of Justice Archer, and I shan’t take the court’s time in repeating all of the work that she has done as a barrister at both the Crown Solicitor’s Office, the Director of Public Prosecutions Office, the Legal Aid Commission of Western Australia, and then at Francis Burt Chambers.

Her reputation at Francis Burt Chambers was one of the hardest working barristers at chambers and her reputation for preparation was unparalleled. I will say that there was some anxious moments with Justice Archer’s nomination and appointment.

I did approach the Solicitor General to in turn approach Ms Archer SC, as she then was, but the answer wasn’t immediately forthcoming and left us hanging there for a week whilst she considered her position, and this is reflective of the care and contemplation she gives matters before finally settling on a position and I’m sure that after that week’s reflection and giving the commitment that she – that Justice Archer has given, it is reflective of the commitment that she will show to the administration of justice in this state.

As evidence of her dedication and commitment to hard work, I note that, as your Honour noted, Chief Justice, she was sworn in on Monday, 29 May, but I am aware that right through until Friday, 26 May, she was appearing as counsel in an important matter in this state and that matter had not quite concluded, and over the weekend of 27 and 28 May, was preparing written submissions in that matter before attending at the – Her Excellency’s residence for swearing in the next day, and I think that that is reflective of her commitment to hard work and to her profession.

My friend, the learned Solicitor General, Mr Quinlan SC, was, of course, the

34 | BRIEF AUGUST 2017

President of the Bar and informs me that at Francis Burt Chambers he would describe her preparation and attention to detail as almost eye watering.

There was no stone left unturned. Her preparation style, the Solicitor General informs me, was stuff of legend at the chambers. And so it just leaves me to on behalf of the Government of Western Australia to extend our most sincere congratulations on your appointment, to do that on behalf of the community of Western Australia and on behalf of the Government to say that we have every confidence in the excellent work that you will produce in this court and your contribution to the administration of justice in this state. Thank you very much for accepting the appointment, Justice Archer.

MARTIN CJ: Thank you, Mr Attorney. Mr Musikanth.

MUSIKANTH, MR: May it please the court, it is both my privilege and pleasure to appear on behalf of the Law Society of Western Australia to welcome your Honour to the bench of this honourable court. On behalf of all members, I congratulate your Honour on achieving this significant milestone and I commend the State Government on your appointment. As has already been outlined by the Chief Justice, your Honour has enjoyed a varied and accomplished legal career to date, and I do not intend traversing every aspect of that again, however, it would be remiss of me not to highlight at least some features of your Honour’s past which illustrates your unwavering commitment, both to the administration of justice and to the advancement of the legal profession.

As has already been noted, after graduating from UWA your Honour commenced articles at what was then the Crown Solicitor’s Office. Your Honour’s legal work in the public sector continued some three years later when you joined the Office of the WA DPP. In January 2002, your Honour joined Legal Aid WA, WAs Principal Counsel, conducting a high level of counsel work before all courts for the benefit of indigent clients.

As mentioned, after leaving Legal Aid, your Honour commenced practice at the WA Bar in July 2004, and predictably it was not long before your Honour became highly sought after as counsel, and after less than three years at the Bar, a Senior Counsel, practising, as his Honour the Chief Justice mentioned, in a variety of areas and conducting appeals in both civil and criminal matters from both sides of the bar table.

It should be immediately said that your Honour’s work for the benefit of the wider community by no means diminished after joining the Bar. To the contrary, your matter has been mentioned already, less than a year after doing so, your Honour commenced as a Commissioner of the District Court for a period of just over two months in 2006, and for some four weeks in 2007. As also been noted, your Honour conducted a comprehensive statutory review of the Corruption and Crime Commission Act, culminating the tabling of a report containing some 58 recommendations for reform of that Act in early 2008.

And not long after that, your Honour was pressed into service, as the Chief Justice mentioned, as Acting Commissioner of the CCC where you occupied that important role for a period of close on three years. Your Honour’s energies were not over confined to your regular day-to-day work, whether in the private practice or while acting in a public capacity. Your Honour was also and remains renowned across the legal community for the selfless devotion of much of your personal time for the benefit of the profession generally and to the advancement of practical legal education in particular.

Soon after being admitted in 1990, your Honour took the significant, and may I dare say, the essential step of joining the Law Society of Western Australia.

Over a sustained period of many years, your Honour has remained an active and longstanding contributor to the work of the Society. Among other things, you have served as Deputy Convenor of the Society’s Ethics Committee, as a member of its General and Commercial Litigation Committee, as a member of the Society’s Senior Advisors Panel, providing essential confidential guidance to practitioners grappling with real or perceived ethical dilemmas.

Your Honour has also over many years made a significant and deeply appreciated contribution to the Society’s CPD Programme, including our Summer School Programme.

Of special note has been your Honour’s work as a highly valued coach at the Society’s courses for aspiring advocates, particularly in the area of cross-examination. Indeed, your Honour’s contribution as a coach at the Society’s Annual Practical Advocacy weekend began well over a decade ago.

As the Honourable Chief Justice has mentioned, your commitment to legal education has extended way beyond that and I will not traverse once again the various other features of that,

save to say, that it has extended not only locally and nationally, but also internationally. The casual observer might be forgiven for thinking that with so many commitments there would be precious little time left for much else.

However, those who have come to know your Honour best in practice would say otherwise.

Just some of the descriptions of your Honour as a colleague and mentor have included the following: “Very approachable”, “Can talk to her about anything”, “Extremely generous with her time”, “Will even take a call on a Sunday while about to board a plane”, from a junior practitioner grappling with an ethical conundrum, “Very caring to a fault”, “Has a rare gift of being able to make yourself feel good about yourself”, “A great sense of humour”, “Going to be sorely missed”.

With sentiments such as these, coupled with your Honour’s wealth of experience, it should come as little surprise that the announcement of your Honour’s appointment was welcomed with great enthusiasm across the legal community.

The role which your Honour now occupies is, with respect, one to which you’re not only eminently well suited, but also one which the profession has every confidence your Honour will be able to discharge with dignity, grace and distinction.

On behalf of the Law Society I once again extend our heartiest congratulations to your Honour and wish you well for a happy, rewarding and successful career. May it please the court.

MARTIN CJ: Thank you, Mr Musikanth.

Mr Howard.

HOWARD, MR: May it please the court.

It is my privilege to appear on behalf of the Western Australian Bar Association at this afternoon’s welcome. The medical professional recognises the speciality of the intensivist. According to their college, an intensivist specialises in the comprehensive management of critically ill patients as the leader of a multidisciplinary team. Further, they have advanced communication skills that enable effective interaction with patients, family, team members and others which enable collaborative practice.

The intensivist continues to learn throughout their professional life and acknowledges that involvement in teaching, quality improvement and administration are integral to the role. If we in the legal profession recognised an analogous grouping or specialty, your Honour would surely be the prototype

of that grouping. With the substitution of cases for patients and solicitors for families, the description and label resonates strongly with your Honour’s approach, attitude and passion within the practice of the law.

Your Honour was known for the meticulous, to the point of obsessive, some might say, preparation in everything you did. Your Honour sought to pass that off as being a speciality in facts rather than in any practice area, but that is too self-deprecating a description. If your Honour was on the case, then no fact, however buried or quietly hoping to be overlooked, was safe. Any rabbit, whether self-respecting or not, down any burrow was liable to be pursued, subdued and bent to your Honour’s unyielding preparation.

Indeed, one might wonder whether if your Honour had been around in 1907 there would have been any need for this state to have constructed the rabbit proof fence. Your Honour organised facts, cases, instructors, juniors and even judges, with fearsome precision, whether that was by the colour coding of your brief, the provision of timetables and schedules down to minutes, or encyclopaedic lists of issues to be worked through.

But your Honour was not a whiteknuckled intensivist. You were the embodiment of what another advocacy coach, Judge O’Neal, would often describe as “the duck serenely gliding across the pond while paddling vigorously out of sight under the water to keep things moving in the correct way”.

You were warm and caring, especially to your instructors and juniors, and they loved you in return. You are a mentor and guiding light to many.

You are regularly described by those who have worked with you as inspirational and you were widely admired for being both a leader of and role model to women in the profession.

That is a natural segue in to your Honour as the advocacy coach. Your Honour has been involved in advocacy training for so long that it would not be polite to mention the length of time. That involvement, as we have heard, was in courses both in Australia and overseas and both as a coach and course director.

The WA Bar Association and the Advocacy Training Council of the ABA owe your Honour a huge debt of gratitude for that work over so many years. In this respect, I should also acknowledge the presence in court of my fellow Advocacy Training Council members. I’m sure that your Honour

would say that the satisfaction you took from your interactions with so many participants over the years was some reward. Your Honour was invariably the most popular and sought after coach on any course. Participants were drawn to your learning, warmth and skills.

Notwithstanding all of that, your Honour has given up weeks upon weeks over many years in such service and I’m delighted to be able to say thank you on behalf of the Advocacy Training Council, your fellow coaches and the many participants who have benefited.

It is invidious to put any individual into the firing line of a welcome such as this, so let me quote from an informed source who, I suspect, was speaking with their tongue firmly embedded in their cheek: I am unable to share any stories which would embarrass and humiliate her Honour, not because they don’t exist, just because I fear reprisal and it would come one day, some time when I was least expecting it. Her Honour has often spoken about retiring and writing crime novels. That may never happen, but the fear that she would devise a plot where I was the victim is sufficiently concerning to keep me quiet.

