VOLUME 43 | NUMBER 11 | DECEMBER 2016
Repayment obligations in Australian employment contracts: are they penalties? Accessories personally liable for unpaid employee entitlements
2016 Mock Trial Competition Grand Final Law Society Council for 2017
Contents Volume 43 | Number 11 | December 2016
Open letter to the Prime Minister
New Council for 2017
Immediate Past President's Speech
2015/16 Annual Report
Repayment obligations in Australian employment contracts: are they penalties?
Occupational safety and health considerations in the workplace of the "twenty-tens"
Employment law issue
Westpac Banking Corporation v Wittenberg (2016) 330 ALR 476
Accessories personally liable for unpaid employee entitlements
The CEO, the Slave and the West Australians Pioneering the Anti-Slavery Campaign
Blurring the boundary between work and play
2016 Mock Trial Competition Grand Final
A Quick Guide to the Corruption and Crime Commission
Where does the Corruption and Crime Commission sit within the existing government architecture?
General Protections Claims and the Role of the Decision Maker
2016 Social Justice Opportunities Evening
Book Review: The Bradshaw Case by Nicholas Hasluck
Disclaimer The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. Copyright Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an authorâ€™s name is not provided, or if readers are not able to locate an authorâ€™s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.
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REGULARS 02 President's Report 03 Your voice at work 06 Editor's Opinion 46 Family Law Case Notes 47 Young Lawyers Case Notes 48 Law Council Update 49 Pam Sawyer 50 Professional Announcements 50 Classifieds 51 New Members 52 Events Calendar
Editor Jason MacLaurin
President Elizabeth Needham
Deputy Editors Andrew Cameron, Moira Taylor
Senior Vice President Alain Musikanth
Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Catherine Graville, Melissa Koo, Jason MacLaurin, Alain Musikanth, Maureen O'Connell, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor
Vice President Hayley Cormann
Proofreaders Sonia Chee Brief is the official journal of The Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 | Fax: (08) 9324 8699 Email: email@example.com Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles Contributions to Brief are always welcome. For further details, please contact firstname.lastname@example.org
Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Chief Executive Officer David Price
President's Report Elizabeth Needham President, the Law Society of Western Australia
LAW SOCIETY SUPPORTS INQUIRY INTO INCARCERATION RATE OF INDIGENOUS AUSTRALIANS The Law Society welcomed a recent announcement by the Commonwealth Government that it will initiate an inquiry by the Australian Law Reform Commission (ALRC) into the incarceration rate of Indigenous Australians. Members will be aware that the Law Society has consistently advocated for governments to do more to address the appalling overrepresentation of Aboriginal and Torres Strait Islander Australians in our prison system. The announcement of the ALRC inquiry is a welcome development and a crucial step in confronting an issue that frankly shames our nation. In the 25 years since the 1991 Royal Commission into Aboriginal Deaths in Custody, the rate of incarceration amongst Indigenous Australians has become worse, not better. According to the Australian Bureau of Statistics, Western Australia has the highest rate of Aboriginal and Torres Strait Islander imprisonment in the country, with 3,663.5 prisoners per 100,000 Aboriginal and Torres Strait Islander adult population. As the Hon Wayne Martin AC, Chief Justice of Western Australia, has often noted, there must be a strong focus on support and community services to prevent our First Peoples from ending up in the justice system in the first place. As I have said in numerous media interviews over the course of the last year, this is not merely an issue for the justice system in finding the most appropriate sentencing options and programmes – although they too are important – or dealing with unconscious bias. To truly address this issue an holistic response involving a combined effort across professional disciplines and ministerial portfolios is required. Perhaps it is something akin to a War Cabinet that is required to properly and ultimately address this appalling situation. I understand that some members of the Judiciary have taken steps to ensure that the latest research is at the forefront of the sentencing process. This has included making the recent Australian Institute of Judicial Administration (AIJA) report on Efficacy, accessibility and adequacy of prison rehabilitation programs for Indigenous offenders across Australia recommended reading for all counsel appearing before the Court in matters involving the sentencing of Indigenous persons. The report can
02 | BRIEF DECEMBER 2016
be accessed (for a fee) through the AIJA website.
The Hon Robert French AC, Chief Justice of the High Court of Australia;
The conclusions and recommendations that ultimately emerge from the upcoming ALRC inquiry must be followed by tangible actions on the part of governments and other stakeholders to address the root causes of offending and reoffending, and thereby cut imprisonment rates.
The Hon Kim Beazley AC;
The Hon Justice Nye Perram, Federal Court of Australia;
The Hon Chief Justice Marilyn Warren AC, Supreme Court of Victoria; and
Sarah Green, Associate Professor of Law, University of Oxford.
ANNUAL REPORT As I noted in my November President's Report, the Law Society held its Annual General Meeting on 25 October 2016. Please visit lawsocietywa.asn.au/resourcecentre to view the 2015/16 Annual Report, which contains extensive reports from the Convenors of each of the Society's committees. In this issue of Brief you will also find a snapshot of the year in review. 2017 LAW SOCIETY COUNCIL The Law Society's Council for 2017 has been finalised, with the seven Ordinary member vacancies and three Junior member vacancies now filled. As you will be aware, Alain Musikanth has been elected unopposed as President for 2017. Hayley Cormann and Greg McIntyre SC were elected unopposed to the two Vice President positions. You will find a complete list of the Council for 2017 in this issue of Brief. I would like to take this opportunity to thank everyone who put themselves forward for election to Council. Even if you were unsuccessful on this occasion, you have played an important part in the election process and have displayed a serious commitment to advancing the causes of the legal profession and the wider community. My thanks also go to all those members who put themselves forward for election and those that voted in the Council election. It is important that the Law Society has a Council that is representative of its membership, making the elections an essential process. LAW SUMMER SCHOOL: UNIVERSITY CLUB, FRIDAY, 17 FEBRUARY 2017 After the tremendous success of another Law Summer School this year, it will again return in 2017. The overarching theme is Australia's Place in the World. Another outstanding line-up of guest speakers has been assembled to help make sense of Australia's role in the global order during these uncertain times: •
Senator the Hon George Brandis QC, Attorney-General for Australia;
Please visit lawsocietywa.asn.au/lawsummer-school-2017 to find out more and to secure your place at Western Australia's leading legal education conference. IMMEDIATE PAST PRESIDENT'S DINNER On 17 November 2016, a dinner was held to acknowledge the contributions of Immediate Past President Matthew Keogh to the Society. It was a delightful evening. You will find a copy of Mr Keogh's speech reproduced in this issue of Brief. YOUR LAW SOCIETY IS TURNING 90 2017 will be a significant year for the Law Society. It will be 90 years since the Society was established on 15 June 1927, when 96 founding members agreed that "an association of legal practitioners of Western Australia be formed". Please keep an eye out for a number of commemorative events and activities that are planned throughout the year. It is fair to say that the Law Society has come a long way in 90 years. In 2015/16, the Society achieved a record membership of 3,785. Irrespective of the growth in membership, the mission remains the same: acting as the respected voice of the legal profession in Western Australia, providing high value services to our members and continuing to be a forward-thinking organisation with strong, representative and collaborative leadership.
THANK YOU On a personal note, this will be my last President's Report in Brief. It has been an honour and a privilege to serve as President of the Law Society. The Law Society is well positioned to be a voice of reason and authority in the community on important issues of law and legal policy that affect them and together we are a strong advocate for the profession and the Rule of Law. As Immediate Past President in 2017, I look forward to working as part of the Society's new Council on the important issues facing the profession and supporting the incoming President, Alain Musikanth.
Your voice at work A snapshot of recent Society initiatives
LAW SOCIETY ELECTS NEW PRESIDENT FOR 2017 The Law Society of Western Australia is pleased to announce that Alain Musikanth has been elected unopposed as President for 2017. Mr Musikanth will begin his term as President on 1 January 2017. Hayley Cormann and Greg McIntyre SC have both been elected unopposed as Vice Presidents for 2017. Mr Musikanth said, "I am honoured to have been elected as President of the Law Society for 2017. Having served on the Law Society's Council for a number of years, I hope to continue contributing to the work the Society does both for the benefit the legal profession and for the benefit of the broader community." Mr Musikanth is a barrister practising from Francis Burt Chambers in commercial litigation, with a focus on professional liability, insurance and contentious tax matters. He has worked in litigation for over 20 years, having spent most of his career practising as a barrister at the independent bar. Before joining the WA Bar in early 2007, Mr Musikanth was special counsel in the commercial litigation division of Corrs Chambers Westgarth. He practised as a barrister in Cape Town, South Africa prior to joining Corrs in 2001. Mr Musikanth is currently Senior Vice President of the Law Society, Convenor of the Society's Professional Standards Scheme Committee and a member of the Society's Ethics and Brief Editorial Committees. LAW SOCIETY JOINS ALL AUSTRALIAN LAW SOCIETIES TO CALL ON PM TO REVERSE CUTS TO LEGAL ASSISTANCE FUNDING The Presidents of Australia's eight law societies, representing more than 60,000 legal practitioners, called on the Prime Minster to return funding to the legal assistance sector in an open letter published in The Australian on 4 November 2016. The legal assistance sector, which includes Legal Aid, the Aboriginal Legal Service and Community Legal Centres, will face a funding cut of 30 percent or the equivalent of around $35 million from 1 July next year.
In the open letter the Law Society Presidents state, "Adequate legal assistance services are critical in ensuring fairness and efficiency in our court system, and are essential to providing access to justice for the most financially disadvantaged." "In 2015, CLCs had to turn away 160,000 people due to lack of capacity. Many are also reporting a reduction in staff numbers. We note that this is taking place at a time when there is a growing 'justice gap' for the disadvantaged in Australia, particularly in relation to Indigenous peoples, who are the worst affected group experiencing unmet legal need," the letter says. Community Legal Centres, in particular, have a strong connection to their local communities, which enables them to formulate targeted responses to emerging community needs, such as domestic violence. Law Society President Elizabeth Needham said, "The current funding crisis is a direct result of successive cuts to legal assistance funding over a number of years by both the Federal and Western Australian Governments. "The underfunding of legal assistance bodies continues to significantly affect access to justice for the most disadvantaged members of the community (including young people, people with low socio-economic standing and people with disabilities). The result is an increasing number of people in the court system who are being denied access to basic legal representation." The signatories are calling on the Government to commit to properly funding the legal assistance in the 2017 Federal Budget, so that they can continue to improve outcomes for individuals and local communities through their reform and advocacy work. A full copy of the letter is available online at: http://bit.ly/2eC5dKC. For further information about legal assistance funding and to sign a petition go to: www.legalaidmatters.org.au LAW SOCIETY CONGRATULATES JOSEPH MCGRATH SC ON SUPREME COURT APPOINTMENT The Law Society of Western Australia congratulates Joseph McGrath SC on his
appointment as a Judge of the Supreme Court of Western Australia. The State Government has announced that Mr McGrath will begin his new role on 28 November 2016. Law Society President Elizabeth Needham said, "Over three decades, Joseph McGrath SC has amassed a wealth of experience and is well respected within the legal profession. "Having worked in private practice, in government roles and at the Independent Bar, Mr McGrath has enjoyed a distinguished career and will no doubt excel in his new position as a Judge of the Supreme Court." Mr McGrath joined the Law Society on being admitted to practice in 1991 and is a member of the Law Society's Ethics Committee. He was previously Deputy Convenor of the Law Society's Continuing Professional Development (CPD) â€“ General and Commercial Litigation Committee and a member of its Brief Editorial Committee. Mr McGrath has also been a valued speaker at Law Society CPD seminars over many years. Mr McGrath was admitted to practice in WA in 1991 and worked for Freehill, Hollingdale and Page from 1990 to 1991. In 1992, he was Associate to Justice Lee in the Federal Court. From 1993 to 1998 Mr McGrath served as first a Senior then Principal Legal Officer for the Commonwealth Director of Public Prosecutions in Perth, and as Senior Assistant Director from 2000 to 2001. Mr McGrath joined the Independent Bar in March 2001, until his appointment as Director of Public Prosecutions in 2010. QUALITY PRACTICE STANDARD (QPS) The Society congratulates Haynes Robinson Pty Ltd as trustee for the Law Unit Trust (trading as Haynes Robinson), which recently celebrated its QPS 15th anniversary. QPS is an important Society initiative which recognises firms that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction. For more information about QPS, please visit the Society's website.
The Presidents of all the Australian law societies have written an open letter to the Prime Minister, the Hon Malcolm Turnbull MP, to voice concerns about the impending cuts to the legal assistance sector.
The Hon Malcolm Turnbull MP Prime Minister Department of Prime Minister and Cabinet PO Box 6500 CANBERRA ACT 2600
The letter was originally published in The Australian on Friday, 4 November 2016. It was republished in The West Australian on Wednesday, 16 November 2016.
Dear Prime Minister,
Commonwealth funding for the legal assistance sector We are writing as the heads of Australia’s eight law societies and the representatives of the nation’s more than 60,000 practising solicitors, to voice our concerns about the impact of impending cuts to the legal assistance sector. We understand that the legal assistance sector, including Legal Aid, Aboriginal Legal Service and Community Legal Centres (CLCs) nationally, will face a Commonwealth funding cut of 30% or the equivalent of $34.83 million over three years, from the first of July next year. Further, we understand that restrictions on the use of Commonwealth funding for policy, advocacy and law reform work is likely to continue under the new national partnership agreement. Adequate legal assistance services are critical in ensuring fairness and efficiency in our court system, and are essential to providing access to justice for the most financially disadvantaged. However, funding cuts by successive governments have forced significant restrictions on both criminal and civil cases. In 2015, CLCs had to turn away 160,000 people due to lack of capacity. Many are also reporting a reduction in staff numbers. We note that this is taking place at a time when there is a growing “justice gap” for the disadvantaged in Australia, particularly in relation to Indigenous peoples, who are the worst affected group experiencing unmet legal need. CLCs represent an essential alternative free legal service that is part of a suite of legal assistance services directed at the disadvantaged. The distinct features of CLCs are numerous, and include their strong connection to their local and client community which enables them to identify emerging issues and formulate targeted responses to emerging community needs, such as domestic violence, their historic role in addressing gaps in legal need which means they have developed specialisations in areas of law that are otherwise unavailable, and their ability as independent not for profit organisations to attract significant pro bono and philanthropic contributions. It is also worth noting that reduced funding over the long term risks losing the efficiencies that come from considering policy and advocacy as an extension of casework, and as a way of identifying and addressing systemic issues for improvement. We urge your Government to make a commitment to properly funding the legal assistance sector in the 2017 Federal Budget so that they can continue provide services to clients most in need, and to improving outcomes for local communities through their important reform and advocacy work. Yours sincerely,
President The Law Society of Western Australia
President Law Society Northern Territory
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President The Law Society of the ACT
President Queensland Law Society
President The Law Society of South Australia
President The Law Society of Tasmania
President Law Institute of Victoria
President The Law Society of New South Wales
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Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal
Welcome to the last edition of Brief for 2016, a year that will be remembered for the recent momentous event that has provoked panic and dismay in some quarters. I refer of course to the Australian cricket team's capitulation to South Africa. On reflection, however, there is another elephant1 in the room, being the outcome of an election that was not predicted by either Nate Silver's FiveThirtyEight website or Samuel L Jackson's bet365.com.au betting site. If recent media reports are anything to go by, the test cricket series disaster can be readily attributed to a mouth-concealed mint, while considerably more ink (and for that matter, tears and distilled beverages and goodness knows what else by university sophomores) has been spilt over the – trigger warning – Trump victory. Trying to find a legal angle to this recent event is a mixed bag. While law and politics are usually closely intertwined, the recent US election lacks the legal fracas that, for instance, erupted in 2000, leading to the US Supreme Court's – trigger warning – Bush v Gore decision. That decision gave rise to the exquisite phenomena, which occurs from time to time, where some members of the public confidently declare a legal decision to be the worst ever, and indeed for all time extending into the future, from the time in human history when that monkey threw the bone into the air in 2001: A Space Odyssey until (well, whatever the heck happens at the end of that film) without actually having read the judgment. Indeed, Bush v Gore might not have even been the most controversial decision of 2000 – as in that year Judge Judy had one of her on-air decisions overturned by a Canadian Court. As an interesting aside, Judge Judy's jurisdiction is conferred pursuant to the ordinary principles of arbitration law, which is something you almost never hear any highfalutin arbitration lawyers bragging about.2 The main controversy arising from the election, which at a stretch might involve free-speech issues, is a cast member from the Broadway hit Hamilton lecturing VicePresident-elect Mike Pence from the stage. One might have thought that the days where a prominent politician is berated
06 | BRIEF DECEMBER 2016
by a performer from the stage at a show in New York were over after a particular former Australian Prime Minister went to Scores nightclub. Perhaps the most significant aspect of the whole Hamilton incident is the principle, which might hopefully be someday the subject of a law, that the most dreadful violation of one's rights that can occur at live entertainment is unwanted and unwelcomed audience participation shenanigans. Unless one is attending – trigger warning – the Rocky Horror Show, the idea of audience participation is an anathema to most right-thinking people (if it were otherwise, most law functions would be held at dinner-theatre venues, if such places still exist). Legal issues have also arisen from the other prominent performer to express an on-stage opinion about the outcome of the US Election, Trump supporter (and 2020 presidential aspirant) Kanye West who, within 48 hours of expressing pro-Trump views on-stage, was hospitalised over what is described as "temporary psychosis" and "a psychiatric emergency". Most reports, however, focus upon what seems to be the most pressing issue, being whether claims can be made upon his insurance policy for cancelled tour engagements. The Hamilton incident is nevertheless pertinent in that the insults delivered in the recent election, from a libel and slander perspective, pale in comparison to some US elections in times past. When Thomas Jefferson ran against his good friend John Adams in 1800 the parties' campaigns exchanged such edifying insults as Jefferson's campaign accusing Adams of having – trigger warning – a "hideously hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness or sensibility of a woman". Adams' response was along lines that would have caused section 18C of the Racial Discrimination Act to actually take animate form and rise like Mothra in Godzilla to wreak destruction upon entire cities, describing Jefferson as – trigger warning – "a mean-spirited low– lived fellow the son of a half-breed [*] sired by a Virginian [*] father.3 And, as a literal trigger warning par excellence, it is noteworthy that Hamilton and the vice president from the 1800 election, Aaron Burr, ended their epic feud
with a duel in New Jersey in 1804, where Burr shot Hamilton, who died the next day. Australians of course have better guidance upon to how to deal with electoral disappointments (or successes) by drawing upon the great David Williamson play Don's Party, which seems all the more relevant given that it does seem to now be Donald's Party. Those familiar with the play will recall the somewhat vulgar but cathartic reaction of disappointed partygoers – and it is significant that the lawyer was arguably the worst behaved of all the guests. It is also interesting that, when put in as an option, the SMOD (Sweet Meteor of Death)4 actually polled ahead of Trump or Clinton in respect to favourability. It remains to be seen whether the general public in the US is in favour of SMOD being the next appointee to the US Supreme Court. I wish to extend my personal thanks for all the assistance provided during the year by the Brief Editorial Committee and Law Society staff. I also wish to thank all who have contributed to Brief in the past year, being members of the profession, acadamia, and the current and former members of the judiciary. This edition of Brief well illustrates the diverse and much appreciated contributions from all these sources, including the contribution of former members of the Bench such as the Hon John McKechnie QC's article upon the Corruption and Crime Commission. I wish all members of the profession a happy festive season, with some welldeserved rest and recreation and that does not involve (in respect to some of my colleagues who have expressed a state of despair about the election) a desire for a New Year's SMOD. NOTES 1.
Some elite members of the Republican Party might question whether the President-Elect is actually sufficiently elephant-like, or is instead a RINO (Republican in Name Only).
Except when crowing about the $2,500 judgment they got before Judge Judy on account of their client's neighbor consistently playing Andrew Lloyd Webber's Starlight Express soundtrack at full volume until 2.00am in the morning.
The Editor has no desire to have proceedings commenced against him, by anyone, from this last edition of the year.
A meteor that would crash into Earth, obliterating most of human life on the planet.
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Incorporating pressures Gino Dal Pont Professor, Faculty of Law, University of Tasmania
• The passage of time has witnessed an extension of lawyers' duties, with corresponding pressures and ethical challenges. • A lawyer-director of an incorporated legal practice (ILP) is subject to potentially heightened pressures and challenges. • Lawyer-directors must carefully consider whether an ILP's structure and ownership aligns with their professional responsibilities.
In my trusts class, I caution students against becoming trustees, in view of the onerous responsibilities the law imposes on trustees. Of course, as many will become lawyers, trusteeship may prove part of their calling. On this logic, perhaps I should caution my legal ethics students against becoming lawyers, given the onerous duties imposed on lawyers. Lawyers are, after all, subject to more extensive obligations – vis-à-vis their clients and others – nowadays than in any time in the past. The law now acknowledges some tortious duties to non-clients, fiduciary law has become increasingly strict, and courts are attuned to preserving confidentiality when seeking to act against a former client. Nor can the weighty and prescriptive nature of statutory regulation be ignored in this context. Coupled with increasing competition for the legal business pie and a pervading culture of client consumerism, the pressures and constraints in legal practice are increasingly demanding. Viewed in the context of the core obligation to foster client interests, while at the same time maintaining independence from (though being remunerated by) clients, lawyers necessarily walk an ethical tightrope. It stands to reason that adding a further
08 | BRIEF DECEMBER 2016
ethical dilemma to the equation could prove pivotal. It is against this broader backdrop that Australia has witnessed the introduction of the incorporated legal practice (ILP). Merely because a law practice may incorporate creates no further ethical dimension to legal practice. But the statutory schema, at the time trailblazing in the common law world, which allows non-lawyers to assume management responsibility (as directors or officers) of a law practice, and to become investors therein, can raise ethical challenges. Of course, the schema contains safeguards directed at preserving lawyers' ethical obligations to their clients and to the broader administration of justice. An ILP must have at least one lawyerdirector who holds an unrestricted practising certificate, who is (or are) responsible for the management of the legal services it provides.1 As such, lawyer-directors must ensure that those services fulfil lawyers' legal and professional duties. The sharing of law practice receipts with non-lawyers that is a corollary of Australian ILPs was a shift from long accepted wisdom. For many years the law proscribed this form of fee sharing for fear that non-lawyer fee-sharers could influence the way the lawyer(s) conduct legal work. The need for lawyer independence could be threatened, it was reasoned, because the nonlawyers may be more interested in a financial return than anything else.2 Beyond the interests of the client, the broader administration of justice and (realistically) the need for a proper professional fee, the lawyer in this instance would need to factor into the equation the financial interests of third parties (and, for directors, possibly also career interests). For the above reasons, the United States continues to proscribe fee sharing with non-lawyers,3 even though in other respects its ethics
rules sit closer to vanguard than its Australian counterparts. Renewed calls to recognise ILPs (or equivalents) in the United States have, interestingly enough, been driven principally for economic reasons4 – against a backdrop of recession and reductions in lawyers' monopoly – rather than to benefit clients or the broader administration of justice. Under the current Australian model, which the profession is largely supported, there is unquestionably potential for considerable pressure to be placed on lawyer-directors by other directors or investors to pursue a financially more advantageous course. Being subject to legal and ethical responsibilities peculiar to the profession, it accordingly behoves lawyer-directors to withstand an intrusion into those responsibilities. In the case of a sole lawyer-director, faced with demands from the board or investors, there may be occasions where these pressures could prove overwhelming. Even outside of financial pressures, the lawyer-director may be challenged in maintaining supervision and control over legal work under the auspices of the practice.5 The law goes to some lengths to avoid lawyers being placed in positions involving a potential for conflicting duties for a reason. Adding a conflict driven by the demands of non-lawyers adds to existing onerous lawyer responsibilities in a manner, I would recommend to my students, sufficient to justify its avoidance. NOTES 1.
Legal Profession Act 2008 (WA) s105.
Gassman v State Bar (1976) 553 P 2d 1147 at 1151; Attorney Grievance Commission v Lebowitz (1981) 431 A 2d 88 at 92.
