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VOLUME 44 | NUMBER 6 | JULY 2017


Volume 44 | Number 6 | July 2017




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DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).


Extensions of time in the State Administrative Tribunal


Special Sitting for the Honourable Chief Justice Bryant AO

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.


90th Anniversary Cocktail Party


Published monthly (except January)


The Future of the Legal Profession

The Building and Construction Industry Code of Conduct (WA)


Judicial Methods in the 21st Century

Communications and Media Officer: Andrew MacNiven


Federal Jurisdiction and State Laws


The Regulation of Industrial Relations by Reference to the Corporations Power

14 16

Artificial Intelligence Forum Legal traditions in an age of disruption: How do lawyers decide what to keep and what to relinquish?

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

Editor: Jason MacLaurin Deputy Editor: Moira Taylor Editorial Committee: Gregory Boyle, Rebecca Collins, Robert French, Melissa Koo, Jason MacLaurin, Alain Musikanth, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor Proofreaders: Sonia Chee, David Garnsworthy Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: | Web: ISSN 0312 5831


Submission of articles: Contributions to Brief are always welcome. For details, contact


President's Report


Professional Announcements


Editor's Opinion




Family Law Case Notes


New Members


Law Council Update


Events Calendar

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


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

90th Anniversary Cocktail Party

Future of the legal profession

I was delighted to see more than 300 members and other special guests at the Perth Town Hall on Thursday evening, 15 June, joining in celebration of the Law Society’s 90th anniversary.

With the Society’s 90th celebration now behind us, our attention once again turns to day to day business2.

This glittering event was held precisely 90 years to the day after a small group of about 30 legal practitioners gathered in the old Supreme Court library1 and resolved that "an Association of Legal Practitioners of Western Australia be formed". Over the course of nearly a century the Society has grown from these humble beginnings to become the leading, and by far the largest, organisation for members of the legal profession in this State, with a record membership this year of over 3,800. A number of story boards showing a selection of significant milestones and screens depicting a series of photos relevant to the Society’s 90 year history were on display as part of the celebrations. As noted at the event, none of the Society’s achievements over this period would have been possible without the support of the Society’s members, the dedication of its councillors, committee members and staff and the dogged determination of some of my predecessors. The Society expresses its thanks to the Hon Chief Justice Wayne Martin AC, a Life Member and former President of the Society, for graciously delivering a toast on the evening and to our Principal Sponsor, JLT Australia, and Gold Sponsor, UWA Law School for their generosity. A publication authored by Dr Catherine May, commemorating the Society’s 90 years, will be released later this year.

02 | BRIEF JULY 2017

As members would by now be aware, the Society recently resolved to adopt the Future of the Legal Profession as a strategic focus area. ‘Disruption’, ‘big data’ and ‘artificial intelligence’ are among the many buzz words and catchphrases which have in recent times increasingly punctuated debate about where the future of vast parts of the workforce – including the professions – might be headed. As with the rest of society, the legal profession is not immune from these challenges. In keeping with its strategic focus, the Society recently established a Futures Reference Group, comprising both internal and external members, to guide its work. In the coming months members may expect to see an increasing number of discussion papers and guidelines, CPD seminars and Brief articles, focusing on a smorgasbord of future-themed topics such as artificial intelligence, cybercrime, commoditisation of legal work, multidisciplinary practices, diversification, in-sourcing, out-sourcing and unbundling of legal services – to name but a few. Three articles may be found in this month’s edition of Brief relevant to the above context. The first is an introductory paper identifying just a few of the challenges that are likely to face the profession over the next two decades, along with some of the steps which the Society proposes taking to assist members in navigating their way through them3. The second is a report relating to a forum hosted by the Society, and facilitated by Dr Ingrid O’Brien of O’Brien Consulting, during Law Week 2017 to discuss artificial intelligence and the challenge of ensuring that emerging and future lawyers continue to be able to develop and

refine their practical skills to levels necessary for the performance of competent professional work4. The third is a substantial extract from the keynote address delivered by Katie Miller at the launch of Law Week 2017 entitled Legal traditions in an age of disruption: How do lawyers decide what to keep and what to relinquish?5 Please keep an eye out for more articles relevant to the future of the profession in forthcoming editions of Brief, and for further information regarding the Society’s initiatives in this area in Friday Facts and CPD news, on the Society’s website and social media platforms.

Cyber security survey On a related note, the Society is pleased to have entered into a partnership with Edith Cowan University Security Research Institute to conduct a major cyber security survey. On publication of the findings, follow-up training will be provided as an intervention scheme to aid members of the profession to better secure their businesses, with a view to making them less susceptible to cyber security breaches.

Legal Profession Uniform Law As mentioned in my report in the April edition of Brief, the Society commenced steps, following the State election earlier this year to progress its recommendation for the adoption of the Legal Profession Uniform Law (currently in force in New South Wales and Victoria) as a law of Western Australia subject to certain conditions. Work in this area is advancing and, as indicated in last month’s electronic update, the Society is actively engaged with both government and other stakeholders in an effort to achieve an outcome consistent with the Society's position. I hope to provide a further update soon.

Electronic lodgment and electronic files – Supreme and District Courts Members will recall that in March 2017, the Society published information from the Supreme Court advising of significant changes concerning the means by which the profession and the public communicate with the superior courts of Western Australia in relation to civil matters. The changes concern the extension of the availability of electronic filing of documents and the creation of fully electronic files in the civil jurisdiction of those courts. As indicated to members by email alert last month, the Supreme Court has determined that documents lodged by the profession in the Court’s General Division civil cases must be lodged electronically via the eLodgment System from 4 September 2017 and, from 3 July 2017, most Supreme Court General Division civil documents will be available for lodgment via the system, in addition to all District Court civil documents. The new system offers significant benefits not only for the courts but also for law firms as registered users will be able to electronically lodge a civil document; receive court documents; view documents for matters in which they are a party; and search all civil matters. Use of the eLodgment system by the profession and litigants is intended to be maximised while at the same time ensuring that court users are not disadvantaged. To that end, the Society has been advised that provision will be made for non-electronic document lodgement in limited and appropriate circumstances. Further details may be expected soon. In the meantime, sessions relating to the new system aimed at practitioners and legal staff, with attendance attracting CPD points, will be conducted by the Supreme Court towards the end of this month. Further information about these sessions will be posted on the Court’s website:

Statutory legacy Under the Administration Act 1903 (WA), a statutory legacy is

available for a husband or wife, which may include a de facto partner as defined in the Act, whose spouse dies intestate. The current statutory legacy under section 14 of the Act is $50,000 or $75,0006. The statutory legacy has not been amended since 1982. The amount is manifestly inadequate. However, to increase the amount it is necessary to amend section 14. The Society recently wrote to the State Attorney General, the Hon John Quigley MLA in relation to this matter. I am pleased to report that the Attorney shares the Society’s view that the statutory legacy is inadequate and that legislative reform to section 14 will be considered. The Attorney has also indicated that he proposes continuing the working group previously set up to review the law of succession and which will report on further reform of the Act.

Continuing Professional Development Members will recall from my report in the February edition of Brief that the Society intends exploring greater flexibility in, and accessibility to, its Continuing Professional Development (CPD) programme for the benefit of members.

with face-to-face, telephone and web video services. As part of LawCare WA, members of the Society have access to an independent and confidential professional counselling service to support wellbeing in the workplace and personal life. Members may access up to three free sessions per membership year. Members also have complimentary access to a wealth of online resources to help manage career, life, finances and health and wellbeing issues including: Money Assist; Career Assist; Lifestyle Assist; Manager Assistance; and Conflict Assist. For more information about LawCare WA please read the insert included with this edition of Brief. Please note that the new LawCare WA number for counselling and wellbeing support services is 1300 687 327. NOTES: 1.

Now the chambers of the Chief Justice of Western Australia in the 1903 building.


In deference to unsolicited feedback received at the event just described, this month’s President’s Report extends beyond one page.


Pages 12 – 13.


Pages 14 – 15.


Pages 16 – 19.


Depending on the circumstances set out in the section.

Since that report, work in this area has been ongoing. Executive has also recently approved an external review of the Society’s CPD programme. The purpose of the review is to ensure that the Society’s CPD programme continues both to reflect ‘best practice’ and to meet members’ needs. It is envisaged that any recommendations arising from the review will be put to Council before the end of 2017.

New LawCare WA counselling provider Finally, I am pleased to advise that the Society has entered into an agreement with a new LawCare WA provider for its counselling and wellbeing support services, Converge. Converge is owned by an Australian not-for-profit organisation and specialises in psychology and mental health. It has 95% coverage across Australia 03

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

Katie Miller’s address to the Law Week Breakfast concerned a topic Brief will continue to focus upon, namely, challenges to the profession presented by technology such as artificial intelligence (AI). AI advocates Richard and Daniel Susskind, in The Future of the Professions, suggest lawyers’ working practices have not changed much since Charles Dickens’ time. While many may disagree, it is nevertheless a worrisome observation. If only because in Dickens’ classic novel about the law, Bleak House, a Mr Krook dies from spontaneous human combustion. As if there wasn’t already enough to worry about in life. Of course, having regard to science, there is little cause for concern about spontaneous human combustion. Many practitioners get through their careers only infrequently encountering it. Nevertheless, the phenomenon has been witnessed on occasions such as non-compliance with a springing order, being present when a colleague is served with divorce papers, or potentially at any time during a Court of Appeal hearing. Some claim AI will present as serious a challenge to the profession as Uber does to the taxi industry. However, lawyers would likely embrace one aspect of Uber’s business model: that the client cannot, with respect to payment, engage in the time-honoured (albeit dishonourable, not to mention illegal) Aussie tradition of doing ‘a runner’. Happily, AI probably cannot replicate the inherently human aspects of the practice of law – including entertaining, poetic, humorous and quirky episodes (more on this below – including a request). The 29 November 1913 edition of The West Australian reported upon two Perth lawyers coming to blows (actually, slaps) in Court over whether or not an adjournment had been agreed to by consent. Modern case management principles suggest that, as a general guide, if counsel are slapping each in the face it is probably not a matter that is by consent. Although, if they're wearing lederhosen, it could be Oktoberfest.1 Lawyers are famously intolerant of slurs against their honour, as evidenced by the number of lawyers involved in duels in the 1800s (including some who became judges of the Supreme Courts of South Australia and Victoria).2 This is despite the law of

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defamation, historically, being seen as an answer to slights upon reputation, and a replacement for duelling. In the 1800s however duelling seems to have been regarded as a cheaper and more efficient measure, involving fewer preliminaries, with the downside of a loss (i.e. serious injury or death) being preferable to a loss in litigation. In 1832 at Cantonment Hill in Fremantle, barrister William Clark fought a duel with a merchant. The barrister fatally wounded his opponent, though was subsequently acquitted of murder.3 Under section 228 of Kentucky’s constitution, lawyers, amongst others, have to swear that they have not taken part in a duel. This is a somewhat exceptional provision, although it should be noted that Colonel Harlan Sanders was reputedly involved in a shootout incident with a rival (no, not the Burger King or Ronald McDonald) who was killed, albeit not by a shot fired by the Colonel. And, Colonel Sanders’ budding legal career was cut short in the early 1920s after a courtroom brawl with his own client, in which the Colonel presumably threw a real Zinger of a left hook. A quirky incident involving a member of the judiciary occurred recently in the UK when High Court Judge Sir Robin Knowles QC was mugged by a thief wielding a champagne bottle, stolen from a nearby bar chambers, in an alleyway on Middle Temple Lane. The Judge handed over his wallet without fuss, whereupon the thief leaned in for an attempted kiss. The Judge ultimately assisted the thief in exiting the premises, as the thief was having trouble properly operating the button to open the door.4 His Honour stated that his co-operative attitude stemmed from an appreciation of the type of injury that could be caused by a champagne bottle. While this was of course a reference to the terrible injuries that can be caused by glassings, most lawyers are well aware of the other serious forms of injury that can be inflicted by bottles of Champagne: social gaffes, reckless marriage proposals, and anything following the words “I’ve got speak frankly and with all due respect…” at an end of financial year party. All the above leads to this rather clumsy segue: readers will be aware Brief is hoping to include more items dealing with the lighter and more entertaining aspects

of the practice of the law. This would be assisted by material provided by the profession, so Brief encourages members to send in any items of interest, especially if they concern humorous incidents, spontaneous human combustion, duels, or mishaps caused by champagne. It would be ideal if contributions related to all those topics, but didn’t just involve the one person. Letters to the Editor are also encouraged. To that end, editorials will continue to provoke such correspondence by way of dubious internet-based research and poor grammar. Items can be provided through any source you like, whether it be the Ecuadorian Embassy, James Comey, or a journalist who attended the Canberra Winter Ball. The Editor is also prepared, Watergate era-like, to meet in car parking garages – though, at the current rates for CBD parking, let’s face it, who can afford it. Submissions can be made to the Editor at: Defamation writs can be served upon the Editor pursuant to Order 72 of the SCR. Challenges to the Editor for a duel would be illegal5 and in any event unlikely to be accepted, as they customarily involve this “see you at dawn” nonsense (there’s only one thing that should be set down for dawn and that’s a tee-off time). This Brief contains, amongst other items of interest, the Hon Robert French AC upon Federal Jurisdiction and State Laws, the Hon Chief Justice Susan Kiefel AC upon Judicial Methods in the 21st Century, the Hon Justice Christopher Jessup upon The Regulation of Industrial Relations by Reference to the Corporations Power, the special sitting of Family Court for the retirement of Diana Bryant CJ as well as Dr Phil Evans on The Building and Construction Industry Code of Conduct (WA) and Peter Lochore on Extensions of time in the SAT. NOTES: 1.

A prominent festival, apparently, for many in the legal profession.


See ‘Mason’s Miscellany’ on ‘Duellers and Brawlers in the Law’, p 108, Bar News, Winter Edition 2012 and The Hon JJ Spigelman AC ‘Bicentenary of the Coup of 1808’ (2998) 30 Aust Bar Rev 129 at 138.


See the Hon Chief Justice W Martin “The Supreme Court of Western Australia 1861 to 2011 (ceremonial sitting speech).


Practitioners would be aware of certain Courtrooms where this very problem presents itself regularly.


Section 72 of the Criminal Code.

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Extensions of time in the State Administrative Tribunal By Peter Lochore1

An application to the State Administrative Tribunal (SAT) in its review jurisdiction must be made within 28 days of the decision.2 However, the SAT can extend time on application or on its own initiative.3 What does an application for an extension of time need to show? This article discusses what is involved.

Has the clock really started? Section 20(1) of the State Administrative Tribunal Act 2004 (WA) provides that for most reviewable decisions the decision-maker must give the person written notice of the decision and of the person’s right to seek review from SAT. In Bocol Constructions Pty Ltd and Keslake Group Pty Ltd, Member P Le Miere found that when a decision-maker is required by s20(1) of the Act to give notice, the 28-day period in which an application for review must be lodged only commences when notice is given.4 Therefore, if your client is concerned about a decision that is within a class that requires notice of the review right, but no notice of the review right was provided, the 28-day period will not have commenced. Principles The principles applicable to extensions of time in the SAT were set out by the Supreme Court of Western Australia in Di Virgilio v McCleary.5 The principles were applied by the Tribunal in the twin decisions of Murrin and City of Wanneroo6 and in the decision of SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd and Field Deployment Solutions Pty Ltd.7 The facts of these cases (where extensions of time were refused) illustrate the principles.

Discretion and onus The power to extend time in rule 10 of the State Administrative Tribunal Rules 2004 is discretionary.8 It is a remedial power. Therefore, the SAT, like a court,

06 | BRIEF JULY 2017

is to exercise its jurisdiction cautiously with due regard to the necessity for maintaining the principle that the rules are to be complied with and not ignored.9 The party seeking the extension of time is seeking an indulgence. Thus, an applicant bears the burden of persuading the SAT to grant its request. Given the onus lies with the applicant, it is open to a respondent to: (a) lead no evidence and simply put the applicant to proof; (b) cross-examine and make submissions challenging the applicant’s case for an extension of time; or (c) cross-examine, make submissions, and additionally to lead its own evidence in opposition to the applicant’s case for an extension of time.

Four core factors

extension of time, is that the discretion exists for the “sole purpose of enabling a court or tribunal to do justice between the parties”.13 Therefore, it follows that the discretion “can only be exercised in favour of an application upon proof that strict compliance with the rules will work an injustice upon the applicant”.14 This is critical because even if an applicant’s arguments on the four core factors are all strong an application for an extension of time could still be refused. Therefore, any application should be shaped to highlight any injustice that will likely be experienced by the applicant should the SAT not extend time to permit the review to be heard. For a respondent, it is critical that submissions to the Tribunal point out the need for the applicant to establish injustice so that it is clear what case the applicant must make out. NOTES: 1.

Barrister, Francis Burt Chambers. Recommended as a Leading Planning & Environment Barrister by Doyle’s Guide in 2016 and 2017.


Rule 9 of the State Administrative Tribunal Rules 2004 (WA).


Rule 10 of the State Administrative Tribunal Rules 2004 (WA).

1. the length of the delay;


Bocol Constructions Pty Ltd and Keslake Group Pty Ltd [2017] WASAT 15 at [34].

2. the reasons for the delay;


Di Virgilio v McCleary [2012] WASC 437 (Hall J).


3. whether there is an arguable case; and

Murrin and City of Wanneroo [2016] WASAT 87 and 88 (Member D. Aitken).


4. the extent of any prejudice to the respondent.

SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd and Field Deployment Solutions Pty Ltd [2015] WASAT 69 (Judge T Sharp, Deputy President).


Di Virgilio v McCleary [2012] WASC 437 at [38].


South v Mark Hay Real Estate Pty Ltd in its Personal Capacity and its capacity as Trustee of the Mark Hay Trust [2011] WADC 44 at [50] (Principal Registrar Gething).


Di Virgilio v McCleary [2012] WASC 437 at [45].


See the similar, but longer list of factors in the decision of Wilcox J in Hunter Valley Developments Pty Ltd (1984) 3 FCR 344; (1984) 7 ALD 315.


Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198.


Di Virgilio v McCleary [2012] WASC 437 at [39].


Di Virgilio v McCleary [2012] WASC 437 [39] applying Gallow v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).

The SAT’s assessment on whether to grant an extension of time usually turns upon an analysis of four core factors. They are:

The four core factors are not an exhaustive list.10 Therefore, parties need not confine argument to only these factors.11 They are referred to as “core” factors because in some cases other factors may assume special importance.12

Injustice – the critical threshold What appears to have been overlooked in many of the SAT cases considering an


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90th Anniversary Cocktail Party A stylish birthday celebration was held at the Perth Town Hall on 15 June as the Society marked its 90th year. More than 300 members and special guests from the legal profession took part in the festivities while paying tribute to a Society that has provided essential and valuable membership for the past nine decades. It was exactly 90 years to the day since a group of about 30 legal practitioners gathered in the old library at the Supreme Court of Western Australia and resolved than "an Association of Legal Practitioners of Western Australia be formed".

08 | BRIEF JULY 2017

The evening was opened with a wonderful Welcome to Country presented by Olman Walley, an established dancer and accomplished didgeridoo player. The Society was honoured to be able to use the site with the approval of the traditional owners. To the beat of gypsy jazz from the Sassafras Quartet, guests mingled and caught up with friends and colleagues while enjoying delicious canapes and beverages throughout the evening. Part of the celebrations included specially-created storyboards displaying the Society’s long history. The narratives strongly reflected the Society’s commitment to, and long-held position as part of the legal profession in Western Australia. Key milestones highlighted the Society’s pioneering

With thanks to our sponsors

role and important contributions and commemorated key legal figures central to developments in Western Australia. Society President Alain Musikanth launched the celebrations and the Hon Chief Justice Wayne Martin AC kindly provided a toast to the Society. The atmosphere was very convivial and it was wonderful to see so many familiar and new faces from the legal profession. Post event there were many kind messages and social media posts of thanks which were appreciated by the Society. The Society would like to thank all guests who helped make it a very special evening. Thank you to Principal Sponsor JLT Australia and Gold Sponsor UWA Law School.

Principal Sponsor

Gold Sponsor









Nobby Clark and Arthur Auguste.



Attendees at the 90th Anniversary Cocktail Party.


Hayley Cormann, Law Society Senior Vice President; the Hon Justice Joe McGrath; and the Hon Justice Janine Pritchard, Supreme Court of Western Australia.


David Price, Law Society Chief Executive Officer; Olman Walley; and Alain Musikanth, Law Society President.

The Hon Justice John Chaney, Supreme Court of Western Australia; Fiona McLeod SC, Law Council of Australia President; the Hon Wayne Martin AC, Chief Justice of Western Australia; Alain Musikanth, Law Society President; the Hon Justice Stephen Thackray, Chief Judge of the Family Court of Western Australia; and Chief Magistrate Steven Heath, Chief Magistrates Chambers.







Photos: 1.