Before your Honour starts writing such novels, the association wishes to extend its warmest congratulations and express its unreserved confidence in how your Honour will go about fulfilling this most important office. May it please the court.

MARTIN CJ: Thank you, Mr Howard.

Justice Archer.

ARCHER J: Thank you. Firstly, can I thank the Chief Justice for his kind words today and for the support and encouragement that he gave me leading up to my commencement. I would like to thank the three speakers, the hyperbole has been extreme, but I appreciate the sentiments. Mr Attorney, I am honoured by the appointment and keenly aware of the significant responsibility that you have placed on my shoulders and I can promise you that I will do my very best.

Mr Musikanth, I have known you for a long time and you have always been very kind to me and today was no exception. Thank you very much. Mr Howard, I’ve known you since I was an article clerk. You’re the reason why I spent several years covered in bruises when I was a member of your indoor cricket team, aptly called the Wood Ducks. You’ve always been kind to me and you have never failed to amuse and today was no exception.

I would like to thank everyone who 35

has come today for taking time out of their busy lives to be here. It is frankly amazing to see so many people here and it is very touching. Thank you. The welcome and support I have received from the court has been extraordinary.

My new colleagues and all of the support staff and Aaron have been extremely generous with their time and remarkably patient. The advice is ranged from the intellectual to the practical, including that when the usher says, “All rise”, he doesn’t mean me. So you can watch to see if I remember that at the end. Fingers crossed.

I’ve also been overwhelmed by the support that I have received from the profession. The letters, the cards, the emails, I greatly appreciate all of it.

I would like to take this opportunity to thank some of the people to whom I owe a great debt and time, of course, doesn’t let me name everyone, but there are some people that I would like to single out.

I have to start with Commissioner McKechnie, as he now is. He was a mentor to my entire peer group when we were at the Crown Solicitor’s Office and he has suffered in that role throughout our careers. Even after he became a judge of this court, the mentoring continued, sometimes against our will.

After one appearance before his Honour, as the Commissioner then was, he had disposed of the matter on the spot and I walked back to chambers, and as I was walking through the door of my office, my phone was ringing, and I picked up the phone and it was McKechnie J offering me some constructive criticism on my advocacy. I was 40 years old.

And, yes, Mr Attorney, it did take me a week to make the decision, but again it was Commissioner McKechnie who was available to me to offer me his advice in reaching that decision. He has always been there for me and my peers throughout our careers.

I next want to mention Paul O’Brien, although he wouldn’t have come if he knew that I was going to do that and you mustn’t leave now. For those of you who live under a rock, by which I mean commercial lawyers – it’s true, when you become a judge you really do get funny.

Anyway, Paul O’Brien was a leading defence lawyer when I first started out in the – well, let’s pretend it was the early 90s, and he remained so until he retired very recently. Now, not only was he a remarkably gifted advocate, but he treated everybody with courtesy, and in dealing with opponents he started from the assumption that they were ethical

36 | BRIEF AUGUST 2017

and it would take incontrovertible proof to shift him from that assumption, and that included one young prosecutor who made a mistake when leading her very first witness in a jury trial.

It didn’t prejudice the accused, but it was terribly embarrassing. I don’t have time to tell you the full story, although some of you have heard it before, but in short, Paul managed to persuade his cocounsel and the judge that I – she hadn’t made a mistake at all. So if anyone does think that I have been kind to younger members of the profession, I had those two wonderful role models to guide me in that path.

I’m also grateful for the support that I received from the judiciary over the years. In particular, I would like to mention Peter Blaxell, Kevin Hammond and Len Roberts-Smith.

When I was at the Bar I was very fortunate to work with extraordinarily gifted solicitors. I can’t name them all, but I would like to mention Nick Cooper of Clayton Utz, Nick Ellery of Corrs, Dylan McKimmie of Norton Rose and Mark Williams, now at Minter Ellison. I appreciated their high level skills and dedication to the case, but it was their unwavering loyalty that I will always be grateful for. They always got in the trench with me.

I also enjoyed working with the incredibly talented young solicitors who would be assigned to the case, and in particular, Hayley Cormann, Katrina Welch, Lauren Fysh, Melissa Hanna, Kerry Pallas, Lauren Poett, Kate Pedersen, David Leigh and, frankly, everyone that works at the State Solicitor’s Office, let’s be honest.

I enjoyed working with all of my juniors, but I will name Bill Keane, Penelope Giles and Tim Hammond. Each of them is an exceptional advocate in their own right, although, of course, we’ve lost Tim to Canberra. Each of them got into some pretty gory trenches with me, but they stood there next to me, shoulder to shoulder, never flinching, and I will always be grateful for that.

I had the benefit of two remarkable PAs who made my life work. Sally Peaty retired over a year ago, even though I forbade it, and I thought I would never find anyone else who could do the job to my satisfaction, but I did and a local law firm now has the benefit of Bridget Thorpe.

I’ve enjoyed the collegiality and support I receive from many barristers in chambers and, in particular, I would like to mention Andrew Beech SC, as his Honour then was, Craig Colvin SC,

Rebecca Lee and Patricia Cahill SC. And I’m very touched to see so many colleagues from the profession here today.

Finally, I get to my friends and family.

The one person who isn’t here is, of course, my father. He died when I was 17, but he had already given me more gifts in 17 years than many fathers manage in 60. He thought I could do anything that I wanted to do and instilled in me a strong sense of the importance of integrity, compassion, a strong work ethic and public service, and he would have been so pleased to have seen me take up this role.

I thank my friends Paul Yovich SC and her Honour Judge Troy Sweeney SC for their lifelong support and love and through some pretty grim times. You couldn’t ask for more loyal friends. And I’m grateful to have the support and love of Troy’s husband, Glen Potter.

I thank my friends, Alex and Bernie Zilkens, who have taken Patrick and me into their family. Of all my friends, I think Bernie has possibly been the most excited about my appointment which is so typical of Bernie. And I also thank the Yatzis for their support.

My friends, Caroline and Harry Moody.

Caroline has been my family since I was 13 years old and Harry since I was about 19. Although neither of them are related to me by blood, for some reason they are proud of me and I’m so grateful for their love and support.

My wonderful brother Rob travelled from Sydney to be here today. As my big brother, he was a perfect role model of compassion and integrity and our father would have been so very proud of him, as I am.

And, finally, I come to my husband, Patrick O’Neal. Now, he’s probably now going to start singing a Leonard Cohen song in his head so that he doesn’t have to suffer the mortification that a Canadian suffers when someone says something nice about them, so I’m going to keep it short. Patrick is my safe harbour, my lighthouse, and my shipmate. He is my greatest treasure and I will always be grateful for his love, support and unwavering loyalty.

Can I thank you all again for coming here today and in such numbers, and now you can all see if I remember not to stand up.

MARTIN CJ: Thank you, Justice Archer.

That completes this afternoon’s sitting.

The court will now adjourn.

THE ASSOCIATE: All rise. This honourable court is adjourned.

2016 NATIONAL PROFILE OF SOLICITORS This information sheet provides a snapshot of the profile of practising solicitors across Australia in 2016. The information is based on data provided by the eight state and territory Law Societies across Australia. This is the third national profile, following a similar analysis in 2011 and 2014.

Key outcomes for 2016 The legal profession is growing

More women entered the profession than men

+24% 2011

+34%

54%

50%

10,632

+46%

Average age

50+50

Corporate (16%) Other (5%)

50%

Between 2014–2016, there was significant growth in the number of solicitors aged 65+

2016

15,539

+ 23%

+ 6%

+ 4% <44

Between 2011–2016, there was significant growth in the number of private law firms, especially larger firms

Government (10%)

69%

Number of private law firms 2011

38.8 In 2016 most solicitors worked in private practice

2016

2011

54+46

Average age

+16%

2016

The profession now comprises an equal number of men and women

46%

46.0

Female solicitors remain on average younger than male solicitors

45-64

65+

+131% +95%

+ 78% + 37%

Sole practictioner

2-10 partners

11-39 partners

This profile has been produced

by Urbis, an independent social research company.

40+ partners

Opening of Murray Chambers

By John McKechnie QC

On Friday evening, 9 June 2017, a large gathering attended the Curtin Law School for the opening of Murray Chambers, named after the Hon Michael Murray AM, QC, former President of the Society, Senior Puisne Judge and presently Parliamentary Inspector of the Corruption and Crime Commission, Chair Supervised Release Review Board, and Chair National Trust of WA. In his remarks, the Head of Chambers, Chris Shanahan SC described the concept: "The conception of these chambers owes its origins, at least from my perspective to Michael Murray who first suggested the building to me as a possible site of barristers’ Chambers.

Ultimately the building was leased by the Trust to Curtin University who somewhat serendipitously decided that

it would seek to badge its undergraduate degree with a three pronged programme focussing on clinical legal education, practical legal training and co-located barristers’ chambers.

Curtin’s engagement with barristers’ chambers is an emerging concept and it is a novel development in Australian legal education. At this stage we are imagining how that co-location might be brought to account in Curtin’s offerings of CLE and PLT. I recognise that the concept has been driven by the Dean, Professor Paul Fairall, and Julian Sher.

Indeed the School built the chambers before identifying any barristers to occupy it. Not unlike the railway between Vienna and Venice for those of you who have seen ‘Under the Tuscan Sun’.

