Page 1


State Government and Opposition respond to the Law Society’s Policy Positions

Ceremonial Sittings

The Hon Robert French AC The Hon Susan Kiefel AC The Hon James Edelman

Volume 44 | Number 2 | March 2017

COVER State Government and Opposition respond to the Law Society’s Policy Positions

Ceremonial Sittings The Hon Robert French AC The Hon Susan Kiefel AC The Hon James Edelman



lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Moira McKechnie Tel: (08) 9324 8650 | Email: mmckechnie@lawsocietywa.asn.au


Admitting mental illness


Inside the Old Court House


An interview with the Hon Justice Buss


The Old Court House Law Museum: Changing the Displays


30th Anniversary of the Francis Burt Law Education Programme, Old Court House Law Museum and Mock Trial Competition


Mock Trial Competition Testimonials


State Government and Opposition respond to the Law Society’s Policy Positions


The finality of planning approvals: the unexplored impact of the Interpretation Act 1984?


Ceremonial Sitting on the occasion of the retirement of the Chief Justice, The Hon Robert French AC

Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Brett Syme RRP $15.00 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 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: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact communicationsofficer@lawsocietywa.asn.au


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

42 49

37 32


President's Report


Your voice at work


Editor's Opinion


Family Law Case Notes


Law Council Update


Pam Sawyer


Professional Announcements

The Coronial Jurisdiction: Lessons for Living


New Members



Values in Law: How they Influence and Shape Rules and the Application of Law


Events Calendar

Ceremonial Sitting on the occasion of the swearing-in of the Chief Justice, The Hon Susan Kiefel AC Ceremonial Sitting on the occasion of the swearing-in of the Hon James Edelman


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

High Court Appointments I was honoured to represent the Law Society on Monday, 30 January 2017 at the High Court of Australia in Canberra for the swearing-in ceremonies for the Hon Chief Justice Susan Kiefel AC and the Hon Justice James Edelman. A strong Western Australian contingent was in attendance at both ceremonies. Chief Justice Kiefel is Australia’s thirteenth, and first female, Chief Justice. It goes without saying that her Honour’s appointment reflects a significant milestone in Australia’s legal and judicial history. Her Honour commenced practice as a barrister aged 21 at a time when there were hardly any women in practice at the Brisbane Bar. She became the first female silk appointed in Queensland in 1987 and, by the early 1990s, had one of the busiest silk’s practices at the Brisbane Bar. Her Honour was appointed to the Supreme Court of Queensland in 1993, to the Federal Court in the following year and, in 2007, was elevated to the High Court. Justice Edelman graduated with the degrees Bachelor of Laws and Bachelor of Economics from the University of Western Australia. His Honour was awarded a Rhodes Scholarship in 1998, obtaining a Doctor of Philosophy in Law from the University of Oxford. After teaching at Keble College, Oxford, Justice Edelman was appointed a Justice of the Supreme Court of Western Australian in 2011. His Honour became a Justice of the Federal Court of Australia in 2015. Justice Edelman is the first former justice of the Supreme Court of Western Australia to serve on our nation’s highest court. He is also the fourth former member of Council of the Law Society of Western Australia to do so1. Having joined the Society in 1998, his Honour also made a significant contribution as Joint Chair of the Law Summer School Committee. I also wish to take this opportunity to acknowledge the outstanding contribution made by former Chief Justice the Hon Robert French AC, a Life Member of the Society, who has dedicated his career to the administration of justice and to the service of the Australian public, and who leaves a lasting judicial legacy. The transcripts and audio visual recordings of the welcome ceremonies for Chief Justice Kiefel and Justice Edelman held on 30 January 2017, and of the farewell ceremony held for Chief Justice French on 5 December 2016, are available on the High Court’s website: hcourt.gov.au/cases/recent-avrecordings.