The Hon Wayne Martin AC, Chief Justice of Western Australia delivering his toast to the Society.


Peter Jeavons, Sassafras Quartet.


Katie Cranfield, University of Notre Dame; Rahana Bell, University of Western Australia; and Tom Camp, MDK Barristers & Solicitors.


Stuart Cobbett, King & Wood Mallesons and Stuart Shepherd, Chair of Legal Aid of Western Australia.


Tom Camp, MDK Barristers & Solicitors; the Hon Justice Rene Le Miere, Supreme Court of Western Australia; Philippa Rezos, Legal Profession Complaints Committee; and Nick Mountain, Mony De Kerloy.


Stephen Hicks, Lawfield Legal Practice and Professor Phil Evans, University of Notre Dame.

10 | BRIEF JULY 2017










Photos: 7.

Jan Deptula and Connor Gamble, Australian Health Practitioner Regulation Agency.


Clare Thompson, Francis Burt Chambers; Elizabeth Heenan, Culshaw Miller; and Fiona McLeod SC, Law Council of Australia President.


The Hon Peter Foss QC, Former Attorney General of Western Australia; the Hon Wayne Martin AC, Chief Justice of Western Australia; the Hon John Quigley MLA, Attorney General of Western Australia; and the Hon Jim McGinty, Former Attorney General of Western Australia.

10. Magistrate Martin Flynn, Magistrates Court of Western Australia and Hannah Flynn. 11. Natasha Carlson; Mark Viskovich, Jardine Lloyd Thompson (JLT); David Price, Law Society Chief Executive Officer; and AndrĂŠ Louw, JLT. 12. Alain Musikanth, Law Society President. 13. Anne Payne, Paynes Lawyers and John Gladstone, John Gladstone Legal. 14. Rahana Bell, University of Western Australia; Mitch Blott, Lawfield Legal Practice; and Katie Cranfield, University of Notre Dame.


The Future of the Legal Profession Prepared by the Law Society's Advocacy Team

The legal profession will potentially change more drastically over the next two decades than it has over the last two centuries.1 This change will bring a complex set of challenges for legal professionals, as they endeavour to remain viable, competitive and relevant.2 But it is not all doom and gloom: ultimately all change brings with it new opportunities, and those opportunities will bring positive developments for both clients and lawyers. Clients will be provided with new avenues for access to justice and better value for money, and lawyers will compete for different and more interesting work, as computers increasingly process routine or document intensive tasks, freeing lawyers up to tackle the most difficult legal problems facing our society.3 It is more important than ever for legal practitioners, law schools and legal organisations to identify and adapt to the changing landscape in order to seize the various new opportunities that change brings. Happily there is also increasing evidence that legal practitioners around the world are rising to the task.

Why is the legal landscape changing? Maintaining a steady position in the market requires the legal profession to understand the underlying causes of change. The drivers of change most likely to have a bearing on the legal profession include:

an increasing demand from clients to reduce costs and provide value added services;

increased competition from non-lawyers, multidisciplinary practices and in-house counsel, whose skills increasingly include business and project management and a better understanding of complex risk;

the emergence of automated legal process and documentation;

artificial intelligence in place of human advisors for some tasks, such as first pass discovery;

increased off-shoring and unbundling;

low cost online dispute resolution services appearing; and

Government cuts to legal assistance funding.

The Answer – Innovation The Law Institute of Victoria recently consulted with a number of innovative practices in the profession here and abroad and reported on the consistent themes that emerged from the discussions.4 The report identifies the key techniques that innovators have employed to succeed in what appears to be a shrinking market for traditional law firms. They include: •

specialising in your legal services;

collaborating with other professionals;

starting and ending with the client by delivering the services that the client needs;

Technological and process innovation – including cloud computing; artificial intelligence; virtual law firms; online dispute resolution; electronic courts and electronic filing; new communications media and electronic markets.

providing access to justice;

moving away from time-based billing practices;

using technology to work virtually, remotely or in different environments;

Globalisation and liberalisation of markets – increased exports of legal services, assisted by technological changes.

looking for job opportunities that use legal and non-legal skills;

Wider political agendas – including funding, regulation and access to justice principles.

using failure as a mechanism to improve your practice; and

Demographics – an oversupply of law graduates, generational change and an ageing population.

embracing new technology. 5

How clients buy legal services – their needs and expectations, including in-house lawyer buyers as well as small and medium sized businesses and the public.

Considered against that backdrop, it is easy to understand the changes in the legal services market that we are already seeing today, including:

12 | BRIEF JULY 2017

The notion of ‘NewLaw’ includes the firms, legal practices and legal service providers that are breaking the mould, disrupting the marketplace, and generally changing the traditional way legal practice has been done.6 These include virtual firms, fixed fee practices, legal document creation services and integrated legal businesses.

The general consensus is that those who will thrive will be separated from those who will struggle based on their level of adaptation to change (in particular with respect to technological developments) and the extent to which change is seen as an opportunity, not a threat.

Ultimately, clients will in any event increasingly expect that lawyers will utilise available technology to provide them with better and more efficient services.


As a strategic priority for the coming years, the Law Society will be looking for ways to assist the profession to prepare for the future. These will include:

The legal profession is generally considered to be particularly risk averse, and this can mean it is slow to adopt new technology. The risks and challenges brought by new technologies include: •

data security in the face of viruses, hackers, data and identity theft, and electronic fraud;

intellectual property issues;

maintaining the confidentiality of client information, especially when using cloud computing;

whether persons providing outsourcing services are bound by the same professional standards as Australian legal practitioners;

providing an adequate level of supervision for automated or outsourced work; and

creating unintended clientpractitioner relationships through social media.7

It is of course important that lawyers maintain their fundamental duties to the court, the administration of justice and the client, and carefully consider any changes in the context of those duties. However, those duties also require lawyers to defend the principles of the rule of law and justice, and this can mean adapting and finding new ways to help clients access justice.8 Indeed, American lawyers in many states are under an express ethical duty of technological competence. The American Bar Association Model Rules of Professional Conduct provide that “to maintain the requisite knowledge and skill [for competent representation], a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all [CLE] requirements to which the lawyer is subject.”

What is the Law Society doing to help?

Working, under the guidance of the Society’s Futures Reference Group and with the Law Council of Australia to provide the profession with the tools required to navigate their way through predicted changes;

Horizon scanning, providing education on various issues and keeping members abreast of changes within the profession particularly through CPD events and articles in Brief;

Supporting the legal profession to manage ethical issues, particularly with respect to autonomous technologies and issues around confidentiality (including through discussion papers and guidelines);

Keeping lawyers connected with the legal profession; and

Advocating for regulatory reform.


Richard Susskind, Change now (24 June 2015) The Canadian Bar Association National Magazine <>.


The Future of Legal Services in Canada: Trends and Issues, the Canadian Bar Association, June 2013.


Katie Miller, The changing face of the legal profession, LIV President’s Blog, November 2015 < November-2015/The-changing-face-of-the-legalprofession>.


Katie Miller, Disruption, Innovation and Change: The Future of the Legal Profession (December 2015) Law Institute of Victoria.


Katie Miller, ‘Forecasting the Future: What will lawyers be doing in 5 years?’ (2016) 38(5) The Bulletin 28 at 28, 29.


Gordon, Paul. Keeping up with the latest trends [online]. Bulletin (Law Society of South Australia), Vol. 38, No. 5, Jun 2016: 11.


Joe Catanzariti, ‘The future of the national legal profession’ (Speech delivered at the Opening of the Law Summer School, University of Western Australia, 22 February 2013).


Katie Miller, Disruption, Innovation and Change: The Future of the Legal Profession (December 2015) Law Institute of Victoria.


Equally important is the consideration of training the computer – this must be undertaken by a lawyer.

Supervision is critical – a more complex training programme for junior lawyers will be required

Artificial Intelligence Forum Friday, 19 May 2017 Hosted by the Law Society As part of the 2017 Law Week activities, the Law Society of Western Australia convened an industry discussion focusing on the impact to the sector of Artificial Intelligence (AI). A large topic, the group was asked to focus on the following question: “As the traditional work of law graduates and early career lawyers is performed by technology, how will our young lawyers develop the essential skills of judgment to make them great legal practitioners?” The purpose of the forum was to share the collective experience and insight from the sector and, ideally, to develop a series of guidelines to help firms to address this challenge. Members of the forum included representatives from several large firms here in Perth, the Law Council of Australia (LCA), the Legal Practice Board of Western Australia, the Legal Profession Complaints Committee, the University of Western Australia and the Law Society. Hosted by the President of the Law Society, Alain Musikanth, the discussion was opened with a short presentation by Cian O'Sullivan, founder of Beagle (an automated contract analysis system), who spoke of the need for firms to implement a wide-ranging strategy that not only included introducing and using the technology, but that also addressed the wider implications for firms and staff and the impact the technology is likely to have. Morry Bailes, President Elect of the LCA, echoed this sentiment, reporting

14 | BRIEF JULY 2017

that the introduction of AI is likely to have wide-ranging impacts on firms and the sector generally, including raising many regulatory and ethical issues, and that acceleration of use can happen dramatically so the sector needs to act now in developing appropriate guidelines and sector responses. It is a topic which is receiving attention via the Future of the Law committee established by LCA, and this group will engage experts both within the sector and externally to help guide future strategy. Once opened to the floor, the discussions on this topic were wide ranging, and at times the views amongst the assembled cohort were divergent. A summary of the key issues discussed are presented below.

Both the tools AND the technology must be understood The Law Society of NSW commissioned an inquiry into the Future of Law and Innovation in the Profession – which culminated in the FLIP Report 2017. In this report, an ethics and competence issue was raised by posing the following question: Where a lawyer provides a legal service that has been supported by technology, whether outsourced or provided in-house, can this duty be discharged if the lawyer does not have, at the very least, a basic understanding of how that technology works? This is a relatively challenging point as in many cases a technical person is managing the programme. However, members of the forum believed it is critical that there are lawyers within the firm who understand the technology, and that an ‘institutional ability’ within the firm is established. Importantly this cannot be the responsibility of a select few, and it certainly does not preclude the senior lawyer from understanding the work that is being undertaken.

Leading on from the issue of who understands the technology, it was also acknowledged that it is imperative that partners understand what junior lawyers are doing, and the nature of the supervision must be sophisticated. There is no real certainty about the exact nature of the change to be brought about by AI as we are still only seeing the beginnings in the Perth sector, however we need to acknowledge that change is coming and firms need to adapt their training approach and strategy with that change. We do know that the availability of mentoring programmes and advice is critical, and the responsibility should fall within the remit of practice management.

A changing business model There were mixed views as to the extent of change on different segments of our market, but it is likely to change the way the work is done, change the type of work being done, change the affordability of the work and hence the type of clients we attract. It may also be the case that firms might be “funding” junior lawyers for three years. One of the questions that was debated was whether the introduction and use of AI would create an even larger divide between small and large firms. Some argued that the larger firms are more able to invest in, and take advantage of, the technology of AI, and as such are likely to take market share. Whereas others believe the use of AI will allow small firms to take on more and different types of work than they normally would. It could be argued that the availability of AI from technology providers is likely to influence the propensity for smaller firms to access the technology. Looking to another segment of the profession, the work typically briefed out by in-house counsel may also change with AI, shifting some of the work that has been traditionally outsourced back to the in-house team. The introduction of AI also has the potential to generate more legal work. We can look at this as an opportunity as the type of work demanded may start to change. We may see an increase in selfserve, and we may also see an increase in demand as services become more affordable due to AI.

Creating a new type of graduate While an uncomfortable claim, we cannot ignore that AI will likely impact the demand for law graduates negatively. However, when we discuss the impact of AI on young lawyers and their training, we cannot look at this in isolation. The reality is we need to think about all the changes that are happening to the sector and focus on the development needs of a new lawyer who can successfully operate in this changing environment. Specifically, one that: •

Has the skills to engage in a global environment

Can collate large amounts of data and information

Is flexible and can operate in a complex environment

Has the ability to interact with (all types of) clients

Has critical thinking skills

Can apply their own thinking to large amounts of information and potential answers.

The tertiary sector must keep up Tertiary education needs to keep abreast

of the changes and graduates must be comfortable with the tools. Graduates must be conversant with the e-tools that are available and being used in firms. Interestingly, among members of the forum, there was not a belief that graduates need to be technicians. Universities still need to be focused on developing scholars with sophisticated lawyer skills, but they also need to consider the prescribed areas of knowledge within the context of this new era.

A global perspective is required The sector cannot simply think the introduction of AI is a long way off in Perth. The reality is local firms are already in partnerships with technology providers in this space. We also understand our close neighbours in Singapore are enjoying significant investment by the Government for the benefits of those firms operating in Singapore who are potentially going to turn to our market to grow their business.

The Regulatory model will need to change The regulatory model will also need to change to cope with the impact on the

business model. The way the work is completed, and in a global environment, raises many jurisdictional as well as insurance issues. This is particularly true if we see small firms and sole practitioners utilising the technology. Interestingly it may be that the regulatory framework will hold back the introduction of AI. The Law Society has a role to play in the successful integration of AI into the sector via education, as well as providing guidelines around legal practice. The Law Society need to influence how this is shaped and implemented. According to the 2017 FLIP report, in Europe, several legal professional bodies have issued guidance for the profession on the importance of keeping up to date with changes in technology, particularly in data security and client confidentiality. Critically, AI doesn’t in any way change the professional obligations we have as lawyers – which means its introduction will influence the way we train our junior lawyers and the strategies employed by senior lawyers to ensure they are still able to sign off as they would normally do. A collective effort by the entire sector will allow people to take advantage of AI and compete on a global market.

Market Update – July 2017 As we move into a new financial year, activity in Commercial Litigation and back-end Construction remains strong, with demand increasing for Corporate M&A, energy & resources/projects specialists. We currently have many high quality legal candidates registered and exceptional job opportunities available. Contact us today for a confidential discussion about your strategic legal staffing requirements or career options. Please find below a selection of our latest job opportunities for July, or visit for a full list of available opportunities.

Construction Litigator

Banking & Finance Lawyer

5 years +

2-5 years PAE

This premier top-tier Dispute Resolution practice has a fabulous opportunity for a senior Litigator looking to specialise and manage all construction litigation matters for the team.

With a premium client list and focus on cross border project finance work in the Asia Pacific region, this leading Banking practice has an immediate requirement for a quality junior.

You will act for national and international mining, engineering, government and developer clients heavily involved in large scale projects in the region. You’ll directly advise these clients, will prepare for and provide representation on major engineering, construction and infrastructure disputes. Some related general commercial litigation work will also form part of your role.

Joining an established team of experienced partners and senior lawyers, this exciting role will see you engaged on major Australian and international project finance, corporate finance and general banking matters. Acting for banks, financiers and multinational corporations, you will support senior lawyers on all stages of transactions, preparing advices, lending and security documents.

Proven success in managing major construction litigation, quality training with a top tier firm & demonstrated advocacy experience is essential. Joining this prestigious firm, you will work on some of the most exciting litigation matters currently on offer in Australia. Add to that top mentoring, training and an investment in your career development - you now have the complete package.

At least 2 years PAE and a general banking background will be key to your success. Candidates with broader corporate commercial experience, a passion for finance work and genuine desire to specialise, will also be considered. Benefit from close mentoring, career progression, involvement in high quality, international work and a superb working environment.

Stacey Back Director p






Legal traditions in an age of disruption: How do lawyers decide what to keep and what to relinquish? Keynote Address to Law Week Breakfast Speech delivered on Monday, 15 May 2017 at the Parmelia Hilton Hotel, Perth

By Katie Miller Executive Director Legal Practice, Victoria Legal Aid

There can be great strength in the traditions and norms that are passed from generation to generation and through ceremonies and ritual, of which Law Week is a modern example. Community members know what is expected of them and what they can expect from their peers. These expectations can take many years to learn; yet once learnt, they provide efficiency in relations between community members. What happens when those communities and organisations together with their traditions, norms and ways of doing things are disrupted? The legal profession, which is currently facing disruption, is grappling with that question. Leaving aside the Global Financial Crisis, the legal profession in Australia has not yet experienced a significant, external disruption that has forced immediate and large scale change. In the absence of such a visible change, it can be easy to question whether the changes now occurring are really that radical after all. Although the legal profession is built on traditions dating back centuries, arguably created through Magna Carta which is now over 800 years old1, we are not the same as we were in the days of medieval English kings. The profession and law change every year, gradually, incrementally - much like the common law itself. So when we talk about ‘innovation’ and ‘disruption’, are we really talking about something new or are we just applying a new buzzword to an existing process?

16 | BRIEF JULY 2017

There are lots of definitions of ‘innovation’ and ‘disruption’. I consider innovation and disruption to be different sides of the same coin. •

I use ‘innovation’ to describe changes a person makes to improve their own service or product; in other words, the changes that come from within an organisation or community.

If my husband and I were to ever separate (which of course I hope never happens), we would have the option of ‘divorcing in a day’ at a ‘divorce hotel’.6 Or, given that we are Gen Y, perhaps we will choose a divorce that is completely online and focused on mediation and collaborative practice, knowing that we will have access to lawyers, financial counsellors and psychologists if and when we need them.7

If one of us is ever charged with speeding, drink driving, theft or a minor drug charge and we intend to plead guilty, we can use a robot lawyer to prepare a submission on sentencing that tells our story in a way the magistrate will understand.8

I use ‘disruption’ to describe changes that are external and force a person, organisation or community to change.

A change can be innovative or disruptive, depending on your perspective. Allens Accelerate is a service where start ups can download, free of charge, the suite of documents every new company needs, such as a constitution, shareholders’ agreement, privacy policy, non-disclosure agreement and employee contract.2 •

From Allens’ perspective, this is an innovation, a new and improved way of building relationships with the clients who will need top tier services in five years’ time.3

From the perspective of law firms that rely on income generated from drafting constitutions, shareholders’ agreements, privacy policies and employment contracts for small businesses, this is disruption, because their clients now have the option of obtaining documents drafted by a large law firm for a price that no other law firm can beat - free.

The options for consumer clients is also changing. •

lawyer by Skype after dinner.4 When the time comes to refresh our wills, we will have the option of completing another online form and having a will automatically produced for us by one of the many websites that offer standard wills for flat fees under $100.5

I can make a will without physically meeting a lawyer. When my husband and I recently did our wills, we filled in an online form during a long country drive and then met our

All of this is happening now. It is just the beginning. A lot of what we see now is the legal equivalent of Betamax video cassettes - innovations that are likely to be disrupted and replaced by newer innovations. But they are the first step in fundamentally changing the way we deliver and receive legal services, just as Betamax video cassettes changed the way we watched TV and movies. Since 2015, I have been talking to lawyers about the changes that are happening in the legal profession and what we can do about them. Today I will talk briefly about why the changes are happening and what lawyers should be doing about them.

I also want to grapple with a question that any community as steeped in tradition as we are must confront - how do we decide which of our traditions, norms and rules are worth holding onto, or even fighting for, and which should we let go of in the search for something better?

Why are the changes happening? At its most basic, the changes in the legal sector are happening because clients are demanding them. For decades, clients have been giving us feedback that they are confused about our services and dislike the uncertainty of how long a matter is going to take and how much it is going to cost. We have responded to some of that feedback with incremental change - we have become more commercial and practical in our advices, we use more plain language and we provide estimates of our fees. However, by and large, our services remained the same - until we were forced to change.

In-house counsel would use that advice to develop a legal strategy and then use a range of service providers to implement that strategy - such as: •

in-house lawyers for the witness statements;

legal process outsourcing companies for the document review and discovery; and

an accredited mediator for the mediation.

In-house counsel may have reserved the use of ‘full services’ law firms for the rare situation where litigation was unavoidable.

Similarly, consumer clients were finding other options. The Legal Australia-Wide Survey: Legal Need in Australia9 found that only 16% of people with a legal problem sought advice from a lawyer. The rest sought assistance from trade unions, professional associations, dispute and complainthandling advisers, government, financial advisers, health and welfare advisers, relatives, friends, acquaintances, the internet - or did nothing about their legal problem whatsoever.

Start small and start today. Innovation is addictive and contagious.

We were first forced to change by the Global Financial Crisis. Clients no longer paid bills that were larger than they had budgeted for because they just didn’t have the money. Faced between the option of no client or a client that wanted a fixed fee, law firms offered the fixed fee. Both clients and law firms experienced a new way of doing legal services - and when the Crisis subsided, clients didn’t want to go back to the bad old days of uncertainty of costs. And they didn’t have to. Unlike the recession of the 1990s, after the Global Financial Crisis, clients had more choices about how they used legal services. In-house Counsel particularly had learnt how to effectively unbundle a legal service and use different providers for different parts of the service. •

Initial advice about a legal issue might be provided by a trusted advisor experienced in the client’s industry and issues.