American Bar Association, Model Rules of Professional Conduct, r 5.4.
See, for example, Groth, "Protecting the Profession Through the Pen: A Proposal for Liberalizing ABA Model Rule of Professional Conduct 5.4 to Allow Multidisciplinary Firms" (2014) 37 Hamline L Rev 565.
See, for example, Victorian Legal Services Commissioner v Logan  VCAT 544 (where non-lawyers established a practice with one lawyerdirector (L), whose failure to properly supervise the unethical activities of its 'owner(s)' was held to constitute professional misconduct).
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2017 Council The Society's Council for 2017 is below following the election which closed on 22 November 2016. Thank you to all members who voted and to everyone who nominated for a position on the Council. Council Executive Members
Immediate Past President
Alain Musikanth President
Hayley Cormann Senior Vice President
Greg McIntyre SC Vice President
Elizabeth Needham Immediate Past President
Barrister, Francis Burt Chambers Council Term Expires: 12/2017
Senior Associate, Clayton Utz Council Term Expires: 12/2017
Barrister, John Toohey Chambers Council Term Expires: 12/2017
Barrister, Francis Burt Chambers Council Term Expires: 12/2017
Council Ordinary and Junior Members
Jocelyne Boujos Ordinary Member
Brahma Dharmananda SC Ordinary Member
Nathan Ebbs Ordinary Member
Adam Ebell Ordinary Member
Principal, Sceales & Company Council Term Expires: 12/2017
Barrister, Francis Burt Chambers Council Term Expires: 12/2018
Managing Principal, Bennett + Co Council Term Expires: 12/2017
State Prosecutor, Office of the Director of Public Prosecutions Council Term Expires: 12/2017
Elisabeth Edwards Ordinary Member
Catherine Fletcher Ordinary Member
Rebecca Lee Ordinary Member
Marshall McKenna Ordinary Member
Regional Legal Counsel (WA), Multiplex Constructions Council Term Expires: 12/2018
State Prosecutor, Office of the Director of Public Prosecutions Council Term Expires: 12/2018
Barrister, Francis Burt Chambers Council Term Expires: 12/2017
Partner, Gilbert + Tobin Council Term Expires: 12/2018
Denis McLeod Ordinary Member
Stefan Sudweeks Ordinary Member
Nicholas van Hattem Ordinary Member
Paula Wilkinson Ordinary Member
Partner, McLeods Council Term Expires: 12/2017
Partner, Jackson McDonald Council Term Expires: 12/2017
Solicitor, State Solicitor's Office Council Term Expires: 12/2018
Director, Kim Wilson & Co Council Term Expires: 12/2018
Deblina Mittra Junior Member
Jodie Moffat Junior Member
Noella Silby Junior Member
Brooke Sojan Country Member
Solicitor, Slater & Gordon Council Term Expires: 12/2017
Solicitor, Bennett + Co Council Term Expires: 12/2017
Solicitor, MDC Legal Council Term Expires: 12/2017
Solicitor, Legal Aid WA Council Term Expires: 12/2017
10 | BRIEF DECEMBER 2016
Immediate Past President's Speech Delivered at the Immediate Past President's Dinner Acqua Viva on the Swan, Nedlands, WA, 17 November 2016
Matt Keogh MP Federal Member for Burt; Immediate Past President of the Law Society
Thank you Elizabeth for your kind words and for including many things in your speech that I could not have included in mine, without making it much too long. I have to say it feels like a life time away since we were last here for Konrad's Dinner but in truth it has only been 16 months. Let me start by just thanking you all for coming along this evening. I appreciate that slipping this late into the year does make it even more difficult to squeeze in events like this and many have called me to apologise for not being able to make it. As I'm sure you will appreciate, there was a high degree of uncertainty around availability in the first half of the year. Then, there was the lovely addition of Annabel's and my first child, Nicholas, who joined us in August, as well as Parliamentary sittings to be scheduled around, which pushed this off a bit as well. The first times I heard of the Law Society were through my work as an outside clerk and then the bookkeeper at my grandfather's legal practice, where my Mum also worked. The key interactions involved: •
Friday Facts, which was then sent as a Fax – the play on words in the title is something completely lost on newer practitioners; that there was a car bay available at the Supreme Court through the Law Society for practitioners that practiced more than 25km from the Court, which Kelmscott conveniently was; and there was a lovely lady at the Law Society that would let you use their computer to make minor amendments to documents that the Supreme Court registry staff had decided in their infinite wisdom to reject, so that you didn't have to go all the way back to the outer suburbs
to do it and then come back in again – her name was Andrea Lace. Once an articled clerk, I then became a member of the Society on the basis that it was the relevant professional association and therefore, I should join it – it's the done thing isn't it? And with this, I began reading Brief, attending the Young Lawyers Committee's Basics CPD seminars and attended the Welcome to the Profession event, sitting on the same table as then Society Treasurer Kevin Edwards. The one thing that always struck me though, as an outer suburban practitioner, was how difficult it was to engage with the Law Society's activities, let alone get to the CPDs – thank God for the train – and that everyone seemed to work in the city. That experience is what stuck with me through my entire time on the Council of the Law Society. It was also what drove me, in part, to try and figure out exactly how our Strategic Planning processes worked and how to have an impact on them. And yet, despite being on the Council from 2008 through to 2016, I could never manage to be part of an outer suburban Law Society function. I believe though, that at least one such event has now actually been held. I mentioned earlier that joining the Law Society seemed to be the done thing. I've since learnt that not everyone sees it that way. I suspect this somewhat reflects my view that one should always join their union. This being despite the fact that I fundamentally disagreed with my old Employment Law lecturer, Maria Saraceni's comments during her term as President that the Society could be seen as the profession's union. My principal disagreement lays in my view that this actually cuts to the heart of the one of the key conflicts of the Society:
Annabel Keogh; Immediate Past President, Matthew Keogh; and Law Society President, Elizabeth Needham.
the majority of its members are employee lawyers, whereas the majority of the membership fees are paid by lawyers that are employers of those employee lawyers. However, this also epitomises for me one of the key roles of the Society, which is to advocate within the profession on behalf of the profession – in particular how to adjust to the sustainable adoption of modern business practice in the diverse 21st century world. In this regard, key areas of focus for the Society are gender diversity, law student numbers, and mental health & wellbeing – the latter being an issue that even as late as when I joined Council, it didn't want to openly address. I am glad to say that it is now a national leader. Of course, as well as leading thought within the profession, as the Voice of the legal profession of Western Australia, the Society plays a very importance advocacy role: •
both for the interests of the profession; and
the broader public interest, in particular in relation to access to
justice and the protection of the rule of law. In advocating the interests of the profession, I ended up in a bit of a barney with the Legal Practice Board over harmonisation of professional conduct rules and practising certificate fee increases, but was proud to see the Society adopt the Diversity and Equity Charter developed by the Law Council of Australia as an outcome from the National Attrition and Re-engagement Study – known to you all as NARS. And there were, of course, the ever present discussions about the apparently national legal profession regulation. In relation to public interest advocacy, this includes both putting positions but also sometimes just explaining what the law does. Little known fact: the Law Society Presidency responsibilities started for me early in the morning on 31 December 2014 in Colombo, Sri Lanka, when a journalist from ABC Radio in Brisbane called quite late in the day their time seeking comments to go to air in WA on New Year's Day regarding the Western Australian Government's mandatory swab testing laws that would come into operation from 1 January 2015. It appears my willingness to answer calls from journalists got around the WA media but I believe this gave the Society a bigger impact in some debates. True to my word to the Attorney-General though, that we would say when we disagreed with Government but also when we agreed, I was pleased to congratulate the Government on it establishing a Justice Ministers Working Group to look at the issue of Aboriginal Incarceration rates, a key advocacy issue for the Society. There were though areas that we disagreed: •
Bell Group legislation;
Anti-protest laws; and
Legal Aid funding.
The need to seek additional funding for legal aid and access to justice generally is ever present. As part of this, as Vice President I appeared before the Productivity Commission inquiry into Access to Justice Arrangements. I was very happy to see the letter to the Prime Minister signed by all Australian Law Society Presidents in relation to legal assistance funding, which was printed in The West Australian yesterday. I was also pleased to lead the Society 12 | BRIEF DECEMBER 2016
in taking a strong public stand against the death penalty in the context of two Australians facing death row in Indonesia. For me, the Society also has a very important role to play in relation to the collegiality of the profession and while ephemeral in many senses, it has a significant effect on the wellbeing and therefore the effectiveness of the profession. For, we must recall, that despite the relatively recent development of the College of Law, the profession is one that has grown through an apprenticeship model: learning from the experience of our more learned colleagues. Indeed, we would do well to remember, as a fused profession, that the barristers of England and Wales still include the requirement to dine with Masters of the Inns as part of their training. In Western Australia, for a long time, I am told, articled clerks and junior practitioners would make sure to spend Friday evening at the Palace Hotel or other similar establishments around the legal precinct, to hear the stories of the senior members of the profession. I fear that much of this incidental though vital learning is lost now and so where possible, the Society should seek to fill the breach. To me this is where the Young Lawyers Committee (YLC) of the Society really comes to the fore. The YLC is uniquely placed to lead networking and support for junior practitioners as they commence their careers, as well as provide training in hard and soft skills. I ended up on the YLC by default – automatically as a Junior Councillor. However, I threw myself into its work and quickly made life-long friends through it – people that are committed to improving the log of young lawyers in the areas of: •
mental health and wellbeing;
networking and collegiality;
advocacy and support; and
easing the transition from law school into practice.
While I think there has always been and likely always will be a healthy tension between the YLC and the Society's leadership, I think, over my time at least, that tension has been what has produced positive results. Though I know it sometimes induces much stress and angst in YLC Convenors, Society
Presidents and staff – and I've sat in two of those seats. While the methods and programs have differed over the time, I think the litany of YLC leaders that have gone on to become leaders of the Society and the profession as a whole speaks volumes, people like: •
Marie Botsis – a Society Treasurer;
Kate Cook – winner of the WA Criminal Lawyers Hodge Prize;
Adam Ebell – now Law Access Chairperson;
Emma Cavanagh – 2014 Junior WA Women Lawyer of the Year;
Hayley Cormann – Society Vice President;
Nicholas van Hattem – now running Piddington Society;
Tina McAulay – 2015 WA Women Lawyers President;
Madge Mukund – Global Citizen Policy and Advocacy Deputy Director in New York; and
Clinton Russell – WA Bar Councillor.
All of these great young lawyers served on Council with me at various times and I like to think that I played some part in that occurring. I think the Society has been better for it. I will always recall Konrad's continual insistence that you will only get one or two things done while President. I suspect he is right, though I only really had eight months. However, I didn't let that be a break on my ambition, knowing that I may start a number of things with variable completion horizons but they were still worth starting: •
Increasing the Society's media present and social media presence;
Reviewing the Legal Education system with the Law Council of Australia;
Preparing a response and action plan to the 20th Anniversary Report on the Gender Bias Taskforce Report;
Putting together a Law Society LGBTIQ group;
Launching the Reconciliation Action Plan;
Establishing two key focus areas for the Society's work in 2015:
mental health, wellbeing, gender bias and retention, and
professional practice; and
Establishing Law Access as an expanded stand-alone service.
However, through all of this, I was finding it harder and harder to find pithy quotes from Rumpole to keep starting my reports in Brief each month and so I decided to step down from the role of President prematurely. That, and the small issue of seeking elected office. Now in my new role though, I am pleased to say that I have already met with the Law Council of Australia President and new LCA CEO in Canberra and look forward to being able to advocate for many causes close to the profession's heart from inside the Parliament.
lack of availability and increased delegation. •
Stephen Hall SC, as he then was, who said "why not" when I sought his views on my running for Council as a lowly Legal Officer at the Commonwealth Director of Public Prosecutions, and signed my first nomination form. The rest, as they say, is history. Herbert Smith Freehills – the firm as a whole for allowing me to take on the role of President. They more than any large firm know the impact of having a lawyer take on the presidency and they still let me do it. Liz Macknay, my then supervising partner at Herbert Smith Freehills, and her team, for putting up with my constant running off to meetings,
The media and communications staff of the Law Society, who didn't really know what hit them and I don't think any of them are now left, so sorry about that David.
David Price, Law Society Chief Executive Officer – I think I got you that title David. David had his work cut out for him when I joined the Council in 2007, as did every President I served under. I learnt a great deal from David over that time though, and valued his counsel immensely. He still had his work cut out for him come 2015 when I presented him with several pages of to-do's and that was before I threw a few curve balls in there as well.
Elizabeth Needham – for taking the reigns as I exited stage left with virtually no notice. The impact of the Presidency on one's personal and professional life is a large one as many of you know. To take it over at a moment's notice, 6 to 18 months before you planned to is quite a shock to the system and the budget for a busy barrister, so really on behalf of the Society, thank you.
To conclude, I would like to convey my thanks to a number of people that have helped along the way: •
Sue Langmair, my Personal Assistant as President, as well as to the Society's CEO, David Price, who had a very hectic diary to manage for me.
The rest of my Executive, Alain and Hayley – always voices of reason, even when I may have ignored you. Alain, congratulations on your election and best of luck for 2017.
All the Council during my term and before – thank you for your support of the matters I tried to pursue for the profession.
Annabel – well I guess in hindsight, she may be thinking actually being First Lady of the Law Society was a breeze compared to being a new Mum and married to a MP but really, Annabel put up with a lot, primarily, never seeing her husband. Remember, Annabel and I only started dating three years before I was elected to Council, and we got married as I took on being Chair of the Australian Young Lawyers Committee. So thank you Annabel for being married to the legal profession and the Society too.
Thank you all and thank you to the Legal Profession of Western Australia for permitting me the honour to have been the 2015 President of the Law Society of Western Australia. To end, as I signed off my first President's report in Brief: illegitimi non carborundum. Thank you.
CONNECTED • INFORMED • GLOBAL FRIDAY, 17 FEBRUARY 2017 | THE UNIVERSITY CLUB | CRAWLEY, WA
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The year in numbers
Chief Executive Officer
d Recor bers hip
David Price Chief Executive Officer
throughout this which are addressed in the 2015/16 hip fee in annual report and reflected • an Ordinary Members survey results GST) and in role at the Law Strategic Plan Scorecard 2005/06 was $595 (inc I commenced in my Report at page 3. so I thought this GST), a less than included in the Annual Society in July 2006, 2015/16 is $785 (inc would be a good years. year's annual report $200 increase over 10 on where the Law reflect Forward to ty Looking opportuni n has increased ago and where we • Member satisfactio Society was 10 years 2016/17 will be another with Report forward, (2016), Annual 83% to Looking 2005/06 from 58% (2007) year at the Law are at now. In the saying the Law challenging but exciting since the Law the following: to members I noted 80% of members now years ding Society. It will be 90 d on 15 June Society has a good understan Law a period of change for Society was establishe a) That it had been saying the members when Australia of their needs, 86% 1927 with 96 founding the Law Society of Western well informed association of Society keeps members the Executive it was agreed that "an and with the departure of Western Australia and the about changes in legislation legal practitioners of Director in January 2006 to strive the profession continue will affecting as We QC issues Martin key formed". be resignation of Wayne organisation that Law Society is to take up the to provide you with an and 85% saying the President in April 2006 member of and profession in you’re proud to be a the voice of the legal nd to others. position of Chief Justice. prepared to recomme Western Australia; was in a very al b) The Law Society ce continuing profession period g you face-to-fa • challengin Thank interesting and increased from and external development offering acknowledge and with a number of internal 2015/16; I would firstly like to for a more Lace who 24 in 2005/06 to 82 in issues including a push say thank you to Andrea the National role as General Manager face-to-face Events Keyher retired from nationalised system with • attendances at our debate March 2016 after al development Advocacy on the 31 ional Model Bill, the continued continuing profession Profess to the Law service of the Law from 1,108 in 20 years’ ing a total ofContinu with regard to the role seminars have increased the introduction pment 2015/16; in Society. Australia, Develo of 3,465 to Council 2005/06 Act for appreciation r School and sincere of of a new Legal Practice thanks Summe My members the legal of y 40% Past mandator • in 2006, to the Immediate Western Australia and is extended and in 2016 y 2006 Februar ent. Council were women Matthew Keogh, current professional developm President , and Needham there are 60%; and ence Elizabeth Confer President Winter based organisation teams in 2015/16 c) As a membership Society had both their Executive be on the things • in 2005/06 the Law 2006 and commitment they our focus must clearly support of $2,243,111 for theirJune our our members and accumulated net assets to the Law Society, that are important to Competition have provided reserves. Today Golden Gavel evaluating our me in my role in and $1,705,671 cash that had commenced members, the staff and $2,933,983 look for ways we the Law Society has 12 months. the pastXXXX internal practices to and ted net assets and efficiently accumula of more Society Law could do things ndCouncil plus the Law Thank you also to cy Weeke Advocathe that members got $2,037,924 cash reserves 2016 and our of the and effectively to ensure third 2015 one of ’ down members Society has paid , all of whom XXXX “good value”. premises at 160 many Committee members loan to purchase its their time to hours of to look for manyWeek it bought in 2016 volunteer Law The Law Society continues efficiently and St Georges Terrace that to do the very more Serving enable to Law Society ways it can do things does. “Lawyers November 2011. that it2006, 8-12 workMay that members get important effectively to ensure committed to results over the past to acknowledge and The Law Society remains essential “good value” and the would likenity” Finally, ICommu as the who building a reputation the Law Society staff of n 10 years are pleasing; all thank professio legal in 2015/16 to membership for the and increased by 55% have again worked tirelessly things more efficiently successful year • membership has and doing and positive very a record "good a to deliver members get from 2,432 in 2005/06 . effectively to ensure for all of our members last financial year 3,785 in 2015/16; value". In particular the achievements has seen a number of
Teams participated in the 2016 Mock Trial Competition
Number of events held during Law Week
Students took part in the 2016 Mock Trials Competition
Face-to-face CPD seminars
Member satisfaction (up from 58% 8 years ago)
Council members are women
Visitors to the Old Court House Law Museum
Solicitors and Barristers with
Family Law Accreditation as at 30 June 2016
Firms accredited with the Quality Practice Standard (QPS) as at 30 June 2016
achieved 10 years of accreditation
14 QPS firms
achieved 15 years of accreditation
3,465 Submissions pants
Face-to-face partici in CPD seminars
ANNUAL REPORT 2015/16
28 QPS firms
Grants approved by the Attorney General from the Law Society Public Purposes Trust
7 2015/16 | PAGE ANNUAL REPORT
Teams participated in the 2016 Mock Trial Competition
REPORT 2015/16 PAGE 6 | ANNUAL
Solicitors and Barristers with Family Law Accreditation as at 30 June 2016
Visitors to the Old Court House Law Museum
Member satisfaction (up from 58% 8 years ago)
Council members are women
2015/16 Annual Report
THE ESSENTIAL MEMBERSHIP 82 FOR THE LEGAL PROFESSION Face-to-face
Prepared by the Law Society of Western Australia CPD lawsocietywa.asn.au
ents The following is a summary of the key points made in the 2015/16 Annual Report uing Professional which was approved at the Annual General Meeting held on 25 October QPS firms 45 Firms 2016. 28 pment 38 1,204 achieved 10 years accredited with A full version of the Annual Report is available on the Law website. of accreditation Number of Society's Students took er School the Quality events held part in the 2016 Practice Standard ry 2006 14 QPS firms during Law Mock Trials (QPS) as at 30 achieved 15 years Week Competition June 2016 Conference of accreditation 006 n Gavel Competition
eek 2016 ay 2006, “Lawyers Serving the unity”
participants in CPD seminars
initiatives were introduced Teamsduring participated Teams in participated 2015/16, including: the 2016 Mock
in the 2016 Mock 130130 Trial Competition
Submissions In 2015/16 the Society achieved a • record total of 3,785 Submissions members. This was up from 3,731 members the previous • year, a 1.45 percent increase in overall membership numbers.
Solicitors and Member is at an all-time 42 loyalty Visitorshigh, to the Barristers with 6,525 retention Old Court House 60% Family Law Solicitors andpercent with a 95 member rate, as to the Law Museum Council Visitors Barristers with Accreditation members are at 92 30 June 2016 Old Court House compared percent last year. The Family Law to women Law Museum Accreditation as strategic target set by the Society for at 30 June 2016 growth in market share was within the set target range of 2 percent to 5 percent 38 1,204 per annum.
introduction of pro rata membership; continual engagement with stakeholders via presentations, student expos 83%and events;
Face-to-face 83% value satisfactionof CPD Active increased 82 CPD (up from 58% Member seminars Face-to-face membership; satisfaction 8 years ago)
Council members are women
(up from 58%
seminars 8 years ago) tailored value proposition for various member segments such as incorporated legal practices, sole 28 QPS firms 45 Firms achieved 10 years inpractitioners, young lawyers, accredited with Number of of accreditation Students took the Quality 28 QPS firms house and government lawyers; events held 45 Firms part in the 2016 38 Practice Standard 1,204 The success in membership retention, 14 QPS firms during Law Mock Trials accredited with(QPS) as at 30achieved 10 years achieved 15 years Number of of accreditation Students took Week Competition the Quality June 2016 as well aspart new membershipevents growth, • greater transparency and exposure of accreditation held in the 2016 Practice Standard 14 QPS firms during Law to be (QPS) as atof reflects wellMock onTrials the Society's vision programmes, 30 the Society's achieved 15 years Week Competition June 2016 accreditation 'the essential membership for the legal resourcesofand benefits through our profession'. A number of membership website; and
14 | BRIEF DECEMBER 2016
$2,300,370 Grants approved by the Attorney General from the Law Society
Grants approved by the Attorney General from the Law Society Public Purposes Trust
a number of new member privileges including partnerships with The Western Australian Club, Etihad, Aurelio Costarella, Kleenheat, Lexus and Rottnest Express.
Member satisfaction is now at 83%, with 80% of members saying the Society has a good understanding of their needs, 86% saying the Society keeps members well informed about changes in legislation and key issues affecting the profession and 85% saying the Society is the voice of the legal profession in Western Australia. By way of comparison, overall member satisfaction has increased from 58% in 2007 to 83% in 2016.
Law Summer School 2016 Law Week Cocktail Evening and Lawyer of the Year Awards
International Womens Day Luncheon
Membership Practical Advocacy Weekend
35 Submissions 42 6,525 60% Solicitors and Visitors to the Council Barristers with CONTINUING members are OldPROFESSIONAL Court House Family Law women Law Museum Accreditation as DEVELOPMENT (CPD) at 30 June 2016
YLC Law Week Panel
High Court Dinner
Teams participated in the 2016 Mock Trial Competition
83% 82 Face-to-face Take up of learning via online seminars CPD increasedseminars by a significant 65%, demonstrating the importance of In 2015/16, the Society welcomed 3,465 a diversity of delivery channels for participants to 82 face-to-face CPD professional development. 28 QPS firms 45 Firms seminars.1,204 The Society's38CPD programme achieved 10 years accredited with Number of of accreditation Students took the Quality ADVOCACY was thepart result of closeevents engagement with held in the 2016 Practice Standard 14 QPS firms during Law Mock Trials as at 30 achieved 15 years the profession designed (QPS) by Competition and wasWeek June 2016 of Theaccreditation Society continues to act as the practitioners, for practitioners. voice of the legal profession in Western Australia on law reform, practice and procedure, $2,300,370ethics and policy issues. Grants approved by The Society's 26 specialist standing the Attorney General from the Law Society committees provide reports and make Public Purposes Trust Face-to-face participants recommendations to the Society's in CPD seminars Council on a broad range of legal issues. The Society made 35 submissions to government over the course of 2015/16. The programme attracted a total of 227 speakers, recognised as leaders in their The Annual Report contains individual fields of expertise. reports from each committee, providing a detailed look at the diverse subject The Society again took the lead in matter upon which the Society provides producing a roadshow to deliver CPD to comment. country practitioners in conjunction with Law Mutual (WA) and the Legal Practice The Society's Professional Standards Key Events Board of Western Australia, engaging Scheme (formerly Limitation of Liability Continuing Professional with practitioners in the regional centres Scheme) continued to grow, recording Development of Albany and Geraldton. Member satisfaction (up from 58% 8 years ago)
1,112 members (of which 151 were incorporated legal practices). The Society also adopted a new five-year Risk Management Plan that sets out the Membership risk control strategies and measures to be undertaken to manage material risks associated with the Professional Standards Scheme.