We have some plans in development to try and build on the educational potential

ACCESS CPD ON YOUR TERMS The Law Society’s eLearning provides a complete solution for CPD, offering 24/7 access and flexible delivery on your smartphone, tablet or computer. Over 40 seminars across all competencies: • Practice Management • Professional Skills • Ethics and Professional Responsibility • Substantive Law

P: (08) 9324 8600 W: elearning.lawsocietywa.asn.au

38 | BRIEF AUGUST 2017

of our collaboration. I acknowledge the assistance and support of Curtin University and hope to demonstrate how our Chambers can contribute to the quality of Curtin’s undergraduate law degree.

We will be a boutique set which has as its touchstone the collegiality that we consider central to the practice of barristers."

In his response, Michael Murray said how touched and privileged he felt at the naming of the chambers and he wished the members of chambers and the Curtin Law School every success.

Dean of Curtin Law School, Professor Paul Fairall also addressed the gathering noting that this experiment had never been tried anywhere and the law school was excited at the prospect.

Reflecting on the Practice of Non-adversarial Justice Second International Conference on Non-adversarial Justice: integrating theory and practice Edited version of paper presented in Sydney on 6 April 2017

By The Hon Wayne Martin AC Chief Justice of Western Australia

Eleven years at the Coalface Almost 11 years ago, about a month after my appointment to the bench, I was invited to address the third international conference on therapeutic jurisprudence, which was held in Perth. The invitation to address that conference at the outset of my judicial career was serendipitous because it required me to discover the basic concepts of therapeutic jurisprudence and exposed me to the prolific writing in that burgeoning field.

Eleven years later I am very pleased to have been invited to address another international conference dealing with similar issues.

In this address, I would like to reflect upon some of the basic concepts and practices that I referred to in my first address in this area, by drawing upon my 11 years of experience not only as a judge, but as the head of a judicial system. At the most general level, the conclusion which I draw from that experience can be expressed shortly, but with as much emphasis as I can muster, and that is that development and expansion of the principles of non-adversarial justice is essential if the systems in the various jurisdictions represented at this conference are to provide effective justice to the communities which we all serve.

My fundamental point can be illustrated by drawing upon two quotes which I cited in my first paper in 2006. The first is from Ambrose Bierce, who described litigation as a machine which you go into as a pig, and come out as a sausage.

The second is attributed to Voltaire: 'I was never ruined but twice, once

when I lost a law-suit and once when I won one.' The point I draw from those quotes is that there are rarely winners in adversarial litigation, which can often bring out the worst in people.

This point can be developed more specifically by considering the two fundamental branches of the justice system in most jurisdictions - namely, criminal justice and civil justice. In the criminal justice system we have an elaborate and extremely expensive system involving numerous taxpayerfunded agencies, primarily police, courts and corrective services, which have resulted, at least over the last two decades, in the incarceration of ever increasing proportions of our communities, with little or no evidence of any causal effect upon re-offending rates. Our civil justice systems retain many of the characteristics described

by Dickens in Bleak House and by Dean Roscoe Pound more than 100 years ago in his paper descriptively entitled 'The Causes of Popular Dissatisfaction with the Administration of Justice'1 - namely, cost, delay, complexity and uncertainty of outcome.

Of course, we are all familiar with the proposition that insanity can be defined by doing the same thing again and again and expecting different outcomes, but that description characterises the justice systems in most of our jurisdictions.

There is, however, one notable exception to that characterisation - the development of systems of nonadversarial justice - an exception which gives me cautious optimism with respect to the future of our justice systems and

encourages me to hope that we may be able to better serve our communities.

In this paper I will endeavour to explain the reasons for that cautious optimism by drawing upon my experience, and the literature - first by reference to criminal justice, and then by reference to civil justice. Because I am drawing upon personal experience, my observations will inevitably have a parochial flavour, for which I apologise.

Criminal Justice Over the last few decades, many governments in Australia have embraced and applied policies with respect to criminal justice which criminologists would describe as 'popular punitivism'.

Politicians anticipating electoral support for these policies claim that they are 'tough on crime', and many State and Territory elections turn into a 'law and order auction' in which participants endeavour to outbid each other with increasingly punitive policies. Those decades have been characterised by increases in maximum penalties and, more significantly, by the expansion of mandatory minimum penalties for an increasing number of offences.

Popular Punitivism and Non-adversarial Justice So, in Australia at least, the political and public policy environment in which nonadversarial justice practices have been developed in the criminal justice system has been antithetical to those practices.

The tension between non-adversarial criminal justice and public sentiment, as 39

perceived and reflected by politicians in the policies which they adopt can be seen at both a philosophical and practical level. At a philosophical level, non-adversarial justice aims to protect the community by addressing, and hopefully resolving the causes of offending behaviour, or at least reducing the risk that identified underlying conditions will be criminogenic, in the sense that they will cause or contribute to offending behaviour.

By contrast, 'popular punitivism' focuses upon the consequences of crime, rather than its causes, and contends that the community is best protected by increasing levels of punishment which will deter future crimes by the offender and others.2 At a practical level, mandatory minimum sentences discourage offenders from acknowledging or admitting their guilt, and predetermine the outcome of the sentencing process in the event of conviction - both of which are antithetical to any and all forms of non-adversarial justice. The question of whether legislative provisions which, in effect, remove any element of discretion from the sentencing process and predetermine its outcome are compatible with more general notions of justice, whether adversarial or not, is beyond the scope of this paper.

Non-adversarial Justice Survives Given the acidic nature of the soil in which the seeds of non-adversarial justice have been planted, it is remarkable that those seeds have germinated and developed into thriving plants bearing fruit for the benefit of the community. Perhaps the most prolific fruit-bearing trees in the nonadversarial orchard are drug courts and mental health courts, which are to be found, in varying forms, in many, if not most, jurisdictions. How have these courts flourished and borne fruit in the hostile environment which I have described? I believe the answer lies in the fact that, despite the methodological problems of analysing the outcomes of such courts, analysis has repeatedly shown that such courts produce better outcomes for a significantly reduced overall cost. Perhaps just as significantly, the philosophical and practical underpinnings for such courts are almost self-evident to a wide section of the community, and their elected representatives. The proposition that a person who is addicted to illicit drugs or who suffers a mental illness or disability will continue to offend unless and until their drug addiction or mental health issue is resolved is not difficult to accept.

40 | BRIEF AUGUST 2017

The survival and development of nonadversarial practices in the environment which I have described is one of the sources of my cautious optimism.

Nevertheless, it would be naïve to underestimate the potential impact of popular punitivism in the future development of non-adversarial justice practices.

Development Phases In my foreword to the second edition of Non-adversarial Justice3 I paraphrased the development of the new occupational practices described in that book4 as occurring in four stages: •

Optimistic embracing

•

Hostility

•

Institutionalisation entailing a more measured understanding of benefits and pitfalls

•

A strong interdependence between the developed initiative and other services demonstrated by the cross-fertilisation of practices and philosophies.

I suggested that non-adversarial justice had reached the third phase of development and would shortly enter the fourth phase. I was wrong. It is clear that non-adversarial justice continues to generate responses which fall within the second phase of development - that of hostility. I tender the following evidence in support of that proposition.

Adherents to non-adversarial justice, and the related concepts of therapeutic jurisprudence, restorative justice, problem-solving or solution-focused courts, have long acknowledged the criticism implicit in the language sometimes used to describe those practices - such as 'touchy feely', 'new age', 'flaky', or 'soft on crime'. In the scale of criticism generally, and in the scale of criticisms of courts more particularly, language of this kind is relatively benign. However, there have been much more specific and pointed criticisms of non-adversarial justice principles in the media. I will provide two examples which suggest that there may have been less warmth in the reception of non-adversarial justice than I had hoped.

Justinian – 'A jihad on adversarialism' Following the First International Conference on Non-adversarial Justice in Melbourne in 2010, a report of the conference was published in Justinian - an Australian journal focused on legal issues and the legal profession. The

author, using the nom de plume Portia, described the conference as launching a 'jihad on adversarialism' and, in a generally facetious description of the conference, drew an analogy to: ... a Billy Graham … gospel-tent experience with members of the audience mumbling 'Amen sister' during the homily, delegates rushing to the front, shaking with the fervour from the love flowing down.

The author described the character of the papers as referring to 'naughty lawyers who failed to settle and undisciplined judges who audaciously allowed them to proceed to a trial'. The article concluded, consistently with its headline, by proposing that: the practice of non-adversarialism requires its devotees, adherents, followers and believers to be fighters in a jihad against adversarialism.

The Australian – 'Courts must dispense justice, not therapy' Earlier this year, an article was published in The Australian, a national newspaper, under the heading 'Courts must dispense justice, not therapy'.5 The article was published adjacent to a cartoon depicting a patient on a couch attended by a robed 'counsellor' sitting in a chair with a gavel on its arm.

Revolutionary courts The author described restorative justice and therapeutic jurisprudence as 'political ideals' which had been developed by a 'revolutionary court' without 'a parliamentary vote or public consent'. In case readers might have missed the author's insinuation that courts were acting undemocratically, later in the article she observed that: In liberal democracies ... making systemic changes to the law is generally understood as a matter for parliament and the people, not the unelected judiciary.

Significantly omitted from the article is any acknowledgement that the protection of the community by the rehabilitation of offenders is a longrecognised principle of sentencing, commonly, if not universally, embodied in statutes setting out the principles of sentencing in most jurisdictions. Nor does the author acknowledge that the mental health and drug courts to which she refers in the article are, in most cases, created with express statutory authority and in all cases operate within the statutory provisions relating to sentencing.

Emotions not law The author went on to assert that the proponents of the pernicious principles to which she referred were promoting the notion that: the efficacy of courts is measured not by the faithful application of legislation and just punishment for crime but the degree to which criminals emote and judges manage their emotions.