At the same time, technology was changing the way we did everything else in our life. Using our mobile phones, we can apply for loans, book a taxi, buy products from around the world, design our dream holiday and find our next job. Yet when my sister wanted to buy a house, she was faced with the prospect of having to take time off from work to meet with the lawyer who would do her conveyancing because, unlike all of the other service providers involved in buying a house, such as her mortgage broker and real estate agent, lawyers still largely require clients to meet where and when it is convenient to the lawyer, rather than when it suits the client. When I gave my sister a list of three lawyers, she didn’t look at experience or size of firm. Instead, she chose the lawyer who conducts her practice exclusively online and would meet with my sister via Skype after work hours. 17

To be clear - these changes are not happening because of technology. They are happening because clients do not like the way we have traditionally provided legal services. The technology has just made it possible for clients to choose to go somewhere else.

Predictive coding or e-discovery makes it cheaper and quicker to complete the task of discovery over a greater volume of documents; but it doesn’t otherwise change the way in which a civil dispute is resolved by our courts.

There are lots of different changes occurring in the legal profession, some small and some big. Justice Gordon of the High Court recently presented to the Victorian and South Australian Bars about disruption10 and adopted Richard Susskind’s distinction between:

Governments and legal practices are starting to explore innovations that will allow people to resolve their legal issues in ways that were not previously possible. In particular, these innovations give people the opportunity to choose to resolve their legal issues with little or no involvement from a lawyer without sacrificing access to legal information and rights.

Changes that streamline or improve existing ways of working; and

Changes that fundamentally changes past practices or allows us to work in ways that simply were not previously possible.

What do the changes look like?

A lot of the changes we are currently seeing are about making our processes more efficient. •

Meeting with Skype and developing online portals to provide your clients with access to documents about their matter makes it more convenient for your clients to access and understand their legal service; but it doesn’t dramatically change the fundamental way you provide that legal service. Divorce workshops enable community legal centres to provide the same information about applying for a divorce to a larger number of people in the same amount of time; but it doesn’t fundamentally change the way a couple resolve the issues involved in ending a relationship.

18 | BRIEF JULY 2017

The Victorian Access to Justice Review recommended that the Victorian Government explore online dispute resolution,11 which has been used to great effect in Canada for small scale disputes that will never efficiently fit within the traditional adversarial court model of dispute resolution.12 Rather than needing a lawyer to navigate the legal issues, the legal questions and consequences are embedded into the online dispute resolution process. Similarly, online document assembly services, such as online will services embed the questions that a lawyer would ask within the online form, giving the client the benefit of legal knowledge without having to meet with a human lawyer. Unbundling of legal services allows clients to purchase discrete legal tasks from a lawyer, if and when they choose to, but otherwise conduct the matter themselves.

What should lawyers do? In my report, Disruption, Innovation and Change: The Future of the Legal Profession,13 I made ten findings. For each finding, I made two or three recommendations for what lawyers could do about innovation. I have come to consider the first three findings as the foundation for all of the others. Those findings are: •

Know what you do, for whom you do it and why you do it. Until you know exactly how, why and for whom you provide legal services, you won’t know where the opportunities for innovation are. Start simple by mapping each of your legal services and being clear about your target client market and law firm purpose and vision.

Collaborate with others. People who are not lawyers can and will change the legal profession, through alternative services, technology and good ideas. Rather than competing with these people, bring them into the tent and learn how ideas that work in other industries and sectors can be used to improve and enhance your legal services.

Start and end with the client. Don’t make changes because they will make your life easier or more profitable. Get to know your clients deeply, monitor which of your services they use and learn where their pain points are. Develop solutions and services to make their lives easier.

Start small and start today. Innovation is addictive and contagious. Once you find one way of improving your service, you will find many more. Others will be

inspired by your example and will want to do the same. This is how we change the legal profession - as we always have, one piece at a time. It’s like the common law, turbo-charged by technology. Of course, once you get going, you will run into the next problem - of all of the things I could possibly do, which ones are worth pursuing and which ones threaten to destroy something that is actually worth preserving? I think the answer lies in our ethical duties to the court and the client. If you feel that a change could be destructive, ask yourself whether it affects your duty to the court. If it does not adversely affect your duty to the court, consider whether it enhances your client’s experience of the legal service. If it does, then go for it! In using this criteria, I think we need to be honest about the extent of our ethical duties to courts and clients. We need to revisit and re-engage with the purposes and principles of those duties. When I speak to law students, I exhort them to study jurisprudence, because legal philosophy will be a much surer guide to navigating innovation in the legal profession than the technical rules. Practising lawyers need to take a similar approach to legal ethics. Don’t waste your ethics CPD on the same session about conflict of interest you’ve been hearing for years. Engage more deeply with your ethical obligations by attending lectures, such as those hosted by the Australian Academy of Law and the Rule of Law Institute of Australia. I say we need to be ‘honest’, because I think our ethical duties can sometimes be used as shields to oppose changes that are uncomfortable to lawyers. I have heard lawyers express doubt about whether unbundling of services undermines our duty to the court. When that doubt is itself unbundled, it usually turns out to be more a concern about unbundling not meeting the expectations or preferences of individual judicial officers, rather than any point of principle that offends our ethical duty to the court. Similarly, I have heard lawyers oppose changes to legal practice as ‘not being in the best interests of the client’. Again, when we dive a little deeper, it is usually a departure from a service that the lawyer would prefer the client to use because it is more exhaustive or accurate and the client does not want to invest the time, money and emotional investment required.

Innovation requires lawyers to understand that, ultimately, a client is in the best position to decide what is in their best interests - and we can’t blame them if they choose a quick, but less than perfect, option to resolve their legal issues. As we progress down this path, I think we will reach points where innovation clashes with the rules regulating lawyers. I draw a distinction between our ethical duties and the Australian Solicitor Conduct Rules. I think we should exercise extreme caution in changing the former, whereas the latter may be more open to debate and change. We must remember that, in large part, the Rules merely codify years of case law, in which courts have applied the principles of our ethical duties to particular factual scenarios. As the world changes, some of those scenarios may become redundant - and, if so, it follows that the rules should at least be revisited to see if they still have relevance. For example, regulators used to interpret the rules as requiring the publication of a physical address for a legal practice. This rule clearly doesn’t work with virtual practices, especially those run from home. By revisiting the purpose of the rule and how it related to our ethical duties, it was possible to reshape the rule so that it focused on ensuring clients could contact lawyers and serve documents and less about finding a lawyer in a physical location. Consideration will also need to be given as to what constitutes ‘legal work’ or ‘legal practice’. Old definitions which rely on legal work being ‘what lawyers traditionally do’ are inherently inimical to innovation. Furthermore, it may expose consumers to risk by excluding from regulations some online services that deliver legal outcomes. For example, it may be time to revisit whether online websites that produce legal documents constitute ‘legal work’. The disclaimers that the website ‘does not constitute legal advice’ should be questioned when the websites do more than fill in gaps on a form letter by guiding users with targeted questions and information which changes depending on the answers provided by the user. Such websites are increasingly incorporating legal knowledge that extends beyond the text of a statute and are providing documents tailored to the individual user’s circumstances. Can it still be said that the websites are providing legal information, not legal advice?

We will need to keep debating these issues, on which reasonable minds will differ. We need to test what we are doing and be open to challenge and criticism, from our clients, our peers and our elders. On that front, I would like to congratulate legal elders such as the Chief Justice Martin and Justice Gordon of the High Court in the leadership they are showing in challenging the profession and government to think about these issues. If we really believe that there is something special about legal issues being resolved with the assistance of an independent legal profession (and I think that there is), then it is incumbent upon us to innovate and change in a way that is culturally legal and preserves the things that only lawyers can provide. Because if we don’t, who will? NOTES: 1.

Amelia Devlyn, ‘The Magna Carta and its Relevance to Contemporary Australia’ (2016) 7 The West Australian Jurist 389, 395-6 < WAJurist/2016/11.pdf>.



Nicola Berkovic, ‘Allens law firm embraces start-ups’, The Australian (online), 18 August 2015 <http://www. 62984cd51787709>.


See e.g. Nest Legal <>.


See e.g. Law Central <>; Online Will Kit <>; Slater and Gordon Online <>.


See e.g. Family Mediation Station <http://>.


See e.g. Divorce Right <>.


See e.g. Robot Lawyers Australia <>.


Christine Coumarelos et al, ‘Legal Australia-Wide Survey: Legal Need in Australia’ (Law and Justice Foundation of New South Wales, August 2012) <http:// AUS/$file/LAW_Survey_Australia.pdf>.


See e.g. Justice Michelle Gordon, ‘South Australia’s Uniqueness: Challenges and Opportunities for the South Australian Bar’ (Speech delivered at the 2017 Annual Conference, South Australian Bar Association, 25 February 2017) < publications/speeches/current-justices/gordonj/ GordonJ25Feb2017.pdf>.


Department of Justice and Regulation, Access to Justice Review, Report and Recommendations (2016), Chapter 4 < files/3314/8601/7221/Access_to_Justice_Review_-_ Report_and_recommendations_Volume_1.PDF>.


See e.g. Canada’s Civil Resolution Tribunal <https://>.


Katie Miller, Law Institute of Victoria, Disruption, Innovation and Change: The Future of the Legal Profession (2015) < disruption--innovation-and-change--the-future-of-t. aspx>.

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Special Sitting for the Honourable Chief Justice Bryant AO Transcript of proceedings at Perth on Wednesday, 5 April 2017

BRYANT CJ: Mr Berry. BERRY, MR: May it please the court. On behalf of the Family Law Practitioners Association of Western Australia, may I thank the court for this opportunity to mark the final sitting of your Honour Chief Justice Bryant on the appeal division of the Family Court of Australia sitting in Perth, and to acknowledge your Honour’s retirement later this year. Your Honour is the only Chief Justice of the Family Court of Australia to be a member of our association. Given there have only been three Chief Justices in over 40 years, we are very proud of that fact. Your Honour is a life member of our association and served as President in the mid-1980s, and of course your Honour practised in Western Australia as a solicitor advocate from 1977 until 1990. I mention these facts, your Honour, at the beginning not as highlights of your Honour’s career, but simply to signify the connection which our association feels it has with your Honour. Your Honour commenced as Chief Justice on 5 July 2004 and, upon your retirement later this year, will have served in that office for over 13 years. In 2011, your Honour was awarded the Order of Australia. The citation reads: Distinguished service to the judiciary and to the law, particularly to family law policy reform and practice, through the establishment of the Federal Magistrates Court of Australia and the advancement of women in the legal profession. Your Honour was appointed to the Family Court of Australia having served for four years as the inaugural Chief Federal Magistrate of the Federal Magistrates Court of Australia, as it then was. Your Honour was appointed as Chief Federal Magistrate on 5 May 2000. In 2001, your Honour was awarded the Centenary Medal for your Honour’s role in establishing the Federal Magistrates Court of Australia and for service as Chief Federal Magistrate. In summary, later this year your Honour will have served over 17 years as the head of two federal courts, a tribute to your Honour’s capacity for sustained hard work and determination both as an administrator 20 | BRIEF JULY 2017

and as a judge, including as a judge of the appeal division of the Family Court of Australia. Your Honour’s career before your appointment to the Court naturally falls to be considered in three parts, and I propose to briefly mention some aspects of each of those three parts, although a lot more could be said. Firstly, the beginnings in Victoria at the University of Melbourne. Early years of practice there with some travel to England and elsewhere overseas before returning to Victoria. Secondly, the period in Western Australia from 1977 until 1990, and, thirdly, from 1990 until 2000 when your Honour was appointed Queen’s Counsel in 1997 and practised at the Victorian Bar. Your Honour is a third-generation lawyer following your grandfather and your mother. With this family background in the law, your Honour has felt that your life has been a bridge between the old and the new, connections between the legal culture from the 1950s up to the present time, and that’s a matter your Honour has mentioned previously. At the University of Melbourne when you commenced your studies in 1965, your Honour attended tutorials by Gavan Griffith, later a Solicitor-General of the Commonwealth, and your Honour has recalled that Gavan Griffith served his tutorial students cask sherry, which felt very sophisticated at the time and made discussions more lively. We can only assume that your tutorials were in the evening, your Honour, rather than early in the day. After graduation, your Honour obtained articles in Melbourne and also worked for 18 months in London. While in London, your Honour learned about reforms in English matrimonial law and became familiar with those reforms. You then returned to Victoria to continue as a junior solicitor practising in a variety of areas. At the end of 1976, your Honour moved to Western Australia where the Family Court of Western Australia had been operating for around six months. You felt that senior practitioners here enjoyed no advantage about the law, because the Family Law Act was new

to everyone, and you made a decision to specialise in the area of family law at that time. Perth in 1977 had a small private Bar and no family law Bar. There was no advocacy training. Your Honour recalls your first trial as confronting. Your Honour practised as a solicitor advocate and described your work environment as both nurturing and competitive. You became a partner at Lavan & Walsh within 18 months and established the family law division of the firm. The family law practice grew and developed. In the 1980s, the firm expanded nationally and became known as Phillips Fox. Your family law partners included John Barkus in Sydney and Peter Szabo in Melbourne. Your Honour became heavily engaged in the WA legal profession. You served on the Barristers Board of Western Australia, WA Women’s Lawyers, and the Legal Aid Commission Board. Also, your Honour served on the board of the Royal Perth Hospital and the board of a public company, Australia National Airlines, and, in addition, your Honour contributed significantly to child support policy in the mid-1980s by serving on a committee chaired by Justice Fogarty. This committee generated the initial shape and structure which was later enacted as the National Child Support Scheme. I understand your Honour takes no responsibility for subsequent amendments and iterations of that scheme. In unguarded moments, your Honour has admitted to enjoying child support to the extent that you volunteered as chief federal magistrate to have your court deal with child support matters and relieve the Family Court of Australia of that work. Your Honour returned to Victoria in 1990. Despite your financial experience as an advocate and a practitioner, you were required to complete the Bar Readers Course. You read with Michael Watt, as he then was, and recall returning to Perth from time to time to conduct trials in which you were briefed. Your Honour has identified three principles which guided your practice: not to argue silly points, to seek to keep legal costs down so far as practicable for the client, and to give frank advice to

clients and solicitors. Respectfully, your Honour, those three principles should be engraved on all family law practitioner’s minds. In 1997, your Honour was appointed Queen’s Counsel in Victoria. Also appointed in Victoria in that year were Anna Katzmann, Virginia Bell, and Marilyn Warren, later to become Judges and the Chief Justice respectively of the Federal Court, the High Court, and the Supreme Court of Victoria. Your Honour enjoyed thoroughly your work at the bar in Victoria. Shortly before your appointment to the Federal Magistrates Court, your Honour was briefed for the appellant in AMS v AIF, the relocation case heard over two days by the Full Bench of the High Court in November 1998. Your Honour recalls that everyone got knocked around in that case, and, as the appellant, your spirits rose as you observed the respondent’s case being presented. The special leave point was granted on section 92 of the Constitution. Your Honour has indicated that you relied in your written submissions in that appeal substantially on that point and focused your oral submissions on the family law content with which your Honour felt more comfortable. It was perhaps fitting that, having completed that case, your Honour was shortly to commence your career as a judge in 2000. At this point, your Honour, my remarks close a circle from where I started, and it remains for me on behalf of the association to thank your Honour for your unstinting service to the family law profession and to the community in Australia, both inside and outside the courtroom, for so many years. We acknowledge that today is your Honour’s last sitting day in Perth. All of our members wish you a long, happy, and fulfilling retirement. May it please the Court.

BRYANT CJ: Thank you, Mr Berry, for that I think entirely accurate chronology. Thank you to all of those who have come this morning. I am very appreciative of the large number of people who have come to my last sitting in Perth as a member of the appeal division of the Family Court. I just want to mention some people, if I may, to thank them particularly. The state Solicitor-General, Mr Quinlan, the Honourable David Anderson, the Honourable Stephen Crooks, and Debbie Ferrier. I thank them for their attendance today, and I want to thank my colleagues, the judges and magistrates of this Court, for their attendance, and for the profession’s attendance. What has struck me in contemplating this occasion, and particularly Mr Berry’s chronology, is that my career seems to have taken place in the blink of an eye. One day I was appearing before David Anderson and Serge Ferrier, and the next day I’m here leaving. As I said last night at the FLPA function, everything that occurred in my career in Perth, or everything that occurred in my later career was due to the start I had in Perth. When I left Perth I was fortunate to be briefed by colleagues so that I conducted a number of cases here in the decade before 2000 when I was appointed Chief Federal Magistrate. I thought that that appointment would bring my opportunity to visit Perth to an end, but not long after the Court was established we got the migration jurisdiction and there was no Federal Magistrate then appointed to Perth, so circuits to Perth were required. I artfully managed to get myself the circuit immediately before Christmas, and even after my appointment to the Family Court I’ve continued the practice of spending the last week before Christmas working from what I regard as my chambers, and I unashamedly and

in a naked exercise of power hogged the Perth sittings for years so that in that way I have managed to continue my association with the profession in Western Australia, which formally, at least, comes to an end today. Some judges then on the Bench have gone from judges to friends, and others, friends to judges. Some of whom I had so much to do with in the earliest days are sadly no longer here: Serge Ferrier, Alan Barblett, Dan Connor, and Carolyn Martin. But this is an occasion to thank the profession for their courtesy and generosity to me and the Bench. The cases we get here have usually been interesting and challenging. Stanford and Bevan come to mind as two examples. There are many more. Counsel have been well prepared and competent – not always what we find in other jurisdictions – and I thank them all. I want particularly to thank the staff of the Court, the Chief Judge’s staff in particular, Kathryn Mayze and LexCarlson Clark, who looked after me and have made my chambers a home away from home, the Chief Judge’s legal associates, who I have prevailed upon for assistance from time to time, and to all the other staff of the Court, some of whom have known me since I was a practitioner. I thank you for your kindness in inviting me to your functions, usually at Christmas, and making the time spent here always enjoyable. And finally to the Chief Judge, who has been respectively a colleague, an opponent, a judicial colleague, and head of jurisdiction colleague, and is now the administrative head of the appeal division. He has been a great friend and a source of support. I wish him and the Court well in the future, as I do the profession. Thank you. The Court will now adjourn.

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The Building and Construction Industry Code of Conduct (WA) By Phil Evans Professor, School of Law, University of Notre Dame (Australia)

Abstract In June 2014 the Minister for Commerce commissioned an independent statutory review of the operation and effectiveness of the Construction Contracts Act 2004 (WA). The final report following the Review was submitted to the Minister on 2 October 2015. The report contained 28 recommendations relating to amendments to the Act and to the introduction of policies and procedures that would assist in the more efficient and equitable conduct of construction contracting in Western Australia. A number of these recommendations affected a range of ministerial portfolios and government departments and consequently the report was subject to extensive review by the state government over the next 10 months. The majority of the recommendations were accepted by the state government, and the Construction Contracts Amendment Act 2016 (WA) was assented to on 29 November 2016, with the majority of the amendments taking effect from 15 December 2016. Since that time the amendments to the Act have been widely reported and it is not proposed to elaborate on these in this article. A significant finding of the Review was the widespread lack of awareness of the Act, its specific provisions and the protections it affords to many smaller contractors. There was a misconception that the Act was there to provide some overall commercial protection to smaller parties in the contracting chain. At the lower level of the contracting chain it was evident that there was a basic lack of understanding of contractual principles and rights and obligations under the contract. A number of submissions included examples relating to economic duress and unconscionable conduct in the local construction industry. This article provides the background to the Review and discusses the initiatives

22 | BRIEF JULY 2017

that have been introduced in response to the findings of the Review and as a consequence of what might be generally deemed as unacceptable practices occurring in the Western Australian building and construction industry.1

Introduction Since its commencement in 2005, the Construction Contracts Act 2004 (WA) (CCA) has provided greater security of payment for both contractors and principals in an industry that historically functioned under a hierarchical chain of contracts entered into by parties often where there were significant inequalities in bargaining power and inequitable allocation of risk. The objectives of the CCA are described in its long title as: •

to prohibit or modify certain provisions in construction contracts

to imply provisions in construction contracts about certain matters if there are no written provisions about the matters in the contracts

to provide a means for adjudicating payment disputes arising under construction contracts, and for related purposes.