Summer School February 2006 Winter Conference June 2006 Golden Gavel Competition XXXX
FINANCIAL The Society ended the year with accumulated net assets of $2,919,478 42 Solicitors andreserves of6,525 and cash $1,714,786. One 60% Visitors to the Council Barristers with third the loan forOldthe premises at 160members are Court House Familyof Law Museum Accreditation as TerraceLaw St Georges was repaid during women at 30 June 2016 the year, aligning with the Society Council's commitment to repay the loan within 15 years. A complete breakdown of the Society's income and expenditure can be found in the Annual Report.
Students took part in the 2016 Mock Trials Competition
accr th Pract (QP Ju
Number of events held during Law Week
Repayment obligations in Australian employment contracts: are they penalties? Catherine Russo Solicitor, Herbert Smith Freehills
It is increasingly common in employment contracts for employers to offer incentives such as sign on bonuses, payment for relocation or training opportunities to attract employees. These incentives are often conditional on the employee remaining employed by the employer for a stipulated period of time and are repayable if the employee is not. Similarly, there is often an obligation in employment contracts for employees to repay a particular amount if they fail to provide requisite notice or serve out the term of the contract. These provisions are at risk of being found to impose impermissible penalties and therefore being unenforceable. This article considers the doctrine against penalties and recent developments in this area, and the application of the doctrine to repayment obligations in employment contracts. THE POSITION IN AUSTRALIA The traditional formulation of the doctrine against penalties comes from the landmark judgment of Lord Dunedin in Dunlop Pneumatic Tyre v New Garage & Motor.1 The formulation, which was unanimously accepted by the High Court in Ringrow v BP Australia,2 is summarised as follows:3 1. distinguishing between a "genuine pre-estimate of loss" and a "penalty" when claiming liquidated damages for breach of contract; 2. a penalty is a payment of money stipulated as in terrorem of the offending party whereas liquidated damages are a genuine pre-estimate of loss and damage; 3. whether a clause is a penalty or not is a question of construction based on the terms and inherent circumstances of each particular contract as at the contract date (not the date of breach); and 4. it will be a penalty where:
16 | BRIEF DECEMBER 2016
a) the sum is extravagant and unconscionable; b) the sum stipulated where there is a breach is a sum greater than the sum which ought to have been paid; and c) a single lump sum is payable by way of compensation on the occurrence of one or more or all of several events irrespective of damage. In essence, a contractual clause will constitute a penalty, and therefore is unenforceable, unless its effect is to compensate a party on the basis of a 'genuine pre-estimate of loss' flowing from the breach. The leading authority on the penalties doctrine in Australia, affirmed recently in Paciocco v ANZ,4 is the High Court of Australia decision in Andrews v ANZ Banking Group Ltd,5 which considered whether certain bank fees were unenforceable penalties. The High Court explained:6 In general terms, a stipulation prima facie imposes a penalty on a party (the first party) if, as a matter of substance, it is collateral (or accessory) to a primary stipulation in favour of a second party and this collateral stipulation, upon the failure of the primary stipulation, imposes upon the first party an additional detriment, the penalty, to the benefit of the second party. In that sense, the collateral or accessory stipulation is described as being in the nature of a security for and in terrorem of the satisfaction of the primary stipulation. If compensation can be made to the second party for the prejudice suffered by failure of the primary stipulation, the collateral stipulation and the penalty are enforced only to the extent of that compensation. The first party is relieved to that degree from liability to satisfy the collateral stipulation.
The decision also widened the scope of the doctrine of penalties beyond Dunlop by holding that a contractual stipulation may be a penalty whether or not it is triggered by a breach of contract. Since Andrews, there have been some further developments in this space in both the United Kingdom and Australia, which make clear there is now some divergence of approach. RECENT DEVELOPMENTS Position in the United Kingdom There has recently been a shift in the position on penalties in the United Kingdom as a result of the Supreme Court's decision in November 2015 in Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis.7 The decision comprised two appeals concerning whether provisions of contracts requiring payments on breach were penalty clauses and thus unenforceable. The first on the enforceability of parking fees and the second, regarding provisions of a share purchase and shareholders' agreement. The Supreme Court's decision introduces a more flexible test in the United Kingdom which places a greater emphasis on the freedom of parties to contract:8 The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. As to what precisely will amount to a legitimate interest, and whether a clause is "out of all proportion" to that interest, is likely to be open to debate. However, this test may mean less interference in contracts negotiated between commercial parties of similar bargaining power.
Paciocco v ANZ 9 In this case, the High Court recently considered whether certain fees (honour, dishonour, non-payment, late payment and over limit fees) charged by ANZ were penalties. By way of background: â€˘
At first instance, Justice Gordon noted that the principles in Dunlop were not altered by Andrews and held that the late payment fees were penalties. The Full Federal Court concluded that the primary judge had erred in finding the late payment fee was a penalty. In reaching this conclusion, the Full Court found that primary judge had incorrectly analysed the bank's loss by looking at the actual loss the bank suffered. The Full Court endorsed a prospective approach, assessing the fee against the greatest loss that could conceivably flow from non-payment, assessed at the time the contract was entered into.
A majority of the High Court (4:1) concluded that the late payment fees were not unenforceable as penalties. The majority held that the Full Court was correct to characterise the loss provision costs, regulatory capital costs and collection costs as affecting the 'legitimate interests' of ANZ. The fact that those categories of costs could not be recovered in an action for damages did not alter that conclusion. The majority also noted that the approach of the primary judge, in accepting Mr Paciocco's expert evidence and limiting ANZ's 'costs' to the actual damage incurred, proceeded on too narrow a view of ANZ's legitimate interests. The UK Supreme Court in Cavendish considered the position in Andrews to be a 'radical departure' from the existing
law and a 'controversial decision'. In Paciocco, French CJ did not find it necessary to consider whether this reading of Andrews was correct, emphasising the distinction between UK law and Australian common law.10 On the other hand, Gageler J argues it was incorrect and based upon a misunderstanding of the scope of what was actually decided in Andrews.11 APPLICATION IN THE EMPLOYMENT CONTEXT The application of the penalties doctrine in employment contracts, and in particular with respect to repayment obligations, is less settled in Australia. The decisions have tended to accept and apply the penalties doctrine formulated in Dunlop, as modified by Andrews. This is unlike the United Kingdom, where there is authority that a repayment obligation in an employment contract is not a penalty.12 For example, in Arlesheim Ltd v Werner,13 the employment contract provided that it was conditional upon the employee's giving six months' notice in writing, and that if the employee failed to give such notice she would pay to the company a specified sum as liquidated and ascertained damages. This sum was agreed had been arrived at 'as a result of a careful consideration of the losses, damages and expenses likely to be occasioned' as a result of the breach. This case is unusual in that the Court considered there was no real consent by the employee to a genuine pre-estimate of the damages because she was a recent arrival in the country and unable to read the contract that she signed. The Court concluded that the sum specified would be extravagant and unconscionable and so was a penalty. In contrast, in the more recent decision of Tullett Prebon (Australia) Pty Limited v Purcell,14 Mr Purcell resigned and
refused to return to work to serve out the remainder of his fixed-term contract period. Justice Ward concluded the clause, which provided Mr Purcell pay Tullett Prebon 50% of his average net brokerage for each month from the date he ceased providing services until the contract end date, was not a penalty. The finding that the clause was not a penalty was not challenged on appeal. A similar issue arose before the High Court in Pigram v Attorney-General (NSW),15 concerning whether a deed requiring an employee teacher to pay the Education Department on demand, 'for liquidated damages and not by way of penalty' a sum where the teacher did not serve as a teacher in the department for an agreed period of time, was a penalty clause. The majority (Barwick CJ, McTiernan, Gibbs and Mason JJ) held that the clause was enforceable because the sum was a genuine pre-estimate of damage from the employee's failure to resume duty at the expiration of the leave of absence. Justice McTiernan also considered that the provision stating the sum was for 'liquidated damages and not by way of penalty' was a relevant consideration, consistent with Dunlop. In Birdanco Nominees Pty Ltd v Money,16 the contract of employment contained
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a restraint of trade prohibiting the employee from providing accounting services post-employment to clients. Where the employee breached the restraint, liquidated damages (of 75% of the fees incurred) were payable. At first instance, the Court concluded the liquidated damages was not a genuine pre-estimate and hence a penalty. However, on appeal, the Court of Appeal concluded that the employee did not establish that the liquidated damages was anything other than a genuine preestimate, and in the circumstances, if the employee had breached the restraint it was highly likely that the company would have lost that client so it was a reasonable pre-estimate of that loss which was 75% of the fees incurred by the client. The issue before the Federal Court in Zomojo Pty Ltd v Hurd (No.2)17 was whether a particular clause in an employee share ownership plan, whereby the company had discretion to set the price of shares acquired from a "bad leaver", was a penalty. Justice Gordon concluded, as the extent of the damage was not known and could not be known demonstrated, it necessarily went beyond a genuine pre-estimate of damages and accordingly was a
penalty. Her Honour reasoned that the clause was inserted to protect the company from Mr Hurd destroying or substantially affecting the value of the company and this was known when the clause was inserted. However, this analysis appears to be contrary to both Dunlop and Andrews where it was held if compensation is not susceptible to assessment in monetary terms, the penalty doctrine was not triggered.
 AC 79.
(2005) 224 CLR 656.
 AC 79, at 86-88.
Paciocco v Australia and New Zealand Banking Group Limited  HCA 28. ('Paciocco v ANZ').
 HCA 30; (2012) 290 ALR 595.
Andrews v ANZ Banking Group Ltd (2012) 290 ALR 595 at .
 UKSC 67.
Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Limited v Beavis  UKSC 67 at .
While there have been some recent developments in relation to the penalties doctrine, there remains limited consideration of whether repayment obligations in employment contracts will constitute penalties in Australia.
 HCA 28.
 HCA 28 at .
 HCA 28 at .
See Tullett Prebon v BGC Brokers  EWHC 484 at -. The decision concluded that the law relating to penalties was wholly inapplicable. At , Justice Jack stated "The brokers are intelligent, successful men capable of driving a bargain with Tullett, and the law should not look for ways for them to avoid the provisions of their contracts". This analysis is consistent with the approach later set out in Cavendish.
 SASR 136.
 NSWSC 1079.
(1975) 6 ALR 15.
 VSCA 64
 FCA 146.
See Morgan Stanley Wealth Management Australia Pty Ltd v Detata  WASC 397 at . Justice Beech identified in this interlocutory decision that one of the main issues in the proceedings appears to be 'are relevant clauses of the contract of employment are void and unenforceable as a penalty?' See also Morgan Stanley Wealth Management Australia Pty Ltd v â€“ Detata [No 2]  WASC 340 at , .
This may be clarified in the Supreme Court of Western Australia. In early December 2016, the Supreme Court will hear Morgan Stanley Wealth Management Pty Ltd v Detata. One of the main issues in that proceeding is whether clauses of an employment contract dealing with repayment obligations are void and unenforceable as a penalty.18 It will be interesting to see what approach the Supreme Court will take in that case, particularly given the
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Occupational safety and health considerations in the workplace of the "twenty-tens" Renae Harding Special Counsel, Jackson McDonald
The traditional workplace is no more. Employers are commonly wholly contracting out work, or meeting temporary or short term resource deficiencies by bringing in contractors and labour hire workers. Employees are more commonly working remotely or from home. But what does this really mean for an organisation? Has it considered the true occupational safety and health implications? Sections 23D, 23E and 23F of the Occupational Safety and Health Act (WA) 1984 (OSH Act) extend the core statutory duty of an employer (to ensure the safety of its employees as far as reasonably practicable) to principals in respect of their contractors and subcontractors, and to the clients in respect of labour hire workers. Such principals and clients bear a statutory duty to ensure the safety of those workers in relation to matters over which they have the capacity to exercise control. This is in addition to the employer's duty to ensure that the safety of its employees is not adversely affected by contractors and labour hire workers where they are all working together. CONTRACTORS AND LABOUR HIRE It is beyond question that where an organisation engages a specialist contractor, it should take steps to satisfy itself, as far as reasonably practicable, that the contractor has the necessary skills and experience to safely perform the work1. Where an organisation engages a contractor and has the capacity to exercise control over the works the contractor is performing, that obligation logically extends to ensuring that the contractor has established safety systems, and monitoring the contractor's safety performance during the works. Equally, where contractors and labour hire workers are being brought into the workplace, the principal or client should ensure that the workers are suitably experienced and qualified, provide relevant training on the safety policies and procedures that apply at the workplace, and ensure adequate supervision in the workplace. Many organisations now have documented contractor safety management systems. Unfortunately, far too often these systems are not effective or not truly implemented, but left sitting on the shelf instead. In the case of new workers brought into the
20 | BRIEF DECEMBER 2016
workplace, regrettably there is too often a failure to ensure that they have been trained in the specific safety procedures and requirements which apply to that actual workplace, relying instead on a generic induction. Are WA businesses truly considering their safety obligations before deciding to outsource work to contractors, or supplement the workforce with externally provided labour? And if so, are they putting in place the mechanisms to meet them? FLEXIBLE WORK ARRANGEMENTS There are many reasons why employees may work from home, such as improvements in technology, increased desire for work-life balance, new statutory rights to request flexible working arrangements, or attempts to reduce business overheads. Regardless of whether an employee is working from home at the employee's request, or at the employer's direction, the employer has a duty to ensure the employee's safety. Before agreeing to, or requiring an employee to work from home, below are some examples of the practical issues that an employer must consider. An employer has the same responsibility to ensure the safety of employees working from home as for office staff. The OSH Act defines the term 'workplace' as a "place, whether or not in an aircraft, ship, vehicle, building or other structure, where employees or self-employed persons work or are likely to be in the course of their work". The question of whether a place is a workplace does not depend on whether that place is owned or controlled by the employer. Where an employee is required (or permitted) to work from home, then the employee's home (or at least part of it) becomes a workplace, and the obligations imposed under section 19 of the OSH Act apply. The simple answer is risk management – hazard identification, risk assessment and implementation of appropriate controls. The more difficult part is applying this in practice. What steps are reasonably practicable? It is necessary to avoid a "tick the box" mentality to safety, and to ensure that relevant parties thoughtfully turn their minds to safety. At the very least there should be a
preliminary risk assessment conducted before a decision is made requiring (or permitting) an employee to work from home. This risk assessment should cover both whether the duties are capable of being performed from home, and whether the home environment itself is safe. Who will conduct this, the employer, the employee – perhaps using a checklist provided by their employer – or an independent consultant? Legally, all that is required is what is reasonably practicable. Ideally, the approach that will best ensure safety, but realistically, it will depend on the particular employer's risk appetite and approach to safety generally. Some other practical issues to consider include matters such as the provision of first aid kits, fire extinguishers, smoke detectors – who bears the cost? What happens if an employee smokes in their home? Is additional training required to be provided to the employee because they are working from home? Should all electrical equipment be tested? Are RCDs connected and working? How do you ensure that the employee takes regular breaks? Is there adequate security to protect from burglary? Employers should also turn their minds to the specific duties imposed under the Occupational Safety & Health Regulations (WA) 1996, and check that their relevant insurance policies cover employees while working from home2. Furthermore, safety is not a static obligation. The obligations imposed on employers are ongoing, and for that reason employee safety needs to be monitored and reassessed from time to time. Are these matters really being considered, or is business just going through the motions? The best safety outcomes arise when parties thoughtfully and genuinely turn their minds to safety. Organisations must do their best to avoid the "tick the box" approach to safety, and put safety front and centre. Perhaps safety should be an organisation's first consideration when considering whether to outsource work, utilise contract or labour hire workforces or allow employees to work from home. NOTES 1.
Inspector Jones v T Helsby & Sons Contracting Pty Ltd (Administrator appointed)  NSWIRComm 5.
See liability for injury sustained whilst working from home in Hargreaves v Telstra (2011) AATA 417.
Westpac Banking Corporation v Wittenberg (2016) 330 ALR 476 A new lens for assessing the binding effect of workplace policies and the duty of good faith Joanna Vincent Associate, Norton Rose Fulbright
Before delving into these questions, his Honour clarified several fundamental principles, including that when considering whether the terms of a policy are contractually binding the starting point is the terms of the contract itself.7 His Honour explained that "it is an error of analysis to argue from the language of a policy to a conclusion that the terms of the policy are contractual."8 BUCHANAN J'S TERM AND THE INCORPORATION FRAMEWORK
Whether an employer's policies are binding on both the employer and an employee are vexed questions with significant practical implications. In the recent case of Westpac v Wittenberg, Justice Buchanan proposed a novel way of unpacking this very question.1 His Honour avoided the initial question of whether the policy was incorporated and instead contemplated that a term may be implied by fact that an employer will honour polices that operate for the real and practical benefit of employees and will not arbitrarily or capriciously withdraw them (Buchanan J's term).2 This term may be an expression of a broader duty of good faith in employment contracts, which if adopted, could have far-reaching implications for businesses wishing to unilaterally amend their polices or procedures, such as bonus and redundancy policies. THE INCORPORATION FRAMEWORK The incorporation framework is presently the accepted starting point when assessing whether the terms of a workplace policy are contractually binding.3 In the leading decision of Riverwood v McCormick, three key factors were identified as being relevant;
the language of a policy clause in an employment contract, the language of the policy sought to be relied on and the time the employee receives the policy.4 Applying these three factors, incorporation of the policy into an employment contract may result, depending on whether the policy clause requires employees to 'comply' with a specific policy, whether the language of the policy is 'promissory', and whether the employee received the policy before or after signing the employment contract. WESTPAC V WITTENBERG In Wittenberg, Buchanan J asked the question: was Westpac's redundancy policy (relevantly, the notice of termination provisions) binding on both Westpac and the relevant employees?5 This question was not necessary to resolve the appeal, as it was common ground at first instance that the policy was incorporated into the relevant employment contacts. Nevertheless, Buchanan J doubted whether the incorporation framework was the appropriate lens through which to assess the binding nature of Westpac's redundancy policy.6
His Honour moves away from the incorporation framework and suggests that an alternative lens – an implied term by fact (as summarised above) – may be more appropriate and flexible.9 Justice Buchanan's term is perhaps best understood as an extension of the implied term enunciated by Mansfield J in Riverwood – namely, that policies cannot be changed by an employer arbitrarily or unfairly. His Honour's term may effectively render the debate about the anterior question of whether a policy is incorporated into a contract and therefore of contractual force unnecessary. This proposed extension is novel. The authors of Macken's Law of Employment have observed that Buchanan J's approach is a "pragmatic response [which] has yet to gain support."10 IS THERE ROOM FOR THE INCORPORATION FRAMEWORK? A question looms: is there weight to McKerracher J's obiter observations in Wittenberg that whilst he could see some force in Buchanan J's term, there remains room for the incorporation doctrine to operate?11 There may conceivably be occasions when a policy does not satisfy the three factors enunciated in Riverwood and is therefore not incorporated into an employment contract, for example, due to: •
the absence of an incorporating 21
clause in a contract of employment (although it is still possible that a policy may be incorporated, including perhaps on occasions where an employee signs an acknowledgment of their acceptance and understanding of the terms of the policy);
practically cover the same ground as the incorporation framework, and importantly also fill gaps the incorporation framework may not fill.
the presence of an effective disclaimer in a contract of employment stipulating that policies are not incorporated into an employment contract (see Yousif v Commonwealth Bank of Australia (2010) 193 IR 212); or
Nestled beneath the surface of Buchanan J's judgment is an important question: should Buchanan J's term be properly understood as a sub-set of an evolving duty of good faith that may be implied by fact or law into contracts of employment?
an ineffective reference to a policy in a contract of employment.
Certainly in these circumstances, Buchanan J's term could conceivably fill a gap that the incorporation framework may not fill, by requiring that certain policies be honoured by an employer and also not arbitrarily or capriciously withdrawn (or varied). However, returning to McKerracher J's observations, could Buchanan J's term be sufficiently wide to render the incorporation framework practically unnecessary? Perhaps. It is possible that Buchanan J's term, combined with the duty on employees to obey lawful and reasonable directions, may
MAKING NEW GROUND – BUCHANAN J'S TERM AND AN IMPLIED DUTY OF GOOD FAITH?
Justice Buchanan does not expressly engage with this larger debate. His Honour does not rely on notions of good faith or fair dealing and instead relies on an 'arbitrary' or 'capricious' threshold. His Honour also confines his observations to the lens of implied terms by fact;12 that is, to the circumstances and practical realities of the particular case.13 Perhaps underscoring his Honour's judgment is an acceptance that not all policies are created equal. For example, some may deal with financial aspects such as bonus schemes, whilst others may deal with procedural matters. The lens of implied terms by fact provides a degree of flexibility that is especially needed in this space, with
workplace policies differing so greatly from one workplace or subject matter to the next. Justice Buchanan has reignited a discussion that has ramifications beyond workplace policies. Whether a duty of good faith should be implied by law into employment contracts remains a question without a clear answer, at least for the moment. In the meanwhile, we are left pondering the potential duty that lay dormant in Buchanan J's judgment. NOTES 1.
(2016) 330 ALR 476 ('Wittenberg').
Ibid 495 .
(2000) 177 ALR 193 ('Riverwood').
(2016) 330 ALR 476.
Ibid 495 .
Ibid 495 .
Ibid 495 .
Ibid 495 .
Carolyn Sappideen, Paul O'Grady and Joellen Riley, Macken's Law of Employment (Thomson Reuters, 8th ed, 2016) 149.
Justice White did not express a view.
See especially the observations of French CJ, Bell and Keane JJ who cautioned in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169,195-196  that their rejection of an implied duty at law of mutual trust and confidence in the case "should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts." (citations omitted) See also commentary on concepts of fairness and good faith in employment contracts provided by Kiefel J, 213-214 -.
Wittenberg (2016) 330 ALR 476, 495 .
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Accessories personally liable for unpaid employee entitlements This article was originally published in LSJ, Issue 26, September 2016, pp. 82-83.
Janine Webster Chief Counsel, Fair Work Ombudsman
Snapshot • Section 545 of the Fair Work Act allows a court to make orders that an accessory, not just an employer, is personally liable to back-pay employee entitlements. • Making accessories personally liable for their corporate entity's obligations under the Act has the effect of piercing the corporate veil. • The recent decision of the FCCA in FWO v Step Ahead demonstrates the broad powers available to courts under s545 of the Act and provides guidance as to the factors courts will consider in making compensation orders against accessories. The recent case of FWO v Step Ahead Security Services Pty Ltd & Anor  FCCA 1482 (FWO v Step Ahead) has confirmed that under the Fair Work Act 2009 (Cth) (FW Act), a court can make orders to the effect that accessories (such as directors) are personally liable to back-pay underpaid employees their workplace entitlements. This is a significant development in respect of Fair Work Ombudsman matters. Previously, only employers (usually corporate entities) were ordered to rectify employee underpayments, while accessories were only liable to pay civil penalties. As a result of this development in the law, accessories, such as directors, should be aware that:
Anica Winterburn Lawyer, Fair Work Ombudsman
the corporate veil can be pierced so that they become personally liable to back-pay employees, as well as to pay civil penalties; winding-up an employing entity will not mean that back-payments do not need to be rectified. It will only make it more likely that the accessory involved in the underpayments will become personally liable to rectify the payment; personal liability to rectify underpayments may result in an accessory being liable to pay a significant amount. Frequently, the amount required to rectify any underpayments is higher than the maximum amount of the civil penalties under the FW Act.