02 | BRIEF MARCH 2017

Western Australian Parliamentary Elections As all will be well aware, the Western Australian State election is fast approaching. Late last year the Society asked both the Government and the Opposition to provide their responses to the Society’s position on a range of important issues relating to the administration of justice outlined in the Society’s Briefing Papers (which may be accessed on the Society’s website at lawsocietywa.asn.au/law-reform-andadvocacy/submissions). The Society has now received answers from both the State Attorney-General and the Leader of the Opposition. These responses may be found in this issue of Brief. The Society has also embarked upon a campaign to inform candidates seeking election of the current crisis in legal assistance funding. Candidates have been sent a letter accompanied by a concise flyer explaining the nature of the crisis and potential consequences for the community should funding continue to be inadequate. The Society has called upon candidates to make a public pledge to fund legal assistance in Western Australia adequately. Candidates have been invited to make a commitment to the provision of an initial $8 million funding boost for legal assistance (in line with recommendations of the Productivity Commission), and for appropriate funding of legal assistance longterm. Unfortunately, grants and ad hoc funding would not appear to offer a sustainable solution. According to the Australian Pro Bono Centre, in the 2015-16 year Australian lawyers provided 402,126.3 hours of pro bono work. The legal profession is doing its part. The Society considers that it is now up to our politicians to do theirs.

Law Summer School 2017 On a happier note, I was delighted to present the welcome address at Law Summer School on Friday, 17 February 2017 at the University of Western Australia’s University Club. Law Summer School is the Society’s flagship legal education conference and forms the centrepiece of our programme of Continuing Professional Development for the legal profession. This year we were again privileged to hear presentations from a range of leading local, national and international speakers. The breakfast plenary was presented by Senator the Hon George Brandis QC, Commonwealth

Attorney-General, who discussed Australian Lawyers in the Asia Pacific Region, while the Hon Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, delivered the keynote plenary address on Australia’s Place in the World. The conference was closed by the Hon Kim Beazley AC, who entertained attendees with Reflections of a Former Ambassador to the USA. Thank you to all of our distinguished speakers and to all delegates who joined us for an excellent Law Summer School. A special thank you too to our generous sponsors, Marsh, Thomson Reuters, Unisearch Expert Opinion Services, LEAP Legal Software and legalsuper. A feature on Law Summer School 2017 will appear in April Brief.

Unconscious Bias Training Late last year the Law Council of Australia signed a collaborative project agreement with Symmetra to develop national training in relation to unconscious bias, customised for the legal profession. The Law Council has, on behalf of Law Societies and Bar Associations, agreed to provide assistance in promoting unconscious bias training to members of the profession and in maximising uptake of the training programme by practitioners and support staff. It is intended that an eLearning programme relating to this very important initiative will go live by early March 2017. Further information will be available on the Society’s website once the programme is launched.

Cyber Precedent The Law Council of Australia has also launched an information campaign, Cyber Precedent, aimed at assisting the legal profession to defend itself against growing cyber risks. The importance of practitioners ensuring that confidential information remains secure cannot be overstated. Cybersecurity remains an important priority for the profession. By appreciating the nature of the ever-present risks associated with being part of a digital age, and by having up to date software, the ongoing risk of cyber threats may be reduced. Further information, tools and resources are available at: lawcouncil. asn.au/lawcouncil/cyber-precedent-home NOTES: 1.

The others being the late the Hon Sir Ronald Wilson AC KBE CMG QC, the late the Hon John Toohey AC QC (a former president of the Society) and the Hon Robert French AC.

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

Magistrates Court Appointment The Law Society congratulated Matthew Walton on his appointment as a Magistrate of the Magistrates Court of Western Australia. Mr Walton is a former Senior State Prosecutor at the Office of the Director of Public Prosecutions (DPP). He holds a Bachelor of Arts (Honours) and Law from The University of Western Australia and was admitted to practise in 1999. Immediate Past President Elizabeth Needham said, “Mr Walton has all of the qualifications to make a successful contribution as a Magistrate. He is very familiar with the workings of our court system, having worked at the DPP for a decade, conducting a number of trials in the District Court and Supreme Court, as well as in regional Western Australia.” Mr Walton has a wealth of experience, having also practised in the private profession, predominantly in civil and commercial litigation.