It has generally been agreed that the CCA has been an extremely important piece of legislation that has radically altered the traditional risk allocation between parties contracting in the construction industries, providing principals, contractors, suppliers and consultants with rights and protections not previously available under the common law. Prior to the introduction of the CCA, where there was a dispute relating to payment for work done or materials supplied, the beneficiary of that work had a significant advantage in that they were able to retain any monies owing until a determination by either court or arbitrator. The difficulties, expense,

time and delays inherent in receiving a judgment clearly deterred many from pursuing this course of action, and those who did may have had to wait months if not years for payment. Often by the time the payment issue was resolved, many bona fide claimants had become insolvent. Additionally the common law did not provide a party with a right to suspend work when a payment due under the contract was not paid. The CCA has greatly redressed these imbalances through the establishment of a rapid and relatively inexpensive adjudication process, the prohibition of lengthy terms relating to payment and the implication of payment terms in the absence of express provisions. The relatively short time limits prescribed for each step of the adjudication process is an extremely important feature that has significantly contributed to the success of the legislation and is one of the key objectives of the ‘keeping the money flowing’ and ‘pay now argue later’ principle. Another unique feature of the legislation is that adjudication can be commenced before litigation or arbitration and it does not prevent the payment issues being revisited in a judicial or arbitral forum. An important provision of the CCA is the rapid resolution of payment disputes. However, it was never the intention of the legislation to provide comprehensive protection to parties unable to look after their own commercial interests. As noted, in part, by the Hon Alannah MacTiernan, the then Minister for Planning and Infrastructure, in the Second Reading Speech2 of the Construction Contracts Bill 2004 (WA): Apart from these specific unfair practices, the Bill does not unduly restrict the normal commercial operation of the industry. Parties to a construction contract remain free to strike whatever bargains they wish between themselves, as long as they put the payment provisions in writing and do not include the

prohibited terms. and later: This Bill cannot remedy every security of payment issue. Insolvency can be addressed only by commonwealth legislation. Participants in the industry still have to look after their own commercial interests. This Bill will provide the industry with simple and effective tools to clarify rights to be paid and to enforce those rights. The issues of insolvency and security of payment are directly related. The federal government has expressed concern at the issue of building and construction insolvency and on 4 December 2014 the Senate referred an inquiry into insolvency in the Australian construction industry to the Senate Economics References Committee. The Committee report of 3 December 2015 made a number of recommendations regarding the relationship between security of payment legislation and insolvency.3 One of the recommendations was that uniform security of payment legislation (or â&#x20AC;&#x2DC;harmonisationâ&#x20AC;&#x2122;) be introduced to replace the current non-uniform state legislation.4 Subsequently on 21 December 2016, the federal Minister for Employment, the Hon Michaelia Cash, announced a review into

security of payment legislation in the building and construction industry, to examine in particular the security of payment legislation in all jurisdictions to identify areas of best practice for the construction industry.5

The Statutory Review of the Act Section 56(1) of the CCA requires the Minister for Commerce to review the operation and effectiveness of the Act as soon as practicable after the fifth anniversary of its commencement and prepare a report about the Review. The Review became due on 1 January 2010 but was held over until the passage and implementation of a suite of new building legislation, including the Building Services (Complaint Resolution and Administration) Act 2011 (WA). On 10 June 2014 the Building Commissioner, Mr Peter Gow, announced the appointment of the author to review the operation and effectiveness of the Act and report to the Minister. The commissioning of the Review was in response to the periodic statutory requirement to examine the operation and effectiveness of the Act and for the Minister for Commerce to present the report findings to Parliament. The intention was that the state government would then

consider the findings of the Review and any recommendations for legislative amendment or other action. The Review was designed to provide a timely opportunity for key stakeholders to provide written and verbal submissions as to their concerns regarding the Act for the attention and deliberation of the Reviewer.

Conduct of the Review The method adopted for this Review was based on the Public Sector Commission Guidelines for the Review of Legislation (2003). Initially, a detailed Discussion Paper (47 pages) was prepared for circulation to all relevant stakeholders. It provided background information regarding the purpose of the Review and the provisions and application of the CCA, and it was written in such a form as to assist in the understanding of the operation of the Act for those familiar and unfamiliar with the provisions and operation of the CCA.6 The Discussion Paper identified a range of relevant issues arising from the operation of the Act over the period 2005 to 2013. These issues were identified from the annual reports of the Construction Contracts Act Registrar (now the Building Commissioner), a review of the academic literature 23

and the experience of the Reviewer as a construction lawyer, registered adjudicator and graded arbitrator. It was noted however that these issues were not exclusive and stakeholders were invited to comment on all issues experienced by parties who have utilised the provisions of the Act or who wished to comment generally. Consequently, the terms of reference identified in the Discussion Paper were expressed broadly. The preparation of the Discussion Paper was an important aspect of the Review. The Discussion Paper was widely acknowledged as assisting in the preparation of submissions. Additionally there was anecdotal evidence to suggest that the circulation of the Discussion Paper had greatly increased the industry’s awareness of the CCA with a consequent increase in the number of applications for adjudications to resolve payment disputes. All stakeholders and interested parties were identified from Building Commission records. The Discussion Paper was circulated to over 10,300 business entities listed in the Building Commission’s main email database and included all of the state’s building surveyors, painters, plumbers and builders, the relevant industry and professional associations, local government authorities, statutory bodies and registered adjudicators, together with the Law Society of Western Australia, the President of the State Administrative Tribunal, the Chief Judge of the Western Australian District Court and the Chief Justice of the Supreme Court. 24 | BRIEF JULY 2017

The Discussion Paper also indicated that the Reviewer would be willing to meet with both individuals and representatives from interested organisations. Subsequently a number of meetings were held in addition to a major public forum held at the Building Commission Offices on 14 November 2014. In addition, presentations were made regarding the Review to a number of law firms and their major clients as well as to the Society of Construction Law Australia (SOCLA), professional associations and the Construction Law Group of the Law Council of Australia during the conduct of the Review. The closing date for the receipt of written submissions was extended until early 2015 due to a number of late requests from parties wishing to submit responses. Subsequently fifty-one (51) written submissions were received. Submissions were received from members of parliament, consumers, legal practitioners, contracting groups and associations including the Law Society of Western Australia, SOCLA, the Institute of Arbitrators and Mediators Australia (now the Resolution Institute), the Australian Institute of Building, the Small Business Commission, the Property Council of Australia and the Housing Industry Association. As expected, not all submissions addressed the issues identified in the Discussion Paper and a number were related to issues more connected with commercial contract practices and contract administration. A number of submissions were expressly marked confidential. An extensive study of the Australian security

of payment literature and legislation was also conducted as part of the Review. Arising out of the submissions and stakeholder meetings, a number of additional issues were identified that expanded the scope of the Review and again delayed its completion. These included allegations of economic duress, intimidation, unfair contract terms and unconscionable conduct. Whilst a number of these issues at first sight might appear to be outside the specific terms of reference of the Review and were not directly related to the issue of the application of the Act, they were clearly collateral to the Act and there was significant reference to these issues in the final report, in some cases with specific recommendations and in others the need for further investigation or action by the government. These issues are the focus of this paper as discussed below.

Tabling of the Report The final report was submitted to the Minister for Commerce by the Reviewer on 2 October 2015.7 The report contained 28 recommendations relating to amendments to the CCA and to the introduction of policies and procedures that would assist in the more efficient and equitable conduct of construction contracting in Western Australia. Some of these recommendations affected a number of ministerial portfolios and government departments and consequently the report was subject to extensive review by the state government over the next 10 months.

The report and the government’s response were tabled in parliament on 16 August 2016 by the then Minister for Commerce.8 The Minister commented in part that the Review concluded that in its 10 years of operation the CCA has provided a very useful scheme for resolving payment disputes and continues to provide contractors, subcontractors and suppliers with a rapid low-cost method of resolving payment disputes. Whilst the Review did not identify a need for significant structural reform, the report contained a large number of recommendations in order to improve the operation and effectiveness of the CCA.

Industry Awareness The government accepted the majority of the recommendations and the Construction Contracts Amendment Act 2016 (WA) was assented to on 29 November 2016 with the majority of the amendments taking effect from 15 December 2016.9 Since that time the amendments have been widely reported10 and as noted above it is not proposed to elaborate on the amendments in this article. Also as mentioned above a significant finding of

the Review was the lack of awareness of the CCA, its specific provisions and the protections it affords many smaller contractors, particularly at the lower end of the contracting chain. At the time of tabling the report, the Minister noted that the Building Commission had commenced a number of initiatives to improve industry awareness of the CCA to assist in the rapid resolution of payment disputes in the construction industry. These included the introduction of dedicated phone services for subcontractors to provide assistance with resolving payment disputes, advise on how to access solvency information to make it easier for businesses to assess trader financial risk and carry out their due diligence, and information on rapid adjudication. Additionally the Building Commission has introduced public information and awareness sessions on the CCA and how to properly use its processes to resolve payment disputes; enhanced online resources to provide information on rapid adjudication, good contract management practices; facilitated access to useful financial and risk assessment information; and developed better processes and procedures for lodging applications for adjudication,

including an online lodgement facility and a fixed fee service for adjudicating low-value payment disputes.

Inequality of Bargaining Power/ Economic Duress/Unconscionable Conduct In a number of meetings and submissions, issues were raised relating to contract administration or practices in the local industry and it was considered by the Reviewer that these should be brought to the attention of the minister in the final report. As to what might be described as ‘unfair’ practices in the construction industry, there were both written and oral submissions that provided details of practices which in general terms would be described as unethical and unfair. In a number of examples the practices were unlawful with respect to the common law and the Australian Consumer Law, not to mention any implied common law requirement of good faith in contractual dealing.11 The report noted that Western Australia does not have the equivalent of the Contracts Review Act 1980 (NSW), which confers upon the Supreme, District and Local

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Courts powers to review contracts that are ‘unjust’ (defined in s4 to include harsh, oppressive or unconscionable conduct).12 However, many of the examples given in the Review submissions clearly fell within the jurisdiction or provisions of the Australian Consumer Law (ACL). The ACL (which forms part of the Competition and Consumer Act 2010 (Cth)) sets out a number of rights and responsibilities that serve to guide businesses in their day-to-day dealings with consumers and in particular with other businesses. Among other things, the ACL prohibits unconscionable conduct in defined relationships. At the time of the Review a number of reforms were proposed to the ACL13 following the Harper Review, which suggested reforms that would assist small businesses in particular by extending the unfair contract term provision in the current ACL to apply to contracts involving small businesses. This was also the subject of separate review by the federal government.14 Subsequently in August 2015 the Competition and Consumer Act 2010 (Cth) was amended to extend the unfair contract terms protection to a business with less than 20 employees agreeing to standard form contracts valued at less than $100,000 or $250,000 if the duration of the contract is more than 12 months.15

Amending the CCA to Include Terms Relating to ‘Unfair’ Practices An important issue with respect to the Review was whether the CCA should be amended to assist in preventing the alleged unfair conduct from occurring and whether issues of complexity should be introduced into an Act that has been considered by stakeholders as being successful in providing a rapid determination of payment disputes. One possibility would be to expand the prohibitions currently listed in pt 2 div 1 of the CCA.16 However the scope and coverage of the CCA is now well settled and any changes by way of introducing provisions in the CCA dealing with unconscionable conduct or unfair terms could potentially add legal complexity and hinder the principal objectives of the CCA. One recommendation was that the state government should consider the introduction of contract review legislation similar to the Contracts Review Act 1980 (NSW).

26 | BRIEF JULY 2017

Additionally it was considered that the amendments to the ACL that apply the unfair contract terms provisions to small businesses would also have a significant effect in reducing many examples of the conduct complained of during the Review.

Building and Construction Industry Code of Conduct In consideration of the recommendations contained in the report together with its awareness of a number of current unacceptable practices in the construction industry, the state government, in addition to adopting most of the recommendations regarding amendments to the CCA, has introduced a number of other measures to improve both security of payment and contracting practices in the Western Australian construction industry. These include proposed legislation to make it an offence to intimidate, coerce or threaten a person or business; to improve the use of the Building Services (Registration) Act 2011 as a means of investigating and disciplining registered building contractors who have engaged in unfair behaviour or systematic non-payment of subcontractors; and to introduce a code of conduct for tenderers on state government funded construction projects in order to eliminate unacceptable behaviour on building sites and anti-competitive behaviour. Subsequently on 5 December 2016, the Western Australian Building and Construction Industry Code of Conduct 2016 (BCI Code) was introduced.17 The code applies from 1 January 2017 to new tendering processes for state projects with a value in excess of $10 million. It is anticipated that in the future the code will apply to additional contracts. The code has been developed to ensure that when expending public funds, Western Australian government agencies contract with building contractors who conduct themselves in a reputable, fair, safe and responsible manner, both in dealings with the State of Western Australia and within the building and construction industry more broadly. The BCI Code is comprehensive and includes measures to protect smaller contractors in both the building and the wider construction industry. These measures include prohibitions on anti-competitive behaviour such as price fixing, sham contracting, harsh or unfair contract terms, and to ensure compliance with the provisions of the

CCA. In addition to the BCI Code, the Department of Commerce has published implementation guidelines to provide further guidance and information on the obligations contained in the BCI Code.18 In conjunction with the introduction of the BCI Code, a Building and Construction Code Monitoring Unit (BCCMU) has been established within the Department of Commerce. The BCCMU will undertake not only monitoring and compliance activities including investigating alleged breaches but it will also promote awareness of the BCI Code through a range of information and educational activities. As with most codes of practice there are no coercive powers within the provisions of the BCI Code but where the BCCMU believes that a contractor has breached the code, after investigation the contactor will be ‘invited’ to rectify the breach or the BCCMU may report the breach to the appropriate government agency or body.

Project Bank Accounts In addition to the amendments to the CCA and the introduction of the BCI Code, the state government has also introduced Project Bank Accounts (PBAs), following a three year trial on seven government contracts. These PBAs will be used on the majority of projects administered by the Department of Building Management and Works for tendered projects with a construction value over $1.5 million and which utilise an AS2124 contract. PBAs are an alternative payment mechanism that use a dedicated trust account to facilitate payments directly and simultaneously from a principal through to the head contractor and participating subcontractors involved in a project. However, PBAs do not seek to alter the existing contractual rights and responsibilities of the parties to a traditional construction contract. They will not prevent a head contractor from experiencing financial difficulty or managing the performance of subcontractors by withholding payments when contractual obligations are not met. Additionally, they do not constrain any party from seeking adjudication under the CCA or from commencing legal proceedings in the event of a dispute. PBAs will be the subject of a future article. Details on the use of PBAs in Western Australian projects may be found on the Department of Finance website.19



Through amendments to the CCA, the introduction of awareness programmes and the introduction of the BCI Code, the state government has indicated its commitment to the provision of protection and assistance for small businesses in the construction sector. At the same time these changes and policies are limited to those areas where the government can and should influence behaviour. In acknowledging this, state governments can do only so much in this area, as corporations law, insolvency and bankruptcy are matters regulated by the federal government. The Review and the subsequent amendments to the CCA have been described as the sectors ‘biggest shakeup’ in a decade.20 Additionally the introduction of the BCI Code will hopefully ensure that when expending public funds, all Western Australian government agencies will contract with building contractors that conduct themselves in a reputable, fair, safe and responsible manner, both in dealings with the State of Western Australia and within the broader building and construction industry.


See ‘Subbies Reform Crawls’. The West Australian, 17–18 September 2016.


Second Reading Speech, Legislative Council, 8 April 2004, 1934b–1935a.


Parliament of Australia, Senate Economics Reference Committee. Report on Insolvency in the Construction Industry, 15 December 2015. Available from: www. Insolvency_construction.


Building and Construction Industry Security of Payment Act 1999 (NSW); Building and Construction Industry Security of Payment Act 2002 (Vic); Building and Construction Industry Payments Act 2004 (Qld); Construction Contracts (Security of Payments) Act 2004 (NT); Building and Construction Industry (Security of Payment) Act 2009 (SA); Building and Construction Industry Security of Payment Act 2009 (ACT); Building and Construction Industry Security of Payment Act 2009 (Tas); Construction Contracts Amendment Act 2016 (WA).


The issue of uniform security of payment legislation was considered in the Review. The submissions unanimously indicated that if uniform legislation was to be introduced it should be based on the WA Act.


Department of Commerce (WA), Discussion Paper. Statutory Review of the Construction Contracts Act 2004 (WA) 2014. Available from: http://www.commerce. wa/


The report and the government’s response may be found at


The Honourable Michael Mischin LLB (Hons) BJuris (Hons) MLC.


Two recommendations not accepted were that construction contracts above a predetermined amount should be in writing and all state government contracts should use the Australian Standards suite of general conditions of contract.


A summary of the amendments may be found in Key Amendments to the Construction Contracts Act 2004. Brief, Volume 44, Number 4, May 2017.


The implementation of terms into contractual agreements requiring the parties to act in good faith is considered in detail in Peden E. Good Faith in the Performance of Contracts. Sydney: Lexis Nexis, 2003.


The Misrepresentation Act 1972 (SA) provides criminal sanctions against misrepresentation in certain commercial transactions; to expand the remedies available at common law and in equity for misrepresentation and for other purposes.


Harper I, Anderson P, McCluskey S and O’Bryan M. Competition Policy Review Final Report. Commonwealth of Australia, 2015 (The Harper Review).


‘Extending Unfair Contract Term Protection to Small Businesses’ Consultation Paper. The Treasury, 23 May 2014. Available from: ConsultationsandReviews/Consultations/2014/SmallBusiness-and-Unfair-Contract-Terms.


Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015. Available from: Legislation/Bills_Search_Results/Result?bId=r5497.


The prohibited inclusions refer to ‘paid if paid/paid when paid’ and ‘payments after 50 days’ terms in construction contracts covered by the Act.


Department of Commerce WA. WA Building and Construction Industry Code of Conduct 2016. Available from: wa-building-and-construction-industry-codeconduct-2016.


Department of Commerce WA. Implementation Guidelines. Available from: https://www.commerce.


Department of Finance WA. Project Bank Accounts 2016. Available from: au/cms/Building_Management_and_Works/New_ Buildings/Project_bank_accounts.aspx.


‘Amendments to the Construction Contracts Act Unveiled’. Clyde and Co., 27 October 2016. Available from: amendments-to-the-western-australian-constructioncontracts-act-unveiled.

CRICOS Provider Code 00125J SCH-432_06/17

Graduate Diploma in Australian Migration Law and Practice to commence at Murdoch University in 2018 The School of Law has been successfully running the Graduate Certificate in Australian Migration Law and Practice for the last 10 years. In 2018 the 12 month Graduate Diploma will replace the Certificate. Murdoch University will be the only university in WA offering this course. The new Graduate Diploma will form part of the recently revised entry level requirements for people to register as a migration agent with the Migration Agents Registration Authority. The replacement of the Certificate with a Diploma builds upon the School of Law’s teaching and research strength in this area and will allow for a much more in-depth study of a complex and challenging area of law. The course

will enable individuals to acquire the skills, knowledge and competencies to enter practice as a migration agent. Students enrolled in the course will learn how to advise clients on visa options; prepare visa applications; advise on visa compliance issues and assist clients with the review of a decision to refuse or cancel a visa. Ethical practice and standards will be integral to all units taught as part of the degree. As part of the new Diploma offering, students will be able to engage in some active practice, which could include placement in the migration clinic at SCALES; a work integrated learning (internship) unit or a dedicated Professional Migration Practice unit.

If you are interested in learning more about the Graduate Diploma please contact Associate Professor Mary Anne Kenny in the Murdoch Law School:


Judicial Methods in the 21st Century Speech delivered at the Supreme Court Oration Banco Court, Supreme Court, Thursday, 16 March 2017

The Hon Susan Kiefel AC Chief Justice of Australia

This topic, "Judicial Methods in the 21st Century", was suggested by Justice Glenn Martin. He observed that the High Court appears to deliver its judgments more quickly than in the past. He asked: could it be that the method of producing judgments has changed? In answering that question, I will discuss the processes presently utilised in the High Court and, where possible, compare them with what may have occurred in the past. I think it is true to say that, in the latter part of the 20th century, public sentiment changed from an acceptance of the truth expressed in the aphorism "justice delayed is justice denied" to an expectation that decisions in litigation should be given reasonably promptly. Courts responded by establishing protocols for the timely delivery of judgments and methods of monitoring delay. In the High Court, for example, a list of outstanding judgments is circulated each Monday. It identifies who has and has not produced a judgment in each outstanding matter.

required since 1997. They have altered things, possibly irretrievably. Preparation may involve not just an understanding of the shape and content of the arguments and where issue is joined, but also an understanding of relevant legislation and key cases. The level of preparation will obviously vary according to the nature of the case, the time allowed for it and the individual justice. Lord Neuberger, the President of the Supreme Court of the United Kingdom, divides judges into two categories: judicial Pre-Raphaelites, who read everything; and judicial Impressionists, who read very little. He frankly admitted to being more of an Impressionist. This was later reported in a newspaper article entitled "Lord Neuberger, Britain's most senior judge, admits he doesn't read all the papers in a case" or words to that effect.

It would have been useful to have had a proper survey of the time taken for the delivery of judgments in the Court in the past, but this was not practicable. The current position may be stated with certainty. French CJ said in the Court's 2015-2016 Annual Report that "[a]ll civil and criminal appeals decided by the Full Court [that year] were decided within six months of the hearing of argument". I am prepared to hazard a guess that such a statement is unlikely to have been made at very many points in the Court's history.

I think most High Court justices would prepare as much as time allows and as much as they consider necessary to the particular case. Much depends on how up to date one is with judgments and where one draws the line between continuing to write them and preparing for the next sittings. Preparation enables better engagement with the argument during the hearing and it shortens the time taken for the hearing. A glance at the Commonwealth Law Reports (CLRs) for the number of hearing days in comparable matters in the past confirms this. A justice is also better placed to start writing the judgment than before. Writing can commence soon after the conclusion of oral argument and the conference which follows it.