OVERVIEW OF THE ISSUE The Fair Work Ombudsman (FWO) has taken the position that the FW Act provides that Federal Courts, (including the Federal Circuit Court (FCC)) has the power to order that accessories, such as directors, be personally liable to back-pay employee underpayments by the operation of the following provisions: •
s550 which allows a court to make orders that accessories (individuals or corporations) who are 'involved in' an employer's contravention of the FW Act are liable for the employer's contraventions; and
s545 of the FW Act which provides a broad power to the Federal Court or Federal Circuit Court to make any orders it considers appropriate when it is satisfied that a person has contravened, or proposes to contravene, the FW Act.
Notwithstanding the broad wording of s545 of the FW Act, the Explanatory Memorandum of the FW Act at 2177 states that an accessory cannot be personally liable for the underpayments
incurred by the employer. In FWO v Step Ahead, the question was therefore whether the explanatory memorandum limited the operation of s545 and prevented accessories being ordered to personally pay employee entitlements. FWO V STEP AHEAD On 17 June 2016, in the matter of FWO v Step Ahead, the FWO successfully obtained orders in the FCC to the effect that the sole director of Step Ahead Security Services Pty Ltd (Step Ahead), Mr Jennings, was liable to pay unpaid employee entitlements owed by the company. FACTS The FWO commenced proceedings against Step Ahead and its sole director Mr Jennings for contraventions of the FW Act relating to eight employees employed as security guards in the Gold Coast and Tweed Coast areas. The employees were underpaid a total of $22,779.72 between 26 May 2014 and 20 August 2014. The employees were paid flat hourly rates which did not meet the minimum required rates of pay, or the casual loadings or penalty rates, the employees were entitled to. The employers also broke requirements for minimum four-hour shift allowances provided for under the Security Services Industry Award 2010. The respondents admitted the contraventions but they did not rectify the underpayments. At the time of these proceedings, Mr Jennings had an extensive history of non-compliance and interactions with the FWO which included several contravention letters, 37 compliance notices and a letter of caution. In addition to his sole directorship of Step Ahead, Mr Jennings was the sole director of two previous companies offering security services that were each wound up, the second one in circumstances where employee entitlements were outstanding. 23
At the time of the hearing, Step Ahead was no longer operating but Mr Jennings continued to be active in the security industry by becoming a consultant for a new company (of which his son was the director) which operated out of the same premises and had the same registered address as Step Ahead. There was evidence that Mr Jennings was in charge of the new company in the same way he was in charge of Step Ahead. Apart from the FWO seeking orders for Mr Jennings to be jointly and severally liable for the employees' underpayments, there was no way to enforce the Court's order to back-pay the employees as Step Ahead was wound-up following the hearing. DECISION ON LIABILITY FOR UNDERPAYMENTS Judge Jarrett held that, by its terms, s545 of the FW Act provides the Court with broad powers to "make any order the court considers appropriate", including compensation orders against a person 'involved in' a contravention within s550 of the FW Act. His Honour found that the text of s545(1) of the FW Act was clear and unambiguous. In His Honour's view, there was no immediately apparent reason to read down the wide wording of s545(1) and take into consideration the provisions of the Explanatory Memorandum. His Honour held that: "the only jurisdictional requirement is the need for the Court to be satisfied that a person has contravened, or proposed to contravene, a civil remedy provision. In a case where the Court has found that a person is involved in a contravention for the purpose of s550(1) of the FW Act and is therefore to be taken to have committed the contravention, the necessary satisfaction will always be achieved" (at -).
accessory is unnecessary given the capacity of the employer to make the compensation payments; •
any relevant public policy reasons; and
the nature of the order sought, including whether the accessory is to be made solely liable, or jointly liable.
In this particular case, Judge Jarrett determined that he should make orders that Step Ahead and Mr Jennings were jointly and severally liable for the backpayments owed to the employees. In so finding, he noted that: •
there was real doubt that Step Ahead was in a position to make the payments to the employees (at ) as there was an application to windup the company (which was later successful);
there was no question that Mr Jennings was in a position to influence Step Ahead (at );
Mr Jennings was responsible for ensuring that Step Ahead complied with its legal obligations and the underpayments arose despite the fact that Mr Jennings was plainly aware of the company's statutory obligations (at );
there was 'nothing about Mr Jennings' involvement that would lead the Court not to make an order against him for the employee's loss' (at );
'Public policy also requires the prevention of people retaining a benefit resulting from their misconduct. These considerations are plainly relevant when the Court determines whether or not to exercise its discretion to order those who control or influence an employer to abide by its statutory obligations to pay compensation' (at ); and
Mr Jennings' previous conduct in respect of compliance with workplace laws was a significant factor. His Honour stated that awarding compensation would discourage those that control a corporate employer from allowing the corporation to fail only to continue the business via a new corporation. "It would encourage them to take steps to ensure the corporation they control meets its
Essentially, the Explanatory Memorandum was no barrier to an order against an accessory. FACTORS CONSIDERED BY THE COURT WHEN MAKING AN ORDER AGAINST AN ACCESSORY After Judge Jarrett determined that he had the power to make the compensation orders against an accessory to back-pay the employees, his Honour then considered whether the Court should make these orders. His Honour held that the following matters are likely to be relevant matters for consideration in most cases: •
whether such an order against an
24 | BRIEF DECEMBER 2016
the nature and extent of the accessory's involvement in the contravention;
statutory obligations as they arise." (at –). ADDITIONAL ORDERS OF THE COURT In addition to making the compensation orders, the court also ordered that: •
a penalty of $257,000 be imposed against Step Ahead for their contraventions of the FW Act;
a penalty of $51,400 be imposed against Mr Jennings for his involvement in the contraventions of the FW Act;
25 percent of Mr Jennings' penalty be suspended for five years, to be activated if he is involved in another contravention during that time; and
Mr Jennings be restrained from being involved in, or knowingly concerned in, conduct that contravenes the Security Services Industry Award 2010 or the National Employment Standards.
CONSIDERATIONS FOR THE FUTURE The decision in FWO v Step Ahead sends a clear message to accessories, such as directors and managers, that a failure to ensure that an employer complies with workplace relations laws may result in personal liability for the consequences of that failure. Attempts to use corporate structures to escape responsibility for amounts owed to employees for example, will not shield a director from being personally accountable for outstanding employee entitlements. The FWO, as a regulator, litigates to enforce workplace laws, with the objectives of promoting compliance and deterring non-compliance. A significant area of focus for the FWO is pursuing unpaid employee entitlements and penalties for breaches of the FW Act. In order to ensure that the Court's intentions of general and specific deterrence are met and debts owed to employees are paid, the FWO will continue to seek that the Courts order that accessories are personally liable to rectify underpayments in appropriate circumstances.
FWO v Step Ahead sends a clear message to accessories ... that a failure to ensure that an employer complies with workplace relations laws may result in personal liability for the consequences of that failure.
The CEO, the Slave and the West Australians Pioneering the Anti-Slavery Campaign Shaeron Yapp Commercial Lawyer
Slavery will soon be a compulsory board agenda item for many large Australian organisations doing business with the UK following the new reporting obligations set out in section 54 of the Modern Slavery Act. Slavery is a hugely profitable criminal activity generating up to $150 billion per year, with estimates of up to 46 million slaves globally. The new law acts as a spotlight on large organisations demanding transparency about whether they are directly or indirectly profiting from slavery. This article highlights the key legal and commercial issues lawyers should be aware of when advising clients. WHAT IS MODERN SLAVERY 'Modern slavery' encapsulates human trafficking, slavery, servitude and forced or compulsory labour offences. It is broadly defined to reflect the reality that modern slavery can manifest in many different ways. AFFECTED ORGANISATIONS Every organisation (wherever incorporated) that carries on a business or part of a business within the UK and supplies goods or services with a turnover of more than £36 million is affected. The law applies across every sector, impacting not just manufacturing companies but impacts sectors such as banking, the media and even law firms. The definition of 'carrying on business' is fluid, but government guidance notes confirm a common sense approach will be taken. If an organisation does not have a demonstrable business presence in the UK or is simply a holding company, it will not be caught.
Publishing the statement is the easy part.
THE SECTION 54 STATEMENT It is expected that statements will be a succinct summary of actions taken that year by organisations in respect of slavery. At present, the only requirement is to sign and publish the statement annually. Organisations could simply state that they have not taken any action and will legally face no penalties at this stage. However there is a global trend to impose civil and criminal sanctions against corporations complicit in human rights offences. For now, the response is designed to be market driven, a race to the top in improving standards and enforced by the court of 'popular opinion'. Reputational risk will be the driving factor for directors when approving statements. Organisations are not expected to audit every aspect of their organisation and every supply chain, but rather demonstrate a strong commitment and proportional response, within its spheres of influence. Section 54 suggests that the statement could cover six main areas: •
Structure of business and supply chains
Internal and external policies
Due diligence processes
Risks identified and mitigation strategies
Key performance indicators to demonstrate effectiveness of policies
Training and whistleblowing policies
THE NEVER ENDING SUPPLY CHAIN The law is drafted in vague terms and does not define supply chains. This is no doubt deliberate and instead of imposing a 'one size fits all' checklist, each organisation is left to its own devices. It is expected that reporting levels will increase over time as internal processes mature and corporate culture shifts towards greater transparency. It may be that organisations first focus on 'upstream' supply chains, being the suppliers that the organisation can exercise influence over. FORMALITIES AND TIMING The only mandatory formalities are that the statement must be approved by the board of directors, signed by a director, and published on a prominent place on the organisation's homepage. Some companies are opting to also publish the statement in its annual report as well, being a more logical placeholder in the corporate calendar for regular review of disclosure obligations. A parent company can choose to produce one statement on behalf of all subsidiaries. For those Australian companies with a year end of 30 June, the first statement 25
should be published promptly but there is a six month grace period until 30 December 2016. A handful of Australian companies have published statements including Wesfarmers, Ashurst LLP, BHP Billiton, Commonwealth Bank Group and CSL Behring. AUSTRALIAN LEGAL TRENDS The Modern Slavery Act is the first of its kind globally and will evolve rapidly. Even though in its infancy, it is already under intense scrutiny. Equivalent EU legislation is expected shortly. There is also growing pressure in the US to extend the Transparency Supply Chains Act, which is currently restricted to manufacturing and retail companies operating in California. Australia has a complex legal framework consisting of international instruments, criminal codes, migration laws and other state and territorial legislation governing slavery. A five-year national action plan (2015 to 2019) to combat slavery is underway, with high profiles backers both from Western Australia, being Foreign Affairs Minister Julie Bishop (member for Curtin) and Justice Minister Michael Keenan (member for Stirling). The action plan included the convening of a 'Supply Chains Working Group'. The group was dissolved in December 2015 and has been criticised for failing to
produce any real outcomes or publish its recommendations. Australian lawmakers will face increasing pressure to review current laws as Australian laws are lagging behind the minimum standards set by the UK, US and other international laws. Andrew Forrest, another high profile Western Australian, is actively campaigning against Modern Slavery in Australia through The Walk Free Foundation established in 2012. Recently as part of the Global Slavery Index launch in London, Mr Forrest stated in an interview with The Australian that there are over 4,300 slaves in Australia, particularly in small business on the west coast of Australia in farming, particularly tomato farming, where migrant workers are being subjected to forced labour and abusive labour practices. Mr Forrest has been named Western Australia's 2017 Australian of the Year for his anti-slavery campaigning efforts. NEXT STEPS FOR LAWYERS Publishing the statement is the easy part. Lawyers will need to advise on the contractual roll out of updated warranties, termination rights, audit rights, review procurement procedures with suppliers, update policies including whistleblowing policies
YOUR MEMBERSHIP GIVING BACK TO THE COMMUNITY Education and Community Services These services promote the basic principle that all people must understand the law and the legal system which affect their daily lives. The Law Society provides the: • • • • •
Francis Burt Law Education Programme; Old Court House Law Museum; Mock Trial Competition for Year 10-12 students; Cluedunnit Kids Competition for Year 5-6 students; and Lawyer Visits to Schools Network.
Discover the services now by visiting lawsocietywa.asn.au/community
26 | BRIEF DECEMBER 2016
and provide training. If issues are identified, enforcement procedures and dispute resolution will need careful consideration. Experts suggest that simply cutting ties with suppliers can be the worst approach, as it will not address the underlying issue of slavery. When publicly disclosing any risks, the appropriate balance must be found between providing sufficient transparency and future proofing against risk of claims. Law firms in the UK have begun to set up working groups for clients, for appropriate information sharing across sectors and facilitate honest dialogue about the challenges faced. NGOs have already begun to evaluate and benchmark statements, and all companies should expect ever increasing public and political pressure in this developing area of law. Proactive and commercial legal advice is needed to ensure Section 54 is not just public relations or a political exercise, but a landmark move towards the eradication of modern slavery. Following the lead of the West Australians already pioneering the campaign nationally, lawyers in Western Australia are well placed to advise the multinational companies doing business in the UK and contribute towards the growing campaign for equivalent legislation in Australia.
KBE Human Capital is Western Australia’s leading Legal Recruitment firm. We have developed a reputation for providing a highly personalised service and our Consultants are not afraid to give upfront advice in adding value to our networks, beyond recruitment. Our team has long established relationships with the leading national/international and most prominent Western Australian law firms and we always aim to provide lawyers with an unrivalled level of knowledge and exceptional level of service.
Junior to Mid-Level Roles •
We are currently working on numerous exclusive briefs to source high calibre lawyers from 2 years’ PAE through to Equity/Salaried Partners, and it would be a pleasure to meet with you to discuss the opportunities currently available in the WA legal market.
Partnership Opportunities KBE Human Capital has current mandates to secure high calibre Partners across various Practice Groups.
To be considered by our client base, you will be a Salaried/Equity Partner or Senior Associate/Special Counsel and confident in your ability to bring across some form of transportable fee base. In the alternative, you will demonstrate a track record of rapidly developing a client base using your existing networks, across one of the following areas: • Construction & Projects
• Local Government
• Environment & Planning
• Wills & Estate Planning
• Workplace Relations
We are interested in speaking with existing Partners and Senior Associates/Special Counsel approaching Partnership who are looking to take the next step in their careers. The successful candidates will possess strong technical knowledge in their specialist fields with demonstrated business development skills.
Mergers & Acquisitions KBE Human Capital is rapidly becoming Western Australia’s preeminent team in facilitating M&A activity for Partners/firms who are looking to transition out of practice and/or join larger teams in benefiting from economies of scale and sharing fixed costs to increase overall profitability.
Several of our key national/international and boutique clients are actively seeking merger and acquisition opportunities to increase their market presence/share, with a number of highly regarded sole practitioners looking to transition their client bases into other firms. For comprehensive advice about the WA legal market or information regarding the range of Partnership/M&A opportunities currently available, please contact Chris Bates.
Banking & Finance Lawyers for two top-tier firms. KBE Human Capital is working with several leading Banking & Finance teams to secure B&F Lawyers with 1-7 years’ PAE. With opportunities at both national and international firms, the successful candidates will have experience from top/mid tier firms dealing with complex transactions, with an interest in mining and energy project financing across Australia and various emerging markets. Corporate Lawyers for two international firms. 2-4 years’ PAE and 4-8 years’ PAE to join two of Australia’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 will be comfortable advising senior stakeholders and dealing with board, company secretaries, in-house counsel, regulatory bodies and managing a significant deal flow. Corporate Lawyers for genuine boutique firm. Two positions available for lawyers with 1-5 years’ PAE. Given the size and structure of this particular firm, the successful lawyers will be provided with unrivalled client contact and primary conduct of matters across IPO’s, RTO’s, ECM and related ASX/ASIC compliance advice. The Partners are known for their relaxed approach and attracting a high profile client base across the junior and mid-cap markets. Environment & Planning Lawyer. This is a new opportunity for an Environment & Planning Lawyer to join a national firm in their growing E&P practice. The firm boasts a strong reputation and provides legal advice on all aspects of E&P matters. Working within an established and knowledgeable team comprising both senior and junior lawyers, the successful candidate will have 3-6 years’ PAE with previous experience across aspects of land compensation claims, environmental impact and contamination issues, E&P policy, local government work and related litigation. Family Lawyers for two of WA’s strongest Family Law teams. Two exceptional family law practices are looking to secure quality family lawyers with 5+ years of experience. With an enviable client list and advising HNW individuals regarding complex property/children’s matters, these firms are seeking lawyers who are accustomed to working with high profile business leaders as both clients and referral sources. Insolvency Litigation Lawyer. 5-8+ years’ PAE with the option to step into a leadership role and lead the practice over time. Work alongside two top-tier Partners in this break away boutique firm with well-established referral sources throughout the key insolvency accounting teams. Insurance Lawyer with Workers’ Compensation focus. One of Australia’s best regarded specialist national insurance teams is seeking a junior to mid-level lawyer to join the Perth practice.
M: 0411 645 984 E: firstname.lastname@example.org
M: 0423 867 110 E: email@example.com
The successful lawyer will have 2-6 years’ PAE and work primarily across Workers’ Compensation matters, with the opportunity to gain exposure to professional indemnity, product liability and public liability. This role would suit a client facing lawyer who enjoys business development and extensive client contact. •
Litigation Lawyers for top-tier firm. This is a new opportunity for a junior (2-4 years’ PAE) and mid level Litigation Lawyer (3-8 years’ PAE) to join a rapidly growing top-tier firm and work alongside Partners who are regarded as among the best strategic litigators in Australia. You will act for domestic and international clients across a range of industry sectors, and complete a diverse mix of energy and resources, construction and insolvency litigation within Australia and multiple foreign jurisdictions.
Plaintiff Insurance Lawyers. Long established plaintiff insurance firm seeks two lawyers with 1-6 years’ PAE to join its expanding team. Following a renewed focus on business development and marketing, this firm has a fresh strategic plan and is rapidly regaining market share. The Partners will be looking to hire driven lawyers who are confident in negotiating with senior defendant side lawyers, and able to manage complex files with a significant level of autonomy.
Property Lawyers for national and international firm. 2-4 years’ PAE and 5-8+ years’ PAE. Opportunities to join a national and international firm, both of which continue to grow in the current market. Advise private and government clients throughout the real estate lifecycle, including environmental and planning issues, development projects, disposals developments and related leasing work.
Tax Lawyer for international firm. Opportunity for a Senior Associate/Special Counsel to set up and lead the WA team across both Tax Advisory and Litigation matters. You will work closely with Partners from the firm’s other teams and east coast offices to leverage long term client relationships in rapidly building up a fee base.
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.
Please contact Maryann McKenna for further information regarding the junior to mid-level roles currently available across the WA legal market, or to discuss the briefs that will be coming online early in 2017. KBE Human Capital is a proud supporter of Parkerville Children & Youth Care
KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au
Blurring the boundary between work and play Disciplining employee conduct in social media and out of hours
Mark Cox1 Director, MDC Legal
There used to a clearer line between work and play – between employee conduct at work, which the employer is entitled to regulate, contrasted with employee conduct in their private life, which was none of the employer's business. Two contemporary phenomena, or 'disruptors', are blurring that line, raising several workplace law issues. Firstly, the types of employment and modes of engagement are becoming more varied, with flexible working arrangements, working away from the employer's premises; with increasing use of casuals, contractors and outsourced workers; and with new forms of engagement: examples in the legal profession are so-called 'New Law' firms like LawVision, LegalVision, Hive or Advent Balance. Secondly, social media – that wide variety of phenomena including Facebook, LinkedIn, Instagram, YouTube, Snapchat and Twitter – has expanded ubiquitously into all aspects of modern life across work and play, the professional and the personal, public and private life. Life and work today is profoundly different from a decade or two ago – in the way we consume or create media and popular culture, the ways we learn, work, communicate and run businesses and workplaces. It remains the case that employees are entitled to a private life, free from the employer's gaze and command, provided their conduct in that private life does not harm the employer or the employment relationship. Where employees fail in this, they may be subject to disciplinary action, up to and including termination of their employment. For employers to best protect their business interests and reputation, to avoid claims or complaints or vicarious liability, they should have in place policies
28 | BRIEF DECEMBER 2016
that raise employees' awareness of the need to exercise care and responsibility in their private activities, including activities on social media, to avoid negative effects on their employment, their employer's business and their colleagues. Employers need to understand the circumstances in which they can lawfully and reasonably discipline or dismiss employees for what they do in their personal time. WHEN SHOULD CONDUCT OUTSIDE WORK MATTER TO THE EMPLOYER? The question of when an employer may regulate or be liable for an employee's out of hours conduct has received attention in a variety of courts and commissions in at least three distinct areas: unfair dismissal, sexual harassment and workers compensation. There is not always a perfect consistency apparent. In the unfair dismissal cases, a common starting point for guiding principle is the 1998 decision of the Australian Industrial Relations Commission in Rose v Telstra Corporation Ltd2 (Rose). There it was held that an employee's out of work conduct will warrant disciplinary action in limited circumstances when, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer's interests; or the conduct is incompatible with the employee's duties in their employment.3 In essence, the conduct complained of must have a relevant connection to the employment,4 and to justify termination it must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.5 Mr Rose was a Telstra employee who agreed to work at another Telstra site
100km from his usual work place. Mr Rose and another Telstra employee went out after work. They had a verbal altercation then a physical altercation in their hotel room, resulting in Mr Rose needing 12 stitches and being unable to present for work for the following four days. Mr Rose's employment was terminated following an investigation finding that he was guilty of improper conduct (the other employee had previously resigned). In the AIRC Mr Rose submitted that the incident had nothing to do with Telstra and did not constitute a valid reason for his termination: it did not take place during working hours or in the workplace. Telstra submitted that the key link between the incident and Mr Rose's employment was the fact that he was travelling on allowance at the relevant time. Vice President Ross found that Mr Rose's conduct lacked the requisite connection to his employment and thus did not provide a valid reason for his termination. His conduct, viewed objectively, was not likely to cause serious damage to his relationship with his employer or his employer's interests. Compare the case of Telstra Corp Ltd v Streeter  AIRCFB 15 where the applicant's out of hours sexual conduct with colleagues in a hotel room together with the fact that she lied about what occurred resulted in the unfair dismissal claim being dismissed. As some commentators have observed, somewhat different approaches are taken to the scope of out of hours conduct that an employer may regulate and or be liable for in workers' compensation and equal opportunity matters:6 a) Workers' compensation cases: A worker may be compensated for an injury arising out of, or in the course of, employment. The scope of what
is "in the course of employment" depends on the connection between the employment and the employee's actions at the time their injury occurred.7 Their injury will only be in the course of employment if the employer encouraged or induced the employee to attend the place or engage in the activity. An employer is not liable for an employee's out of hours behaviour that it has no way of regulating. b) Sexual harassment cases: a broad approach has been taken to assessing the scope of out of hours conduct that an employer may be liable for. The term 'workplace' has been more broadly construed where an employer will be vicariously liable for an employee's out of hours sexual harassment, such that liability will arise where the sexual harassment is done "in connection with the employment", and the employer has not taken all reasonable steps to prevent the conduct from occurring.8 WHAT IS THE WORKPLACE? The workplace is not limited to the employer's physical premises. The boundary between work and personal space and time has become increasingly blurred; particularly due to the rise of social media and the increasing flexibility working hours and places. An employee is considered to be in the workplace whenever and wherever they perform work for the employer, even if they are: a) performing work outside of normal business hours; b) not performing work in or on the employer's premises or at their normal place of work, but at a different premises; or c) taking a break from work (for example, a lunch break). An employee is at work, and therefore in the workplace, whenever and wherever they participate in an activity or attend an event that is connected with the employing company or their employment. This can include attending work functions or other work-related, professional or social events such as work parties9, training sessions, or networking events. LESSONS FROM RECENT CASES In recent decisions of the Fair Work Commission, the following conduct on social media has provided a valid basis for termination, and the dismissal held not to be unfair:
"Gone is the time (if ever it existed) where an employee might claim posts on social media are intended for private consumption only". a) highly offensive, threatening or derogatory comments to or about the employer, managers or other employees that are public or that work colleagues can view;10 b) comments or actions that may seriously harm the employer's business or can be linked to the employer's business;11 c) comments or actions done on the employer's property (such as through internal messaging systems or email) and that are therefore not private communication; d) conduct in breach of the employer's social media policy that has been communicated to employees. Further, decisions of the Fair Work Commission concerning out of hours conduct have confirmed that: a) an employee's criminal conviction and imprisonment for conduct unrelated to work, engaged in while on holiday outside of Australia, may give an employer a valid reason to dismiss an employee;12 b) an employer may be entitled to dismiss an employee who is dishonest about what he does in his own time, for example if that
employee has a second job (as an Uber driver) contrary to the requirements of his employment contract and the employer's code of conduct;13 c) an employer may be entitled to dismiss an employee for using cannabis (while off-duty during the weekend) in circumstances where the employer has a "zero drug and alcohol tolerance policy"14 or where the employee buys hashish in a foreign city in a stay-over between work as a flight attendant;15 and d) an employee's conduct post termination in posting on Facebook that the employer is a "bastart" and "criminal with stars" may constitute evidence that the employment relationship cannot be restored, and therefore reinstatement should not be ordered.16 On the other hand, employers ought to be cautious in circumstances where: a) an employee's comments or actions could be considered to be a merely foolish or impulsive outburst that does not pose a real risk of damage to the employer;17 b) an employee's comments made privately and cannot be viewed by 29
others; c) the employer does not have a social media policy or a code of conduct regulating the use of social media; d) the employee lacks awareness or inexperienced in the use of social media;18 or e) an employee has a lengthy period of good service with the employer or other mitigating factors that may result in the dismissal being held to be disproportionately harsh.19 What is evident from the decided cases is that the factors enunciated in Rose remain touchstone considerations when determining whether an employee's out of hours behaviour has a relevant connection to the employment justifying dismissal. HYPER-CONNECTIVITY (AND POKÉMON GO) IN THE WORKPLACE Employers must grapple with the fact that in modern workplaces, many if not most of their employees are hyper-connected (with unlimited internet access) via their smart phones and other devices to social media and gaming. For example, it has been reported that 69% of Pokémon Go users play while at work; 40% of people who have downloaded the 'app' are 25 years old or older.20 The apparently 'addictive' or compulsive nature of mobile games, and the pace at which mobile games have pervaded our work and private lives, is likely to impact on productivity and, at least in some industries, safety. Employers can lawfully and reasonably monitor employee's activities and productivity within the workplace, but must be cautious on how they go about doing so. It is another question, however, whether employers can monitor employees' data usage on their personal smart phones during working hours. Employers need to have in place policies that set out what the employers' expectations are of its employees. Depending on the employer's business and industry practices, playing Pokémon Go at work may be permissible, in the same way that an employer is expected to accept that employees will engage in a modest amount of personal activities at work. However, employers are entitled to regulate against playing mobile games in the workplace becoming a problem for safety, performance or productivity. EMPLOYEES' RIGHT TO PRIVACY As social media and gaming use has expanded, so employers may feel the need to monitor employees' social media 30 | BRIEF DECEMBER 2016
activities and data usage while at work.
aware of his behaviour.