Director General Appointment The Law Society congratulated Dr Adam Tomison on his appointment as Director General of the Department of the Attorney General. Dr Tomison began his new role on 12 December 2016. Law Society President Alain Musikanth said, “The Law Society congratulates Dr Tomison on his appointment, and looks forward to working closely with him in his new role as Director General.” Dr Tomison has extensive experience in the justice and criminology sectors, is an internationally recognised expert in the field of violence prevention and a former director and chief executive of the Australian Institute of Criminology.

Senior Counsel Appointments The Law Society of Western Australia congratulated Mr Darren Jackson, Ms Carmel Barbagallo and Ms Amanda Forrester on their appointments as Senior Counsel. The appointments were announced by the Chief Justice of Western Australia, the Hon Wayne Martin AC. Immediate Past President Elizabeth Needham said, “Each of the appointees has demonstrated undisputed integrity and talent. I commend our three new Senior Counsel.” Mr Jackson practises as a barrister, specialising in the commercial fields of trade practices, intellectual property, insolvency and corporate regulation. He joined the Law Society in 2006 and is a member of its Education Committee. Ms Forrester is currently Acting Director of Public Prosecutions. Ms Barbagallo is a Consultant State

Prosecutor, also employed with the Office of the Director of Public Prosecutions. On Tuesday, 31 January 2017, Mr Jackson SC, Ms Forrester SC and Ms Barbagello SC were formally introduced to the High Court of Australia by Matthew Howard SC, President of the WA Bar Association, at a special sitting of the Court.

Law Society welcomes State Government Commitment to Armadale Justice Complex The Law Society welcomed an announcement by the State Government that it will commit $86 million to building new court facilities in Armadale. Immediate Past President Elizabeth Needham said, “The present courthouse at Armadale has been in need of an upgrade for many years. The Law Society has been concerned about overcrowding, unacceptably small courtrooms, insufficient meeting rooms and a troubling lack of privacy, security and parking. The State Government is therefore to be congratulated for their commitment to building the new complex.” The Law Society understands that the new justice complex will see the number of courtrooms increased from two to five, with construction work due to begin around mid-2017. The State Government has indicated that the new facilities will enable the appointment of additional Magistrates and court staff. “The lack of judicial resources in Western Australia is an ongoing problem, often resulting in delayed trials,” Ms Needham said. “This can magnify the harm done to victims of crime, protracting their engagement with the justice system and delaying their vindication and closure. “Many of those awaiting trial are in custody on remand. Those who are ultimately acquitted at trial may have been imprisoned for a significant period of time, despite being found not guilty.” “For these reasons the comments of the Hon Michael Mischin, Attorney General regarding the appointment of new Magistrates are also very welcome.”

QPS Anniversary The Society congratulates Tottle Partners, which recently celebrated its Quality Practice Standard (QPS) 15th anniversary. QPS is an important Society initiative which recognises firms that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction. For more information about QPS, please visit the Society’s website.


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

The appointment of the Hon Chief Justice Susan Kiefel AC as Chief Justice of the High Court of Australia, the retirement of former Chief Justice, the Hon Robert French AC, and the appointment of the Hon James Edelman to the Court was a significant and historic event. Brief congratulates their Honours upon their appointments, achievements and contributions to the law and the community. This edition contains their Honours’ addresses at their respective ceremonies. The appointment of the Hon Justice Edelman, and the retirement of former Chief Justice, the Hon Robert French AC, has, of course, a resonance and significance for Western Australia. On the local front, this Brief contains the Government and Opposition’s responses to the Law Society’s positions on a number of important legal issues, in the context of the upcoming State election. It stands as yet another example of the Law Society’s role as the voice of the legal profession in Western Australia. The close relationship between law and politics, and the affinity between the skills and knowledge acquired as a lawyer and those apt for a politician, are historically entrenched. One frequently sees articles or items posing a question along the lines of: “Why are so many politicians former lawyers?”. Sometimes, the articles contain complimentary observations. Just as commonly, they contain insults or backhand compliments such as may be found in articles – or dedicated social media sites – commencing with the words “Why are so many lawyers utterly […]?” or “How many lawyers does it take to […]?”. This is a little unfair as lawyers have traditionally been at the vanguard of pressing for needed reforms and standing up to the powers-that-be: even if the example of a patron Saint of lawyers, Sir Thomas More, demonstrates a somewhat unsatisfactory end for the lawyer concerned. One famous lawyer turned powerpolitician was Maximilien Robespierre, who is a good example of a lawyer/ politician in desperate need of an effective spin doctor.1 The lack of message discipline and branding is evident when