Conferences pre and post hearing

The process leading to the production of a judgment now starts at the point of preparation for a hearing. Gone are the days when a justice entered the courtroom unencumbered by any real knowledge of the parties' arguments. Comprehensive written submissions, filed before the hearing, have been

In recent years, the High Court has adopted the practice of holding a short meeting of the justices at the beginning of each sitting week, preparatory to hearings. Pre-hearing meetings are not uncommon in other common law jurisdictions. Their principal purpose is to identify any procedural issues or matters

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to which the parties' attention needs to be directed before the hearing. Points of possible importance might be flagged. Sometimes preliminary views are offered, but any substantial discussion is left until the meeting which is held after the conclusion of oral argument. Methods of conferring differ between jurisdictions. In England it has been the practice that the judges speak in inverse order of seniority, with the most junior offering his or her view first1. This tradition was apparently designed to "forestall any tendencies of more junior Law Lords to be overly deferential to more senior and more trenchant colleagues"2. Needless to say, the position in Australia today is rather more informal. It suggests little concern about the possibility of deference. There is a free exchange of views, in no particular order, with the Chief Justice, or the justice who has presided, steering the meeting. There is opportunity for persuasion, for criticism, and for debate. The benefits of the conference should be obvious. Each justice has the benefit of the views of six legal minds which should be amongst the best in Australia. Why would one not listen to them? Even if one does not agree with another point of view, discussion can only assist in refining one's own. The final product is bound to be better. It is not at all clear that conferences, or conferences of this kind, have been a fixture in the past. This may, in part, be explained by justices not being in a position to have formed views to enable discussion, because they did not have written submissions and had not prepared for the hearing. It may also be explicable by reference to attitudes to such meetings. Another purpose of the conference is to ascertain if there is a clear majority. This does not involve voting, as it does in some courts, such as the US Supreme Court. There judges speak in descending order of seniority and then vote.

Curiously, this is not dissimilar to the process undertaken in some civilian jurisdictions, the main difference between the two being that civilian courts aim for one collective decision; and the US Supreme Court for two â&#x20AC;&#x201C; one majority and one dissenting judgment. There is rarely more than one meeting held post-hearing, largely because once the process of writing a judgment commences, views tend to become entrenched. There is much to be said for a further meeting when the first meeting ends inconclusively as to a majority view or where the justices need more time to reach their conclusions. It can be useful for them to give the matter some further thought, to work towards a solution and then exchange memos before another meeting is held.

The first draft If there is a clear majority, at the end of the meeting, one justice is usually assigned the task of producing a first draft for the others. The allocation may be made on the basis of the issues in the matter being of particular interest to a justice or simply in order to achieve an equitable allocation of work. A system like this works best if all are able to produce judgments to a similar standard and within a similar time. If there is not a clear majority sometimes a justice nevertheless volunteers to produce a first draft, perhaps hoping to bring his or her colleagues to a point of view. But sometimes judges need to work their way through the problem and writing a judgment is the only way to do it. In this event no allocation is made, but there may be informed discussions later exchanging views and identifying who is writing. In either case, those who are not assigned a first draft will usually make further detailed notes after the meeting, have further research undertaken, and prepare an outline, or even a draft of their own, in preparation for the receipt of the first draft. The principal purpose of a first draft is to have those who are of the same view agree with it and thus avoid unnecessary judgments. By "unnecessary" I mean judgments which add nothing of substance to what

has already been written. A judgment of this kind is unnecessary for the justice writing it. It is unnecessary for the Court and for those who read the published judgments. This is not to suggest that there may not be perfectly valid reasons why another justice may find it necessary to write. I shall discuss them later. Even if that be so, a first draft is a valuable resource. It should not be necessary for that justice to set out the facts again, at least not completely. The first draft will also identify the relevant legislative provisions and place them in context, identify the partiesâ&#x20AC;&#x2122; arguments, and discuss the authorities which bear upon the issues. This is why the reader often sees a grateful acknowledgment of another's labours in a later judgment. There is a method to writing first drafts. They need to be succinct. A long judgment which says more than is necessary is less likely to attract agreement. Neither will a judgment written in the idiosyncratic style of the author, or in florid language from the classics or 19th century literature. It is better to resist the temptation to quote extensively from literature unless the aim is to not have others join in.

The layout and length of judgments With respect to both the layout and the length of a judgment, the modern judgment is different from those of the past. A survey has recently been undertaken of the length of judgments of the High Court in the period from 1903 to 20153. The authors refer to judgments collectively, rather than individually. They found, amongst other things, that the length of judgments was "relatively stable" during the first five or six decades of the Court. That ended in the 1970s when a general, expansive trend followed which resulted in the Brennan and Gleeson Courts producing the lengthiest judgments in the Court's history. Two observations might be made about those periods. In the first place, there appear to have been many more individual judgments, some of substantial length. And, for a significant part of both periods, a lengthy dissent appears in almost every case. It is said that at the event 29

which marked the publication of Volume 200 of the CLRs, a former justice of the Court remarked to the author of these dissents that, had it not been for them, the celebration would not have taken place for many years. Some things have clearly changed in relation to the way judgments are written, not the least because writing styles have changed. We no longer write sentences which travel across many pages. We have fullstops, paragraphs and even headings. One can have too much of a good thing. Lord Bingham, speaking extrajudicially, once said that his heart sank whenever he had to embark upon reading a judgment that set out a table of contents or chapters4. That may be so, but I think most would agree that this method is helpful when judgments are lengthy. The real question is whether judgments need to be so long. I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows. That assumption may not be correct. A concern has been expressed5 that the judgments of the High Court are too short; they do not deal with the subject at length and in as much detail as the intermediate appellate court from which the appeal is brought. Rarely does the High Court need to review the facts; it has the benefit of the findings of the courts below. This may sometimes account for the length of the judgments of those courts. Lengthy dissertations of the law are another matter. It is a question for any appellate court, the High Court included, whether that is necessary in each case.

content, to be made to the author of the first draft, it is not often the case that two or more justices will work together to produce a judgment. Suggested changes to the first draft after its circulation are usually contained in a memorandum, in which an explanation is given for the changes. It would not be usual to suggest a change in its essential reasoning or a substantial re-writing of it, although suggestions may nevertheless be of significance. The author of the first draft is not obliged to accept any proposed changes. The effect of the High Court's practice of "joining in" is to render the author largely anonymous. Some might argue that a reader should know who the author is, although it is difficult to see what the benefit of that knowledge could be. On occasions a justice might wish the practice was otherwise, when it is felt that he or she has written a particularly good judgment, but it is always understood that if the practice were not followed justices would be encouraged to write separately more often, which is what the practice seeks to avoid. Even when agreeing, some judges cannot help but say more. A judgment in a criminal law case before the House of Lords reported in 1999 furnishes an example6. The Law Lord in question explained that he had been persuaded to concur with the reasons of a colleague because trial judges needed certainty in the particular area of the law. He nevertheless took one and a half pages of the law reports to summarise the reasons he was abandoning.

A first draft judgment is circulated to the other justices in order to ascertain if those of like view will agree with it. Agreement is expressed by the circulation of a judgment which states little, if anything, more than the fact of agreement with the reasons and the orders proposed. That justice is then usually "joined in" to the first draft, with his or her consent. The justice's name appears on the judgment with that of the author. If others agree they too are joined in.

A judge is at liberty to write separately, to the same result, if he or she chooses. There may be perfectly valid reasons for a judge doing so. There may be something which is considered necessary to be added to what has been written, which could not be accommodated within the first draft. An important qualification may be thought necessary. A judge may not consider that the judgment has been expressed clearly enough or it may be written in a style which they do not wish to be seen to adopt. It may contain statements of principle, or even a footnote, which a judge does not wish to be taken to approve but which the author has declined to remove.

Although a judgment is called the "judgment of the Court" when all justices agree, or a "joint judgment" (or, more controversially, a "judgment of the plurality") when a number agree, it is more often the case that there is only one author. Whilst it is not unusual for suggestions, sometimes substantial in

It goes without saying that if a judge cannot agree with the view of the majority, he or she is duty bound to dissent and write accordingly. I would expect that any judge who is considering this course will first have endeavoured to understand the majority view and whether they can accept it as a possible

Concurrence and dissent

30 | BRIEF JULY 2017

view, not the least because if a number of one's colleagues are persuaded to a point of view, it could just be that one is wrong.

Fewer individual judgments Most justices are motivated to agree with a first draft written by another if they are of the same view, the reasoning is correct and there is no other obstacle to agreement. They will agree although they may have wished to write themselves. They may even think they might have expressed it somewhat better than their colleague's draft. But they appreciate that there is every good reason to reduce the number of individual judgments which are published in a matter. In the first place, foregoing writing another judgment to the same effect allows each like-minded justice to focus their attention on other judgments. If all, or most, of the justices adopt this approach there will be a reduction in the time taken to publish judgments. On the other hand, if all, or most, of them are writing in most matters there will almost certainly be delays. There will be delays because justices will have a backlog of judgments. A single majority judgment is more likely to provide a clear ratio. The reader will not be required to analyse a number of judgments in order to ascertain if there is a ratio and whether the reasoning in each accords with the others. Readers include judges of lower courts, who must apply the Court's decisions, and practitioners. These judges often work under considerable pressure of time. A practitioner's time in reading at length is a cost, sometimes considerable, to their client. The Supreme Court of the United Kingdom appears recently to have attempted to reduce the number of individual judgments. Lord Neuberger calls judgments which add nothing to what has already been written by a colleague, and effectively say no more than "I have understood this case" or "I think I can express it better", "vanity judgments". He says that they are "at best a waste of time and space, and, at worst, confusion and uncertainty â&#x20AC;&#x201C; although they are popular with academics"7. He adds that most appellate court judges have been guilty of writing them at some time. A single judgment of the Court or of the majority carries greater authority, not only for its precedential value. It instils confidence in the Court's decision. This is especially important where it is necessary to give guidance to courts

below. So understood, some of the benefits of a single judgment, or fewer individual judgments, are institutional. The "vanity judgment" of which Lord Neuberger speaks is not the voice of the Court, it is the sound of self. There are critics of this collegiate approach including a former justice of the High Court8. They argue that conferences and agreement with another's judgment compromise the independence of judges. According to this view a judge has a duty to reveal what he or she thinks to the parties and to the public and it is necessary that each judge show that the case has been given the closest personal attention. These obligations are fulfilled by avoiding discourse with other judges and writing separately in each case. These views may be answered shortly. The opinion of a judge is revealed to the world by the publication of a judgment in his or her name. A judgment written for the purpose of proving that a judge has understood the case is an unnecessary judgment of the kind earlier referred to. It is no part of the duty of a judge to write a judgment in every case. The true duty of a judge is to consider a matter properly before coming to a decision. The fulfilment of that duty is a matter of conscience for a judge. The method by which a judge's opinion is expressed is irrelevant to it. No appellate judge in Australia would conceive of a judge's duty as being simply to vote on a matter. But, as any judge who has ever concurred in another's judgment knows, it is not necessary to write a judgment to be able to reason to a conclusion. The collegiate method enables a judge not only to give proper consideration to a matter, but to do so promptly. This is because, as earlier explained, it involves preparation, participation at hearing and in conference, and making notes and outlines. The individualist, writing in each matter, will rarely be in this position. The other concern which is expressed about the collegiate approach is the effect of "excessively dominant judicial personalities". I think most people would be surprised at the suggestion that High Court justices might be overborne by such a personality. I have had no experience of such a person. It is not clear whether those who are concerned about judges conferences have. The examples given are drawn from the English judiciary of the past, such as Lord Diplock9. This might not be thought to provide a strong reason for declining to engage in a dialogue with one's colleagues.

The ability to influence is another thing altogether. It is a fact that some people, judges and lawyers included, are better at persuasion than others. There are methods which may be employed by judges to persuade. Participating in discussion is one. Preparation for it is another. Writing a judgment quickly, when a first draft has not been assigned, is sometimes effective, although it may be overcome simply by another advising colleagues that he or she will be producing another judgment for their consideration. Lord Neuberger, in response to the criticism of the collegiate approach, identifies another obligation to which a judge is subject. It is "to do her best to ensure that the court of which she is a member produces as clear and coherent a judgment or set of judgments as is consistent with each member's opinion"10. I respectfully agree. The individualistic approach has not been without its critics. In 1984 Professor A W B Simpson wrote11: [T]he undisciplined individualism of English appellate judges, and their complete lack of any collegiate spirit, reduces much of their work to mere confusion. Lack of coherence and clarity in the Court's reasoning is one undesirable result of too many separate judgments. Delay is another. The reality is that the timely production of judgments could not be achieved if each justice produced a complete separate judgment in each case. The critics of the collegiate approach do not suggest otherwise. Indeed they do not point to any benefit that might accrue to the Court or those affected by its judgments from the pursuit of individualism. A delay in publication of judgments may have important consequences for litigants and for the Court. Some years ago I wrote a joint judgment with two colleagues. It was joint in the true sense; each of us wrote a separate part of it. It was to be an important judgment involving commercial law. I would give the citation for the judgment, but it was never published. Our joint judgment was circulated. All but one concurred. We waited for that justice's judgment but the justice had a backlog of judgments. The parties waited for the Court's decision. Months passed. Finally the other judgment arrived. We gave notice that we would hand down the Court's decision in a week's time. A few days before that date the parties advised the Court that the matter had been settled. It is not difficult

to infer that, as time went on, the parties decided to resolve it for themselves. The Court had let them down. One solution to the pressure of time might be for individual justices to write draft judgments by the method adopted by judges of the US Supreme Court, which is to delegate that task to his or her clerk. I had thought that great individualist, Antonin Scalia, to have been an exception to this practice. However, in an interview conducted a few years before his death12, the judge frankly admitted that he had never written a first draft of his own judgment. I hasten to add that there is no suggestion that this practice might become part of the judicial method of the High Court.

Conclusion The answer to Justice Martin's question is that a somewhat different judicial method does appear to have evolved. It started with the introduction of written submissions. The work of a justice shifted from post to pre-hearing. There came to be closer engagement with oral argument and with colleagues in discussions. Judgments are now produced in which a majority combine in agreement. One cannot say that this method is here to stay. Much will depend upon the continued acceptance of the benefits it produces. Views can change and with them judicial methods. NOTES: 1.

Lord Neuberger, "Sausages and the Judicial Process: the Limits of Transparency" (Speech delivered at the Annual Conference of the Supreme Court of New South Wales, Sydney, August 2014) at [14].


Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Hart Publishing, 2013) 84.


David Carter, James Brown and Adel Rahmani, "Reading the High Court at a Distance: Topic Modelling the Legal Subject Matter and Judicial Activity of the High Court of Australia, 1903-2015" (2016) 39(4) University of New South Wales Law Journal 1300 at 1315.


Louis Blom-Cooper, "Style of Judgments" in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords: 1876-2009 (Oxford University Press, 2009) 145 at 160.


The Honourable Justice M Beazley "Judgment Writing in Final and Intermediate Courts of Appeal: 'A dalliance on a Curiosity'" (2015) 27(9) Judicial Officers' Bulletin 79.


R v Powell [1999] 1 AC1 per Lord Mustill.


Lord Neuberger, "Sausages and the Judicial Process: the Limits of Transparency" (Speech delivered at the Annual Conference of the Supreme Court of New South Wales, Sydney, 1 August 2014) at [32].


J D Heydon, "Threats to Judicial Independence: the Enemy Within" (2013) 129 Law Quarterly Review 205 at 215.


J D Heydon, "Threats to Judicial Independence: the Enemy Within" (2013) 129 Law Quarterly Review 205 at 217.


Lord Neuberger, "Sausages and the Judicial Process: the Limits of Transparency" (Speech delivered at the Annual Conference of the Supreme Court of New South Wales, Sydney, 1 August 2014) at [25].


AWB Simpson, "Lord Denning as Jurist" in JL Jowell and JB WB McAuslan, Lord Denning: the Judge and the Law (London, Sweet & Maxwell, 1984) 441 at 451.


Jennifer Senior, â&#x20AC;&#x153;In Conversation with Antonin Scaliaâ&#x20AC;?, New York Magazine, 6 October 2013.


Federal Jurisdiction and State Laws Plenary presentation, Law Summer School 2017 Friday, 17 February 2017 The University Club, Crawley, Western Australia

The Hon Robert French AC In September last year I was invited to Cardiff by a Welsh Public Law Group of whom Lord Chief Justice Thomas is President to address it on the topic of federalism. There is considerable interest in federalism in Wales. A new tranche of devolution legislation introduced into the United Kingdom Parliament in June last year purports to protect, if not entrench, its parliamentary system. Further, it provides that the UK Parliament will not make laws on matters within the legislative power of the Welsh Parliament without its prior consent. While in Cardiff I was asked by a Welsh legal officer for my thoughts on proposals for a separate Welsh judicial system along the lines of those in Scotland and Northern Ireland. I began my response to her inquiry with two words 'federal jurisdiction' and made the obvious point about the transaction costs associated with a dual system of courts. A perverse upside is the additional work that such systems provide for lawyers. Perhaps that is what Sir Roderick Evans QC had in mind when he said in 2015 that '[a] Welsh jurisdiction would be a significant economic driver which would create new jobs and career structures in Wales'.1 I should mention while on the topic of Wales that Cardiff is only about 32 kilometres from Merthyr Tydfil, the birth place of Sir Samuel Griffiths, one of the architects of the Australian Constitution including its system of State and Federal jurisdictions. The Constitution that Sir Samuel helped to create is now in its second century. The abolition

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of our dual system of courts and the distinction between federal and State jurisdictions would require significant constitutional amendment which is unlikely to happen in the foreseeable future. In the meantime, many of us have learned to live with and in some cases even to conceive a strange kind of love for federal jurisdiction although it may be the kind of love which only lawyers who wished they had become theoretical physicists, are capable. Others, including on occasions courts, overlook its existence or repress their awareness of it and get on with the case at hand. I want to discuss a current debate about the ways in which State laws apply in the exercise of federal jurisdiction by the High Court of Australia in its original jurisdiction, and by federal and State courts. The question has recently arisen in a case on appeal to the High Court from the Court of Appeal of the Supreme Court of Western Australia. The appeal was the first to be heard by the newly constituted High Court under Chief Justice Kiefel, sitting in Canberra on 1 and 2 February. With that case in mind, I will first say something about the nature of federal jurisdiction. Jurisdiction is here used in the sense of 'authority to adjudicate'. It may be helpful to repeat what Justices Kiefel, Bell, Keane and I wrote last year in CGU Insurance Ltd v Blakeley in a little synopsis of the field: 'â&#x20AC;Ś federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws.'