It is becoming more common for employers to advise their workforce that the use of email, internet and other computer resources will be monitored. Reasons may include maintaining workplace productivity and or appropriate use of the employers' resources; but they also include the need to minimise the risk of inappropriate behaviour exposing the business to liability or causing damage to the employer's brand or workplace relations.
Nolan did not make remarks about his employer or his work or colleagues, but the connection to his employment was evident from his Facebook page identifying his employer. Meriton dismissed Nolan. Meriton's reputation would be put at risk if they were seen to condone Nolan's behaviour. It is not apparent whether Nolan made any unfair dismissal claim, but if it came to determination, a relevant question may be what policies or code of conduct Meriton had on employee use of social media.
As against these aims needs to be balanced the employees' privacy rights. While the Privacy Act 1988 (Cth) does not specifically address the issue of workplace surveillance, employers that monitor employees' activities at work must comply with relevant monitoring or surveillance laws, most obviously with respect to disclosure of the fact.21 Employers who access employees' private information need to exercise caution. In 2015 the New Zealand Human Rights Review Tribunal awarded Ms Karen Hammond $168,000 after the Tribunal found that her former employer (Credit Union Baywide) had wrongfully disclosed her personal information to various third parties.22 The employer in that case did various things employers should avoid, including: a) improperly obtaining Ms Hammond's Facebook post (a photo23) and sending it to recruitment agencies warning against employing her; b) forwarding an email to all of its employees disclosing the circumstances in which Ms Hammond left the employer business; and c) providing Ms Hammond's new employer with a screenshot of the post, urging him to terminate her – making Ms Hammond's employment become so untenable that she resigned. The following recent scenarios could be game-changers in how certain social media usage can lead to a person's dismissal for posts. ABUSIVE POSTS UNRELATED TO EMPLOYER: BALANCING FREE SPEECH? In December 2015, a Mr Nolan commented on one of journalist Clementine Ford's Facebook posts, calling her a 'slut'. Ford took screenshots of this comment, and other racist posts Nolan had made on his own Facebook page and posted them on her Facebook feed. She tagged Nolan's employer, Meriton Apartments, asking if they were
Balanced against the right of an employer to terminate an employee for their out of hours social media conduct are the rights of employees to engage in free speech. In April 2015, SBS dismissed soccer reporter Scott McIntyre following his tweeting comments critical of ANZAC Day and his refusal to remove the tweets, as directed by SBS. SBS said his actions were in breach of the SBS Code of Conduct and social media policy. McIntyre said he was exercising his right to free speech. In McIntyre's case, he had a public profile by virtue of his position with SBS, and so his comments might be associated with SBS, who therefore argued that his freedom of speech was justifiably confined. The matter was settled so we cannot say how the matter would have been decided. "REVENGE-PORN" The recent WA Supreme Court decision in Wilson v Ferguson24 illustrates another recent phenomenon of so-called "revenge porn" published in social media. This becomes relevant in the workplace where colleagues who may have had an intimate relationship which turns sour, and one party publishes nude or intimate images of their ex-partner online without consent. The parties were FIFO colleagues in an intimate relationship. After the relationship ended, Mr Ferguson posted 16 explicit photos and two videos of the plaintiff on his personal Facebook page. Many of Mr Ferguson's friends were his and the Ms Wilson's co-workers. Mr Ferguson's employment was terminated a week after he posted the material. Ms Wilson was understandably distressed by the posts. She was unable to return to work for two months. She obtained a Supreme Court injunction restraining the defendant from further publication of the materials. Ms Wilson relied on equitable principles: she argued that the photos and videos were confidential, that that they were
Rose v Telstra Corporation Ltd  AIRC 1592.
This is a summary of the differing approaches observed by Jennifer Winckworth and Dan Trindale, 'Out of Hours Conduct: Differing Approaches Between Workers' Compensation, Unfair Dismissal, and Equal Opportunity Jurisdictions' (2016) 22(1) ELB.
See for example, Comcare v PVYW (2013) 250 CLR 246; Westrupp v BIS Industries Ltd (2015) 238 FCR 254;  FCAFC 173.
See for example, Vergara v Ewin (2014) 223 FCR 151; South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 204.
See for example, McGowan v Direct Mail and Marketing Pty Ltd  FCCA 2227; McDaid v Future Engineering and Communications Pty Ltd  FWC 323.
Linfox Australia Pty Ltd v Glen Stutsel  FWAFB 7097.
Cameron Little v Credit Corp Group Ltd t/as Credit Corp Group  FWC 9642.
Kevin Cooper v Australian Tax Office  FWCFB 868.
Mervyn Jacob v West Australian Newspapers Limited T/A The West Australian  FWC 5382.
d) set out expected standards of behaviour and permitted use of social media and gaming, at and beyond work; and
Mr Corwynn Owens v Bynoe Community Advancement Cooperative Society Limited T/A Bynoe CACS Ltd  FWC 5274.
Mathew Roach and Qantas Airways Ltd U2001/3024.
Marroun v State Transit Authority  NSWIRComm 1003.
e) state that behaviour is prohibited that could adversely affect the employer's business or brand, disclose confidential business information, be seen as harassment, discriminatory or derogatory about any person, or undermine working relationships.
See for example, Singh v Aerocare Flight Support Pty Ltd  FWC 6186 – posting the joke "We all support ISIS".
Linfox Australia Pty Ltd v Glen Stutsel  FWAFB 7097 at  – .
Daniel Starr v Department of Human Services  FWC 1460 (reinstated).
Kathy Caprino, 'Pokemon Go Hurting Workplace Productivity? How to Stop Addictive Games From Distracting Employees' Forbes (online), 28 July 2016 <http://www.forbes.com/sites/ kathycaprino/2016/07/28/pokemon-go-hurtingworkplace-productivity-how-to-stop-addictive-gamesfrom-distracting-employees/#544059e51c5e>.
Australian Government, Workplace, Office of the Australian Information Commissioner <https:// www.oaic.gov.au/individuals/faqs-for-individuals/ workplace/>; see also: Australian Law Reform Commission, Serious Invasion of Privacy in the Digital Era – Final Report, Report No 123(2014).
Hammond v Credit Union Baywide  NZHRRT 6.
The photo was that of a cake that Ms Hammond had baked and iced with the words "NZCU F-CK YOU" and "C-NT".
This article was drafted with the substantial assistance of Noella Silby also of MDC Legal.
Wilson v Ferguson  WASC 15.
Pearson v Linfox Australia Pty Ltd  FWC 446.
Rose v Telstra Corporation Ltd  AIRC 1592.
obtained in circumstances that created an obligation for Ferguson to keep them confidential, and that he misused the information.
connected to and likely to affect the employment relationship, the employer and/or the employer's customers and workforce.
Ms Wilson was awarded damages for humiliation, anxiety and distress suffered, and an amount for economic loss for lost wages during her time off work.
The policy should:
This case illustrates that there is a remedy to victims of revenge porn. It also acts as a warning to employers (although in that case no claim was made against the employer) to treat such conduct seriously and to take steps to minimise their exposure to a compensation claim for vicarious liability for the perpetrator's conduct. ROLE OF SOCIAL MEDIA POLICIES Comments of Commissioner Gregory in Pearson25 are an endorsement of an employer's entitlement to regulate social media use by employees: "Gone is the time (if ever it existed) where an employee might claim posts on social media are intended for private consumption only".26 In today's workplace, every employer should have a code of conduct or policy that sets standards of appropriate conduct in the workplace, but also deals with out of hours conduct and use of social media. An employer is likely to be in a stronger position to defend vicarious liability claims, and or discipline or dismiss an employee for their out-of-hours conduct where unambiguous and consistently applied policies expressly state that employees' conduct outside of work may result in disciplinary action including dismissal, should that conduct be
a) convey in clear, concise terms appropriate employee behaviour at work and outside of work; b) be explained to and acknowledged by employees when they commence employment; and c) inform employees of the consequences of any breaches of the code, such as disciplinary action and termination of employment. And the social media policy in particular should:
Employees need to be trained on appropriate social media activity within the workplace and after hours. Employers should also ensure that they themselves and their managers 'model' best practice in using social media and out of hours conduct. NOTES 1. 2.
FOR BUSINESS Bankwest, a division of Commonwealth Bank of Australia (Bankwest) ABN 48 123 123 124 AFSL / Australian credit licence 234945. BWA-AD239 290916.indd 1
BWA-AD239290916 29/09/2016 2:34 pm
2016 Mock Trial Competition Grand Final
The two Grand Final teams with The Hon Wayne Martin AC, Chief Justice of Western Australia; Elizabeth Needham, President, the Law Society; and Pauline Bagdonavicius, A/Director General of the Department of the Attorney General.
The courtroom was filled with enthusiastic supporters for the Grand Final of the 2016 Mock Trial Competition, all there to observe the skills of the season's top two teams, 'Carey 10s' from Carey Baptist College, and 'Chisholm Challengers' from Chisholm Catholic College. The Grand Final case was an action for defamation arising from a post on the defendant's Facebook page, which the plaintiff said had cost him his job as an English teacher at the highly regarded school where he had taught for several years. The Chief Justice of Western Australia, the Hon Wayne Martin AC, found in favour of the plaintiff, awarding him a year's salary to compensate for the loss of his contract, but found that there had been no harm to the plaintiff's reputation. The team from Carey Baptist College, acting for the plaintiff, had a win in court, but when the scores were revealed, their valiant opponents from Chisholm Catholic College won 'by a whisker' on points, and carried off the trophy. This was a significant triumph for Chisholm, a school which has returned year upon year after experiencing narrow defeats. Congratulations to the team from Chisholm Catholic College.
32 | BRIEF DECEMBER 2016
Elizabeth Needham, President of the Law Society, along with the Acting Director General of the Department of the Attorney General, Pauline Bagdonavicius, welcomed guests and presented both teams with trophies following the trial. Lorraine Finlay, Law Lecturer and Head of Mooting at the Murdoch University School of Law, presented the 2016 Murdoch University Moot Court Bench Scholarship to Daniel Morey of Shenton College.
The Hon Wayne Martin AC, adjudicating.
The Society would like to extend our gratitude to the many members of the legal profession including associates, practitioners and law students who acted as coaches and judges in the 2016 Competition. Thank you also to the lawyers in the Grand Final Case Working Group who devised the case material for the Grand Final. We are now taking registrations for volunteers for the 2017 Competition. Previous participation is not required and all volunteers are eligible to claim CPD points for their efforts. We will be running an information session in February 2017 to explain the Competition in detail. Please contact us at firstname.lastname@example.org or on (08) 9324 8604 to register your interest.
Alex McVey; Murdoch Scholarship Recipient Daniel Morey of Shenton College with his parents; Daniel Johnson; and Lorraine Finlay of Murdoch University.
WITH THANKS We extend our thanks to the following members of the profession who volunteered as coaches and/or judges in the 2016 Competition. The Competition would not be possible without your support.
Barristers for the Chisholm team.
2016 Mock Trial Competition proudly supported by
COACHES Alexander Mossop Anne Durack Anthony Eyers Aoning Li Ashley Roberts Carly Price Carly Sluiter Carolyn Moss Chloe Blackwell Christopher Harrison Claire Rossi Craig Hershowitz Craig McIntosh Danae Aldous Elyce Lines Erica Thuijs Grant Benskin Ilya Isakov Isobel Milnes Jacqueline Musk James Marzek Jessica Berry John Rando Joshua Kain Juin Hui Ng Kate Offer Khie Calver Liz Hollingdale Marc Saupin Margaret Breen Matthew Curwood Michael Judd Natasha Burn Nicola Thomas-Evans Paul Pascoe Rebecca Sweeney Rein Squires Rhiarne Bruce Richard Hooker Sam Coten Sameena Sanmakay Sarah Jones
Scott Wilkins Shannon Walker Simon Davis Stephanie Oâ€™Connor Tony Buti Yvette Clifton Zoe Kalimeris
John Vaughan Jonathon Horne Jonathon Papalia Joshua Richards Joy Horwood Jun Wong Karina Travaglione Kate Wilson JUDGES Keely Liddle Alexander McVey Kevin Parker Amy Ryan Lisa Roche Andy Hunter Lorraine Finlay Asanka Gunasekera Marilyn Krawitz Belinda Giles Marlene Rudland Cassandra Joss Marshall McKenna Chad Silver Matthew Roberts Cheyne Beetham Michael Cornes Chloe Gall Michelle Linehan Christopher Townsend Miranda Robertson Craig Astill Natalie Wigg Daniel Harrop Natasha Stewart David Marshall Nick Scott Debbie Taylor Paola Lovi Deon de Klerk Patrick Mackenzie Eleni Kannis Ralph Timpani Elliott Cook Rebecca Dennison Elmi Carlean Robert Nash Emily Oâ€™Keeffe Rosanna Maugeri Emily Zylstra Sam Hemachandra Emma Salsano Sam Mengler Frances Veltman Sam Pack Francis Cardell-Oliver Scott Young Frith Gibbons Shay Duce Gayann Walker Simon Steenhof Gemma Mullins Stephanie Smith Greg Mohen Tara Moffat Jacob Carmody Thomas Camp Jade Lucas Thomas Furlong Jake Lowther Tim Lethbridge Jay Raja Timothy Mason Jessica Henderson Tun Yeo Jessica Tower Vlada Lemaic John Park Zoe Kalimeris
A Quick Guide to the Corruption and Crime Commission The Hon John McKechnie QC Corruption and Crime Commissioner
The Corruption and Crime Commission (CCC) is often in the media, sometimes for all the wrong reasons. This has tended to cloud its importance to public administration in Western Australia. Although it is not a court, and its opinions of serious misconduct have no legal consequences, the effect of an opinion can have a significant reputational effect for good or bad. Although not part of the judicial arm of government (it is in fact part of the Executive), its work is based in law and lawyers play a leading role. The origins of the CCC lie in WA Inc. and the formation of the Official Corruption Commission later the Anti-Corruption Commission, and through the Police Royal Commission, into the CCC. Originally invested with a jurisdiction over all forms of public sector misconduct, amendments that came into effect on 1 July 2015,1 focus the CCC's power on serious misconduct as defined (essentially corrupt conduct).2 This has allowed the CCC to bring considerable resources to bear on more important matters which either disclose a systemic issue or are serious examples of corruption. Minor misconduct for public servants is now the province of the Public Sector Commissioner. Whether intended or unintended, a consequence of the 2015 amendments is that elected officials such as members of Parliament and local government councillors are no longer subject to investigation and opinions in respect of minor misconduct. HOW THE CCC GETS NOTIFIED OF AN ALLEGATION OF SERIOUS MISCONDUCT Anyone can report misconduct. Certain public officers, including departmental CEOs are obliged to notify the CCC when serious misconduct is reasonably suspected. The CCC can also make its own proposition about serious misconduct based on its experience and knowledge. What happens then? Every allegation is assessed. If there is a reasonable suspicion that serious misconduct may have occurred, the CCC has a number of choices. Resources and other priorities mean that the CCC cannot investigate every allegation. It investigates about 10% of matters referred. There is another reason why the CCC doesn't itself
34 | BRIEF DECEMBER 2016
investigate every matter. The principal corruption prevention officers in the public sector are CEOs whose responsibility is to guard against corruption and mitigate the risk by robust policies and procedures. Moreover, a department, by its specialised knowledge of the subject may be in a better position than the CCC to investigate and deal with possible corruption. RETURNING A MATTER FOR ACTION Most matters will be returned to departments or agencies to deal with. The purpose: "to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector"3 is usually fulfilled by the notifying authority. However, in some cases, the CCC will oversee the investigation and monitor to ensure an appropriate outcome. The CCC has recently re-organised its Assessment Directorate following an intensive recruitment campaign, to provide more effective monitoring and oversight of investigations which are returned to public authorities. The CCC may request further work by an agency if it considers the investigation is inadequate.
An investigation may take many forms. CCC investigators are highly trained and have the same powers as police under the Criminal Investigation Act 2006 in respect of matters within its jurisdiction. The CCC employs intelligence analysts and financial analysts to help process and analyse sometimes huge amounts of data using sophisticated software tools. The Legal Services Directorate has 10 lawyers working under the Director, Wendy Endebrock-Brown. The CCC can apply to a Supreme Court Judge for a surveillance device warrant, and to a Federal Judge for an electronic intercept warrant. The CCC maintains a covert capacity of specially trained officers for surveillance. The CCC's powers include the power to obtain information from a public authority or office including documents and other things, if necessary in secret.6 CCC officers have power to enter and search public authorities and may apply to the Supreme Court for a search warrant for other premises. EXAMINATION OF WITNESSES
Investigations The CCC may decide to investigate either by itself, or with another agency. The CCC often conducts co-operative investigations as it is both efficient to do so and keeps 'ownership' of the problem with the agency, where it belongs. Sometimes the CCC may investigate without the involvement of other agencies. Indeed the CCC may forbid any further steps to be taken by an agency.4 In practice, the CCC may often prevent an agency from investigating only for a short time until the CCC has fully assessed the matter. If it decides to return the matter to the agency or undertake a co-operative investigation, it will lift the stop order. In deciding whether to investigate an allegation, some matters the CCC considers are the seniority of the public officer to whom the allegation relates, the nature of the allegation and whether there is a suspicion of systemic corruption, and the need for an independent investigation.5 The conduct of an investigation If the CCC decides to investigate, it has a raft of tools available. These include trained investigators, and other tools which may require judicial warrant.
An important investigative tool is the power to conduct an examination for the purposes of an investigation. Examinations are usually in private, but may be opened to the public if the CCC, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, considers that it is in the public interest to do so.7 Witnesses who are summonsed by the CCC may be legally represented. Legal Aid WA has a fund available to pay reasonable witness expenses and maintains a panel of lawyers for this purpose. There is a mistaken view that the CCC mainly examines witnesses who may be suspected of misconduct. In fact, the CCC's examination powers are most commonly exercised to obtain information in order to progress an investigation. Most witnesses will fall into this category. The CCC is also required to afford natural justice to a person who is adversely named in a report. A witness may be summonsed so that in fairness, allegations can be put to them for comment and response. The fact that your client is summonsed then, does not necessarily mean that the CCC has formed any suspicion of wrong doing. It may in fact be to protect the witness. A
witness in an examination has the same protections as a witness in the Supreme Court. WHAT HAPPENS IF YOUR CLIENT IS SUMMONSED TO AN EXAMINATION? A witness summonsed to an examination will almost always be told the scope and purpose within the summons unless there is good reason otherwise.8 The summons may be accompanied by a section 99 Notation restricting disclosure of official matter which includes the fact of the investigation and the fact of the examination. The section 99 Notation will have an exclusion permitting the witness to seek legal advice. It is a serious offence for a witness or lawyer to breach the secrecy provisions imposed by a section 99 Notation. When your client comes for interview, be aware of the offences that may be committed by, or against a witness. Giving false testimony for example, like perjury, is regarded as a serious offence.9 If your client has received a section 99 notification, you are the only person whom they may talk to about the matter. If you are worried about possible adverse consequences to your client either in the workplace or from others, let the CCC know immediately so that steps can be taken to protect the witness from victimisation, also a serious offence.10 If the CCC has indicated that the examination is likely to be public, and your client objects, you should consider making submissions to the CCC relating to the exercise of discretion to hold a public examination. You should feel free to contact the Director Legal Services for further information. Obviously the response will depend on the nature of the investigation and its current status, but where possible, the Director or Counsel appointed by the Commissioner to assist in the examination will try to answer your queries. AT THE EXAMINATION An examination will generally occur in the CCC's Hearing Room at 186 St Georges Terrace, Perth. It is very similar in appearance to a court room. The witness will be advised the scope and purpose of the examination and invited to take an oath or affirmation. The Commissioner will take note of any appearance and, unless there is some particular issue with Counsel, for example, Counsel representing more than one witness, will grant leave to appear. All present show respect to the institution by standing when the Commissioner enters or leaves. Counsel stand when speaking to the Commissioner or examining the witness. The form of address is 'Commissioner' not 'Your Honour'. The witness will be examined by Counsel
Assisting. The examination might be wide-ranging and will involve leading and non-leading questions. The process looks similar to a court. There are though, fundamental differences. Counsel Assisting is not trying to 'prove' a proposition. The CCC inquiry is to establish facts. The rules of evidence do not apply. The CCC may have information not known to the witness and not disclosed to the witness during the hearing. Because the rules of evidence do not apply, there is no point in objecting on traditional grounds for example, that the evidence being given is hearsay. A ground of objection however, might be that the question goes beyond the scope and purpose of the investigation.
Official information may also be disclosed if the CCC certifies that disclosure is in the public interest.11 The media attention in relation to a decision of the Court of Appeal to A v Maughan  WASCA 128 tended to focus on the CCC's lack of power to commence and conduct the prosecution. The CCC's power to prepare briefs for prosecution by other agencies has never been in doubt. Indictable matters are routinely prosecuted by the DPP and other matters are prosecuted by the State Solicitor's Office. This focus may have obscured the more far reaching results of the decision.