04 | BRIEF MARCH 2017

one’s entire legacy ends up with the phrase “Reign of Terror”. Although, to be fair, given what went down in France during his tenure it would have been hard to come up with something convincing, uplifting and catchy along the lines of McDonalds’ “I’m Lovin’ It”, “I’m Max from Nord-Pas-de-Calais and I’m here to help”, or “Make France Great Again”. He could have gone for the 1970’s Whitlam slogan “Maintain Your Rage” but that seems to have been what happened anyway and indeed ultimately led to his arrest and execution. One hopes, as a lawyer, he or his family at least secured the intellectual property rights over the phrase “Reign of Terror”. Of course, there is only one group, other than lawyers or politicians, who feel experienced, knowledgeable and brave enough to speak with authority about any social, legal, or political issue: that is, celebrities in receipt of an Oscar, Grammy, Emmy or Golden Globes award. This editorial has, however, been submitted just as the Oscars were about to start. So, the editorial cannot comment on whether La La Land (which one initially feared was a Teletubbies movie) has won six more Oscars than it was actually nominated for, or what shenanigans have occurred during the acceptance speeches.2 Having said that – it a real possibility that some celebrity will go too far and end up getting sued by the Robespierre family for repeatedly using the term “Reign of Terror, without permission, in a hysterical rant about the current US political climate. To return to local matters, and some nostalgia (given this is the Law Society’s 90th anniversary) some items of note appeared in the April 1980 edition of Brief concerning the (then newly opened) High Court building. The editorial in that edition railed against what was apparently, at the time, “penny-pinching-petulance” at the grandeur of the newly constructed High Court building. It is of interest that this 1980’s Brief editorial was only four sentences3 long (nb – any correspondence to the current Editor, in response to this, which contains a heading “Hear Hear”, “Get Back to the Future” or “Take a Hint”, is unlikely to be read).

Also of interest was that the article upon the new High Court published in Brief ended with an acknowledgment to “Panorama” – the inflight journal of Ansett Airlines. Ansett’s inflight journal seems, in the day, to have been impressively highbrow in legal matters. Either that or Ansett were acutely aware of the likelihood of their upcoming multiple appearances in the High Court, especially in the two years that followed. Virgin Airlines has an in-flight magazine called, rather saucily, “Voyeur “, which is said to be pitched at “affluent business, and frequent flyer readers, between 25 and 49” 4. This actually sounds like either a terrible “Family Feud” answer, or a class of likely targets for ATO audits. Nevertheless, the title of that magazine reminds one of a quirky event from the time of the WA secessionist movement, that led to the April 1933 referendum in which WA voted in favour of secession. As has been pointed out by historian Geoffrey Bolton,5 a secessionist newspaper had been set up under the somewhat dubious and unfortunate name of “The Groper”6. “The Groper’s” later attempt to convert to a daily newspaper faltered. Happily, the owners of the publishing names of the “Groper” and the “Voyeur” have not entertained any cross-marketing ideas. Brief, as always, thanks all its contributors. Particular thanks for this edition are to the President of the Court of Appeal, the Hon Justice Buss for his interview with Brief, and former Supreme Court Justice Nicholas Hasluck AM QC’s article, containing much history of interest in respect to the Old Court House. This Brief also has, among other items of much interest, Chief Justice Wayne Martin’s address on the Coronial Jurisdiction, The Hon Chief Justice James Allsop AO’s address on Values in the Law, and the second part of Mr Peter Lochore’s article on planning approvals. NOTES: 1.

Admittedly, neither Alastair Campbell, John McTernan or Kellyanne Conway were available at the time.


It is probably more fun to follow President Trump’s twitter during the Oscars instead.