Jurisdiction with respect to a particular subject matter is authority to adjudicate upon a class of questions concerning that subject matter. The existence before a court of a question of the relevant subject matter class is necessary to the court's authority to adjudicate.2 It is also a necessary condition of federal jurisdiction that the matter in which that jurisdiction is invoked is 'capable of judicial determination' or 'justiciable'. There is a distinction between jurisdiction and the powers given to a court which may be used in the exercise of jurisdiction. Jurisdiction and power are often confused, but they are not the same thing. It is a point which has been made time and time again in the High Court. Section 71, which opens Ch III of the Constitution, sets out in a general way the courts in which the judicial power of the Commonwealth can be vested. They are the High Court, such other federal courts as the Parliament creates and such other courts as it invests with federal jurisdiction. There are four ways in which federal jurisdiction is conferred on those courts: 1. By s 75 of the Constitution original jurisdiction in the matters enumerated in that section is conferred directly on the High Court. 2. By s 76 of the Constitution additional original jurisdiction can be conferred on the High Court by laws made by the Commonwealth Parliament on the matters set out in that section. 3. By s 77 of the Constitution, jurisdiction can be conferred on any court created by the Parliament, that is to say a federal court, with respect to any of the matters mentioned in ss 75 and 76. 4. Further, by s 77 of the Constitution, the Commonwealth Parliament can make laws investing any court of a State with federal jurisdiction with respect to any of the matters mentioned in ss 75 and 76. As appears from what has just been said, the subject matters of federal jurisdiction are those set out in ss 75 and 76 of the Constitution. Sections 75(i) and (ii) cover 'all matters' arising under any treaty, or affecting consuls or other representatives of other countries. Section 75(iii) covers all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. Section 75(iv) covers all matters 'between States, or between residents of different States, or between a State and

a resident of another State'. It is known broadly as the 'diversity jurisdiction' and is the area of jurisdiction involved in the case from Western Australia presently reserved in the High Court. Section 75(v), by express reference to the remedies of Mandamus, prohibition and injunction, confers judicial review jurisdiction in relation to officers of the Commonwealth. The matters covered by s 76 of the Constitution include any matter arising under the Constitution or involving its interpretation,3 any matter arising under any laws made by the Parliament,4 and any matter of Admiralty and maritime jurisdiction.5 It also extends to any matter relating to the same subject-matter claimed under the laws of different States.6 Section 77 then authorises the Parliament to make laws with respect to any of the matters referred to in ss 75 and 76 defining the jurisdiction of any federal court other than the High Court,7 defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States8 and investing any court of a State with federal jurisdiction.9 I should also mention s 73 under which the High Court has appellate jurisdiction to hear appeals from all judgments, decrees, orders and sentences of any other federal court or court exercising federal jurisdiction or from the Supreme Court of any State. In the United States where the Supreme Court, under Art III of their Constitution, does not have general appellate jurisdiction and the State courts are the final arbiters of the common law in their respective States. Each State therefore has its own body of common law. There was a question, not really resolved until the late 1990s about whether the common law in Australia was to be regarded as made up of separate bodies of common law in each State, or whether there is only one common law for the whole of Australia. The general appellate jurisdiction of the High Court has led it to conclude in cases decided in the late 1990s that there is only a single Australian common law. The proposition was unanimously endorsed in 1997 in Lange v Australian Broadcasting Corporation10 and was elaborated in 1999 in Lipohar v The Queen.11 It has been repeated and further explained in later decisions. It was foreshadowed by Sir Owen Dixon when he wrote that it was '[a]n unexpressed assumption' that 'the one common law surrounds us and applies where it has not been superseded by statute'.12 On this basis it would seem that the

common law of Australia in any particular State cannot be characterised as a law of that State. In their joint judgment in Lipohar, Gaudron, Gummow and Hayne JJ said of the High Court: This Court is the final appellate court for the nation. When an appeal is dealt with in this Court, and its reasons are published, those reasons will form part of the common law of Australia and will bind all courts in the country. The Court never has and never should seek to identify some common law rule that is peculiar to one or more of the States. And yet that is the role which would be assigned to it if there were more than a single common law of Australia.13 Rights and liabilities existing at common law may be qualified or extinguished or replaced or supplemented by State statutes. An example of modification is found in the Civil Liability Acts affecting recovery of loss or damage for personal injury. There are many other examples. Against that background, when reference is made in a Commonwealth law to the law of a State the term may be taken ordinarily to refer a law enacted by the Parliament of the State and perhaps also to delegated legislation and legislative instruments and rules made under such laws. It would also extend to procedural rules of court made under statutory authority. Sections 75 and 76 of the Constitution confer and authorise conferral of jurisdiction in 'all matters' which fall within the subject areas set out in those sections. There is another contrast here with Art III of the United States Constitution, which defines jurisdiction by reference not to 'matters' but to 'cases' and 'controversies'. There was some debate at the Constitutional Convention in 1898 about whether the word 'matter' went too far and would pick up advisory opinions. Isaac Isaacs speculated that the term might pick up questions of a political nature.14 Edmund Barton argued effectively however, that it referred only to such matters as were capable of judicial determination. The provisions of the Constitution using the word 'matter' were accepted by the Convention.15 In 1903, the Judiciary Act 1903 (Cth) was enacted constituting the High Court under s 4 as a superior court of record. Section 30 conferred on the High Court additional original jurisdiction in matters arising under the Constitution or involving its interpretation and in trials of indictable offences against the laws of


the Commonwealth. Section 38 sets out matters in which the jurisdiction of the High Court was exclusive of the several courts of the States and s 38A matters in which jurisdiction was exclusive of the State Supreme Courts. Those provisions set the scene for s 39, which provides in subs (2): The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions. Much later, s 39B conferred on the Federal Court of Australia original jurisdiction in a number of matters including matters arising under the Constitution or involving its interpretation or arising under any laws made by the Commonwealth Parliament other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.16 According to a classical formulation by Chief Justice Latham a 'matter' arises under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement whether or not the determination of the controversy involves the interpretation or validity of the law.17 The word 'matter' was described by the High Court in 1921 in In re Judiciary and Navigation Acts18 as referring not to a legal proceeding but rather 'the subject-matter for determination in a

legal proceeding.' Further, there could be no matter unless there was 'some immediate right, duty or liability to be established by the determination of the Court'.19 The concept has been further elaborated as embracing not only a claim in a subject area of federal jurisdiction but extending, where there is such a claim, to other non-federal claims including claims under State laws and under the common law which can be regarded as part of the same controversy or dispute as that which attracts federal jurisdiction. What is or is not within the boundaries of a particular controversy or dispute can involve an evaluative assessment. As explained in Fencott v Muller: What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.20 The authority to determine non-federal claims as part of a matter in federal jurisdiction has sometimes been called 'accrued jurisdiction'. A simple example when the Trade Practices Act 1974 (Cth) was in force was a claim for misleading or deceptive conduct against a corporation under s 52 of that Act coupled with a claim for damages for misleading or deceptive conduct

against the directors under a State Fair Trading Act and perhaps coupled also with common law claims for negligence, deceit and breach of contractual warranty. Significantly the failure of a bona fide federal claim, even in a strike out, does not necessarily deprive the court of federal jurisdiction to determine the non-federal claims.21 It is important in any proceeding in any court in Australia to ask the threshold question what is the source and nature of the jurisdiction which is being invoked? It is not always readily apparent. Sometimes a cause of action reliant upon common law or created by a State statute can involve the exercise of federal jurisdiction. Thus, a common law or equitable claim relating to property rights created by federal law, such as copyright or trademarks or patent rights will thereby involve a dispute about rights which owe their existence to federal law and will attract federal jurisdiction.22 The identity of the nature of the jurisdiction may affect the legal analysis about the applicable law and the availability of relief. A decision of the High Court delivered in February 2016 illustrates the point. In CGU Insurance Ltd v Blakeley23 the liquidators of a company commenced proceedings in the Supreme Court of Victoria against the company's directors for orders under s 588M(2) of the Corporations Act 2001 (Cth). This was a statutory cause of action under Commonwealth law. The orders sought were that the directors pay the liquidators the amount of loss or damage suffered by the company's creditors in relation to debts incurred by the company when it was insolvent. One of the defendants being sued was a

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company owned by one of the directors being sued. It had provided consulting services to the company in liquidation. As such it fell within the extended meaning of a director of that company pursuant to s 9 of the Corporations Act. The consulting company and its owner claimed on a professional indemnity policy against CGU. CGU denied liability. Neither the consulting company nor its director could afford to or wanted to bring proceedings against the insurer to contest its denial of liability. The liquidators applied to join the insurer as a party to their action against the directors in the Supreme Court so that the liquidators could obtain a declaration that the insurer was liable to indemnify those directors. The reason was that under s 562 of the Corporations Act the liquidators would have a right to the proceeds of the policy so far as it related to the consulting company. The Victorian Court of Appeal upheld the primary judge's decision to join CGU.24 They did so on the basis that the liquidators had a real interest in the question of CGU's liability to the directors they were suing and that there was utility in the grant of declaratory relief. Their Honours, however, appeared to have proceeded on the basis that the case was about the scope of declaratory relief and did not involve the exercise of federal jurisdiction. The appeal to the High Court was dismissed, but the High Court's analysis rested on the basis that the claim for the declaration, if successful, would enliven a legal consequence created by s 562 of the Corporations Act bringing into existence a right in favour of the liquidators to receive the net proceeds of the insurance policy. It was thus a justiciable controversy between the liquidators and the insurer involving a question arising under a law of the Commonwealth. It was also arguable that the claim against the insurer might fall within the scope of the matter arising under s 588M of the Corporations Act. In our joint judgment, Justices Kiefel, Bell, Keane and I offered an overview of federal jurisdiction, which can be summarised in point form: 1. State jurisdiction is the authority which State courts possess to adjudicate under the State Constitutions and laws. 2. Federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws. 3. The existence before a court of a question of the relevant subject matter class is necessary to the

court's authority to adjudicate.25 We pointed to the distinction between jurisdiction and powers to grant particular remedies. We also acknowledged that it was a necessary condition of federal jurisdiction that the matter in which the jurisdiction of the court is invoked is capable of judicial determination or justiciable. We approved a statement by Henry Burmester in a book chapter written in 2000 which summarised the position thus: 'Matter', therefore, has two elements: the subject matter itself as defined by reference to the heads of jurisdiction set out in Chapter III, and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy.26 The important question to which this presentation now comes is whether a law of a State creating a right or liability which gives rise to a cause of action that can be invoked as part of a matter in federal jurisdiction, say for example within the accrued jurisdiction, applies of its own force or must somehow be transmuted into a federal law. The same question arises in a simpler way in the diversity jurisdiction conferred on the High Court by s 75(iv) of the Constitution and on State Courts by s 39(2) of the Judiciary Act. Momcilovic v The Queen27 was a case in which a resident of Queensland was prosecuted in Victoria for an offence against the Victorian Drugs, Poisons and Controlled Substances Act 1981 (Vic). The High Court held in that case for the first time that the diversity jurisdiction covered criminal cases. Diversity jurisdiction was also in issue in the Western Australian case of Rizeq v Western Australia28 to which reference will be made shortly. A question in such cases is whether the State law creating the rights and liabilities which are the subject of a claim or prosecution applies of its own force. Some say it requires application as a federal law by the ambulatory operation of s 79 of the Judiciary Act. The answer to that question does not depend upon the interpretation of the Judiciary Act provisions but rather upon the Constitution and whether it precludes the possibility of a State law applying of its own force when a claim under that law is made as an aspect of a matter in federal jurisdiction. There is of course nothing to prevent the Commonwealth Parliament, within the limits of its powers under the Constitution, from making a law which incorporates, by reference either specifically or in an ambulatory fashion,

the content of a law of a State. A recent example in the High Court was Mok v Director of Public Prosecutions (NSW).29 The facts read like an exam question. Mr Mok had failed to appear before the District Court of New South Wales for sentencing. A bench warrant was issued for his arrest. Some years later he was arrested by Victorian Police in Victoria under the New South Wales warrant which itself took effect in Victoria by operation of the Service and Execution of Process Act 1992 (Cth). An order was made for Mr Mok's return to New South Wales by the Magistrates Court of Victoria exercising powers under the Service and Execution of Process Act. Mr Mok attempted to escape from the custody of New South Wales Police at Tullamarine Airport. He was charged with attempting to escape from lawful custody contrary to the Crimes Act 1900 (NSW). The State law of New South Wales did not apply of its own force to his escape which was in Victoria and was, in any event, in a Commonwealth place, being the airport in which the Commonwealth Places (Application of Laws) Act 1970 (Cth) operated. However, the relevant provision of the Service and Execution of Process Act said: The law in force in the place of issue of a warrant [in this case New South Wales], being the law relating to the liability of a person who escapes from lawful custody, applies to a person being taken to the place of issue in compliance with an order mentioned in subsection (1).30 That is to say, provisions of the New South Wales Crimes Act in relation to escaping lawful custody were applicable by operation of the Service and Execution of Process Act to a person outside New South Wales and taken into custody under a warrant issued out of New South Wales. In our joint judgment, Justice Bell and I referred to the verbal formulae by which Commonwealth laws can give effect to State laws as laws of the Commonwealth. We referred to the observation of the High Court in Western Australia v Commonwealth (The Native Title Act Case)31 to the effect that there can be no objection to the Commonwealth Parliament adopting as a law of the Commonwealth a text emanating from a source other than the Parliament. As the Court said in that case 'the text becomes, by adoption, a law of the Commonwealth and operates as such.' The question in Mok was really about whether the content of the relevant State law was modified in its adoption as a law of the Commonwealth by the Service and Execution of Process Act. The fact that the Commonwealth can 35

adopt the text of State laws does not answer the question whether State laws can have application directly in the exercise of federal jurisdiction without first having to be being picked up and applied by federal law. Provision for the application of certain State laws applicable in the exercise of federal jurisdiction, both civil and criminal, include ss 64, 68 and 79 of the Judiciary Act. Section 80 of the Judiciary Act speaks to the application of the common law as modified by State statutes in the exercise of federal jurisdiction. It is sufficient for present purposes to refer to s 79(1), which provides: The laws of each State or Territory including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. Section 79 and its companion provisions in the Judiciary Act led to the expenditure of enormous amounts of intellectual energy in decisions of the courts and academic books and writings about their operation. It might be thought that they are ancillary to the exercise of federal jurisdiction and not central to its content. It was thought by some commentators, at least until recently, that the established position was that no State law could apply in the exercise of federal jurisdiction unless applied by a federal law. That proposition was based upon decisions in Solomons v District Court

of New South Wales32 and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd.33 One rationale for that was said to be that the States have no power to make laws which apply in federal jurisdiction. Therefore State laws have to be picked up and applied as if they were surrogate federal laws. That proposition was based upon observations by Gummow J in APLA Ltd v Legal Services Commissioner (NSW).34 On that basis, s 79 was a necessary function of picking up not only State laws of a procedural character regulating the exercise of the jurisdiction, but also State laws conferring the very rights and imposing the very liabilities in issue in a claim or prosecution made in federal jurisdiction. I expressed doubt about that proposition in my judgment in Momcilovic raising the question, which had not been debated at the hearing of the appeal in that case, whether in the exercise of diversity jurisdiction by the County Court of Victoria and later the Court of Appeal, the provisions of the Victorian drug law applied directly along with the statutory and common law rules affecting their interpretation. I found support for that proposition in the observation of Windeyer J in Felton v Mulligan that '[t]he existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.'35 My remarks were obiter and I did not express a concluded view. In Momcilovic both the County Court and the Court of Appeal had carried out their functions under an authority to adjudicate invested in them by s 39(2) of the Judiciary Act read with s 75(iv) of the Constitution even though nobody

knew that until the High Court held that s 75(iv) extended to criminal cases. If State laws apply directly in the exercise of diversity jurisdiction, a similar result would seem to attach to their application in the accrued jurisdiction where a court exercising federal jurisdiction has also to deal with a claim under State law forming part of the 'matter'. There was academic pushback and the suggestion that State laws could apply directly in the exercise of federal jurisdiction was challenged strongly by Will Bateman and James Stellios in a paper in the Melbourne University Law Review36 published in 2012. The question has now arisen for determination in the High Court in Rizeq v State of Western Australia [2017] HCA 23. I will confine myself to describing the background and principal arguments advanced by the appellant, Mr Rizeq, who was represented by Matthew Howard SC, and the arguments advanced by the respondent, the State of Western Australia, and by the Commonwealth. Other interveners in support of Western Australia were the States of New South Wales, Victoria, South Australia and Tasmania. The submissions of all of them can be seen on the High Court's website and the transcript of argument, which occurred on 1 and 2 February 2017, is on the website along with the audio visual record of the hearing. By way of background Mr Rizeq was convicted in the District Court of Western Australia in September 2013 of offences against the Misuse of Drugs Act 1981 (WA). At all relevant times he was a resident of New South Wales. He was convicted by a majority

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verdict. He contended in the Court of Appeal and it was evidently not in dispute, that because the proceedings were between the State and him as a resident of another State they were in federal diversity jurisdiction of the kind defined in s 75(iv) of the Constitution and conferred on the State court by s 39(2) of the Judiciary Act. He argued that by operation of s 79 of the Judiciary Act the State law creating the offence with which he was charged was picked up and applied to his prosecution as a federal law. On that basis he contended it attracted the application of s 80 of the Constitution which, as interpreted by the High Court, required that his conviction be based on a unanimous jury verdict. The Court of Appeal rejected that submission holding that although the prosecution was in federal jurisdiction the State law applied of its own force and s 80 of the Constitution was not engaged. Mr Rizeq argued in the High Court that the Court itself had consistently said that a State law could not apply of its own force in federal jurisdiction. Reference was made to a number of decisions.37 He argued that that is so because it is within the exclusive power of the Commonwealth Parliament to legislate for federal jurisdiction.38 He also argued that the power of the Commonwealth Parliament to make provision for the investment and exercise of Commonwealth judicial power by a State court derives from Ch III of the Constitution along with s 51(xxxix), the incidental power. Mr Rizeq submitted that because State laws do not apply of their own force to matters in federal jurisdiction, s 79 and its companion provisions in the Judiciary Act fill the gap to prevent a lacunae from arising. In this respect, the operation of s 79 was said to be analogous to that of the Service and Execution of Process Act which was considered in the case of Mok, which I mentioned earlier. On that basis in Rizeq's case it was argued that the Misuse of Drugs Act applied at the trial as a surrogate federal law attracting the constitutional requirement for a unanimous verdict.39 Issue was joined by the State of Western Australia in the High Court. It submitted that the Misuse of Drugs Act could and did apply to Rizeq's trial by its own force. Section 79 did not create any new offence by picking up the content of that law and thereby s 80 did not apply to the trial. Western Australia accepted that the District Court was exercising federal

diversity jurisdiction at the time of Mr Rizeq's trial. The State submitted: 'the matter' which enlivened the District Court's federal diversity jurisdiction was whether, on or about 16 July 2012 the appellant had breached s 6 of the Misuse of Drugs Act 1981 (WA). That 'matter' existed independently of, and logically prior to, the commencement of proceedings brought for its determination without which jurisdiction could not have been enlivened. Western Australia argued that the appellant's propositions failed to distinguish between the jurisdiction of a court, being its authority to adjudicate on a matter, and the law regulating the rights, duties and liabilities of persons before that court. That law, it was said, operated prior to and independently of the jurisdiction of the court to determine controversies about those rights, duties and liabilities. The Commonwealth had two lines of arguments in similar vein. The one which it put upfront in its oral submissions involved the proposition that s 79 does not operate at all on State and Territory laws that create the substantive rights and duties that underlie the matter attracting federal jurisdiction. State criminal offences apply of their own force in federal diversity jurisdiction. On that basis s 79 only operates on laws regulating the exercise of federal jurisdiction which it re-enacts as surrogate federal law. It would not operate at all on the substantive laws creating rights and liabilities of parties independent of the conferral of jurisdiction. The summary of points made by the appellant and the State of Western Australia and the Commonwealth is necessarily brief and over-simplified. Those who want a completer understanding of the issues and arguments should read the submissions and look at the transcript of the proceedings. There is no doubt that the case does have important implications for the way in which federal jurisdiction works in Australia. Its outcome is likely to affect the approach to the application of s 79 of the Judiciary Act in the future and the range of laws which it applies as federal laws in the exercise of federal jurisdiction. Federal jurisdiction has sometimes been equated to physics in its level of difficulty as an area of constitutional law. My own view is that once the essential concepts

are grasped it is not all that difficult. It is perhaps made more complex than it needs to be by the vast amount that has been written about it. NOTES: 1.



(2016) 90 ALJR 272, 279 [24] (footnote omitted).


Constitution, s 76(i).


Constitution, s 76(ii).


Constitution, s 76(iii).


Constitution, s 76(iv).


Constitution, s 77(i).


Constitution, s 77(ii).


Constitution, s 77(iii).


(1997) 189 CLR 520.


(1999) 200 CLR 485.


Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate and other papers and addresses by Sir Owen Dixon collected by Judge Woinarski (Law Book Co, 1965) 205.


(1999) 200 CLR 485, 507 [50]. See generally: Liam Boyle, 'An Australian August Corpus: Why there is only one common law in Australia' (2015) 27 Bond Law Review 27.


Official Record of the Debates of the Australasian Federal Conventions, Melbourne, 1898, 3:19 (Isaac Isaacs).


Ibid 3:20.


Judiciary Act, s 39B(1A)(b) and (c).


R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141.


(1921) 29 CLR 257.


Ibid 265.


(1983) 152 CLR 570, 608 [30].


Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564, [28] and cases there cited.


LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575.


(2016) 90 ALJR 272.


CGU Insurance Ltd v Blakeley [2015] VSCA 153.


(2016) 90 ALJR 272, 279 [24].


(2016) 90 ALJR 272, 280 [27] citing Burmester, 'Limitations on Federal Adjudication' in Brian Opeskin and Christine Wheeler (eds) The Australian Federal Judicial System (Melbourne University Press, 2000) 227, 232.


(2011) 245 CLR 1.


[2015] WASCA 165.


(2016) 90 ALJR 506.


Service and Execution of Process Act, s 89(4).


Western Australia v Commonwealth (1995) 183 CLR 373.


(2002) 211 CLR 119.


(2000) 204 CLR 559. See also Hill and Beech, 'Picking up State and Territory laws under section 79 of the Judiciary Act. Three questions' (2005) 27 Australian Bar Review 25.


(2005) 224 CLR 322.


(2011) 245 CLR 1, 69 citing Felton v Mulligan (1971) 124 CLR 367, 393.


Will Bateman and James Stellios, 'Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights' (2012) 36(1) Melbourne University Law Review 1.


Pedersen v Young (1964) 110 CLR 162, 165 and 167– 68; John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65, 79, 84 and 87–8 and 93; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 352 [35]; Solomons v District Court of New South Wales (2002) 211 CLR 119, 134 [21]; British American Tobacco Australia Ltd v Western Australia (2002) 217 CLR 30.