When an investigation is complete, the CCC may decide:
Any lawyer giving advice to or appearing for a witness in an investigation, will need to be familiar with both A v Maughan  WASCA 128 and earlier cases in the Court of Appeal dealing with the powers of the CCC, and the High Court dealing with the powers of similar bodies. They are referred to in the judgment of Martin CJ. The appeal settled the question that the CCC can continue to use its investigative powers, and particularly powers in relation to compulsory examinations, without offending a suspect's right to a fair trial. Access by the prosecution to the transcript of an examination before the CCC does not fundamentally alter the criminal trial process and even if it does, it is authorised by the Corruption, Crime and Misconduct Act 2003. The Act expressly authorises the conduct of compulsory examinations for the purpose of investigating criminal conduct and expressly abrogates the privilege against self-incrimination which would otherwise be available to persons examined. This extends to the compulsory examination of persons reasonably suspected of a crime.
to do nothing further;
prepare a brief for prosecution; or
repare a report for Parliament or p Minister.
At the conclusion of the examination by Counsel Assisting, the Commissioner will invite counsel for the witness to question the witness to bring out facts or clarify evidence relevant to the scope and purpose of the investigation. The evidence is audio visually recorded and a transcription is prepared. If the examination is a public examination, the proceedings will be streamed via the internet, with access from the CCC website. There may be occasions, particularly in a public hearing, where a witness' interests are so affected, that the Commissioner will permit some cross examination by counsel for another witness. However, this will only occur if the Commissioner is satisfied that the cross examination will advance the purposes of the investigation. WHAT HAPPENS AFTER AN INVESTIGATION IS COMPLETE?
In this latter event, if the CCC proposes to make adverse comments or form adverse opinions in respect of a witness, the witness will be given a redacted version of the draft report for comment. This is the occasion where you may assist the witness by making submissions to the CCC in respect of the proposed adverse material. The CCC does not finalise its report until it has taken account of and given close consideration to every submission. The subsequent use of material gathered by the CCC If the CCC reports to Parliament, then any matter included in the report may be disclosed. Official information can also be disclosed for the purposes of disciplinary action in relation to misconduct. That may include the transcript of the witness's evidence.
There is no doubt that a summons from the CCC is likely to cause apprehension in even the most innocent witness. Usually the apprehension will be misplaced, but because an examination generally forms part of an investigation that is ongoing, a witness may feel left in the dark, even at the conclusion of the examination. Your role is to help the witness through the process, advising their obligations and representing the witness to ensure that the CCC respects the witness' rights. NOTES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
Corruption, Crime and Misconduct Act 2003. Corruption, Crime and Misconduct Act 2003 s4. Corruption, Crime and Misconduct Act 2003 s7A(b). Corruption, Crime and Misconduct Act 2003 s42. Corruption, Crime and Misconduct Act 2003 s34(2). Corruption, Crime and Misconduct Act 2003 ss95 and 99. Corruption, Crime and Misconduct Act 2003 s140(2). Corruption, Crime and Misconduct Act 2003 s138. Corruption, Crime and Misconduct Act 2003 s168. Corruption, Crime and Misconduct Act 2003 s175. Corruption, Crime and Misconduct Act 2003 s152.
Where does the Corruption and Crime Commission sit within the existing government architecture? Julie Jupp LLB Commissioner's Associate, Corruption and Crime Commission
The theory that legal and political power is divided between the legislature, the executive and the judiciary is a familiar one enshrined in the first three chapters of the Australian Constitution. However, the boundaries of the Constitution are tested on occasion when new institutions are created. In recent years, the public sector has expanded exponentially delivering services through both public and private bodies. It requires a complex system of bureaucracy. In response, both state and federal legislatures have created integrity agencies to oversee good governance and investigate corruption in the public sector. The integrity agencies do not fit neatly into the tripartite system of government. Therefore, the emergence of a fourth arm of government, an integrity branch, is an attempt to conceptualise integrity agencies. Its existence and constituents are a matter of ongoing debate, but one which is gaining momentum. The first public inquiries were held in Australia in around 1854, mostly in the form of Royal Commissions.1 Since the 1940s, non-Royal Commissions have emerged as the desire to tackle corruption, misconduct and poor governance is deemed to require more than one-off Royal Commissions.2 A key feature for public acceptance is that these bodies are perceived to be independent and at arm's length from the executive branch of government3, and not simply a form of 'peer review'.4 This is often, but not always, achieved by staffing them from offices outside the executive arm.5 The notion of a dedicated integrity branch of government was suggested by Bruce Ackerman6 in 2000 and the subject of further discussion by former New South Wales Chief Justice James Spigelman AC, QC in 2004.7 It seems to have taken root.8 In Western Australia the key integrity agencies include the Auditor General, the Corruption and Crime Commission (the CCC), the Public Sector Commission (the PSC), the Western Australia Ombudsman and the Office of the Information 36 | BRIEF DECEMBER 2016
Commissioner. The Chief Justice, the Hon Wayne Martin AC, describes the system as a 'plethora of watchdogs'.9 Former CCC Commissioner, Kevin Hammond, used the term 'panoply of regulatory bodies' and observes that one Royal Commission 'spawns another'.10 A similar list of core agencies appears in most Australian jurisdictions. They are indeed growing in both maturity and number. There has been a call for a more comprehensive system of integrity and in particular a unified approach across the six states, two territories and federal government. Achieving such a coordinated approach would be difficult in a federal system.11 It would also require the recognition of the fourth branch which, as discussed below, may be unrealistic.12 The statutes creating the agencies and defining their jurisdictions vary greatly. Some would argue that the current smorgasbord13 provides choice and reflects local conditions, issues and demands.14 Former Commissioner Hammond gave a Law Society Summer School speech in 2006, in which he went further and asked but left open the question whether Australia should put 'all the eggs in one basket' similar to the Independent Commission Against Corruption, Hong Kong.15 In Western Australia, an informal collaboration of integrity agencies exists in the form of the Integrity Coordinating Group (the ICG). This ICG defines integrity as: "earning and sustaining public trust by serving the public interest; using powers responsibly; acting with honesty and transparency; preventing and addressing improper conduct and not allowing decisions or actions to be influenced by personal or private interests".16 The integrity branch of government may even concern itself with poor administration that cannot be properly described as integrity. The band of behaviour is very wide and integrity agencies play an important role in the enhanced accountability.
Increasingly citizens have come to expect more of public bodies and public officials than merely respecting the laws under which they operate.17 Tolerance is low and expectations are high. A wide range of behaviour such as conflicts of interest, gaining pecuniary and other benefits, or acting with improper motive is no longer accepted. There are codes of conduct and ethics to be observed. James Spigelman does not subscribe to the 'fourth branch' idea, believing that the three recognised branches comprise the integrity branch. Likewise, Chris Field, the Western Australian Ombudsman, believes that corruption identification and prevention is the pursuit of the legislature, executive and judiciary in addition to integrity agencies specifically established as anti-corruption bodies. For example, the Coroner's Court is able to recommend changes to public administration in Western Australia, and the work of parliamentary standing or select committees on public administration which may cover the same ground as external reviews by integrity agencies.18 He questions whether the growth of integrity functions within the three traditional branches necessitates the formal recognition of a fourth branch. Ultimately he concludes that 'there is no need for any constitutional contortions to identify, and critically analyse, an integrity framework of government'.19 Wayne Martin CJ believes that integrity agencies "must remain firmly within the executive branch of government, subject to the scrutiny of Parliament, and to laws passed by the Parliament and enforced by the courts."20 James Spigelman also describes the core integrity agencies as 'emanations of the executive'21 He goes on to say they cannot be members of an integrity branch unless they have a 'fundamental specialisation' and independence22, thus excluding many other bodies with integrity functions. Former Commissioner Hammond notes that it is difficult to categorise them as a group because each regulatory body acts in its own individual way.23
Unlike the CCC, the PSC's integrity function is just one aspect of its work. While an integrity branch may be attractive to some, is there anything to be gained from chiselling away at the integrity function and sending it off to a fourth branch? This is a question raised by David Solomon AM, former Queensland Integrity Commissioner. In Queensland, a number of integrity organisations also meet regularly to discuss matters of mutual interest. They are informally known as the 'Integrity Committee'. The arrangement has the hallmarks of an integrity branch of government. David Solomon goes further in What is the Integrity Branch?24 and questions whether the media should be included. He dismisses the idea 'even though occasionally its accountability journalism may contribute to integrity in government'.25 He even talks of citizens being enlisted to the fourth branch because it is often they who make the complaints. He concludes by saying that 'in the foreseeable future, the integrity branch will remain the preserve of independent or autonomous agencies established by government, and of those branches of government that have an integrity function as part of their ordinary activities.'26 Courts generally do not form part of the integrity branch. Although independent, they are unable to initiate action of their own motion.27 Some commentators do not agree, and would add both courts and tribunals to the list.28 If members of the judicial branch contribute to the integrity branch, they must clearly straddle the two. It has been suggested (by Joseph Wenta29) that the integrity branch is really an 'integrity system' comprising the combined effect of a wide range of bodies, functions and processes.30 Some are quintessentially 'fourth arm' while others are not but all are important. Mr Wenta favours the 'semi-constitutional' integrity branch but does not see it as superior to the wider 'integrity system'. His paper on the integrity branch of government explores the concept that the judicial and integrity branches intersect, something that integrity branch scholarship has long recognised.31 He believes that extra-judicial participation in the integrity branch is acceptable.32 In a Review of Victoria's Integrity and Anti-Corruption System in 2010, Special Commissioner Proust said that an integrity system is 'a mix of institutions, laws, regulations, codes, policies and procedures ... '.33 The integrity function is therefore shared across a number of bodies, not all of which are dedicated integrity agencies. Identifying them,
separating them and ultimately recategorising them to find a constitutional home is difficult at best and ultimately unnecessary. Some of the resistance to the notion of an integrity branch is that it would endow the undertaking of integrity functions with constitutional dignity.34 It is not incongruous to suggest that the pursuit of integrity somehow lacks dignity? The heads of traditional integrity agencies are mostly statutory appointments, performing their functions under the Act which created them. They are not elected or politically accountable but do have reporting responsibilities to parliament35 (or a special committee thereof). They are independent but subject to rigorous oversight, often greater than that of other public sector agencies. So who makes sure that these 'constitutional watchdogs'36 are kept under control? Many have very broad investigatory powers. When looking into the integrity of others, such bodies must have impeccable governance. Indeed, the CCC is accountable to the Office of the Parliamentary Inspector of the Western Australian Corruption and Crime Commission. It must also work efficiently. Australia appears high on the list of nations with transparent and corruption free governance and integrity agencies are funded by the tax payer. They have a duty to perform their functions with upmost integrity while respecting the public purse. Crucially integrity agencies must operate independently from government. If integrity is just one function of a body, then that function must have an appropriate degree of independence even if the organisation itself does not. It is essentially the integrity function that must be independent and perhaps that alone makes up the fourth branch. Wayne Martin CJ, acknowledges that the fourth branch has now gained a measure of acceptance and is part of the curriculum in WA universities.37 As a University of Warwick Public Law Lecturer once said, the Golden Rule of interpretation only exists because lecturers keep talking about it. The fourth arm has gained enough momentum to keep it afloat. While the fourth arm debate continues, so does the important work of investigating and exposing corruption and maladministration in the labyrinth of the public sector. The debate must not detract from the fact that it exists even if it is difficult to place in the existing government architecture. The integrity function is about raising standards in public life. Fitting integrity oversight neatly into its own branch of government is impossible when it is a function shared
by a number of bodies in addition to dedicated agencies such as the CCC. Some of these bodies already sit firmly in one of the other three branches. Furthermore, commentators are unable to agree on its membership. Attempting to conceptualise it is difficult, achieves nothing for the sector and is ultimately a distraction. NOTES 1.
Australian Law Reform Commission, 'Royal Commissions and Official Inquiries', Discussion Paper 75, August 2009 at 44.
Scott Prasser, 'Research Article: Australian integrity agencies in critical perspective' (2012) 33 Policy Studies 21, 23.
Australian Government, above n 1, 46.
Lisa Burton and George Williams, 'The Integrity Function and ASIO's Extraordinary Questioning and Detention Powers' (2012) Monash University Law Review 1, 28.
Australian Law Reform Commission, above no 1, 47.
Professor Bruce Ackerman, 'The New Separation of Powers' (2000) 113 Harvard Law Review 633.
Spigelman, 'The Integrity Branch of Government' (First Lecture in the 2004 National Lecture Series by the Australian Institute of Administrative Law, Sydney, 29 April 2014), 4.
Burton and Williams, above n 4, 23.
The Hon Wayne Martin AC, 'Whitmore Lecture' 2013, 9.
Kevin Hammond, Law Society Summer School speech, 'The Regulation of Commerce and Public Authorities in Australia' 24 February 2006.
Prasser above n 2, 24.
Prasser, above n 2, 31.
Prasser, above n 2, 30.
Aroney 2010, quoted in Prasser, above n 2, 30.
Kevin Hammond, above no 10, 33.
www.icg.wa.gov.au/integrity-public-sector (accessed 18 July 2016).
Robin Creyke, 'An 'Integrity' Branch' (2012) 70 Australian Institute of Administrative Law Forum 33, 39.
Chris Field, 'The Fourth Branch of Government: The Evolution of Integrity Agencies and Enhanced Government Accountability' (2013) 72 Australian Institute of Administrative Law Forum 24, 27.
Martin, above n 9, 40.
Spigelman, 'The Integrity Branch of Government' (First Lecture in the 2004 National Lecture Series by the Australian Institute of Administrative Law, Sydney, 29 April 2014), 4.
Hammond, above n 10, 36.
David Solomon, 'What is the Integrity Branch?' (2012) 70 Australian Institute of Administrative Law Forum.
Robin Creyke 'An 'Integrity' Branch' (2012) 70 Australian Institute of Administrative Law Forum 33, 37.
Spigelman included courts and J McMillan ('Re-thinking the Separation of Powers' (2010) 38 Federal Law Review 42), included tribunals.
Joseph Wenta was a Sessional Academic at Newcastle Law School, University of Newcastle.
Joseph Wenta, 'The Integrity Branch of Government and the Separation of Judicial Power' (2012) 70 Australian Institute of Administrative Law Forum 42, 43.
Government of Victoria, 'Review of Victoria's Integrity and Anti-Corruption System' 2010, 4.
Ackerman, above n 6, 691.
Paul Latimer, 'Ministerial directions to independent statutory commissions (commissions causing trouble for their Minister)' (2004) 25 Australian Bar review 29, 30-31.
Ackerman, above n 6, 692.
Martin, above n 9, 16.
Due Regard Peter Lochore Barrister, Francis Burt Chambers
Planning and Development Act: ss77(1)(a), 80, 124(4), 134(7), 137(2), 241(1) & (2)(d)
(a) any State planning policy which may affect the subject matter of the application; and
To do so, I will note:
In preparing or amending a local planning scheme, the PD Act requires every local government to have due regard to:
(a) which planning legislation requires decision-makers to "have due regard"; and
(a) any State planning policy which affects the local government district (s77(1)(a));6
(b) any management programme for the development control area in force under the Swan and Canning Rivers Catchment Act 2006, Part 4 that may affect the subject matter of the application.
(b) in which cases those provisions have been applied.1
(b) any management programme in a strategic document in force under the Swan and Canning Rivers Catchment Act 2006, Part 4 if it relates to land or waters within or abutting the local government district (s89); and
In planning law there are many circumstances in which decision-makers are required to "have due regard" to certain things. This article explores what this obligation entails.
Two key decisions of the Supreme Court show that in a planning context, "to have due regard" to particular matters means that decision makers must give "active and positive" consideration or "proper, genuine and realistic consideration" to those matters. I also observe, as an aside, that this question is more important than it used to be, because there appear to be growing number of applications for judicial review of planning decisions. In addition to the Marshall and ALH decisions discussed below, allegations as to the failure to have sufficient regard to certain policies featured in the grounds advanced in Nairn v MetroCentral Joint Development Assessment Panel.2 The issue was also central to the recent Beeliar decisions,3 although these related to a challenge to an environmental approval not a planning decision in the strict sense. This (at least perceived) increase may well be due to the significant restriction on third party review rights in Western Australia,4 with the associated perception that relevant policies are not always being considered. THE LEGISLATION In Western Australian planning law,5 the phrase is found in the: (i) the Planning and Development Act 2005 (WA) (PD Act); (ii) the Swan Valley Planning Act 1995 (WA); and (iii) the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs).
38 | BRIEF DECEMBER 2016
(c) the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme, if a region scheme exists in the area (s124(4)). In exercising its subdivision powers, the Western Australian Planning Commission (WAPC): (a) subject to Ministerial approval to disregard the Committee's advice, is to determine an application under ss135 or 136 to subdivide in land in the Swan Valley after having due regard to the advice of the Swan Valley Planning Committee (s134(7)); (b) is to not to determine an application under ss135 or 136 to subdivide land to which s78b of the Heritage of Western Australia Act 1990 applies, unless regard has been had to any advice received by the Heritage Council (s137(2));7 and (c) is, subject to the exceptions in subs(3), to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme (s138(2)). In determining a review application, the State Administrative Tribunal (SAT) is to have due regard to relevant planning considerations (s241(1)), including:
In addition, in the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the SAT is to refer the matter to the Heritage Council for advice, may receive and hear submissions on behalf of the Heritage Council, may join the Heritage Council as a party, and is to have due regard to the objects of the Heritage of Western Australia Act (s241(2)). Swan Valley Planning Act: s15(4) Section 15(4) is similar to s134(7) of the PD Act, in that it requires the City of Swan to have due regard to the advice of the Swan Valley Planning Committee with respect to a development application in the Swan Valley, but the City may determine the application otherwise than in accordance with the Committee's advice (s15(4)). Local Planning Schemes Regs: sched 1, cl 18(7), sched 2, cls 27(1), 43(1), 51(c), 56(1) & 67. The provisions of Schedule 1 do not have immediate substantive effect, but instead comprise model scheme provisions. Part 3 of the Model Scheme relates to zones and use of land. Within Part 3 clÂ 18 provides for interpretation of the zoning table (cl 16). Clause 18(7) provides that: If the zoning table does not identify any permissible uses for land in a zone the local government may, in considering an application for development approval for land within the zone, have due regard to any of the following plans that apply to the land â€”
(a) a structure plan;
legislation does not explicitly require it!
(b) an activity centre plan; and
But what does it mean? It is pretty apparent that the phrase "have regard to" is capable of different meanings, depending upon its context.11 It could simply mean to give consideration to something, rather than treat the things as fundamental elements in the decisionmaking process.12
(c) a local development plan. Schedule 2 of the LPS Regs contains provisions that are deemed to amend existing local planning schemes, overriding them to the extent of any inconsistency.8 When an area is covered by: (a) a structure plan that has been approved by the WAPC, decisionmakers for development or subdivision approvals must have due regard to, but are not bound by, the structure plan when deciding the application (cl 27(1));9 (b) an activity centre plan that has been approved by the WAPC, decision-makers for development or subdivision approvals must have due regard to, but are not bound by, the activity centre plan when deciding the application (cl 43(1)); and (c) a local development plan that has been approved by a local government, the local government must have due regard to, but is not bound by, the local development plan when deciding an application for development approval (cl 56(1)). When a local government is preparing a local development plan it is to have due regard to the matters set out in clause 67 to the extent that, in the opinion of the local government, those matters are relevant to the development to which the plan relates (cl 51(c)). Similarly, in considering an application for development approval the local government is to have due regard to the matters set out in cl 67 to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application (clÂ 67). THE CASE AUTHORITIES A good starting point is the Tribunal's broad statement that:10 [a]s a matter of orderly and proper planning, as well as by means of s138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due regard to" the relevant provisions of the local planning scheme. In effect, decision-makers must "give due regard" to certain things "as a matter of orderly and proper planning" in exercising planning discretion even if the
In Zampatti v WAPC Ken Martin J held that the fact that s241(1) expressly refers to State planning policies as relevant planning considerations to which due regard must be given does not elevate State planning policies to a superior weighting.13 Nevertheless, this does not provide an inflexible legal rule of construction as to the weight to be accorded, as the precise provision under consideration and the particular circumstances in which it is being applied may require a different result.14 In Tah Land Pty Ltd v WAPC Simmonds J noted that: (a) the phrase "due regard to" requires more than mere advertence to the relevant matter;15 and (b) where the matter to which due regard was to be had was a policy instrument there will have been a failure to have due regard to that matter if the decision-maker misunderstood the policy.16 Until very recently the Supreme Court of Western Australia had not very explicitly addressed the question of the core content of the obligation to give due regard in a planning context.17 This was addressed by: (a) her Honour Pritchard J in Marshall v Metropolitan Redevelopment Authority (Marshall); and (b) his Honour Martino J in City of South Perth v ALH Group Property Holdings Pty Ltd (ALH).18 These cases therefore deserve more focused consideration (see below). Before considering the two decisions separately though, it is worth remarking that in each case the court:19 (a) first refers to the divergent lines of authorities on the question of what is required to satisfy a different question â€“ the duty to take into account relevant considerations; and (b) then observes that the preponderance of authority in this State favours the requirement that the duty requires proper, genuine and realistic consideration of the relevant matter.
MARSHALL V METROPOLITAN REDEVELOPMENT AUTHORITY The Court here was considering the Metropolitan Redevelopment Authority's obligation to "have regard to" the matters listed in s66(1) of the Metropolitan Redevelopment Act 2011 and to "have due regard to" the matters in cl 5.22 of the Central Perth Redevelopment Scheme. Pritchard J held that there is no material difference in the meaning and effect of the differently worded obligations to "have regard' and "have due regard".20 The Court found that the phrases "have regard to" and "have due regard to" required the Metropolitan Redevelopment Authority (MRA) to take into account, or give consideration to, the matters listed in the relevant provisions, but that the words must be construed in their statutory context.21 Pritchard J found that the matters set out in s66(1) of the Metropolitan Redevelopment Act are not of a substantive or measurable kind â€“ they do not require the MRA to be satisfied of the existence of particular facts, criteria or effects, for example.22 The provision also required due regard to be had to submissions from referral agencies, and to planning instruments which typically set out broad guidelines or objectives, leaving considerable discretion for a decision-maker. The Court observes that the matters in s66(1) are not matters which can necessarily be applied, or complied with, when the MRA makes a decision on a development application.23 Her Honour concludes that s66, and the Metropolitan Redevelopment Act more generally, as a statutory context suggest that the words "have regard to" in s66(1) and "to have due regard" in cl 5.22 of the Central Perth Redevelopment Scheme give rise to something less than a requirement that the MRA must apply or must act in compliance with, all of the matters listed.24 The Court finds the legislative purpose of the Metropolitan Redevelopment Act to be to ensure that when the MRA comes to determine a development application, it will have before it all of the information and sources of guidance which will enable it to make a sound planning decision, and that in reaching its decision, the MRA will use such of that information as it considers relevant to the application before it.25 Pritchard J concludes that when all these considerations are taken into account, the requirement to "have regard to" in s66(1) of the Act and the requirement to "have due regard to" in cl 5.22 of the
Scheme means that the MRA must give active or positive consideration to the matters listed, to the extent they apply in a particular case.26 CITY OF SOUTH PERTH V ALH GROUP PROPERTY HOLDINGS PTY LTD The parties to this litigation agreed that the decision-maker – a development assessment panel – was required "to have due regard" to a range of matters under the local planning scheme in determining a development application,27 and that this required the DAP to give active and positive consideration to Development Control Policy (DCP) 5.1.28 Martino J endorsed the conclusion of Pritchard J that the content of the obligation on a decision-maker to take matters into account is to be determined by the context in which those words appear.29 His Honour then looked at the context of the words "have due regard" and concluded that there was a "clear desirability of ensuring consistent, proper and orderly planning within the City".30 Martino J concluded that he preferred the phrase "proper, genuine and realistic consideration" to the phrase "active and positive consideration" because the words "positive consideration" "might suggest that the planning scheme created an obligation to reach a decision that was consistent with DCP 5.1" and that was not the Court's intention.31 CONCLUSION Australian courts have given a variety of descriptions for the quality of the assessment required of decisionmakers. Therefore it was necessary to ask what qualitatively is required – what constitutes due regard – in a planning context.32 The guidance from the Supreme Court is that, in a planning context, "to have due regard" to enumerated matters requires
Ltd v Western Australian Planning Commission  WASC 26 at -.
that the relevant matters be given: (a) "active and positive" consideration;33or
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc  NSWCA 105; (2014) 86 NSWLR 527; 200 LGERA 375 at .