The implicit suggestion that therapeutic justice had any role in these tragic events is entirely unsupported by any evidence of which I am aware.

The article also wrongly asserts that empirical research into the longitudinal impact of therapeutic approaches to the law is 'rare' when in fact the longitudinal impact of speciality courts is commonly and frequently analysed.7 Systemic failure

The judge as talk-show host The author refers to a scenario apparently cited by a US opponent of therapeutic courts in which a judge roams around the court with a microphone in hand 'like a talk-show host' before prompting an offender, described as a client, to confess his crime and emote about it before all celebrate his rebirth with courtroom applause, a certificate and a pen. It seems that this scenario was taken from a now somewhat dated textbook by Professor James L Nolan, Reinventing Justice: the American Drug Court Movement (2003), in which it was cited as one example of a range of ways in which different judges approached drug courts in the United States.

Professor Nolan pointed out that in the circumstances he described, Judge Stephanie Duncan Peters was dealing with mainly African American participants and that her approach was markedly different from other judges. Professor Nolan concluded that in the US 'the widespread popularity of the drug court movement suggests that its defining philosophy and forms are consistent with the dominant sensibilities of American culture'.6 In making that point, Professor Nolan highlighted the capacity of non-adversarial justice to respond appropriately to the different cultural sensibilities of the communities in which it is applied.

Therapeutic justice and mass killings Returning to the article 'Courts must dispense justice, not therapy', the author was apparently not content with falsely alleging that specialty courts were acting undemocratically, and trivialising the sentencing process by implying that talkshow host styled court proceedings are 'the' model for therapeutic justice. She went on to question whether therapeutic jurisprudence was responsible for a man being granted bail who was later charged with murdering many innocent victims by deliberately driving his car into the crowd on the footpath of a street in the Central Business District of Melbourne.

The author concludes by asserting that the 'quiet revolution transforming court practice from black letter law to therapy culture' was responsible for 'the systemic failure of our legal system to protect innocent citizens from violent criminals'. In her view: Therapy is no substitute for justice.

We expect justice in our courtrooms.

Leave therapy to the therapists.

Happily, I am confident that not even ill-informed criticism of this character will discourage my judicial colleagues from protecting the community - by addressing the causes of offending and thereby reducing the risk of re-offending.

However, I am not so confident that the electoral process is immune to attacks of this character. There is a very real danger that politicians may perceive these views as reflecting popular sentiment and therefore matters properly taken into account in the formulation of justice system policy.

Speciality Courts in Western Australia â&#x20AC;&#x201C; The Rise and Fall I cannot exclude the possibility that criticisms of this kind may have contributed at least indirectly to a reduction in the specialty courts applying principles of non-adversarial justice in my jurisdiction of Western Australia, notwithstanding a report from the Law Reform Commission of Western Australia in 2009 which emphatically and enthusiastically endorsed the activities of such courts and made various recommendations for their continued expansion, development and enhancement.8 Eleven years ago when I was appointed Chief Justice specialty courts or court lists applying principles of nonadversarial justice operated in four areas - namely, drug addicted offenders,9 mentally impaired offenders,10 family violence offenders,11 and, in two locations,12 Aboriginal offenders. This was followed by a significant expansion of speciality courts. The KalgoorlieBoulder (Aboriginal) Community Court

opened within a year of my appointment, the Barndimalgu Court opened in Geraldton as a specialist Aboriginal court dealing with Aboriginal family and domestic violence offenders in 2007, and another five metropolitan family violence courts also commenced operating over the next few years, and in 2013 the Specialist Treatment and Referral Team Court (START) Court was launched for mentally ill offenders. While the Drug Court and Mental Health Court remain in operation,13 the specialty Aboriginal courts14 have effectively been wound up and offenders returned to mainstream courts. The specialist family violence courts were formally discontinued - with some fanfare15 - although as I explain below the reality is rather different.

The reasons for the discontinuance of those specialty courts in the face of independent and authoritative recommendations that they be continued and expanded16 is an appropriate subject for detailed analysis and study. In the absence of such a study, the nomination of the reasons must necessarily involve a degree of conjecture. Despite that risk, I will nevertheless venture my suggestions as to the factors which may have contributed to these courts falling out of favour, dealing firstly with factors which may have been common to both, and then factors which may have been specific to the particular courts.

Objectives more Aspirational than Realistic The literature in this area17 recognises two recurrent deficiencies which have bedevilled initiatives and programmes in this field. First, programmes, including specialty courts, have often been launched and promoted by reference to objectives which are more aspirational than realistic. Family violence and Aboriginal offending are both issues of profound importance to the criminal justice system, and to the community of Western Australia. No reasonable person would not aspire to significantly reduce the magnitude of offending in either category. However, both categories of offending behaviour present problems which are extremely complex and multifaceted, and in the case of Aboriginal offending, intergenerational. However worthy our ambitions, it is unrealistic to suppose that significant inroads will be made with respect to either category of offending behaviour in the short-term, and in particular, within any one electoral cycle. Nevertheless, the objective of significantly reducing offending behaviour has been at the forefront of the launch of specialty courts in these areas.

41

Recidivism Studies

It is more than recidivism

The second recurrent problem in this area arises from the frequent analysis of courts of this kind by reference to their longitudinal impact upon reoffending rates.18 The difficulty with that form of analysis could sustain a paper all on its own. For present purposes it will be sufficient if I mention just two of the problems.

The second problem with analysis by reference to rates of recidivism is that it tends to distort the underlying objectives of non-adversarial justice, which are much broader than the reduction of reoffending. So, in the case of the Kalgoorlie community court, one of the very real advantages of that court was that it placed a bridge over the chasm between the court and the Aboriginal community and provided Aboriginal people with a court experience which was, for the first time, relevant to them and which included a prominent role for other Aboriginal people. The value of these advantages cannot be measured statistically. Similarly, the family violence courts20 reported very high levels of satisfaction from the victims of family violence with experience of such courts,21 the enormous significance of which is diminished if there is an undue focus upon statistical analysis of rates of reoffending. It is distinctly possible that it is victim satisfaction with the specialty court process that increases the reporting of further offences. On the other hand if victims feel alienated from or dismissed by the court process, they are likely to be discouraged from reporting further offences.

Comparing apples with apples The first problem is that any analysis of the reoffending rates of offenders dealt with in a specialty court must be compared to an analysis of the reoffending rates of an equivalent cohort of offenders dealt with in a mainstream court. Researchers customarily undertake their analysis of the respective cohorts by reference to objective criteria available from files, such as age, prior offending record, nature of the offence, etc. However, there is an inherent qualitative bias which such analysis can never reveal, and which tends to skew the more difficult cases towards the specialty court. The bias is best illustrated by an example. Let us take a busy lawyer in Kalgoorlie with two Aboriginal clients, both charged with assault. Because of the qualitative of nature of the assault committed by one client, who has a lengthy history of offences of a similar kind, as compared to the qualitatively less serious nature of the assault committed by the second client, who has strong family support and good prospects for rehabilitation, the first client is much more likely to receive a custodial sentence than the second.

In a mainstream court, the process between plea and sentence of the latter client will be brief and will not require the offender to engage with the process in any significant way, and will very likely result in the imposition of a fine which can be commuted to a period of community service. On the other hand, if either client elects to be dealt with in the specialty court for Aboriginal offenders,19 the hearing will take much longer, would involve the client being subjected to detailed analysis and questioning by a group of Aboriginal Elders and perhaps 'shaming'. This course is unlikely to be attractive unless there is a very real prospect of a custodial sentence which might be avoided. In those circumstances, lawyers and their clients are making decisions as to the path that will be followed which qualitatively skew the more serious cases, with a greater risk of imprisonment, and therefore a greater risk of reoffending, towards the specialty court. Put simply, apples are not being compared with apples.

42 | BRIEF AUGUST 2017

Programmatic Support Another generic difficulty often experienced by courts of this character concerns the provision of resources providing proper support to the non-adversarial approach, including accommodation, counselling and treatment. If specialty courts are not supported by the provision of adequate resources of that kind, and are constrained to the imposition of traditional penalties, it is unreasonable to expect any significant improvement in outcomes.

Mandatory Sentencing Another generic problem for courts of this kind is one I have already mentioned - namely, mandatory minimum sentencing. As I have already indicated, if an offender is subject to a mandatory minimum sentence, there is little role or scope for non-adversarial justice.

Aboriginal Courts I turn now to specific problems that may have been faced by the two kinds of specialist courts which have disappeared from the Western Australian justice framework. Professor Chris Cunneen has eloquently made the point that specialty courts for Aboriginal offenders can be

seen as distorting the justice system, because restorative justice practices are used for more minor offences and that more punitive punishment, including mandatory imprisonment, is used for those defined as repeat or serious offenders, which may more commonly include Aboriginal offenders. He also makes the valid point that discussion of restorative justice principles raises issues which have been debated over many years with respect to the nature and purpose of punishment and the relationship to the citizen, the State and the community which, in the case of Aboriginal offenders, must be viewed through the prism of colonisation and its impact upon the indigenous community.22 Considerations of this kind may have discouraged Aboriginal participation in the Kalgoorlie court, which was one of the factors which led to its closure.

Family Violence Courts Turning to the family violence courts, as I have already noted, they were formally discontinued despite high approval ratings from victims of family violence, in a context in which much greater political emphasis has been attached to the interests of victims of that type of offence (and appropriately so), and in a context in which other jurisdictions were developing specialist family violence courts. I am advised that family violence lists have been developed in the former family violence courts, conducted on specific days of the week and which, other than in one instance, continue to function in the same way as the specialty court.