Northern Territory v GPAO (1999) 196 CLR 553, 628 [195]; Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136, 154[51] and [52]; Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 587 [57], 591–92 [68]; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 364–65 [78], 367 [82], 406 [230]; Alqudsi v The Queen (2016) 90 ALJR 711, 749 [169]–[171].


Cheatle v The Queen (1993) 177 CLR 541.


The Regulation of Industrial Relations by Reference to the Corporations Power A paper delivered at the 8th Biennial Australian Labour Law Association National Conference, Novotel Hotel, St Kilda, 5 November 2016

The Hon Justice Christopher Jessup Federal Court of Australia

When, on 14 December 1982, Dr Bob Brown and his supporters commenced their blockade of the works for the construction of what was to have been the Gordon below Franklin Dam, thereby putting in train a series of events that would lead to the establishment of Commonwealth legislative protection for large areas of the Tasmanian wilderness, little did they realise that they were sharpening the axe that would eventually bring down s 51(xxxv) of The Constitution. Not using it at that stage, just sharpening. It was on 1 July 1983 that the High Court upheld the validity of laws and regulations that enabled the Commonwealth to prevent the construction of the dam: The Tasmanian Dam Case (1983) 158 CLR 1. One of the grounds upon which the majority did so was that these laws and regulations, at least to the extent necessary for the Commonwealth’s then purposes, came within s 51(xx), that is, they were laws with respect to trading corporations, the corporation in question being, of course, the Hydro-Electric Commission of Tasmania. Mason (158 CLR at 148149), Murphy (158 CLR at 179) and Deane (158 CLR at 268) JJ regarded this head of power as extending to any law on the subject of a trading corporation, whether or not touching the trading activities of it (thereby raising what had been the previous high-water mark established in cases such as Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 and Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169). The fourth member of the majority, Brennan J, decided the point – on what was then the more conventional basis – because the legislation under challenge was, in one of its alternative formulations, confined to conduct by a body corporate

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“for the purposes of its trading activities” (158 CLR at 240-242). The Tasmanian Dam Case appears not to have excited any interest, at least at the governmental level, in using the corporations power as a vehicle for the regulation of industrial relations. A fortnight after the judgment in that case, the Minister for Employment and Industrial Relations constituted a tripartite “Committee of Review into Australian Industrial Relations Law and Systems”, the terms of reference for which, though broad, provided no encouragement for a recommendation that might favour recourse to a head of power other than para (xxxv). When the committee reported, on 30 April 1985, it dismissively referred to the corporations power, along with the trade and commerce power and the external affairs power, as “exotic”, the use of which would involve “a serious risk of antagonising the States and significant sections of the industrial relations community and might be counterproductive” (Report, para 7.13). This was one genie that would be kept firmly in the bottle. Or would it? Those with a lateral train of thought might have noticed that, since 1977, the Trade Practices Act 1974 (Cth) (“the TP Act”) had contained s 45D, the constitutional foundation of which was the corporations power and which had been held to be valid by the High Court seven months before Dr Brown’s blockade: Actors and Announcers. The Court rejected the argument advanced by Michael McHugh QC: “Section 45D is not a law with respect to … trading corporations …. It is a law regulating the conduct of persons imposing secondary boycotts.” (150 CLR at 171) So the section survived, and provided the basis for much subsequent litigation in an area

that fell within, albeit perhaps towards the fringes of, industrial relations. This placement of the problem was reflected in the report of the Committee of Review to which I have referred. Unusually, in the context of its report, the Committee was here unable to present a consensus position to the Minister. Within the Committee there were two “conflicting views”; one which saw s 45D as concerned with the regulation of what were “essentially industrial” activities, and the other which saw it as the means by which third parties could secure “legal redress” for loss and damage inflicted on them by participants in a dispute in which they were not directly involved (Report, para 10.320). It was the former view which, it seems, informed the decision to include Div 7 of Pt VI in the Industrial Relations Act 1988 (Cth) (“the IR Act”). The provisions of that division, which provided a mechanism to involve the Industrial Relations Commission in conciliation for the settlement of so-called boycott disputes, relied on the corporations power. Then, in 1992, ss 127A-127C were introduced into the IR Act. They invested the Commission with the power to set aside or to vary a contract to which a “constitutional corporation” was a party on the ground that it was unfair, harsh or against the public interest. To the extent that the new provisions went further and empowered the Commission to deal with a contract which was linked to a non-party constitutional corporation only because it related to the business thereof, those provisions were held to be invalid in Re Dingjan (1995) 183 CLR 323, but that limited qualification on the emerging utility of the corporations power need not detain us at this point. The following year, with the enactment of the Industrial Relations Reform Act

1993 (Cth) (“the Reform Act”), s 45D of the TP Act was rendered inapplicable to boycott disputes as defined in the IR Act, and a new s 162 was introduced which provided, in subs (3), that “a person must not take part in a boycott if either the third person or the fourth person is a constitutional corporation”. But the Reform Act went much further than to reconfigure the way that boycott disputes were dealt with. It introduced the first form of enterpriselevel industrial instrument – I shall not call it an “agreement” – which did not need to have, on the employee side, a party to an industrial dispute as the relevant party: the “enterprise flexibility agreement”. Such an instrument could be “prepared” only by “an employer that is a constitutional corporation”. By this stage, the corporations power was being used for the explicit purpose of regulating conduct occurring in the industrial relations context: the genie, as it were, was now head and shoulders out of the bottle.

Doubtless because of what had been said by the High Court in the Industrial Relations Act Case, there was no challenge in that court to the validity of the 1996 amendments, to the extent that they utilised the corporations power in the way I have described. Thus the way was open for the legislature to phase out reliance on the conciliation and arbitration power, which it did – almost, but not quite, completely – in amendments introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). If there was one thing that the re-named Workplace Relations Act 1996 (Cth) (“the WR Act”) did not do thereafter in relation to the regulation of industrial relations at the collective level, it was to provide a choice as between a stream which relied on the conciliation and arbitration power and a stream which relied on the corporations power, as had hitherto been the case. The genie now had unchallenged occupation of his new paradise.

The validity of the amendments made by the Reform Act was challenged in the Industrial Relations Act Case (1996) 187 CLR 416, but it was, with one minor exception, conceded “that the Parliament [had] power to legislate as to the industrial rights and obligations of constitutional corporations” (187 CLR at 539).

Indeed, it was the almost complete abandonment of the conciliation and arbitration power as a constitutional justification for industrial relations legislation that formed the basis of a High Court challenge to the 2005 amendments. In the Work Choices Case (2006) 229 CLR 1, that challenge was unsuccessful, but it was the words of Kirby J in dissent (229 CLR at 245246 [614]) which, albeit deprecatingly, captured the mood of the age:

That power was utilised to provide a statutory and regulatory framework for the making and enforcement of conventional collective agreements in amendments made to the IR Act by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). There was thus ushered in a period characterised by hybrid industrial relations regulation: the conciliation and arbitration power continued to sustain so much of the legislation as related to the prevention and settlement of industrial disputes, including those provisions under which awards were made and agreements which tended to settle such disputes were negotiated, while the corporations power sustained so much of the legislation as related to agreements made between constitutional corporations and their employees, or organisations representative of the industrial interests of their employees. By this stage, the genie was well and truly out of the bottle, but he discovered that his freedom was less congenial than he might have anticipated, in that he was required to share it with that curmudgeonly old traveller, the conciliation and arbitration power.

The precise constitutional issue now presented has not previously been decided by this Court because, for most of the past century, its resolution was regarded as axiomatic. It was self-evident that the corporations power did not extend so far as the majority now holds it to do. It was for this reason that, through referendums, successive governments sought – without success – popular approval for the enlargement of federal power with respect to industrial disputes. The repeated negative voice of the Australian people, as electors, in votes on these referendums, is now effectively ignored or treated as irrelevant by the majority. I accept that the corporations power in the Constitution, when viewed as a functional document, expands and enlarges so as to permit federal laws on a wide range of activities of trading and financial corporations in keeping with their expanding role in the nation's affairs and economic life. But there are limits. Those limits

are found in the express provisions and structure of the Constitution and in its implications. This Court's duty is to uphold the limits. Once a constitutional Rubicon such as this is crossed, there is rarely a going back. (As a matter of interest (albeit, it must be said, of no present relevance), this classical metaphor appears to have been much loved by his Honour. In Wilson v Anderson (2002) 213 CLR 401, 457 [139], he used it to convey what had happened apropos native title in Mabo v Queensland [No 2] (1992) 175 CLR 1, and, in Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168, 206 [113], he used it with reference to the removal of the stifling effect of an inconvenient Privy Council judgment on the development of the Australian law of charities.) While the WR ACT was “in large part, an exercise of the corporations power” (Work Choices Case 229 CLR at 55 [1]), the Fair Work Act 2009 (Cth) (“the FW Act”) which replaced it comprehensively involved, and continues to involve, an exercise of that character, at least so far as the mainstream of private sector industrial relations are concerned. By comparison with a system which relied on the conciliation and arbitration power, what changes has this brought in the conduct of industrial affairs? Industrial relations practitioners tend to have a more laid-back disposition apropos changes in the law than their counterparts in other areas affected by Commonwealth legislation such as, for example, those who practise in the areas of intellectual property and tax. The silent premise seems to be that the underlying realities will never change, and that the outcome of any disagreement or issue will tend to be the same, regardless of the legislative framework within which the practitioners go through their required motions. With respect to the changes that we have seen in the last decade, I am not so sure about this premise. Things were much simpler under the conciliation and arbitration power. The rules surrounding the creation, and the limits, of industrial disputes had been established in a series of High Court cases over a number of generations. The existence of a dispute based on a carefully formulated log of claims provided both the ambit of any agreement or award which might be made by way of settlement and the parties to such an agreement or award. Once the only constitutional


requirement was that one of the parties to an agreement be a constitutional corporation, however, the question arose: who might the other party be? Since about the mid-1990s, the idea that an employer might make an agreement with its employees, rather than with a union, has gained currency, to the point where such a procedure is now the paradigm outcome, as it were, of successful collective bargaining. Indeed, as is well-known, it is only in relation to “greenfields” agreements that employers may make agreements with unions as such. Otherwise, the role of unions is as bargaining representatives of employees who will be asked to approve the agreement. Then there was the question of to whom a collective agreement would apply. This question had, and has, dimensions both of latitude and of longitude. As to latitude, the question involves the spread of the agreement over the employer’s workforce. At the outset, this appears to be entirely a matter for the employer, a circumstance which, the legislature clearly anticipated, might lead to problematic outcomes. Thus the facility for the making of “scope orders” under s 238 of the FW Act, but only, it should be noted, on the application of a bargaining representative, that is to say, a representative of someone who will be covered by the agreement in its then proposed terms. As to longitude, the question involves the relationship between the employees who approve the agreement and the employees who, over the term of the agreement, will have their terms and conditions of employment covered by it. As the Full Court has pointed out (Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152, 179 [88]), for employees in the latter group who were not in the former, it is not an agreement in the generally understood sense at all. Under legislation based on the conciliation and arbitration power, it was always thus, of course, but the opportunity for a well-advised employer to secure the approval of an agreement from a very limited cohort of employees in circumstances where it is reasonably anticipated that the size of that cohort will greatly increase has not gone unnoticed in recent times and may not be ideal from a policy point of view: see Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, 302-303 [20]. If there were one thing which characterised the operation of the conciliation and arbitration system, it was the broad discretion which

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was reposed in the tribunal by which disputes were prevented and settled. The sanctity of the processes concerned was underpinned by the privative clause which was to be found in the IR Act and its predecessor. The Fair Work Commission still has a substantial role in the administration of collective bargaining under the FW Act, and the size of its decision-making function by reference to matters of assessment, judgment or discretion is considerable (by my count, the expression “if the FWC is satisfied” appears 65 times in the FW Act). But its decisions are now exposed to the chill winds of judicial review, winds which, largely as a result of High Court activity in migration and refugee cases, blow more strongly, and over a wider front, than they ever have before. A generation ago, who would have thought that the decision of the tribunal on whether to grant leave (now described as “permission”) to appeal not only might, but would, be subject to contested proceedings in a court on administrative law grounds? But that has been the experience: see Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 and Australian Commercial Catering Pty Ltd v Fair Work Commission (2015) 235 FCR 441. Still, regulation by judicial review of decisions of the Commission may be preferable to the alternative. Under the WR Act in its post-Work Choices terms, there were no fewer than 36 civil remedy provisions which regulated, by direct statutory edict, the conduct of parties under Pt 8, which dealt with the matter of “Workplace Agreements”. Part 2-4 of the FW Act, which correspondingly deals with “Enterprise Agreements”, contains but one civil remedy provision. The enforcement of the various rules which together make up the system of collective bargaining we have today is done by administrative means, largely by requiring the Commission to be satisfied that these rules have been observed, absent which the next step, presumed to be desired by the employer concerned, may not be taken. For example, as the Full Bench of the Commission in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 pointed out, the result of a notice of employee representational rights not having been validly given under s 173 of the FW Act is that there will be no reference point for the time within which the employer may ask its employees to approve the agreement by voting under s 181(2), and, unless the Commission is satisfied under s 188(a)(ii) that s 181(2) has been complied with, it will

consequently not be satisfied that the agreement was genuinely agreed to for the purposes of s 186(2)(a), and the agreement will not be approved. The option of taking protected industrial action lies, of course, at the centre of the collective bargaining regime contemplated by the FW Act. Yet, and perhaps necessarily, it is set about with countless requirements and qualifications, both positive and negative. It is not beyond the memory of many living souls that the Conciliation and Arbitration Act 1904 (Cth) (“the CA Act”) not only contained no prohibition upon the taking of industrial action but expressly forbad the then Australian Industrial Court, and later the Federal Court, from enforcing, by injunction, a bans clause in an award. How things have changed. Now, the FW Act contains both direct (eg s 417) and indirect (eg s 343) prohibitions upon industrial action. As a generality, the prohibitions will not apply if the industrial action is protected. Whether a particular instance of industrial action is protected may depend upon the presence or absence of qualifying or disqualifying factors as determined by a court some time later. In a recent case, whether the action was protected depended, amongst other things, on whether it fell within the terms of the relevant notice given by the union concerned under s 414 of the FW Act; and that, in turn, raised an issue as to the construction of the notice. A series of notices was given in January, February and early March 2015, and industrial action followed. The conformity of the action with the notices was challenged in court, and an interlocutory restraint upon the taking of industrial action was obtained. In due course, a final judgment delivered on 24 July 2015: Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304. The case went to the Full Court, which delivered its judgment on 25 May 2016: Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72. Subsequently, both sides sought special leave to appeal to the High Court. In the meantime, I presume, collective bargaining, such as it would be, is proceeding in the absence of protected industrial action. To descend to a point which is, on one view, of minute detail, an issue which arose in Esso was whether, in making an order under s 418 that industrial action stop etc, the Commission was limited, and if so how, to “the” industrial action which had been the subject of a finding under subs (1) of the section. The Full Court held that it was. Such a limitation

on the Commission’s ability to deal with what would often have been the ebb and flow of a live industrial dispute had no place in the system which relied on the conciliation and arbitration power. Although the enforcement of a bans clause may have been problematic in a number of respects, the Commission was blessed with almost infinite flexibility in the making of such a clause, so long as it did not stray too far from the dispute for the enduring settlement of which the clause would provide support. This is but one of many instances of the justiciability of facts, matters and circumstances which arise in the regulation of industrial affairs where the only constitutional prop is that one of the relevant parties is a corporation. Under such a system, so much of the regulation is now a matter of edict by the statute itself, compliance with which must, if push comes to shove, take the relevant parties to court. Traditionally, the main regulatory instrument in industrial relations was the award. It was possible for the parties to reach an agreement as to all or some of the matters in dispute, and have the agreement certified, but, in an era when awards could be made by consent and did not have their “safety net” function, certified agreements were a minor part of the scene. The recent statutory focus upon award rationalisation and modernisation stands as a formal reminder of the sometimes chaotic state into which the pattern of awards had drifted under the conciliation and arbitration power. The legislature’s attempt to wind back the range of matters exposed to regulation by award in 1996 survived by a single vote in a seven-member High Court: Re Pacific Coal Pty Ltd (2000) 203 CLR 346. Nowadays, however, the “modern award” with which we are all familiar is an unashamedly legislative instrument tightly regulated by the statute under which it is made. The question arises, should we approach the construction and enforcement of a modern award by reference to the well-known advice given by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182, 184 that the framers of an award were likely to have been “of a practical bent of mind”, thus requiring us to give effect to the evident purposes of the award, having regard to the context in which it was assumed to have been made, namely, that of “the relevant industry and [the] industrial relations environment”. His Honour did not put it in these terms, but the image evoked was that of a smoke-filled crib room, and of the terms

of an award being thrashed out on a laminex-topped table by workers and managers who were soon to return to their tools and their boardrooms. If this ever was the setting of award-making, it would create a misleading impression of the contemporary realities of the making of a modern award under the FW Act. At base, the difference flows from the circumstance that the modern award, unlike its predecessor under the C&A Act and the IR Act in at least its early years, is not the property of any party. It has more in common with a regulation made under statute than with an award made in settlement of a dispute.

phrase, apropos organisations and, in some situations, associations, “entitled to represent the industrial interests of ….” But, in a legislative setting in which the principle for which R v Dunlop Rubber Australia Ltd (1957) 97 CLR 71 stands is irrelevant, what does it mean to say that an organisation has such an entitlement? It was recently held in Regional Express Holdings Ltd v Australian Federation of Air Pilots [2016] FCAFC 147 that it meant the same as it has always meant, although it was recognised that this might now be viewed as involving a legal fiction to a degree.

It is otherwise, of course, with respect to an enterprise agreement made and approved under the FW Act. From what I have seen, there remains every reason to assume that these kinds of instruments are often the work of people in the enterprises or industries concerned, as they should be. From a regulatory point of view, that circumstance does not, one observes, uniformly produce satisfactory outcomes. It may be that a court tends only to see the worst of examples, but the impression I get is that enterprise agreements generally could benefit from a greater awareness, on the part of their drafters, of the importance of a clear identification of what must, or must not, be done in specific situations, and from a reduction in the use of euphemisms which, as often as not, reflect not a consensus on the part of the agreement-makers but a successful search for a “form of words” designed to accommodate, and to conceal, very different understandings. In a regulatory setting, a drafting approach of the latter kind inevitably leads to litigation: see eg National Tertiary Education Union v La Trobe University (2015) 254 IR 238.

Adverse action, as someone pointed out at a Victorian Bar seminar recently, is “the new black”. Proceedings under Pt 3-1 of the FW Act just keep coming through the doors of the Federal Court and the Federal Circuit Court. The options for an intending applicant under ss 340 and 346 are dizzying. These provisions have their origins, of course, in what was s 5 of the C&A Act, the content of which was expanded considerably in s 334 of the IR Act. But, from the statutory menu which is presented by the FW Act, examples of delicts which could never have been validly legislated under the conciliation and arbitration power are readily to be found. For instance, adverse action may not be taken against an employee because he or she is entitled to the benefit of a State law dealing with occupational health and safety; or because he or she complies with a lawful request made by an unregistered, informally constituted, industrial association. These prohibitions, and others like them, are validly enacted because the employer concerned is a constitutional corporation, and the employee concerned is employed by the employer. From there, the range of actions which are regulated, and the range of reasons which are prohibited, become entirely matters of policy.

On the subject of trade unions, the judgments of the High Court which defined the jurisprudence which both upheld legislation which provided for the registration and incorporation of registered organisations as participants in a system of conciliation and arbitration and marked out the limits of their capacity to act as “party principals”, even where flesh and blood members were lacking, formed the backbone of many an undergraduate course in industrial law. I presume this was the case until at least the mid-1990s, but I can vouch only for the later 1960s. As you will need no reminding, the legislation which dealt with registered organisations has never been repealed: the Fair Work (Registered Organisations) Act 2009 (Cth) is the twice-renamed IR Act. The FW Act itself is replete with the

I bring this discussion of some of the respects in which the regulation of industrial relations under the corporations power has challenged our institutional and cultural assumptions in a number of areas to an end at this point for the best reason of all: I have run out of time. I do not suggest that the areas I have canvassed are exhaustive, or nearly so. Doubtless many of you will have other examples to add to the list. My parting hope is that what I have said will stimulate you to further inquiry and analysis which must, at base, always be the driver of improvements in the law.


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

Property – Enforcement order compelling husband to access his super to pay wife $350,000 set aside on appeal

Child support – Full Court overturns order staying Canadian child maintenance liability

In Mackah [2017] FamCAFC 62 (3 April 2017) the Full Court (Thackray, Aldridge & Moncrieff JJ) allowed the husband’s appeal against an order of the Family Court of WA (on the wife’s application to enforce a consent order that he pay her $350,000) that he apply to the trustee of his self-managed superannuation fund (of which he was sole member) for payment of a transition to the retirement pension, the trustee to pay that pension to an account nominated by the wife but in the husband’s name, with authority for “either to sign”.

In Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 (31 March 2017) a Canadian Court made child maintenance orders in 2011 and 2013 in favour of the mother (who lived in Canada) against the Australian resident father, which in 2014 were registered by the Child Support Registrar (CSR) under s13 of the Child Support (Registration and Collection) Act 1988 (Cth) (CSRCA and CSRC Act). The Full Court (Thackray, Strickland & Ainslie-Wallace JJ) granted the CSR’s application for leave as a non-party to appeal, allowing the appeal from a consent order made by the Federal Circuit Court (FCC) in 2015 staying those orders.

Thackray J (with whom Aldridge and Moncrieff JJ agreed) said ([27]): “ … [I]t is unnecessary to consider all of the grounds and the … argument … in support … as I … consider [that] the orders are inconsistent with the legislative scheme regulating Australian superannuation entitlements, and therefore cannot stand.” Thackray J continued (from [28]): “It is not in dispute that the superannuation fund is a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth). ( … ) [29] Regulation 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) … relevantly provides: (1) Subject to ... regulations ... 7A.13, 7A.17 and 7A.18, a member’s benefits in a regulated superannuation fund must not be cashed in favour of a person other than the member or the member’s legal personal representative ... ( …) [38] The wife’s … counsel submits … that … no provision of [the order] formally contravenes this requirement. ( … ) Instead, the trustee must pay the husband’s superannuation income into an authorised deposit account with authority for ‘either [party] to sign’ ... [39] The effect of the orders is clear – money is to be removed from the husband’s superannuation fund and paid to the wife in satisfaction of a debt. [40] In my view, this is a clear contravention of reg 6.22 since the benefits in a regulated superannuation fund are being cashed in favour of a person other than the member of the fund or his legal personal representative.”

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The Full Court ([30]-[38]) said that the Canadian order was an “overseas maintenance liability” as defined by s4 CSRCA (“a liability that arises under a maintenance order made by a judicial authority of a reciprocating jurisdiction”); that Canada was prescribed by Schedule 2 of the Family Law Regulations to be a reciprocating jurisdiction; and that the order was a registrable maintenance liability which when registered became a debt due to the Commonwealth under s30 CSRCA. The FCC granted the father a stay under s111C pending hearing of his application for variation of the maintenance order under FL Reg 36 (a Reg 36 order being provisional under Reg 38 until confirmed by the reciprocating jurisdiction under Reg 38A). The CSR argued ([45]) that “the proper construction [of s111C(1)(a)] requires that there be ‘proceedings’ on foot ‘where the Court’s jurisdiction to hear and determine those proceedings arises under the CSRC Act’. If that construction is correct, then his Honour did not have jurisdiction to make the orders under s111C, because the proceedings on foot were … proceedings pursuant to the Regulations, and not the CSRC Act”. The Full Court agreed, adding ([47]): “ … Indeed, that construction has support from at least one decision at first instance … Leisel [2011] FamCA 624 at [14]-[17]. Thus, his Honour did not have jurisdiction to make the stay order under s111C.” Property – Wife was two days late to refinance under property order – Husband’s appeal of enforcement order granted to wife dismissed In Bebbington [2017] FamCAFC 31 (8 March 2017) consent orders required the husband to transfer his interest in real property to the wife within 45 days, she contemporaneously

to refinance a mortgage and pay him $33,000, the property to be sold in default ([4]). While a transfer was signed and refinance approved the wife was unable to settle until the 47th day. The husband refused to complete, invoking the sale clause. Upon the wife’s enforcement application Judge Purdon-Sully ordered the transfer, refinance and payment to occur within 28 days. The order was carried out and the husband paid but he appealed, arguing that the Court had “varied the substance” of the consent orders ([11]). After citing authority as to the discretionary nature of enforcement, Kent J on appeal said ([25]-[26]): “ … [I]mportantly in this case there is no executory order to be carried into effect. The husband, not having obtained a stay of the … orders, acquiesced in them being carried into effect. … ” Kent J continued ([34]-[35]): “ … The orders did not prescribe that time was of the essence for the acts to be performed nor can the orders as a whole be sensibly interpreted as producing that result … to mean that if the 45 day period was not strictly adhered to but performance by the 47th day was achievable (as was the case) the … substantive rights conferred by the orders would be, as a result of such delay, materially different. The primary judge found [that] ‘[w]hilst having made the consent orders … the Court is functus officio with no power to vary the substance of the orders it does have the power to make machinery orders to give effect to the orders’. No issue is taken with this statement of principle.” In dismissing the appeal Kent J said that the order “extending the time for the transfer to be effected did not alter the right of the husband to seek the sale of the property if the wife was unable to refinance the mortgage”, thus ([45]) “[t]he orders … were consequential or machinery in nature”.

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. au. He is assisted by accredited family law specialist Craig Nicol.





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Law Council Update Political attacks on the courts a very worrying trend

Reconciliation can be advanced by constitutional change

The Law Council, speaking on behalf of the Australian legal profession, is calling for an end to political attacks on the judiciary, especially in cases where they might be perceived to interfere with matters currently before the courts.

On the eve of National Reconciliation Week, the Law Council of Australia has released its submission to the Referendum Council’s Discussion Paper calling for constitutional change to meet the aspirations and wishes of Aboriginal and Torres Strait Islander peoples.

Law Council of Australia President, Fiona McLeod SC, said recent comments from Government MPs referring to “ideological experiments” supposedly being carried out by the judicial system were gravely concerning. “It is inappropriate to suggest that judges decide their cases on anything other than the law and the facts presented to them by the parties,” Ms McLeod said.  “Attacking the independence of the judiciary does not make Australia safer, in fact it erodes public confidence in the courts and undermines the rule of law.  “It is Australia's robust adherence to the rule of law that has underpinned this nation's status as one of the most peaceful, harmonious, and secure places in the world.”  Ms McLeod said the Law Council has particular concerns about comments made in the media today by Government MPs about a terror-related case currently before the courts in Victoria.  “Australian politicians have traditionally, and quite correctly, been very careful to avoid any perception of attempting to influence the courts. This is a standard that should be upheld by every Member of Parliament,” Ms McLeod said.  “Commenting on a matter that is currently before the courts could be perceived by members of the public as an attempt to influence the outcome and interfere with the court process.”  Ms McLeod noted that the media commentary today was actually prompted by the court observing the difference in recent sentencing decisions between States and asking the prosecutor and defence Counsel to address submissions on this difference.  “The horrific nature of the crime is apparent to all and was in fact noted by members of the court during the hearing of the appeal,” Ms McLeod said.  “It is therefore particularly unfair and concerning that the independence and impartiality of the courts have today been questioned.  “The Court of Appeal will in this case, as in all cases, decide the matter on the facts and the applicable law.” 

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Law Council of Australia President, Fiona McLeod SC, said that meaningful strides towards true reconciliation should be made, to mark the anniversaries of the 1992 Mabo decision (25 years) and the 1967 Referendum (50 years). “The Law Council has long held that the Australian Constitution should formally recognise the distinct identities of the Aboriginal and Torres Strait Islander peoples and secure them equality before the law,” Ms McLeod said. “The Referendum Council’s work in supporting this necessary dialogue has been essential, particularly through the convention at Uluru. “This is a reform for all Australians, to strengthen the Australian Commonwealth, provide due recognition and respect to the First Australians and bind us all closer in reconciliation.” Ms McLeod said achieving reconciliation should be considered a national priority of the highest order, which runs hand-inhand with efforts to close the gap between Indigenous and non-Indigenous Australians. “As we reflect on National Reconciliation Week, there remains a critical need to address the widening justice gap. Indigenous incarceration rates are continuing to rise and all governments share responsibility. “An intergovernmental strategy, along with justice targets, is long overdue.” Ms McLeod said. This followed the release of a PwC report showing that annual savings to the economy of nearly $19 billion could be achieved by 2040 if the gap between Indigenous and non-Indigenous rates of incarceration were closed. “The PwC report makes a range of excellent evidence-based recommendations that align with Law Council positions. These include identifying opportunities for Indigenous self-determination, designing better throughcare and reintegration programmes to reduce recidivism, improving cultural awareness, investing more in prevention and early intervention, and establishing hard targets to measure national progress,” Ms McLeod said.

“These are sensible reforms that could drive real change. We just need the political will to implement them widely.”

COAG must prioritise risk assessment tools used for parole and bail The Law Council of Australia today called on COAG to give high priority to developing superior risk assessment tools, not only in relation to those convicted of terrorist offences but for violent offenders who may have a propensity for extremist views or terrorism activity. This week’s terror attack in Melbourne, and the Lindt café siege in Sydney, have underscored the inadequacy of various risk assessment tools in judging the likelihood of a violent offender engaging in terrorist activity if released on parole or bail.  While work is underway at a federal level on new risk assessment tools for convicted terror offenders to predict the likelihood of further terrorism activity, there appears to be a gap in risk assessment tools focusing on violent offenders who may have a propensity for extremist views or terrorism activity.  Law Council President, Fiona McLeod SC, said the need for improvement was compelling.  “Courts and parole boards making decisions about bail and parole can make good decisions if they have sound information and effective tools permitting an accurate assessment of risk. We need to improve the tools used to assess violent offenders,” Ms McLeod said.  “As we have unfortunately seen from recent experience, there is no neat line to be drawn between violent offenders and terrorists.  “We have to recognise that the capacity of current risk assessment tools to predict future terrorist activity is at best, limited.”  Ms McLeod said that improving information sharing should also be an area of focus at COAG.  “We need to critically examine why there appears to be an absence of effective information sharing between intelligence agencies, law enforcement, and parole boards,” Ms McLeod said.  “ASIO and the AFP already have the power to share information with State and Territory bodies including police. There needs to be clarity about when and how that information should be shared.  “We also need to ensure that individuals with extremist views and a propensity for violence are able to participate in deradicalisation programmes, regardless of whether or not they have been convicted of terrorist offences.”

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Professional Announcements Career moves and changes in the profession

HHG Legal Group Alison Kish Solicitor Alison was admitted Alison Kish to practice in February 2015 and joins HHG Legal Group as a solicitor in the Family Law team. Alison has a wealth of experience in Family Law from working with and being mentored by a Family Law Accredited Specialist and has developed extensive knowledge in Care and Protection matters from her work experience at the Department for Child Protection and volunteering at the Women’s Law Centre. Alison completed her practical legal training at Bannerman Solicitors. Alison was previously a committee member of the Women Lawyers of Western Australia and is currently on the Family Law Practitioners of Western Australia, CPD sub-committee. Emma Armistead Law Graduate Emma graduated from Murdoch University in 2017 and joins HHG Legal Group as a law graduate Emma Armistead in the Albany office. Emma works with both the Family Law and Wills and Estates teams. Before joining HHG Legal Group Emma volunteered for Sussex Street Community Law Service and worked in the mining industry. Emma completed her practical legal training with HHG Legal Group and Sussex Street Community Law Service. James Tadros Solicitor James is a solicitor in HHG Legal Group’s Commercial Litigation team, and Wills and Estates Planning team. He has a background in commercial and tax litigation. James has experience in the preparation of a variety of large commercial

46 | BRIEF JULY 2017

litigation matters. He also has helped conduct numerous tax controversy matters against James Tadros the Australian Tax Office and Office of State Revenue.

joining HHG Legal Group, Rebekah worked at several major Australian law firms in the areas of commercial, insurance and property law. In 2017 Rebekah was awarded the Graduate Diploma of Family Dispute Resolution Practice.

Prior to joining HHG Legal Group, James worked as a solicitor at a boutique commercial Perth firm and tax specialist Perth firm. James graduated from Murdoch University with a Bachelor of Laws (Honours) and Commerce in August 2015 and was admitted in 2016.

Separovic Injury Lawyers

Oscar Dell’Anna Solicitor Oscar is a solicitor in HHG Legal Group’s Commercial team. He has a background in commercial Oscar Dell'Anna transactions and commercial property matters. Oscar has experience in providing commercial advice and assistance to small and medium sized businesses, healthcare practitioners and health-related entities, and notfor-profit organisations. Prior to joining HHG Legal Group, Oscar worked as a solicitor at a boutique West Perth firm and as an in-house counsel for the Australian division of a large multinational organisation. Oscar graduated from the University of Western Australia with a Bachelor of Laws and a Bachelor of Arts (Italian), and was admitted in 2015. Rebekah Little Solicitor Rebekah Little was admitted to practice in 2015 and joins HHG Legal Group as a solicitor in the Family Law team. Before

Rebekah Little

Separovic Injury Lawyers are pleased to announce that Eleanor Scarff has been promoted to Partner as of 1 July 2017. The firm also warmly welcomes Gemma Taylor who will be commencing as a Senior Associate and Zoltan Kozma who will also be joining the firm as a Consultant.

Zafra Legal Zafra Legal is pleased to announce that James Marzec has been promoted to Senior Associate. James Marzec James’ primary areas of focus are commercial and corporate litigation, estate planning and insolvency law.

Williams + Hughes WA law firm Williams + Hughes has appointed Madeleen Rousseau, a prominent Perth­ based IP lawyer, to the role of principal. Ms Rousseau, in practice for two decades exclusively in the field of intellectual property and technology law, was a partner in Adams and Adams, a large South African IP firm. Ms Rousseau, who assists many government agencies and Western Australian institutional clients, joined Williams + Hughes in 2016 after seven years as the lead technical specialist at Herbert Smith Freehills in Perth. Ms Rousseau is the second

IP principal at Williams + Hughes, joining trade mark and confidential information expert David Stewart. Williams + Hughes is a boutique litigation and commercial law firm established in 1987, with offices in Perth and Geraldton. The firm acts for a wide range of clients both domestically and internationally.

O’Sullivan Davies O’Sullivan Davies is pleased to announce the following appointments. Sarah Jones Senior Associate Sarah is an experienced Family Lawyer dealing in a range of parenting and financial matters Sarah Jones including complex Family Court cases. Genevieve Smit Associate Genevieve was previously a Legal Associate in the Family Court of Western Australia, Genevieve Smit and recently completed a Master of Laws which resulted in some of her academic writing being published in the Family Law Review. Genevieve has a particular interest in Financial Agreements and is dedicated to assisting our clients through difficult circumstances. Ryan van der Merwe Associate Ryan’s strengths in Family Law include trial advocacy and dealing with Estate related litigation in the Family Court.

Ryan van der Merwe




Level 2, 524 Hay St, Perth

Equus Building - Suite 184 / 580 Hay St, Perth

Lots 6, 7 & 8 (whole floor available) • • • • • •

Lot 6 – 107m2 Lot 7 – 163m2 Lot 8 – 258m2 Available individually or in any combination Superb Court Precinct location Holding income available

Greg Radin 0411 883 995 | Eric Rogers 0412 228 555


2 x partitioned offices + boardroom

Plus open plan (10 workstations, up to 35)

2 x secure undercover car bays

Victor Aloi 0404 808 012

MISSING WILL Any person having knowledge of any will or any file or other records of any will made by NOELETTA CRANE formerly of 47A Swanview Terrace, Maylands, Western Australia and late of City of Bayswater Hostel, 21 Embleton Avenue, Embleton, Western Australia, who died on 29/06/2017, please contact Murray Smith Solicitors PO Box 4216, Mosman Park WA 6012 telephone: (08) 9284 3149 facsimile: (08) 9284 6605 email:

JOSIP BABIC (also known as JOSEPH BABICH, JOE BABICH, JOSEF BABITSCH and JOE BABITSCH) late of 24 Falls Street Exmouth Western Australia died on 27 April 2016 at Murdoch, Western Australia. Would any person holding the last Will and Testament of JOSIP BABIC (also known as JOSEPH BABICH, JOE BABICH, JOSEF BABITSCH and JOE BABITSCH) or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay St, Perth, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 33134367 EM15.

Mediation Rooms Arbitration Rooms Meeting Rooms Conferencing Facilities Training Rooms Private Functions

Contact: Maria Fifield

1300 237 237

WILL OF THE LATE Ryan Ashley Stuart Any person knowing the whereabouts of any Last Will and Testament of the above named who died 6 May 2017, late of 21 Gilmerton Way, Greenwood, Western Australia 6024 please contact Geoff Stevens (Solicitor) of HWL Ebsworth Lawyers PO Box 7222, Cloisters Square, WA 6850 or, (08) 9420 1554.

Government of Western Australia Department of the Attorney General

The Alternative Dispute Resolution Centre is now taking bookings for the period commencing 1 September 2017 for:

MISSING WILL Any person holding or knowing the whereabouts of the last Will of the late Biagio Gino Pasquini also know as Gino Pasquini late of 21 Wright Street, Highgate, Western Australia, born on 3 February 1931 who died on 1 October 2016, please contact:

adcorp WG20906

Val Antoff of IRDI Legal 248 Oxford Street, Leederville Western Australia 6007 Telephone: 08 9443 2544 Fax: 08 9444 3808 Email:

Outstanding career and lifestyle opportunity for a lawyer with 3 - 5 years P.A.E

If you are a lawyer with 3 - 5 years PAE, this is your opportunity to become part of Bunbury’s large and fast growing population and to push your career to the next level. The potential for growth and development is indisputably at an all-time high in the South West region. The opportunity to blend both the benefits of living in a diverse and growing regional centre (literally one hour and forty five minutes down the freeway from St Georges Terrace) together with real career development prospects is right here. OUR OFFICE IS LOCATED IN THE CBD OF BUNBURY IN WESTERN AUSTRALIA.

To apply for this position, please send all resumes, cover letters and academic transcripts in PDF format only to the Practice Administrator, Sarah Rowlands at au with ‘Application: 3 - 5 PAE Lawyer’ as the subject line.

For a confidential discussion regarding any of the information in this advertisement, the benefits of living and working in Bunbury, or for any other queries in relation to this position or our firm, please call the Practice Administrator, Sarah Rowlands on (08) 97 920 920.

New Members New members joining the Law Society (May 2017) Ordinary Membership

Miss Megan Arrowsmith Clayton Utz

Mr Alex Duffy Ashurst Australia

Miss Cassie Musulin Clayton Utz

Miss Nalin Behere University of Western Australia

Ms Nikolina Dzinkic Mountains Lawyers

Mr Toby Newnes Ashurst Australia

Ms Carola Varne Douglas Cheveralls Lawyers

Ms Rahana Bell University of Western Australia

Ms Hannah Flynn University of Western Australia

Ms Emma O'Flaherty Munro Doig

Restricted Practitioner

Miss Dehideniya Karunarathne Bhagya Chithrangada University of Western Australia

Miss Tash Graham Clayton Utz

Ms Daisy Oman Clayton Utz

Mr James Harford Clayton Utz

Mr Nicholas Rawlinson Clayton Utz

Miss Mikayla Hetebry Murdoch University

Miss Sara Tan Clifford Chance (Sydney)

Mr Adam Law

Miss Jessica Taylor Clifford Chance (Sydney)

Mrs Claire Sharpe Australian Building and Construction Commission

Ms Cayli Bloch Sparke Helmore Ms Jacqueline Chalder Mills Oakley Ms Aimee Daga Jackson McDonald Mr Charles Dallimore Ashurst Australia

Associate Membership Mr Chris Adamek Clifford Chance (Sydney)

Ms Isabella Bogunovich Clayton Utz Ms Dell Butler Clayton Utz Ms Natasha Chaudhri Murdoch University Mr Tim Cook Edith Cowan University Miss Georgia Denny Clayton Utz

Mr Chien Lee University of NSW

Mr Connor Taylor

Ms Eilis McCarthy University of Notre Dame

Mr Keith Wood Edith Cowan University

Miss Louise McNamwa Edith Cowan University

Mr Jacob Wotherspoon The Australian National University


Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

July 2017 Membership Events Friday, 14 July Golden Gavel Pan Pacific Hotel

Wednesday, 19 July NAIDOC Week Screening of Prison Songs The Law Society of Western Australia

August 2017 Membership Event Tuesday, 1 August Sir Ronald Wilson Lecture Central Park Theatrette

CPD Seminar Saturday, 5 – Sunday, 6 August Practical Advocacy Weekend Children’s Court of Western Australia

September 2017 Membership Event Date to be advised Social Justice Opportunities Evening

CPD Seminar Tuesday, 5 September Civil Liability Update The Law Society of Western Australia

October 2017 CPD Seminars Friday, 20 October Ethics on Friday: Practical Conflicts – Real Life Studies The Law Society of Western Australia

Friday, 20 October Parliamentary Drafting The Law Society of Western Australia

November 2017 Membership Events Saturday, 11 November Young Professionals on the Bay Cocktail Party Royal Freshwater Bay Yacht Club

CPD Seminar Wednesday, 8 November Misuse of Market Power The Law Society of Western Australia

Thursday, 23 November Welcome to the Profession Breakfast Parmelia Hilton Hotel For all CPD-related enquiries please contact or (08) 9324 8614. For all membership-related enquiries please contact or (08) 9324 8692. For all upcoming events and further information please visit

48 | BRIEF JULY 2017


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