(b) "proper, genuine and realistic" consideration.34
Zhang v Canterbury City Council  NSWCA 167; (2001) 51 NSWLR 589 , , applied in Tah Land Pty Ltd v Western Australian Planning Commission  WASC 196 at  (Simmonds J).
Whether or not "proper, genuine and realistic" consideration has been given to a particular consideration requires close attention to be paid to such matters as the terms of any relevant statement of reasons and the nature and extent of the material before the decision-maker.35
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 208 applied in Tah Land Pty Ltd v WAPC  WASC 196 at  (Simmonds J).
In Carcione Nominees Pty Ltd v Western Australian Planning Commission  WASCA 56; (2005) 30 WAR 97 at - the Full Court (Murray, Steytler and McKechnie JJ) considered an argument that the provision that preceded s 77(1)(a) of the PD Act that used the phrase "have due regard" required 'proper' or 'genuine' consideration, but did not express a view on the construction proffered in the course of explaining that the argument was unpersuasive on the facts of that case. In addition, the Court of Appeal has considered matters to which the Prisoners Review Board must have regard to (and give weight as fundamental elements in a decision), but this is quite a different statutory context: Prisoners Review Board v Freeman  WASCA 166 at  (Pullin, Newnes and Murphy JJA).
Marshall v Metropolitan Redevelopment Authority  WASC 226 at – (Pritchard J) and City of South Perth v ALH Group Property Holdings Pty Ltd (2016) 216 LGERA 96;  WASC 141 at - (Martino J).
A v Corruption and Crime Commissioner  WASCA 288; 306 ALR 491 at - (Martin CJ and Murphy JA note that it was not necessary to prefer either line): see Marshall at  and ALH at -.
Marshall at .
Marshall at , citing CIC Insurance Ltd v Bankstown Football Club  HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ) and AB v Western Australia  HCA 42; (2011) 244 CLR 390 at , -, ,  (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
Marshall at .
Marshall at .
Marshall at -.
Marshall at .
The term has been referred to in a vast number of cases, but I will focus on decisions where the content of the phrase is considered.
Nairn v Metro-Central Joint Development Assessment Panel  WASC 56.
Save Beeliar Wetlands (Inc) v Jacob  WASC 482; Jacob v Save Beeliar Wetlands (Inc)  WASCA 126; 216 LGERA 201. This was a challenge to the validity of an environmental approval.
For a summary of the WA position compared to the remainder of Australia, see the Hon Judge Christine Trenorden, "Third-Party Appeal Rights: Past and Future" (18 November 2009) available online at www. sat.justice.wa.gov.au. The Department of Planning confirmed in September 2013 that no reform to this area was being considered: "Planning makes it happen: phase two", Planning Reform Discussion Paper (September 2013), p7.
The phrase is also found in objects clauses of many Western Australian statutes.
Leighton v The Honourable Mr John Day  WASC 164 at ; Coast Ward Ratepayers Association (Inc) v Town of Cambridge  WASC 239 at  and City of South Perth v ALH Group Property Holdings Pty Ltd (2016) 216 LGERA 96;  WASC 141 at . Note too, that State Planning Policy No 1 extends this to require the WAPC and local governments to have due regard to the entire State Planning Framework.
This is not a use of "due regard", but the similarity to ss 134(7) and 138(2) is still striking, and given the conclusions of Pritchard J in Marshall, the different wording may not matter.
Marshall at -. The phrase 'active consideration' is footnoted: cf Tobacco Institute of Australia Ltd v National Health & Medical Research Council (1996) 71 FCR 265, 277 (Finn J).
The SAT explains the effect in Terra Spei Pty Ltd and Shire of Kalamunda  WASAT 134 at  to .
ALH at .
ALH at .
Hanham and Western Australian Planning Commission  WASAT 28 at .
ALH at , referencing Marshall at .
Landpark Holdings Pty Ltd and WAPC  WASAT 130 at .
ALH at .
ALH at .
Justice Alan Robertson, "What is 'substantive' judicial review? Does it intrude on merits review in administrative decision-making?" (2016) 85 AIAL Forum 24 at 32.
9. 10. 11.
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at 163 ; Re Dr Ken Michael AM; Ex Parte Epic Energy (WA) Nominees Pty Ltd  WASCA 231; 25 WAR 511 at 528-529 .
Marshall at -.
Singh, 163 .
ALH at .
Zampatti v Western Australian Planning Commission  WASCA 149; (2010) 176 LGERA 150 at , -. This passage was applied in Atlas Point Pty
Roesner v Minister for Immigration and Border Protection  FCAFC 132 at  (Allsop CJ, Flick and Griffiths JJ).
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General Protections Claims and the Role of the Decision Maker Some lessons from Humpty Dumpty David Heldsinger, Rosemary Miller and Celeste de Saint Jorre1
INTRODUCTION 'When I use a word', Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean – neither more nor less'. 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master – that's all.'2 Lewis Carroll was the nom de plume for Charles Lutwidge Dodgson, a lecturer of mathematics at Oxford University.3 While Dodgson would have appreciated the precision and control inherent in mathematics, he was also an imaginative storyteller keenly aware of the power of persuasive narrative. Storytelling skills are equally important when preparing, controlling and directing the evidence presented to a Court to achieve the desired outcome. While this applies to all litigation, it is particularly pertinent to general protections claims in Part 3-1 of the Fair Work Act 2009 (Cth) (Act). These types of claims are fairly unusual in their operation, and if successful, can be highly damaging to an employer. The recent case of Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd  FCA 199 (Hail Creek) is directly on point. In that case, Justice Reeves in the Queensland Registry of the Federal Court ordered the Defendant (a subsidiary of Rio Tinto) to pay its former employee, Mr Haylett, $1,272,109.41 in compensation, plus $24,625.84 in interest.4 Furthermore, the Defendant was ordered to pay a penalty of $50,000 directly to the plaintiff union, the CFMEU.5 To date, this is the single largest order for compensation made in a general protections claim. This article considers the important role of the evidence of the 'decision maker' (the key witness for the employer) in enabling the employer to discharge the reverse onus of proof6 that applies in general protections claims.7 WHAT ARE 'GENERAL PROTECTIONS' CLAIMS? The commencement of the Act (in part) on 1 July 2009 introduced a new umbrella group of rights called 'general protections', together with new
terminology, including phrases such as 'adverse action' and 'workplace rights'. Thought by many to be a set of novel and broad statutory causes of action, the general protections largely reflected the existing law such as the 'freedom of association' provisions in the Act's predecessor, the Workplace Relations Act 1996 (Cth). Although they have evolved since, the general protections provisions share a significant similarity with the former freedom of association provisions – namely, the presumption that the adverse action was taken because of the workplace right.
According to the Explanatory Memorandum to the Fair Work Bill 2008, 'workplace rights' are intended to "cover a broad range of benefits, roles and responsibilities"12 and this is clearly reflected in the legislation. 'Workplace rights' have a broad reach and cover 'contingent or accruing' rights to which an employee has 'an entitlement to the benefit' (such as long service leave), as well as immediate or contemporaneous rights, such as inquiring about employment conditions or making an informal complaint.13 Once a 'workplace right' under a 'workplace instrument' (such as an enterprise agreement or a modern award) has been established, an applicant must then be able to identify and establish an incident of 'adverse action' on the part of the employer. 'Adverse action' is defined in an exhaustive table under s342 of the Act. Examples of 'adverse action' include the dismissal of an employee, taking steps to injure them in their employment or reducing their working hours – essentially, any conduct which has an adverse or a deleterious effect on that employee and their employment. While employees have long been familiar with their ability to lodge claims against their employer on the grounds of unfair dismissal, the rate at which general protections claims are increasing is noteworthy. For example, between 2011 and 2015, general protection cases filed in the Fair Work Commission increased from 2,162 to 3,382 (an increase of 56%).14
Alice's encounter with Humpty Dumpty, Through the Looking-Glass.
Using the example of an employee making a claim against an employer, general protections claims operate as follows: 1. The employee exercises a 'workplace right' arising from a 'workplace instrument'.8 2. The employer takes 'adverse action' against that employee.9 3. The 'adverse action' is presumed to have been taken for a prohibited reason (i.e. the employee's exercise of the 'workplace right').10 4. The employer then has to prove that the 'adverse action' was not for a prohibited reason.11
General protections claims are usually initiated and conciliated in the Fair Work Commission. However, if conciliation is unsuccessful, the applicant must prosecute their claim further in either the Federal Circuit Court or Federal Court. There are also some differences in the way general protections claims proceed, depending on whether the claim involves a dismissal or not. THE 'REVERSE ONUS OF PROOF' AND THE KEY ROLE OF THE DECISION MAKER Once an applicant has established that 'adverse action' was taken against them subsequent to exercising a 'workplace right', a presumption arises under s361 of the Act that the 'adverse action' was 41
motivated by that 'workplace right', unless the employer can prove otherwise. Furthermore, the 'workplace right' need not be the only reason for the 'adverse action' – rather, it only needs to be a 'substantive or operative reason'.15 Whether the workplace right is a 'substantive or operative' reason for the adverse action, and whether the adverse action was 'because' of a workplace right, was considered by the High Court in the case of Board of Bendigo Regional Institute of Technical and Further Education (BRIT) v Barclay  HCA 32. In that case, Australian Education Union Sub-Branch President, Mr Gregory Barclay (Barclay), had sent an email to senior management at BRIT in his union capacity, stating that he was aware of serious misconduct on the part of individuals at BRIT. The CEO of BRIT, Dr Harvey, then suspended Barclay on full pay for his failure to report the misconduct described in his email. Barclay claimed that the decision to suspend him constituted adverse action in response to his exercise of his right to industrial activities under Division 4 of Part 3-1 of the Act and his exercise of a workplace right under ss340 and 341.16 At first instance, Barclay argued that the use of the word 'because' in the legislation meant that an objective assessment of why the adverse action occurred was required, and that the subjective reasons of the decision maker were wholly irrelevant.17 Justice Tracey of the Federal Court rejected this argument, stating that the language 'by reason of' and 'because' had been used interchangeably throughout the case law, and that to assert that the provision required an objective assessment was "inconsistent with the legislative history, relevant principles of statutory construction and authority."18 His Honour stated that "the task of the court, in a proceeding such as the present is, then, to determine why the employer took the adverse action against the employee" and whether "it was for a prohibited reason or reasons which included that reason".19 It was held that the only way to determine this factor properly is to hear evidence from the decision maker, and if their evidence "supports a view that the reason was innocent and that evidence is accepted the employer will have a good defence".20 However, where this evidence is not accepted, the employer would have failed to displace the presumption that the adverse action was taken for a prohibited reason.21 On appeal22, the majority of the Full Court of the Federal Court found in favour of Barclay, stating that the decision maker's state of mind was not decisive in determining the reason, or reasons, why they took adverse action.23 However, the court did not go so far as to accept that the test was wholly objective, and 42 | BRIEF DECEMBER 2016
agreed with the primary judge that the use of the word 'because' did not import an objective assessment.24 Instead, the court focussed on what the 'real reason' for the adverse action was, and held that the 'real reason' could in fact be "unconscious, not appreciated or understood" by the decision maker.25 As such, the court considered that a decision maker's evidence cannot "ignore the objective connection between the decision he or she is making and the attribute or activity in question".26 Hence, the court found that Dr Harvey chose to characterise the conduct of Barclay as the conduct of an employee, and did not consider that the action taken by her was because Barclay was a union officer. The court held that this did not alter the fact that her 'real reasons' included the rights under Division 4 of Part 3-1. In other words, the fact that Barclay was a union officer was a substantive or operative reason for BRIT's adverse action, even if Dr Harvey did not believe that it was a reason. BRIT successfully appealed to the High Court, and the decision of Justice Tracey was reaffirmed. The High Court rejected the view that a fully objective assessment of the decision maker's decision was required. It said that the correct approach to determine the question of "why an employer took adverse action against an employee is a question of fact … involves consideration of the decision-maker's particular reason" for the adverse action.27 In particular, the High Court (per French CJ and Crennan J) said that an employer "interested in rebutting the statutory presumption … can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action."28 Justices Gummow and Hayne reached the same conclusion stating that, In assessing the evidence led to discharge the onus … the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.29 In light of this decision, the employer must prepare its evidence so that it can discharge the onus in accordance with the usual civil standard of proof – the balance of probabilities. In particular, the employer must closely examine which person is, or which persons are, closest to the 'adverse action', which person (or persons) took the 'adverse action' and whether there is any connection between the 'adverse action' and the 'workplace right'. A critical part of this exercise requires a close and rigorous examination of what transpired in the subjective mind of the decision maker.
THE HAIL CREEK CASE In the Hail Creek case30, the CFMEU successfully brought a general protections claim on behalf of its member, Mr Haylett, in which the role and evidence of the decision maker was critical. Mr Haylett had suffered a spinal injury at work in 2009. He subsequently had back surgery and later returned to light duties at work. In order to do so, he was retrained as a drill operator and his employer, Hail Creek Coal, made special accommodations to his rig. Between 2010 and 2013, Mr Haylett fulfilled this role without incident and was subject to ongoing review by the Hail Creek Coal Injury Management Team. Mr Haylett pursued a workers' compensation claim in the District Court of Queensland31 and on 15 November 2013 was successfully awarded $637,000 in common law damages for his injury. Following the successful workers' compensation claim, Hail Creek challenged Mr Haylett's fitness for work as determined by medical assessments made under the Coal Mining Safety and Health Act 1999 (Qld) (CMSHAA). This began on 18 November 2013, when Mr Haylett completed a compulsory medical assessment under the CMSHAA. It was determined at this assessment that Mr Haylett was unfit for his current operator duties, and the following day, Hail Creek Coal stood him down from those duties. Mr Haylett challenged the findings of the first medical assessment in the Supreme Court of Queensland and was successful in August 2014. After the first decision of the Supreme Court of Queensland, Hail Creek Coal did not reinstate Mr Haylett, but sought a second medical assessment. This second medical assessment, issued on 23 September 2014, concluded that Mr Haylett was fit to return to duties, subject to certain restrictions. Hail Creek Coal, dissatisfied with this result, contacted the assessing doctor and requested that Mr Haylett's medical assessment read that he was in fact not fit for duties, by reason of those restrictions. The assessing doctor followed these instructions and a third certificate was issued on 30 September 2014. Mr Haylett was subsequently stood down from his role as an operator and Hail Creek Coal stopped paying him. On 25 November 2014, Mr Haylett successfully challenged the third certificate of 30 September 2014, a decision which Hail Creek Coal unsuccessfully appealed. In December 2015, the Queensland Court of Appeal declared that the second certificate of 23 September 2014 was valid. Hail Creek Coal ignored this decision and refused to reinstate Mr Haylett. The CFMEU, on Mr Haylett's behalf, commenced proceedings in the Federal Court claiming that Hail Creek Coal
had acted in breach of the Hail Creek Agreement 201132 by (a) their failure to pay Mr Haylett's wages, (b) discriminating against him due to his physical disability in breach of s351 of the Act and importantly, (c) by taking 'adverse action' against him because of his exercise of four distinct 'workplace rights' (one of which included his right to pursue workers' compensation). The CFMEU prosecuted the adverse action claim first, stating that if they succeeded with that claim, they would not pursue the other claims. Hail Creek Coal conceded that standing down Mr Haylett in November 2013 and ceasing to pay him from March 2014 constituted 'adverse action'. However, a key issue was whether Hail Creek Coal could prove that the adverse action was not taken because of the workplace right. Mr Priestly was the Hail Creek Coal mine manager and decision maker responsible for the status of Mr Haylett's employment, so he was called to give evidence and defend Hail Creek Coal's position that Mr Haylett's employment had been terminated for safety concerns only. As the Federal Court in the Hail Creek case noted, the role of the decision maker is "critical in the determination of this proceeding"33 and hence Justice Reeves watched Mr Priestly closely when he gave evidence. His Honour had several difficulties with Mr Priestly's evidence, and found that Mr Priestly was generally unsatisfactory as a witness: he was evasive, maintained irrational positions in the face of cogent material to the contrary, was unconvincing in his attempts to explain references to return to work in documentation, and had little knowledge of the relevant legislation. In considering whether Mr Priestly had demonstrated that the adverse action was not for the prohibited reason His Honour stated that, He did not know Mr Haylett, and he did not know what work Mr Haylett was performing at the Hail Creek Coal mine. In particular, he said he did not know that, for the past three years, Mr Haylett had been working safely as a drill rig operator at the mine without any reported difficulties despite the fact his prior injury meant that his progress was generally monitored by Hail Creek Coal's injury management team â€Ś Mr Priestly did not ask anyone about Mr Haylett's work activities before making his decision to stand him down, purportedly for safety reasons.34 DEFENDING GENERAL PROTECTIONS CLAIMS So, what lessons can practitioners take from the Hail Creek case? Whilst the reverse onus was not the sole hurdle Hail
Creek Coal had to overcome in defending the claim made by the CFMEU, there are some critical steps to consider when defending general protections claims and discharging the reverse onus of proof. A suggested practical approach may include some or all of the following: 1. Consider if it is a 'workplace right' that is being asserted in accordance with the Act (noting its wide reach). 2. Consider if the 'adverse action' alleged by the employee is protected by the Act. 3. Consider other possible jurisdictional objections such as time limits (21 days for general protections claims).35 4. Identify all witnesses close to, or involved in, the alleged 'adverse action'. Test their evidence. 5. Isolate the decision maker or, if there is more than one, all the decision makers. If the latter, extrapolate their different roles and the actions they took (or perhaps did not take) and all the reasons for this. Test all their evidence both orally and against the relevant documentary material. 6. Remember that the Court is interested in getting into the mind of the decision maker or makers to understand their subjective point of view. Extricating this from the decision maker is crucial in preparing the employer's evidence. 7. Examine the causal connection between the 'adverse action' and the 'workplace right'. In other words, probe the witnesses carefully on this point, keeping in mind the BRIT v Barclay decision discussed above. 8. Clearly, the decision maker must be called to give evidence. As the High Court observed in BRIT v Barclay "â€Ś it will be extremely difficult to displace the statutory presumption in s361 if no direct testimony is given by the decision-maker acting on behalf of the employer."36 9. What if more than one decision maker is involved? One should examine the evidence of all the decision makers and then call all relevant decision makers to give evidence. In the case of National Tertiary Education Union (NTEU) v Royal Melbourne Institute of Technology37, the NTEU were successful on behalf of their member because four people were actively involved in the decision making process, but evidence was only called from one of those involved. However, there may be circumstances where, if a decision maker merely confers with others, failing to call those with whom the decision maker has conferred is not necessarily fatal: see Construction, Forestry, Mining and
Energy Union v Anglo Coal (Dawson Services) Pty Ltd.38 CONCLUSIONS There is no doubt that the reverse onus of proof in a general protections claim imposes a challenging legal environment for the employer. In these types of claims, the judicial spotlight will focus acutely on the decision maker and the reasons for their actions. Their 'story' will be critical to the outcome for the employer. Their narrative must be both persuasive and compelling to be the "knock-down argument"39 necessary to ensure a successful outcome. NOTES 1.
David is Director and Rosemary and Celeste are Solicitors at Heldsinger Legal, a specialist workplace relations law firm.
Lewis Carroll, Alice's Adventures in Wonderland and Through the Looking Glass: Bloomsbury Publishing, London, 2001, p.297.
Dodgson was a polymath with interests in writing, literature, mathematics, semantics and photography. He was also a logician and Anglican Deacon.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd  FCA 1032.
In this article, we use the phrase 'reverse onus of proof' which commonly refers to the express presumption in s361 of the Act that an employer took 'adverse action' against an employee by reason of their exercise of a 'workplace right'.
Note that this article deals only with claims by employees against employers.
Fair Work Act 2009 (Cth) s341(1).
Fair Work Act 2009 (Cth) s342.
Fair Work Act 2009 (Cth) s360.
Fair Work Act 2009 (Cth) s361.
Explanatory Memorandum to the Fair Work Bill 2008 at para 1360.
ibid., at paras 1363-1369.
Fair Work Commission Annual Report 2014-15, p.61.
Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32 at para 62 per French CJ and Crennan J, at para 104 per Gummow and Hayne JJ, and at para 140 per Heydon J.
ibid., at paras 7-22.
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education  FCA 284 at para 23.
ibid., at paras 23-24.
ibid., at para 34.
Barclay v Board of Bendigo Regional Institute of Technical and Further Education  FCAFC 14 (Lander, Gray and Bromberg JJ, Lander J dissenting).
ibid., at para 28.
ibid., at para 25.
ibid., at para 28.
Refer Note 15, at para 42.
ibid., at para 43.
ibid., at para 127.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd  FCA 199.
Ibid., at para 3.
Hail Creek Agreement 2011, clauses 7.1 and 7.6.
Refer Note 29, at para 25.
ibid., at para 38.
Fair Work Act 2009 (Cth) ss366 and 377.
Refer Note 15, at para 45.
 FCA 451.
 FCAFC 157.
Lewis Carroll, Alice's Adventures in Wonderland and Through the Looking Glass: Bloomsbury Publishing, London, 2001, p.297.
2016 Social Justice Opportunities Evening Thursday, 22 September 2016, Central Park Theatrette, Perth Cathy Graville Research Associate, Supreme Court of Western Australia; Member, Young Lawyers Committee
The ideal of public service has long been considered a defining characteristic of the legal profession. For this reason, it is unsurprising that many lawyers seek to facilitate access to justice and create meaningful change in the community by participating in pro bono and social justice opportunities. On 22 September 2016, the Law Society's Young Lawyers Committee (YLC) held its annual Social Justice Opportunities Evening. The event gives attendees the chance to learn more about how they can contribute their legal skills to those in need. The night commenced with a number of short presentations from representatives of community legal centres and non-profit organisations. This year's presenters included: •
David Kernohan, CEO, Mental Health Law Centre;
Michael Geelhoed, Principal Solicitor, Employment Law Centre;
Gemma Mitchell, Principal Solicitor and Edward Souti, Paralegal, Consumer Credit Legal Services;
Rohini Thomas, Solicitor and Migration Agent, The Humanitarian Group;
Katrina Williams, Principal Lawyer, Law Access; and
Diviij Vijayakumar, Graduate, Tenancy WA.
44 | BRIEF DECEMBER 2016
Collectively the presenters demonstrated a high degree of commitment, enthusiasm and passion for facilitating access to justice to the most vulnerable members of the community. The presentations displayed the variety of career and volunteer opportunities that exist within the pro bono and social justice sector. However, a common theme which emerged throughout the evening was that organisations are limited in the opportunities they can provide by the funding they receive. The presentations were followed by drinks and canapés in the foyer. Attendees had the opportunity to network with the presenters as well as representatives from the Community Legal Centres Association (WA) Inc, Welfare Rights & Advocacy Service, Friends of International Humanitarian Law in WA, Citizens Advice Bureau and the International Commission of Jurists. The YLC would like to thank everyone that attended this year's Social Justice Opportunities Evening. Particular appreciation goes to all of the representatives who gave up their time and shared their experiences, to the College of Law as premium sponsor, the University of Notre Dame for as supporting sponsor and DLA Piper for sponsoring the venue.
Proudly sponsored by Premium sponsor
Book Review The Bradshaw Case by Nicholas Hasluck Review by Zoe Bush Associate to the Hon Justice Barker, Federal Court of Australia
by ancestors of Indigenous peoples in the Kimberley or a prior 'race'.