The one family violence list that operates differently (originally as a pilot but now implemented) reflects one of the reasons given for the formal closure of family violence courts in Western Australia; that was the desire to 'mainstream' some of the practices of the specialty courts, so that a broader range of offenders was brought within the scope of those practices.23 While I understand that judicial case management and programme participation through the family violence list continues to be restricted to perpetrators who plead guilty, some of the resources previously dedicated to intensive case management of offenders have been shifted to provide more extensive and earlier risk assessment in all family violence cases, regardless of whether the accused pleads guilty or not.

So, happily, in practice, some of the desirable characteristics of the family violence courts have in fact

been maintained. Nonetheless the continued restriction upon judicial case management of offenders in the family violence lists to only those accused who plead guilty broadly reflects the concerns highlighted by Professor Cunneen and referred to above â&#x20AC;&#x201C; that is, that perhaps those offenders who are most in need of a non-adversarial intervention are not eligible.

I note too that it is disappointing that what appears to be positive changes which arguably enhance rather than displace a therapeutic justice model were originally justified on the basis that regression modelling purportedly showed that perpetrators attending these specialist courts had a higher recidivism rate than those who attended the mainstream courts.24

The Significance of Nonadversarial Justice to Victims Although non-adversarial justice programmes initially evolved primarily as a way of addressing the needs of offenders, happily they have developed in such a way as to now effectively address the needs of victims as well.

This is vitally important, not just because of the moral imperative to minimise the harm suffered by victims, but also because of the practical reality that today's victim may well be tomorrow's offender.

Aboriginal Women The latter point emerges strongly from a very interesting recent survey of Aboriginal mothers incarcerated in Western Australia.25 The article noted that between 2004 and 2014 women were the fastest growing cohort in the Australian prison system - and that the imprisonment rate for Aboriginal women increased at a faster rate than for nonAboriginal women. The article also noted that most violence involving Aboriginal people in Australia is committed by Aboriginal men, with Aboriginal women overwhelmingly the victims - Aboriginal women are 34 times more likely than non-Aboriginal women to have been hospitalised as a result of injuries caused by assault and nine times more likely to die from their injuries.

In that context the authors surveyed a number of Aboriginal women imprisoned in Western Australia. The survey revealed that most of the women in the study who reported using violence had themselves been victims of violence. In many cases, offences were committed in circumstances in which women were retaliating to sustained and prolonged

victimisation - often not reported because of the normalisation of violence within some families or communities.

In that context, it seems to me to be very likely that the application of nonadversarial justice principles to victims, effectively and adequately addressing the consequences of the offence to which they were subject, is not only just and fair, but would also better protect the community by reducing the risk of the victim becoming an offender.

The Civil Justice System Trial by Battle The common law system of civil justice which the colonists brought to Australia from England had historically incorporated a system which is about as adversarial as any system could ever be - namely, the system of trial by battle.26 Under that system, disputes with respect to the ownership of land were resolved by a court ordering the disputing parties to require their representatives to bludgeon each other before an arena of spectating citizens - the victor taking the spoils for his principal. In his paper on the subject,27 Professor Leeson points out that very few would defend such a process today, and that Baron Montesquieu described the process as 'monstrous' as long ago as 1748.

However, perhaps in an attempt to show that there is a little good in everything, Leeson engages economic analysis to conclude that trial by battle was an efficient and effective way of resolving disputes with respect to the ownership of land - essentially because it provided a mechanism by which the party who attached greatest value to the land in dispute could be identified, because that was the party who would spend the most money to obtain the most successful gladiator.28 Parallels with our current system of civil justice are obvious, as is the prospect that cases determined on an adversarial basis are more likely to be won by the party who spends the greatest amount of money on their legal representatives.29 ADR These observations underscore the vital importance of applying principles of non-adversarial justice in the civil justice system. There is a tendency to see those principles given expression predominantly, if not exclusively, through the application of ADR30 such as mediation. I do not mean to diminish the significance of those processes - indeed, I am a fervent advocate of those processes and regularly conduct

mediations myself.31 However, I believe that there is much that could be done, over and above ADR, to make the fundamentally adversarial civil justice system less adversarial. I will try to develop my point by reference to some practices we have adopted in the Supreme Court of Western Australia.

Docket Case Management It should first be noted that these practices have been introduced in the context of a system of docket case management which is applied to all contentious cases.32 That context, in itself, assists to generate a nonadversarial culture in which the parties and the case manager collectively address, hopefully in a less adversarial and more collegiate way, the common objective of identifying the matters truly in issue, preparing those issues for mediation and, if necessary, trial as quickly, inexpensively and efficiently as possible.

Hearing Room Configurations The less adversarial more collegiate approach to which I have referred is encouraged by the hearing room spaces we have designed and provided in our new civil court premises. Because of the significance of the case management work undertaken by the court, hearing rooms suitable for case management are the most numerous category of hearing room provided in our new building. They are furnished with modular furniture which can be flexibly arranged and rearranged. Although the furniture can be configured in such a way as to emulate a more traditional courtroom, with a separate table for the judicial officer and bar tables for counsel, there is no elevated platform upon which a bench can be placed, and in fact the majority of these spaces are configured as conference rooms, rather than courtrooms. Perhaps unsurprisingly my colleagues and I have discovered that the configuration of the space in which a hearing is conducted has a profound impact upon the character and culture of the hearing. Parties sitting around a round conference table are much more likely to confer, whereas parties sitting in a courtroom are much more likely to argue. Spaces do matter.

Interlocutory Disputes During my time in practice, civil work was characterised by an almost neverending sequence of interlocutory disputes with respect to almost every step in the pre-trial process - pleadings,

43

particulars of pleadings, interrogatories, discovery and so on. Those disputes consumed quantities of time and money which were entirely disproportionate to their contribution to the just and efficient resolution of the dispute. We have actively discouraged those disputes in a number of ways. First, we have copied our colleagues in the Federal Court and introduced a provision into our rules which enables a case manager to direct that an interlocutory dispute will not be heard or determined. That power will be exercised when, consistently with the overarching principle of proportionality, the time and expense involved in the determination of the interlocutory dispute is disproportionate to its contribution to the just and efficient disposition of the case.

Conferral Second, for some time now there has been a provision in our Rules which requires the legal representatives for parties to 'confer' prior to initiating any interlocutory dispute. Shortly after my appointment I construed that rule as requiring discussion of the issues, preferably face to face but at least by telephone, between representatives of the parties with authority to settle the dispute. The rule thus construed has been applied in such a way that any lawyer commencing an interlocutory dispute without conferring, in the sense I have described, is at great risk of being ordered to pay the costs of that dispute personally. This approach to the construction and application of the rule has reduced interlocutory disputes by at least one-third.

Third, instead of setting aside significant amounts of time to hear interlocutory disputes, they are generally programmed in such a way that only a relatively short amount of time is allowed, and there is an expectation that, in the vast majority of cases, an extempore decision will be given immediately following the conclusion of argument.

The Strategic Conference In order to further facilitate the achievement of the fundamental objectives of docket case management to which I have already referred, some years ago we introduced a procedure which we describe as a 'strategic conference', which occurs relatively early in the life of a case - sometimes before pleading - for example, if there is a question as to whether the time and cost involved in the pleading process is justified - but more commonly after defences have been served. The 44 | BRIEF AUGUST 2017

conference is conducted in the presence of the parties in a conference room environment and involves a wideranging discussion aimed at identifying the real issues in the case and charting a strategic course particular to those issues, which will facilitate mediation, and if necessary, trial as quickly and efficiently as possible. During the procedure the judge will encourage the lawyers and the parties to think laterally, and to chart a procedural course which best suits the particular circumstances of the case, rather than simply adopting the traditional processes of pleadings, followed by particulars, followed by discovery, followed by expert evidence and witness statements, etc. Once that course has been charted, the lawyers and, at least as importantly, the parties will be aware of the direction in which the case is going, and can plan accordingly.

Expert Evidence and Discovery In complex civil litigation expert evidence and discovery can consume very substantial amounts of time and money if not properly supervised by the court.

In such cases, we commonly apply to these processes a similar approach to the approach taken in the strategic conference to which I have just referred.

So, in a complex civil case a discovery conference will be ordered, attended by the lawyers and, if appropriate, the IT consultants to the parties, where the possible alternative approaches to discovery will be discussed in a conference environment and, ideally, in a collegiate way. The same general approach will be taken where substantial issues arise with respect to expert evidence. The topics ordinarily addressed in a conference relating to expert evidence will include the fields of expertise in which opinion evidence is to be given, the facts which the experts can assume for the purposes of their advice, the facts which are contentious and which might affect the opinions given and the questions to be posed to the experts, with a view to reaching agreement on these issues and avoiding the all too common phenomenon of the expert opinions being like ships passing in the night, and therefore of limited assistance to the court but involving great expense to the parties.

Family Provision Act 1972 (WA) Cases The increasing age profile of the Australian population, the increasing complexity and diversity of family configurations, and the increasing value of deceased estates is creating a burgeoning field of claims to the effect

that a testator has made inadequate provision for a beneficiary in his or her estate. Although those cases turn almost exclusively upon the financial needs of the various parties who might have expected to receive the testator's benefaction, and the size of the estate, it was all too common for parties to seize upon the claim as an opportunity for the ventilation of long simmering family grievances, and affidavits were commonly filed giving vent to those grievances. Although the vast majority of these cases settle, usually at or after mediation, the exchange of insulting and offensive affidavits was often an impediment to early resolution.