78 words


The Editor, for what it is worth, falls (though not by a big margin) into only one of those categories.


in “Land of Vision and Mirage” UWA Press (2008)


Which may well be the title to some documentary Lena Dunham (still not in Canada) might make in respect to President Trump’s first 100 days.

om fr 017 e bl y 2 la r ai ua Av Jan 3

Introducing a new LawCare WA service – Employee Relations Advice Line

Free help for you when you need it on serious employment issues

The Law Society is trialling a six month arrangement with the Chamber of Commerce and Industry of Western Australia whereby members can access a team of industry experts within the CCIWA Employee Relations Advice Centre, free of charge, for telephone advice on a range of human resources and employee relations issues relating to: • • • • • •

Wage rates Award and agreement interpretation Performance management and termination Equal opportunity, bullying and harassment Employee minimum entitlements Unfair dismissals

Contact (08) 9365 7660 or visit lawsocietywa.asn.au/lawcarewa The telephone advisory service is available to Law Society members from 8am to 5pm, Monday to Thursday and 8am to 4pm on Friday. The phone service is closed on weekends and public holidays. Where assistance beyond the telephone advice is required, the CCIWA Employee Relations Consultancy team can offer support and representation at your cost. This service is not included as part of the Law Society’s LawCare WA programme.

LawCare WA is available to members of

Service provided by CCIWA

Admitting mental illness Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

Applicants for admission to practice must be able to satisfactorily carry out the inherent requirements of legal practice.

mentally unstable legal practitioner, handling their affairs”.4 And it is hardly uncommon to find lawyers in disciplinary cases resorting to evidence of mental illness in attempts to mitigate their misconduct.5

Questions have arisen over whether mental illness is germane to the relevant inquiry at the admission stage.

There is some suggestion that issues relating to mental illness are more aptly addressed upon application for a practising certificate.

There is clearly a tension between two competing, and worthy, considerations. One is to avoid discriminating against an individual, otherwise qualified for admission, by reason of a disability. The second targets the broader public interest, specifically to ensure, as far as possible, that clients are not disadvantaged simply by choosing a lawyer whose mental illness could prejudice the representation.

It goes without saying that persons admitted to practise law must exhibit good fame and character. Beyond questions over fame and character, however, admission rests upon inquiry into whether a person “is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner”.1 The inference is that a person who cannot satisfactorily carry out these requirements should not be admitted. Although it may be argued that prior behaviour that speaks negatively of a person’s fame or character, such as proven dishonesty, can cast a shadow over his or her ability to carry out the “inherent requirements” of practice (one of which is honesty), the statutory language, when viewed in context, more likely targets non-character related issues. In particular, it is primarily concerned with matters going to mental health or illness. Issues of mental ability are placed to one side, in being “sub-contracted” to the relevant tertiary institution. Likewise physical disability presents as no impediment to admission to legal practice, even if it may make practice itself more challenging. There is accordingly an expectation that applicants for admission disclose, to the relevant admitting or regulatory authority, any condition, including mental illness, “which might affect the applicant’s present ability to engage in legal practice”.2 This has been challenged by the Australian Law Students’ Association, which in May 2016 penned an open letter to Federal and (some) State Attorneys-General calling for the removal of “mental health disclosures” at the time of admission. The letter expressed concern that any such obligation may discourage law students from seeking assistance if experiencing mental health issues and, more generally, further stigmatise discussion of those issues. Assuming that a mental illness does not itself prompt conduct that impinges on an applicant’s good fame and character — and the associated notion that “[p]otential lawyers are judged on what they do rather than what they are”3 — it is difficult not to have some sympathy with this view. At the same time, though, judges have spoken of the need to protect the public from “the damage that could be caused by an unsuitable person, for example by a possibly