The High Court's recognition of native title in Mabo and Others v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) presented an opportunity to realise Australian Indigenous peoples' aspirations of equality and justice, and to remedy "a national legacy of unutterable shame"1. Almost 25 years later, Indigenous communities often lament its unfulfilled promise. The latest novel by retired judge Nicholas Hasluck, The Bradshaw Case, eruditely illuminates some of the complexities and tensions that have plagued native title law in Australia. In doing so, it explores recurring themes in Hasluck's literary work: the problematic limits of positivist law; and the tension between the world of law and facts, and that of justice and truths. The Bradshaw Case explores these themes in the context of the "Gwion Gwion dispute" â€“ a high profile debate between 1994 and 2006 regarding the antiquity and authorship of the Gwion Gwion rock art of the Kimberley region of Western Australia (also known as "Bradshaw art" due to the drawings of the rock art published by pastoralist Joseph Bradshaw in 1892). The debate centred on whether the art was created
The book tells the fictitious story of Colin Everett, a young solicitor who finds himself in the alien landscape of Broome after an unfortunate encounter with the Legal Practice Board. During this time, Colin becomes enthralled in a fierce dispute about native title largely hinging on contested versions of history regarding the authorship of the Gwion Gwion art. It is in the context of this fictitious, and at times fanciful, native title dispute that The Bradshaw Case explores the tensions in native title between positivist concepts of law and history. The book depicts expert anthropologists as using the past as a means to understanding. They remain open to remembering; to revisiting and reinterpreting the past in order to expose alternative explanations. In contrast, the legal profession is portrayed as being solely motivated to access the past in order to conclusively determine its authoritative version. The rules of law are then applied to this version of the past in order for a decision to be made. The anthropologists' drive to understand exposes ambiguities and complexities that frustrate the process of finally resolving disputes and declaring positivist law. The processes of positivist law thereby limit remembering to the final and unalterable text. The version of the past that is not privileged is forgotten.
In this way, The Bradshaw Case skilfully illustrates scholarly concerns that the 'juridification' of history in the context of native title over-simplifies the historical record and limits the meaningful ways in which we can engage with the past. The book also provides an insight in to how readily anthropology and archaeology may be manipulated by those seeking to undermine the authenticity and legitimacy of Indigenous connections to land. The vast majority of native title claims in Australia have now been resolved. Indeed, it may now be too late to better negotiate the ambiguities and tensions in native title law illuminated by The Bradshaw Case. The book is nonetheless timely to the extent that it serves as a reminder of the complexities involved in the interaction of Indigenous and non-Indigenous traditions. These complexities are inherent in contemporary debates about the recognition of Indigenous peoples in the Commonwealth Constitution, and a treaty or treaties with Indigenous peoples. The lessons of native title will be crucial in determining the potential for these debates to realise Indigenous peoples' continuing aspirations for equality and justice. In the words of Brennan J in Mabo (No 2), the question is whether law will remain a "prisoner of its history"2. NOTES 1.
Mabo (No 2) at 104 (Deane and Gaudron JJ).
Mabo (No 2) at 29 (Brennan J).
for the festive season The Societyâ€™s Council and staff wish all members a happy and enjoyable holiday season and a successful new year ahead. Our offices will be closed from 12.30pm Friday, 23 December 2016 and will re-open 8.30am Monday, 9 January 2017.
Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist
Financial Agreements – Wife alleged duress – Her "real difficulty" was that she had received legal advice In Kennedy & Thorne  FamCAFC 189 (26 September 2016) the Full Court (Strickland, Aldridge & Cronin JJ) allowed an appeal by the husband's estate against Judge Demack's decision to set aside financial agreements under s90B and s90C for duress under s90K(1)(b). The parties met on a dating site (). The husband was a 67 year old property developer with assets of $18m (). The wife was 36 and lived overseas when the parties met. At separation after 3 years, the wife challenged the agreements. The husband died and his case was continued by his estate. Citing authority, the Full Court said (-: … There needed to be a finding that the 'pressure' was 'illegitimate' or 'unlawful'. It is not sufficient … that … [it] may be overwhelming … that there is 'compulsion' or 'absence of choice'. ( … ) … 'inequality of bargaining power' cannot establish duress. … In any event … [t]he … husband was at pains to point out to the wife from the outset that his wealth was his and he intended it to go to his children. The wife was aware of that … and … acquiesced … [T]he trial judge found that the wife's interest lay in what provision would be made for her [if] the husband predeceased her … not what she would receive upon separation. … In declaring both agreements to be valid, the Full Court concluded (-): … the fact that the husband required an agreement before entering the marriage cannot be a basis for finding duress. Nor can the fact that a second agreement was required. ( … ) Again … it was not … the case that the agreements were non-negotiable. Changes were made by the wife through her solicitor, and … were accepted by the husband. However, the real difficulty for the wife in establishing duress is that she was provided with independent legal advice about the agreements, she was advised not to sign them but she went ahead regardless.
Children – Great grandparents' application for time dismissed under s102QB – Vexatious proceedings order also made – Meaning of s65C(c) In Mankiewicz and Anor & Swallow and Anor  FamCAFC 153 (16 August 2016) a Full Court majority dismissed an appeal by great grandparents against Watts J's dismissal under s102QB of their application for time. A vexatious proceedings order was also upheld, the appellants being found to have "acted in concert with … their son who ha[d] frequently instituted vexatious proceedings" (). Ryan and Austin JJ said (from ): … [T]he appellants were found to lack standing to apply for parenting orders … in 2009. When they commenced fresh proceedings … in 2013 it was necessary for them to prove they then had standing under s65C(c) … ( … )  … [B]ecause it was possible [they] had acquired standing since 2009 so as to permit prosecution of their fresh application … [Watts J] had both the authority and duty to decide whether their application lay within the limits of the Court's jurisdiction. ( … )  It therefore follows that [his Honour] had jurisdiction … but no power to exercise under Part VII … unless they proved their standing, since jurisdiction and power are distinct concepts … Because jurisdiction and standing both mark out the boundaries of judicial power (Kuczborski v Queensland  HCA 46 …), it was necessary for [his Honour] to entertain the appellants' application to determine whether or not they had acquired standing.  However, before deciding whether the appellants had acquired such standing, the … judge … ma[d]e … orders … under s102QB(2)(a) to dismiss their … application and s102QB(2) (b) to restrain them from bringing any further parenting applications. … His Honour incidentally found … [that] there was no evidence to suggest any change in circumstances about [their] lack of standing since dismissal of the … proceedings in 2009, but that finding was made after having … found that s102QB was enlivened … ( … ) The majority concluded (-) that the fact that his Honour "could have, but did not … decide the proceedings by dismissal of the application due to … lack of standing
46 | BRIEF DECEMBER 2016
… did not strip the proceedings of that characterisation" so that his "exercise of power under s102QB … was … valid … while exercising jurisdiction in proceedings brought under the Act". Murphy J dissented, saying () that "the appellants did not have standing to seek parenting orders … [so] that the orders … were not validly made and should be set aside". Murphy J (at ) examined the meaning of s65C. Property – Wife's application for partial settlement of $10m to buy a new home dismissed – Likely cash flow and tax effects were unknown In Sully (No. 2)  FamCA 706 (25 August 2016) Stevenson J dismissed the wife's application for a partial property settlement of $10m to buy a new home for herself and the children. The husband estimated the net value of his business (X) as $55m after tax. Upon receiving $1.1m from the husband the wife discontinued her interim maintenance application. The home was worth $10m, the husband had property of $9m in his name and the wife $7m in hers (her investment properties returned net rental income of $3,700 per week) (-). After citing Strahan (Interim property orders)  FamCAFC 166 the Court noted (-) the husband's evidence that he had no access to funds outside X; that its funds were reserved as working capital; that X would require capital for a development project; that a large tax debt would be generated if $10m were extracted from X; and that X's ability to honour commitments to third parties may be compromised. Stevenson J added () that such money could not be extracted from the parties' assets without a sale of the home which "would mean that the four children [and husband] … would need to be re-accommodated", although () "the children's future living arrangements are far from clear" ("the parties' son J having refused to spend time with the wife since separation and the husband seeking final orders for primary residence"). The Court was not satisfied that the order sought would be just and equitable.
Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.
Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee
Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (No 2)  FCA 1169 International commercial arbitration – Where party unsuccessfully seeks to set aside an arbitral award under art 34(2) of the UNCITRAL Model Law – Whether special indemnity costs rule In Sino Dragon (No 2), Beach J considered:
(1) whether there is a special rule in terms of indemnity costs that ought to be applied to proceedings that have unsuccessfully sought to set aside an arbitral award under article 34(2) of the UNCITRAL Model Law on International Commercial Arbitration; and (2) if there is no such special rule, how the principles concerning an award of indemnity costs discussed in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 and the broad costs discretion afforded by s43 of the Federal Court of Australia Act 1976 (Cth) are to be applied to a failed article 34(2) challenge and the particular circumstances of the case. (1) A special rule? Justice Beach held that there is no special rule, to the effect that "absent special circumstances, indemnity
costs should be ordered where a party unsuccessfully challenges an arbitral award under article 34". In particular, there is no justification for modification of the 'usual' costs position and onus (that party/party costs are ordered absent special circumstances) (at ). His Honour said that it follows from the silence of the UNCITRAL Model Law and the International Arbitration Act 1974 (Cth) (IA Act) on costs in this context, as well as international precedent, that any indemnity costs question and attendant public policy considerations are matters for the law of the forum (at -). (2) (Different) application of general costs principles As to the second question, his Honour concluded that, within the framework of the general principles as to the award of indemnity costs, "[a] category of circumstances justifying an order for indemnity costs is where an unsuccessful article 34 challenge is made which has been found not to have reasonable prospects of success, whether or not the unsuccessful party knew or ought to have known this at the inception of the challenge". The successful party bears the onus of establishing no reasonable prospects of success. It is not necessary for it to establish that the unsuccessful party 'ought to have known' at inception to justify the indemnity costs order. Rather,
the unsuccessful party should bear the risk, "whatever actual or constructive knowledge it has at inception." (at , ). Relevant policy considerations include: the objects set out in s2D and the considerations set out in s39(2) of the IA Act, the limited grounds for challenge under article 34, the fact that the parties' dispute has been resolved by a chosen contractual mechanism, and the public policy of discouraging article 34 challenges that have no reasonable prospects of success (at ). His Honour's exposition of the proper application of costs principles in the context of an unsuccessful article 34 challenge entails (at least in substance) that a party launching an article 34 challenge should take positive steps to ensure that, at inception, it has reasonable prospects of success taking into account both the law and the available evidentiary foundation (see ). It conceivably lowers the threshold for the successful party to establish an entitlement to indemnity costs. This is a significant development underpinned by the curial conception of the modern role of arbitration in Australia. Author: Caitlin Moustaka
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 email@example.com 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”.
Law Council Update
PASSED COUNTER-TERRORISM BILL ADDRESSES MANY LAW COUNCIL CONCERNS, NOW TIME TO APPOINT NEW INSLM A number of concerns expressed by the Law Council of Australia to the CounterTerrorism Legislation Amendment Bill (No. 1) 2016 have been reflected in the final version passed by the Senate this morning. Central to these concerns was ensuring that a system of 'special advocates' participate in control order proceedings – which can be now imposed on persons as young as 14 years of age. The system of special advocates permits a panel of security-cleared barristers and solicitors to participate in closed material procedures where the subject of a control order has sensitive information withheld from them and their legal representative. Other concerns that have been addressed in the final legislation include: •
clarifying that the best interests of the young person are to be a 'primary' consideration in determining the terms of the control order; clarifying that the parents or guardian of a child are also to be notified of control order applications or variations; expressly providing that a young person has the right to legal representation in control order proceedings; requiring a minimum standard of information to be disclosed to a control order subject to allowing effective instructions to be given in relation to allegations; requiring issuing officers for monitoring powers to have regard to whether the measures constitute the least interference with the liberty or privacy of any person that is necessary in all circumstances; and an additional 'reckless' threshold for the offence of advocating genocide and to remove the requirement of 'public' advocacy.
Law Council of Australia President, Stuart 48 | BRIEF DECEMBER 2016
Clark AM, welcomed the inclusion of key amendments, particularly the inclusion of special advocates, in the final version of the Bill. "It is vital that we get the balance right between protecting the community and ensuring that we do not jettison our fundamental rights and freedoms," Mr Clark said. "By addressing a number of the legal profession's concerns, this Bill goes some way to ensuring that this delicate balance is struck." However, Mr Clark emphasised that issues of concern remain within the legislation, making the appointment of a new Independent National Security Legislation Monitor (INSLM) vital. The former INSLM, the Hon Roger Gyles AO, QC, resigned on 31 October 2016. "This legislation, even with these amendments, tests the boundaries of fundamental rule of law principles, meaning a strong independent review presence is critical," Mr Clark said. "We are calling on the Government to appoint a new INSLM without further delay. "The INSLM ensures that reforms to national security legislation will undergo robust scrutiny and that the laws are necessary, proportionate and operationally effective," Mr Clark said. HUGE BOOST FOR EQUALITY AS LARGE FIRMS ADOPT LAW COUNCIL'S EQUITABLE BRIEFING POLICY EN MASSE The Law Council of Australia's National Equitable Briefing Policy today received a major boost, with a large number of the nation's leading large law firms, as well as three large corporates, signing up to a commitment to briefing women barristers. The new policy, launched this year, aims to boost the number of briefs to women barristers. It includes interim and long term targets with the ultimate aim of briefing women in at least 30 percent of all matters and paying 30 percent of the value of all brief fees by 2020. Today, the Law Council unveiled support
from a number of law firms including: •
Baker & McKenzie
Corrs Chambers Westgarth
Henry Davis York
Herbert Smith Freehills
King & Wood Mallesons
Norton Rose Fulbright
The Law Council also announced the support of three large corporates with Telstra, Woolworths and Westpac the first of the ASX 200 to signal their support for the Policy. Law Council of Australia President-elect, Fiona McLeod SC, said it was extremely encouraging to see organisations signing on and support for diversity measures building rapidly. "The policy is intended to support the progression and retention of women barristers, address the pay gap and the underrepresentation of women in superior courts," Ms McLeod said. "The preparedness of the legal profession and the Australian business community to adopt the policy signals a significant cultural shift in our support for equality. "The Law Council is grateful indeed for the leadership of the profession and these businesses in recognising the importance of diversity measures by signing up to this commitment. "With this momentum, I am confident the National Equitable Briefing Policy will provide the incentive for long term change within Bars," Ms McLeod said. The new signatories join the Australian Bar Association, various Bars and Law Societies of Australia, as well as numerous individual legal practitioners, who have committed to the Policy. The Law Council will continue to promote the Equitable Briefing Policy and support signatories in their implementation of it across the country through ongoing events and reporting templates.
Any person having knowledge of any will made by MARIA KRAJEWSKI formerly of 216 Daly Street, Belmont, Western Australia but late of Aegis St James, 38 Alday Street, St James, Western Australia, who died on 31/08/2016, please contact Murray Smith Solicitors PO Box 4216, Mosman Park WA 6012 telephone: (08) 9284 3149 facsimile: (08) 9284 6605 email: firstname.lastname@example.org
Paterson & Dowding
The Directors and Principals of Paterson & Dowding are delighted to announce that Chad Heslop and Nicholas Coveney have joined the firm.
2 Office rooms
(approx 12 sqm with window & 15 sqm)
Central CBD Location 1st Floor, 524 Hay St, Perth Each $780 per month
Chad has experience in representing married and de-facto clients in both complex financial and children's matters including international orders and child abduction.
Includes use of shared conference room
Contact Francois Carles Carles Solicitors Tel 9221 4877 or email@example.com
Both Chad and Nic are a welcome and valuable addition to our team of experienced family and divorce lawyers.
FOR SALE PARTITIONED OFFICE SUITE
1st Floor, 33 Barrack Street, Perth • • • •
76m2 plus secure storage 4 offices, reception & waiting area Excellent natural light Leased until 31/03/17
Greg Radin 0411 883 995
• • • •
Areas from 71m2 to 288m2 Partitioned and open plan options All with vacant possession Legal precinct location
Greg Radin 0411 883 995
Helen Kay has commenced as Head of Corporate & Commercial and Oscar Dell'Anna as solicitor in the Corporate and Commercial section of Panetta McGrath Lawyers.
Any person knowing the whereabouts of the last Will made by FREDERICK SKEGGS late of 57 Western Avenue, High Wycombe in the State of Western Australia, born on 15 November 1946, died on 29 September 2016, please contact Maria Fifield of Avon Legal, Suite 7, 9 The Avenue MIDLAND WA 6056.
Any law firm or individual having knowledge of any Will made by NINA JESSIE MERCER born 30 July 1926 died 13 January 2016, of 91 Ferndale Crescent, Ferndale, Western Australia, please contact Wayne Mort of Mort & Associates, PO Box 20, Cannington, WA, 6987 Telephone: 9458 6022
Small Legal Practice comprising mainly Estate Planning, Probate and Family Provision Applications. Expressions of interest to PO Box Z 5715, St Georges Tce, PERTH WA 6831.
50 | BRIEF DECEMBER 2016
Send any enquiries by email in the first instance to firstname.lastname@example.org
FOR SALE Nathan Ebbs
We are an expanding boutique commercial law firm.
Telephone: 9274 1977 Email: email@example.com
Bennett + Co
Looking to sell your files and/or legal practice?
All enquiries will be dealt with in strict confidence.
Panetta McGrath Lawyers
Bennett + Co is delighted to announce that Law Society Treasurer Nathan Ebbs has been promoted to the position of Managing Principal.
12 ST GEORGES TCE PERTH
Numerous Strata Offices available
Nic focuses on complex and high net worth financial and property matters having previously worked in taxation law at one of the 'Big 4' global professional services firms.
FOR SALE OR LEASE
MISSING WILL Any person knowing the whereabouts of the last Will made by CASIMIRO AMARAL late of Lot 23 Town Caravan Park, Kununurra in the State of Western Australia born on 12 March 1951 died on 1 February 2016, please contact Maria Fifield of Avon Legal, Suite 7, 9 The Avenue MIDLAND WA 6056. Telephone: 9274 1977 Email: firstname.lastname@example.org
New Members New members joining the Law Society (October 2016)
Mr Justin Mannolini
Gilbert & Tobin
Mr Matthew Kinder
Charles Darwin University
Mr Ashley Burgess
Mr Issa Rabaya
Ms Kate Dempster
JDK Legal Services Pty Ltd
Ms Subhan Dellar
Ms Huia Woods
Huia Woods Pty Ltd
Ms Kimberley Charlton-Maughan Mr Aditya Mittra
Mr Joseph Chiman-Garang
Miss Maddy Bright
Johnson Winter & Slattery
Mr Andrew Dhu
University of Western Australia
Miss Angela Saldanha
Johnson Winter & Slattery
Mr David Hinder
University of Western Australia
Mr Mihali Palassis
Paterson Michael & Associates Barristers & Solicitors
Miss Jennell Sorensen
University of Western Australia
Miss Rebecca Dann
University of Western Australia
Ms Rebecca Harrison
JDK Legal Services Pty Ltd
Mr Douglas Nelson
University of Western Australia
Ms Jacky Vetter
Ms Tallulah Bieundurry
University of Western Australia
Mr Alex Sunman
Butlers Barristers & Solicitors
Miss Jayne-Rae Whitby
University of Western Australia
Ms Sindy Goodhew
Borrello Graham Lawyers
Mr Justin Dhu
University of Western Australia
Mr Kyle Charles
University of Western Australia
Mr Christopher Hogg
Edith Cowan University
Ms Louise Bozich
Edith Cowan University
N ST OW O IN C K
2017 Diary and Directory YOUR ESSENTIAL COMPANION This stylish and versatile planner is a must-have resource for anybody working in the legal profession. Now in stock and available to order. • • • • • • •
Week-at-a-glance format Alphabetical listings of Western Australian law practices, both metropolitan and country Listing of WA barristers Court and tribunal information Government agency and community legal centre information National and international Law Society information List of Accredited Family Law specialists and Approved Quality Practice Standard firms To order your 2017 Diary and Directory, visit lawsocietywa.asn.au/diary. Stocks are limited.
With thanks to our CPD partner
Stay up-to-date with the latest Law Society member and CPD seminars
DECEMBER 2016 MEMBERSHIP EVENTS Wednesday, 7 December
End of Year Celebration
Lamont's Bishops House
FEBRUARY 2017 MEMBERSHIP EVENTS February
Beach Volleyball Tournament
FEBRUARY 2017 CPD SEMINARS Look out for the full February-March 2017 CPD Programme for all our seminars Tuesday, 14 February
De-mystifying accounting for lawyers
The Law Society of Western Australia
Wednesday, 15 February
Incapacity in relationships: the tension between SAT and the Family Court – who wins?
The Law Society of Western Australia
Friday, 17 February
Law Summer School 2017: Australia’s Place in the World
The University Club, Crawley
Tuesday, 21 February
Mediation update for practitioners
The Law Society of Western Australia
Wednesday, 22 February
Property law update
The Law Society of Western Australia
Wednesday, 22 February Directorial liability for corporate failings – Three contemporary developments
The Law Society of Western Australia
Thursday, 23 February
Family and business trusts
The Law Society of Western Australia
Thursday, 23 February
Briefing Barristers: getting it right
The Law Society of Western Australia
Friday, 24 February
Empowering Communication: Managing emotions in difficult conversations
The Law Society of Western Australia
Monday, 27 February
Art of the eTrial
The Law Society of Western Australia
Tuesday, 28 February
Strata Reform: dispute resolution changes and reforms to protection of purchasers
The Law Society of Western Australia
MARCH 2017 MEMBERSHIP EVENTS March
Sole Practitioner and Small Firm Forum
Friday, 24 March
180 Anniversary of the Old Court House
Old Court House Law Museum
MARCH 2017 CPD SEMINARS Wednesday, 1 March
Criminal law update: a review of Court of Criminal Appeal decisions
The Law Society of Western Australia
Thursday, 2 March
CMC List practice and procedure
The Law Society of Western Australia
Tuesday, 7 March
Drafting family law orders and settlement offers
The Law Society of Western Australia
Tuesday, 14 March
What the Productivity Commission said about copyright
The Law Society of Western Australia
Thursday, 16 March
Construction law masterclass
The Law Society of Western Australia
Thursday, 16 March
2016’s important cases for commercial litigators
The Law Society of Western Australia
Monday, 20 March
Sale of business agreements
The Law Society of Western Australia
Wednesday, 22 March
Wills and Estate masterclass
The Law Society of Western Australia
Wednesday, 22 March
The Law Society of Western Australia
Thursday, 23 March
Drafting settlement offers and deeds
The Law Society of Western Australia
Thursday, 23 March
The Law Society of Western Australia
Tuesday, 28 March
Will drafting masterclass
The Law Society of Western Australia
Tuesday, 28 March
Voluntary criminal case conferencing
The Law Society of Western Australia
Wednesday, 29 March
Risk assessment of sex offenders
The Law Society of Western Australia
Thursday, 30 March
Winning case theory
The Law Society of Western Australia
For all CPD-related enquiries please contact email@example.com or (08) 9324 8614 For all membership-related enquiries please contact firstname.lastname@example.org or (08) 9324 8692 For all upcoming events and further information please visit lawsocietywa.asn.au
52 | BRIEF DECEMBER 2016
om fr 017 e bl y 2 la r ai ua Av Jan 3
Introducing a new LawCare WA service – Employee Relations Advice Line
Help for you when you need it on serious employment issues The Law Society is trialling a six month arrangement with the Chamber of Commerce and Industry of Western Australia whereby members can access a team of industry experts within the CCIWA Employee Relations Advice Centre for telephone advice on a range of human resources and employee relations issues relating to: • • • • • •
Wage rates Award and agreement interpretation Performance management and termination Equal opportunity, bullying and harassment Employee minimum entitlements Unfair dismissals
Where assistance beyond the telephone advice is required, the CCIWA Employee Relations Consultancy team can offer support and representation at your cost. This service is not included as part of the Law Society’s LawCare WA programme.
Contact (08) 9365 7660 or visit lawsocietywa.asn.au/lawcarewa The telephone advisory service is available to Law Society members from 8am to 5pm, Monday to Thursday and 8am to 4pm on Friday. The phone service is closed on weekends and public holidays.
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