We responded to this problem by promulgating a Practice Direction33 limiting the topics which could be addressed by affidavit evidence prior to mediation to the essential issues in the case - namely, the value of the estate, and the financial position and needs of the prospective beneficiaries. Not only has that Practice Direction saved costs and time, it has greatly facilitated the ADR process.

Family Disputes Masquerading as Commercial Cases During the last 11 years I have managed and tried a number of very significant cases which, at first sight, appear to be cases between commercial entities but which are, in fact, disputes between family members. Although I have not done a detailed analysis of the cases I have managed and tried over that period, I would estimate that at least half of the most significant and complex cases with which I have dealt have been of that character. I have gained the distinct impression that although those cases are, ostensibly, about money, like the testator's provision cases, these are very often influenced, perhaps profoundly, by a significant underlying family dispute or grievance. Good ADR practitioners will identify and endeavour to resolve that underlying grievance. But it will assist the proper management of the case if the case manager is also attentive to the likelihood that the case may be about more than just the money. That appreciation will be facilitated through the more flexible and informal processes associated with what I would describe, in the civil justice system, as less adversarial justice.

Summary and Conclusion In this paper I have endeavoured to look back on 11 years of experience as a judge and head of a court system, to reflect upon ways in which non-

adversarial principles can improve the delivery of justice to the communities which we all serve. Despite some recent setbacks in Western Australia, and a continuing degree of hostility to these principles in some quarters, these reflections reinforce my longstanding belief in the importance of non-adversarial principles and my cautious optimism that adherence to those principles will continue and indeed develop and improve, assisted and encouraged by the depth of knowledge and experience, and the commitment of the delegates to this important conference.

8.

Law Reform Commission of Western Australia (LRCWA), Court Intervention Programmes (June 2009).

9.

The Perth Drug Court which commenced in 2000.

10.

The Intellectual Disability Diversion Programme which commenced operating in the Perth Magistrates Court in 2003.

11.

The Joondalup Family Violence Pilot Court which commenced operating at the Joondalup Magistrates Court in 1999.

12.

Norseman Community Court which commenced in early 2006, and Geraldton, as the Geraldton Alternative Sentencing Regime, which operated from 2001.

13.

In metropolitan Perth only.

14.

Described as community courts in Western Australia.

15.

See for example, Sonia Kohlbacher, 'Domestic violence offenders may no longer avoid jail in WA' The Australian (24 June 2015); Amanda Banks, 'Domestic violence court axed', The West Australian (23 January 2015).

16.

The community courts were not specifically considered within the scope of the LRCWA's court intervention programmes reference, but had been recommended in the LRCWA's Aboriginal Customary Laws: The interaction of Western Australian law with Aboriginal law and culture Final Report (2006); see Recommendation 24.

NOTES:

24.

It was reported that: offenders dealt with in the five Perth family violence courts, which cost close to $10 million a year to operate, were 2.4 times more likely to go on to commit further acts of violence than matched offenders in the mainstream system (Amanda Banks, 'Domestic violence court axed', The West Australian (23 January 2015)).

Given that perpetrators who attended just one hearing before the Family and Domestic Violence Court (FDVC) and were found to be unsuitable were included in the category of those 'dealt with' by the FDVC, it might be thought that the higher recidivism rate was more indicative of a methodological flaw than the purported criminogenic nature of the FDVC.

25.

M Wilson, J Jones, T Butler, P Simpson, M Gilles, E Baldry, M Levy, E Sullivan, 'Violence in the lives of incarcerated Aboriginal mothers in Western Australia' (January-March 2017) SAGE Open 1-16.

26.

Described in medieval documents as 'duellum'.

27.

Peter T Leeson, 'Trial by battle' (Spring 2011) 3(1) Journal of Legal Analysis 341.

28.

Analysis of Leeson's thesis is beyond the scope of this paper, but it does pose the obvious rhetorical question - namely, wouldn't it be simpler and less barbaric to simply invite the disputants to bid for the land in an auction?

29.

Despite the best efforts of the courts.

30.

I will leave the debate about whether the acronym stands for Alternative Dispute Resolution or Appropriate Dispute Resolution to others.

1.

(1906) 29(I) American Bar Association Report 395.

17.

2.

A contention supported only by the intuition of its proponents and which lacks substantive empirical or evidentiary support.

See, for example, Non-adversarial Justice (2nd ed), above note 3.

18.

Contrary to the assertion made in The Australian, above note 5.

19.

Now effectively abolished.

20.

Now also formally abolished.

31.

21.

Department of the Attorney General, Research and Analysis Branch, Evaluation of the Metropolitan Family Violence Court and Evaluation of the Barndimalgu Court report (January 2015).

For many years now it has been standard practice in the Supreme Court of Western Australia to require mediation in all civil cases prior to trial.

32.

That is, cases which are not resolved administratively by default or consent judgment.

33.

Supreme Court of Western Australia, Consolidated Practice Directions (as at 24 March 2017), Practice Direction 9.2.2.

3.

M King, A Freiberg, B Batagol, R Hyams, Nonadversarial justice (2nd ed) (2014) v-vi.

4.

Based on the work of L Boulle, Mediation: Principles, Process, Practices (2011) cited in Non-adversarial Justice (2nd ed) above note 3, 103-104.

5.

Jennifer Oriel, 'Courts must dispense justice, not therapy', The Australian (30 January 2017) (also published under the title 'Society expects justice from courts, not therapy').

6.

James L Nolan, Reinventing Justice: the American Drug Court Movement (2003) 14.

7.

See, for example, the research reports referenced in Non-adversarial Justice (2nd ed), above note 3.

22.

See Chris Cunneen 'Restorative justice and the politics of decolonisation' in EGM Weitekamp, HJ Kerner, Restorative justice: theoretical foundations (2012) 32, 46-48.

23.

One very significant concern was that the speciality courts only dealt with offenders who pleaded guilty.

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45

FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Contempt – Solicitor husband sentenced to six months imprisonment In Bain & Bain (Deceased) [2017] FamCAFC 80 (3 May 2017) the Full Court (Bryant CJ, Ainslie-Wallace & Rees JJ) heard an appeal by the husband, a principal of a law firm, in a case where his terminally ill wife had applied for an interim order that he transfer his interest in a life insurance policy over her life to her so that the children would benefit from it upon her death. The husband opposed the application, arguing that any insurance should be applied towards the parties’ debts. He alternatively sought an order that any payment be held in his solicitor’s trust account.

Hogan J dismissed the wife’s application on the husband’s undertaking that any payment would be held in trust. The undertaking was not given in court but noted in the order after being deposed to in the husband’s affidavit and reiterated by his counsel. The husband did not attend court. The wife died and her legal personal representatives were appointed to continue the case under s 79(8). The husband received the insurance but applied it towards debt. The estate brought contempt proceedings under s 112AP. Hogan J found the husband guilty of contempt, sentencing him to six months imprisonment, suspended pending his appeal.

The husband argued that the estate lacked standing to bring a contempt application; and that he was not told of his undertaking by his solicitor who simply said that the wife’s application was dismissed.

In allowing the appeal, the Full Court ([64][96]) held that the wife’s legal personal representatives did have standing to bring contempt proceedings. As to the finding of contempt, the Court said ([117]): … [W]here her Honour did not identify in what way the husband’s evidence was ‘inherently unbelievable’ in the sense that ‘no reasonable man could accept it’ and to the extent that the trial judge rejected the husband’s evidence on that basis, it cannot be supported.

Property – Order set aside for default (husband 13 months late to pay wife) during which his property value rose In Backwell & Scott [2017] FamCAFC 77 (28 April 2017) a consent order provided

46 | BRIEF AUGUST 2017

that Mr Blackwell retain an investment property and pay Ms Scott $130,000 within 90 days (so as to achieve an equal division of property). In the 13 months the appellant took to pay the respondent the property increased in value from $860,000 to $1 million according to a valuer, the respondent arguing in her application under s 90SN(1)(c) that the order should be set aside as the increase meant that she would receive far less than an equal division of assets. Judge Brewster granted her application. Mr Blackwell filed an appeal which the Full Court (Aldridge, Kent & Watts JJ) dismissed. Aldridge J said (from [11]): The question posed by s 90SN is whether the property orders made under s 90SM continue to be just and equitable or appropriate, subject to the terms … of s 90SN(1)(c) being met, including the requirement that the relevant circumstances must have arisen as a result of default. It is therefore entirely proper to look at the content and effect of the s 90SM orders to identify the relevant changed circumstances.

[12] … [T]he evident purpose of the … orders was to achieve an equal division … Thus, to use the words of s 90SM, it was just and equitable and appropriate that there be such a division and that that division be effected by a payment to the wife of $130,000.

[13] The husband’s delay in complying with the orders was … substantial.

By the time he did comply … the wife did not receive anything close to 50 per cent of the matrimonial property, which was both the intent and effect of the orders at the time the parties consented to them. …

[14] Thus whilst it is … correct to say that the husband’s default did not cause house prices to rise, that is not the relevant enquiry. The relevant enquiry is whether circumstances have arisen as a result of the husband’s default that would make it just and equitable to reconsider the earlier orders. The circumstances that arose were that … the wife received significantly less than an equal division of the property and the husband received considerably more. That difference resulted directly from the

husband’s delay in complying with the orders. The primary judge was therefore entitled to find that the position of the wife had arisen as a result of the husband’s breach.

[15] It is not the point that the wife got the bargain to which she agreed.