06 | BRIEF MARCH 2017

One way of addressing the tension is to target matters going to good fame and character at the admission stage, and reserve questions over mental illness to the practising certificate stage. This proceeds on the assumption that questions over mental fitness to practice need not be addressed before a person applies for his or her ticket to practice. This was essentially what Carmody J did in a recent case involving an applicant for admission diagnosed as a schizophrenic.6 A finding that the applicant was “probably unable to satisfactorily carry out the inherent requirements of legal practice” because “[t]he delusional thinking characterising the applicant’s illness is unpredictable and poses a significant risk to proper judgment, effective communication and interpersonal relationships”,7 did preclude admission per se. His Honour ultimately left it to the body charged with issuing practising certificates (the Law Society) to decide whether, at any application for a practising certificate, the applicant could satisfactorily carry out the inherent requirements of legal practice. That such a course may misalign with the statutory mandate, and simply defer the difficult questions, does not deny its potential utility in distinguishing admission from practice. Existing avenues for placing conditions on practising certificates (allied to questions over the legitimacy of conditional admission) may provide a way forward. One thing is certain: the issue is not likely to recede, in view of research revealing lawyers are disproportionately represented when it comes to depression and anxiety.8 NOTES: 1.

Legal Profession Act 2008 (WA) s8(1)(m).


Law Admissions Consultative Committee, Disclosure Guidelines for Applicants for Admission to the Legal Profession (Law Council of Australia, June 2015), cl 7.


Bartlett and Haller, “Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers” (2013) 41 Fed L Rev 227 at 248; emphasis in original.


XY v Board of Examiners [2005] VSC 250 at [32] per Habersberger J.


See Dal Pont, Lawyers’ Professional Responsibility (6th ed, Lawbook Co, 2017), [23.145].


Doolan v Legal Practitioners Admissions Board [2016] QCAT 98.


Ibid at [111].


See, eg, Chan, Poynton and Bruce, “Lawyering Stress and Work Culture: An Australian Study” (2014) 37 UNSWLJ 1062.


As a member of The Law Society of Western Australia, you’re entitled to enjoy the benefits of BMW Advantage, including free 5 year/80,000km scheduled servicing and reduced dealer delivery,^ among many others. Start your journey with BMW Advantage, arrange a test-drive at Auto Classic today. To find out how you could start a rewarding journey with BMW Advantage, visit bmw.com.au/advantage or contact Steve Heales on (08) 9311 7533 today.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0450 525 025. autoclassic.com.au Benefits apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply. Consult Auto Classic for further details.


LMCT 2271

Inside the Old Court House By Nicholas Hasluck AM QC

A small stone building stands in a quiet corner of Stirling Gardens, close to the central business district of Perth. The Doric columns at the entrance and other features point to the Greek revival style of Georgian England, but a plaque within the front porch shows that this gallant little building has much to say about the pioneering era in Western Australia. It was erected as a Court House in the early days of the Swan River Colony, close to the river’s foreshore. The details on the plaque encourage one to look inside and learn more about the building and the unusual career of its designer: Henry Willey Reveley.

When Captain James Stirling left London in February 1829 to set up a new colony in what is now Western Australia, he was equipped with instructions from the Colonial Secretary as the source of his authority. But these were in a very general form. The establishment of a legal system would depend essentially on Stirling’s good judgment and perspicacity. By a proclamation published soon after his arrival he insisted upon obedience to British rule and, having appointed eight respectable citizens as Justices of the Peace, he underpinned the need for law and order by taking steps to build a gaol.

08 | BRIEF MARCH 2017

The project was carried forward by Henry Willey Reveley, an opportunist who was offered a post as the colony’s first Civil Engineer when Stirling’s ships called in at Cape Town on their way to the Swan River settlement. Reveley’s father had been an architect and was the author of a book on the antiquities of Athens. He had been a friend of such intellectual liberals as William Godwin and the law reformer Jeremy Bentham. He is credited with having assisted Bentham to lay out his ingenious proposal for a new form of

penitentiary known as an ‘InspectionHouse’ or ‘Panopticon’ – a circular prison block dominated by a central hub with darkened windows so that the prisoners could be kept under surveillance at all times. The prison-keeper’s power, Bentham contended, was derived from his invisible omnipresence: the belief that he and his minions were always on watch from behind the darkened windows. William Godwin’s daughter was brought up in the Reveley household and later became the second wife of the poet Shelley and author of the novel Frankenstein.