The point is that by reason of the husband’s default the agreed equal division of the parties’ property did not take place.

Children – Recovery order discharged where court was misled by evidence in which applicant failed to disclose material facts In Drew & Jensen [2017] FCCA 656 (13 April 2017) Judge Altobelli considered an ex parte recovery order made by a Local Court. The father obtained the order by alleging that the mother had absconded with the parties’ children. With the intervention of the police, the children were removed from the mother’s care and delivered to the father. The mother then applied to the Federal Circuit Court seeking the discharge of the order and an order that the children live with her. The mother subpoenaed the father’s criminal history and deposed that she took the children away to flee his violence.

After citing ([19]) the Full Court’s decision in Saleh [2016] FamCAFC 100 as to a court’s approach to disputed and untested allegations of family violence in interim parenting proceedings Judge Altobelli said (from [54]): Let it be very clear – it is the opinion of this Court that any parent who has been violent to a former partner in the past, who has been convicted of the same, and who does not spend time or communicate with children from a previous relationship for reasons that include that violence, must put that material before the Court in all circumstances, let alone when ex parte orders are sought. ( … ) [88] ( … ) An ex parte recovery order should only be made as a last resort, in circumstances where the Court is clearly concerned about a risk of harm to children. ( … ) The recovery order was discharged and an order made that the children live with the mother and spend alternate weekends with the father.

YOUNG LAWYERS CASE NOTES Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Aubrey v The Queen [2017] HCA 18 This case was an appeal from a decision of the New South Wales Criminal Court of Appeal (Justice Fagan delivered the leading judgment with whom Justice of Appeal Gleeson and Justice Button agreed) to dismiss the Appellant’s appeal from his conviction under section 35(1)(b) of the Crimes Act 1900 (NSW) for ‘maliciously inflicting grievous bodily harm’ by having unprotected sexual intercourse with the complainant in circumstances where he knew he was ‘HIV positive’ and which resulted in the complainant contracting the disease.

The two issues for the determination by the Court on appeal were, with respect to section 35 of the Crimes Act, whether: 1. causing the contraction of HIV by way of sexual intercourse constitutes the “infliction” of grievous bodily harm; and 2. it is sufficient for the prosecution to establish that Mr Aubrey foresaw the possibility, as opposed to the probability, that the complainant would contract HIV by virtue of having unprotected sexual intercourse with him, and thus, acted maliciously [6].

In answering yes to both of the above questions, Chief Justice Kiefel and Justices Keane, Nettle and Edelman (with Justice Bell dissenting with regard to the first issue) delivered a joint judgment dismissing the appeal and upheld the decision of the NSW Criminal Court of Appeal.

With respect to the first issue, the Appellant sought to rely on a decision of the Court for Crown Cases Reserved (a pre-cursor to the English Court of Appeal) in R v Clarence (1888) 22 QBD 23 in which nine of 13 members of that Court held that a man who transmitted gonorrhoea to his wife was not guilty of maliciously inflicting grievous bodily harm on her because the delayed manifestation of the “bodily harm” caused by the transmission of the disease lacked an “immediate and obvious result” [10].

At hearing, Counsel for the Appellant submitted that the proper interpretation of the term “inflict” must be subject to some limiting factor and the harm must possess some degree of immediacy of effect. It follows, therefore, in the Appellant’s submission that the delayed onset of the symptoms of HIV in the complainant meant there could be no “infliction” of harm to him for the purposes of the section [27].

The Court rejected the Appellant’s arguments and affirmed the reasoning

of the Courts below which held that “the infliction of harm does not require a direct or indirect application of force and that grievous bodily harm may be inflicted by the transmission of a sexual disease” [17].

Their Honours detailed nine reasons why the decision in Clarence should no longer be followed including that the decision was contrary to contemporary authority, contained vigorous dissenting judgments and reflected the then presumption of marital consent to intercourse [18] – [26]. The Court also noted that despite never being previously distinguished in New South Wales, in the United Kingdom the decision in Clarence has “long been regarded as doubtful” [36]. However, Justice Bell considered that the Court should not depart from the decision in Clarence and that “certainty is an important value in criminal law” [73].

Whilst the offences the subject of this appeal were committed in 2004, any ambiguity with respect to the issues on appeal has since been alleviated by the legislature when the definition of ‘grievous bodily harm’ in the Crimes Act 1900 (NSW) was amended, with effect from 15 February 2008, to include: “causing a person to contract a grievous bodily disease” [9].

Author: Jack Carroll, Solicitor, Park Legal Solutions, Young Lawyers Committee member

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.

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”.

47

Law Council Update

Legal profession warmly welcomes Professor Rosalind Croucher as AHRC President The Law Council of Australia has welcomed the appointment of Emeritus Professor Rosalind Croucher AM as the next President of the Australian Human Rights Commission (AHRC).

Fiona McLeod SC, President of the Law Council of Australia, said Professor Croucher was eminently qualified for the vital role.

"Professor Croucher has had a brilliant career in the law, and her long and successful stint as President of the Australian Law Reform Commission has enhanced the standing of the institution," Ms McLeod said.

"She enjoys an outstanding reputation among her peers for her clear-sighted, pragmatic, and strategic approach to law reform.

"Her contribution this year to the Law Council's Justice Project, our national review into the impediments to justice in Australia, has been invaluable.

"I have no doubt her seven-year term as President of the AHRC with be marked by the same insight and clarity that has defined her illustrious career to date.

The AHRC serves a critical role in ensuring that human rights are promoted, protected, and understood.

"We are extremely pleased to see someone of Professor Croucher's standing appointed to lead."

Ms McLeod also paid tribute to outgoing AHRC president, Emeritus Professor Gillian Triggs.

"Professor Triggs served the AHRC with indefatigable passion and purpose," Ms McLeod said.

"We are grateful for the way she has represented the legal profession and the promotion of human rights within and outside Australia. We trust that she will continue to make a positive contribution to the law and our national debate."

On Friday, 16 June, the Law Council released its Policy Statement on Human Rights and the Legal Profession, laying out core principles and commitments of behalf of the Australian legal profession.

Legal profession sets out core principles and commitments on human rights, as international spotlight shines on nation The Law Council has launched its Policy Statement on Human Rights and the Legal Profession, laying out core principles and commitments on behalf of the Australian legal profession.

The Policy Statement sets out a framework for evaluating the merits of legislation, policy, and practice by reference to international human rights law.

The Statement includes a commitment to advocate for a federal charter or bill of rights, as well as for more State and Territory charters of rights to join those of Victoria and the ACT. It also commits the Law Council to promote respect for human rights by Australian corporations and other incorporated and non-incorporated entities, including through implementation of the UN’s Guiding Principles on Business and Human Rights.

The Law Council of Australia’s President, Fiona McLeod SC, said with Australia bidding for a seat on the UN Human Rights Council this year the policy was particularly timely.

“Australia has a proud history in the human rights sphere. We played a prominent role in drafting the UN Charter and the Universal Declaration of Human Rights and have since been an active participant in the development of an international system for the protection and promotion of human rights,” Ms McLeod said.

“The Law Council endorses a central and constructive role for Australia in the international human rights system. This year, as Australia seeks a seat on the UN Human Rights Council, it is important to assert and articulate the legal profession’s principles and commitments on human rights.

“The Law Council supports an approach, consistent with international law and practice, which confirms that all human rights are universal, indivisible, and interdependent and interrelated.

“We believe this makes it vital to consider legislation and government action through a human rights lens. The principles in this framework guide myriad aspects of the Law Council’s work in the policy space – from asylum seekers to marriage equality to metadata,” Ms McLeod said.

The Policy Statement on Human Rights and the Legal Profession was prepared by

48 | BRIEF AUGUST 2017

the Law Council’s National Human Rights Committee and approved by its Directors.

Recommendations in new elder abuse report should trigger decisive Government action A new incident response scheme for aged care should be introduced, and many of the other key recommendations of the Australian Law Reform Commission's (ALRC's) vitally important report pursued, according to the Law Council of Australia.

The ALRC has released its final report into elder abuse, capping off a national inquiry that was launched in February last year.

Law Council of Australia President, Fiona McLeod SC, noted that many of the recommendations the Law Council made on behalf of the Australian legal profession had been included in the ALRC's final report and urged the Federal Government to act decisively.

"This report is absolutely correct in noting the need for a new serious incident response scheme for aged care, with an independent oversight body to monitor and oversee investigations," Ms McLeod said.

"As things stand currently there is no one organisation tasked with investigating and responding to elder abuse, and that makes it difficult – or sometimes impossible – to respond and deal with allegations of abuse.

"The Law Council also strongly backs the creation of a national online register of enduring documents, to ensure that doctors, financial planners, and other professionals are able to quickly ascertain whether a power of attorney document is valid or whether it has been superseded.

"We also welcome the recommendation that the Law Council, with the state-based law societies, should develop guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents. This will ensure they provide thorough coverage of elder abuse and undue influence.

"We also urge the Government to move swiftly toward the development of a National Plan to combat elder abuse as well as a national prevalence study.

"This is a crucially important report and we commend the Attorney-General for his referral to undertake this inquiry and the Australian Law Reform Commission for the outstanding work they have done in this space,” Ms McLeod said.

Pam Sawyer

49

Professional Announcements Career moves and changes in the profession

Hotchkin Hanly Lawyers

Carr & Co

Hotchkin Hanly are pleased to announce that Emily Williams, Aimee Lark and Joshua Fetherstonhaugh have been appointed as Senior Associates as of 1 July 2017.

Carr & Co are pleased to announce the appointment of Ms Stacey Wellings as a Director of the firm effective 1 July 2017.

MDS Legal MDS Legal is pleased to announce that Shonelle Duthie has been appointed as a Senior Associate of the Shonelle Duthie firm. Shonelle practises in civil litigation with a particular involvement in professional negligence matters.

HLS Legal HLS Legal is delighted to announce two of our Graduates have recently been admitted as Practitioners to the Supreme Court of WA. We congratulate Jane Bourke and Brian Liau on their Admissions.

Jane Bourke

Brian Liau

EMK Lawyers EMK Lawyers have recruited Andrew Disney as a new director of EMK Lawyers. Andrew is leaving Steinepreis Paganin to join us and starts with us on 17 July.

Stacey Wellings

Stacey has extensive experience in all aspects of family law, however, has a particular interest in complex financial matters involving multiple corporate and trust structures and/or accounting and taxation issues.

Melanie specialises in medicolegal matters, administrative law, professional regulation, professional indemnity, and criminal law.

She is a previous member of the editorial committee of Brief.

Bowen Buchbinder Vilensky Bowen Buchbinder Vilensky is pleased to announce the appointment of Robyn Watson Robyn Watson as a Senior Associate in their growing Family Law team.

Robyn is a highly experienced family law practitioner and was previously a consultant at Carr & Co, Divorce & Family Lawyers and prior to that operated her own boutique family law practice. Robyn has extensive experience in all aspects of Family Law including complex property settlements, children and parenting issues, grandparent applications and child support issues. She is also a trained and qualified Independent Children's Lawyer.

Robyn's appointment further strengthens Bowen Buchbinder Vilensky's position as a premium Family Law service provider to its ever expanding client base.

Tottle Partners Tottle Partners is pleased to welcome Melanie as a Partner of the firm from 1 July 2017.

Melanie Naylor was admitted to practice in 1993, and has worked at Tottle Partners (and its predecessors) since 1996.

50 | BRIEF AUGUST 2017

She has also worked as a lawyer for the Australian Securities Commission and as a consultant for the Australian Melanie Naylor Health Practitioner Regulation Agency.

Panetta McGrath Lawyers Panetta McGrath Lawyers are pleased to announce the appointment of Jenny Edinger as Special Counsel and Natalie Zurita as Senior Associate in the Employment and Workplace Relations team, effective 1 July 2017.

commercial solutions. Along with his dedication to all our clients, Matthew demonstrates a commitment to mentoring and developing the Valenti Lawyers team.

Matthew’s appointment is highly welcomed by all in the firm.

HHG Legal Group Biljana Radulovic graduated from the University of Western Australia with a bachelor Biljana Radulovic of Laws and Bachelor of Arts (French/German) and was admitted as a Solicitor in the Supreme Court of Western Australia in 2014.Whilst an undergraduate at the University of Western Australia, Biljana received a scholarship to the University of Vienne where she studied European Law in both French and German, Biljana is fluent in English, Serbian, Croatian, Bosnian, German and Spanish.

Biljana joins the Family Law team at HHG Legal Group.

Gilchrist Connell Jenny Edinger

Natalie Zurita

Specialist insurance law firm Gilchrist Connell announces the following promotions in its Perth office:

Valenti Lawyers

•

Verginia Serdev-Patterson to Special Counsel

Valenti Lawyers is pleased to announce the appointment of Matthew Noonan-Crowe to Partner of the firm as from 1st July 2017.

•

Ryan Tozer to Associate

Matthew Noonan-Crowe

Matthew has been the Head of Valenti Lawyers Commercial Litigation Division since 2011.

He has a wealth of experience in litigation and is recognised for his strategic outlook which has provided clients with innovative

Verginia Sedev-Patterson

Ryan Tozer

Classifieds

PERTH’S BUSINESS VALUATION EXPERTS

FOR SALE OR LEASE

FOR RENT

OFFICE AT IRWIN CHAMBERS – FIRST FLOOR North facing large office on the first floor of Irwin Chambers, 16 Irwin Street, Perth is available immediately for rent.

 Family Law Disputes  Partnership Dissolutions

Access to a conference room reception area and records storage room. $1,500 plus GST per month; no outgoings.

and Admissions  Licensing Applications  Bank Opinions  Purchaser and Vendor Opinions

Equus Building - Suite 184 / 580 Hay St, Perth

FULLY FITTED OFFICE 213 sqm TOP FLOOR WITH EQUUS CHAMBERS & MPH LAWYERS, FACES DAVID MALCOLM JUSTICE CENTRE, RIVER VIEWS IN THE LEGAL PRECINCT OF PERTH

♦

2 x partitioned offices + boardroom

♦

Plus open plan (10 workstations, up to 35)

♦

2 x secure undercover car bays

Contact: Ian Marshall or Norma on 9325 1433 or 0406 575 144

Victor Aloi 0404 808 012

valoi@vicusgroup.com

Contact:

Graham O’Hehir MBA

Managing Director (08) 9481 4422 or graham@buyabusiness.com.au

Government of Western Australia Department of Justice

ROBERT CHARLES PHILLIPS late of 3 Hanlin Way, Samson, Western Australia who died on 27 January 1999 at Fremantle, Western Australia.

Would any person holding the last Will and Testament of ROBERT CHARLES PHILLIPS or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 33133294 EM24.

www.buyabusiness.com.au

FOR SALE

adcorp WG21354

Lots 6, 7 & 8 (whole floor available) • • • • • •

BRIEF 2017

NOTICE – WILL OF G.R. MYLES

Level 2, 524 Hay St, Perth

Lot 6 – 107m2 Lot 7 – 163m2 Lot 8 – 258m2 Available individually or in any combination Superb Court Precinct location Holding income available

Greg Radin 0411 883 995 | Eric Rogers 0412 228 555

Any practitioner holding any document or having knowledge of the existence of a Will or any other document purporting to embody the testamentary intentions of Geoffrey Robert Myles, late of 20 Cook Avenue, Hillarys, Western Australia, who died on 17 June 2016 (and was born on 30 January 1954) are requested to contact Atkinson Legal (attention: Tim Nelson), Suite 144, 580 Hay Street, Perth, ph: 9221 7033, email: timn@atkinsonlegal.com.au

For advertising opportunities in Brief 2017 please contact: Moira McKechnie Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

New Members New members joining the Law Society (June 2017) Ordinary Membership Ms Janet Bailey DeLancey Legal Mr Wesley Bridger Ernst & Young Miss Carla Davidson Moray & Agnew Ms Carola Varne Douglas Cheveralls Lawyers Miss Kathryn Winter Minter Ellison

Ms Gabrielle Bourke Zafra Legal

Mr Connor Taylor

Mr Victor Greenstreet Clifford Chance (Sydney)

Mr Kenneth Chang Tan & Tan Lawyers

Miss Clea Turner ETDK Pty Ltd Trading as DCH Legal Group

Mr Charles Dallimore Ashurst Australia

Associate Membership

Miss Kerri-Lee Moore O'Sullivan Davies

Ms Gillie Anderson Department of Housing

Mr Toby Newnes Ashurst Australia

Miss Mila Banovic Corrs Chambers Westgarth

Mr Reuben Pemberton-Ovens Sonder Legal

Ms Rahana Bell University of Western Australia

Richard Shugrue Corrs Chambers Westgarth

Mr Alex Duffy Ashurst Australia

Miss Chelsea White Glen McLeod Legal

Miss Kathryn Evans Price Waterhouse Coopers Ms Stephanie Giglia Costantino & Co

Restricted Practitioner

Ms Barbara Lim Havilah Legal

Ms Cayli Bloch Sparke Helmore

Ms Grace Rompotes Bennett & Co Miss Amy Ryan Minter Ellison

Mr Adam Law

Ms Nikolina Dzinkic Mountains Lawyers

51

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

August 2017 Membership Events Six week course commencing Wednesday, 9 August Pilates Classes The Law Society of Western Australia Thursday, 31 August Sole Practitioner and Small Firm Forum The Law Society of Western Australia

CPD Seminar Friday, 18 August Supreme Court eLodgement System – information session for practitioners – Bunbury Bunbury Court

September 2017 Membership Events Monday, 4 September Joint Law Society / Women Lawyers of WA Committee High Tea The Western Australian Club

Tuesday, 12 September Fraud in Accounting The Law Society of Western Australia

Thursday, 21 September Society Club Halford Bar

Tuesday, 12 September Policy as a Mandatory Relevant Consideration: A reflection on Jacob v Save Beeliar Wetlands The Law Society of Western Australia

CPD Seminars Tuesday, 5 September Civil Liability Update The Law Society of Western Australia

Monday, 18 September The Nexus of National Security and Migration Law (Webinar) Online at your desk

October 2017 Membership Event Tuesday, 10 October Mental Health Awareness The Law Society of Western Australia

Friday, 20 October Ethics on Friday: Practical Conflicts – Real Life Studies The Law Society of Western Australia

CPD Seminars Thursday, 5 October Appearing in SAT The Law Society of Western Australia

Friday, 20 October Parliamentary Drafting The Law Society of Western Australia

November 2017 Membership Events Saturday, 11 November Young Professionals on the Bay Cocktail Party Royal Freshwater Bay Yacht Club

CPD Seminar Wednesday, 8 November Misuse of Market Power The Law Society of Western Australia

Thursday, 23 November Welcome to the Profession Breakfast Parmelia Hilton Hotel 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 8692.

For all upcoming events and further information please visit lawsocietywa.asn.au

52 | BRIEF AUGUST 2017

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