These unusual connections led to the son, Henry Willey Reveley, being sent to Italy to train as a civil engineer at the University of Pisa. He became a close friend of the poet Shelley and in 1821 achieved a degree of lasting fame by saving Shelley from drowning in the River Arno. Sadly, the fates were not to be balked by this rescue, for Shelley died by drowning the following year. Reveley, influenced by his father’s respect for Bentham’s theories and the classical architectural styles of Greece and Rome, returned to London to work with the engineer who constructed Waterloo Bridge. The younger Reveley then secured an appointment at the Cape of Good Hope. Unfortunately, a controversy concerning improvements to the harbour at Cape Town led to his dismissal, unfairly it seems. Stranded in Cape Town, he was quickly persuaded to join the would-be colonists heading for the Swan River. The gaol that Reveley built for Stirling in 1831 at Arthur’s Head in Fremantle was destined to be known as the ‘Round House’: a circular, twelve-sided limestone structure embodying certain facets of Bentham’s credo. By this time Stirling had received a permanent commission from London which promoted him to Governor. It

enabled him to convene a Legislative Council (consisting of the five government officials who also comprised his Executive Council) and to establish a judicial system. The Legislative Council’s first enactment in 1832 set up a Civil Court which can be regarded as the forbear of the Supreme Court of Western Australia. Its jurisdiction covered all cases ‘as fully and amply’ as the superior courts in England. Four years later Stirling was of the view that he could now afford to construct a purpose-built court house. The Governor’s versatile civil engineer had been involved in various projects since arriving in the colony. In addition to the Round House Reveley had planned a breakwater at Fremantle to protect shipping from the winter gales, he had mapped out a tunnel to be excavated under Arthur’s Head for the use of the Fremantle Whaling Company, he had supervised the cutting of a canal through the river flats around Heirisson Islands, he had designed all the important buildings constructed in Perth including quarters for soldiers and officers, a Commissariat Store and an official residence for the Governor. Having been allocated land fronting St George’s Terrace – on a site between William and Mill streets – he had also built Perth’s first watermill for

grinding corn pursuant to ‘the method practised in Tuscany’. Reveley’s milling venture, partly funded by government loans, wasn’t particularly successful. Its future was still uncertain as Reveley turned to the construction of a Court House by the Swan River in the vicinity of the Commissariat Store. The building is now in a quiet spot but at that time traffic was to pass nearby, for Pier Street continued across St George’s Terrace, through the grounds of the official residence (where Government House ballroom now stands), then down to the wooden pier on the river which gave the street its name. Reveley’s preference for classical architecture avoided the more extreme forms of the regency revival style current in England. He designed most of his buildings in a simple manner reminiscent of Georgian architecture, but with Italian overtones: an approach reflected eventually in the lines of the colony’s first Court House. A contract to complete the building was awarded in March 1836. Three months later, with a view to replacing the nearby ‘Rush Church’ as a place of worship, an upper gallery was added at the west end of the structure. The specifications included a roof of timber shingles on top of pine boards.

Latest Opportunities – March 2017 With activity in the Perth legal market on the rise, now is the time to secure your dream job, or quality legal talent to support your business! We have many exceptional job opportunities and high quality legal candidates currently registered. Contact us today for a confidential discussion about your career options, or for assistance with your strategic legal staffing requirements. Please find below a selection of our latest job opportunities for March. For a full list of current vacancies, visit our website at www.profilelegal.com.au

Workplace Relations

International Opportunities

5 years PAE

London, Asia, Europe or Middle East

Progress your career with this growing Perth Workplace Relations practice. This premier top-tier team works across the commercial advisory and litigious aspects of employment, IR & safety matters. You’ll provide strategic advice to large national/global employers, will undertake all commercial negotiations and advocacy.

As local market specialists, a premier global firm has briefed us as the sole WA based consultancy to assist with multiple international opportunities. Perth based lawyers interested in exploring job options in London, Asia (flexibility with locations), Europe or Middle East are invited to apply.

Supported by a successful team, you’ll develop client relationships through education, training and assisting with the strategic development of their businesses. You’ll be at or on the cusp of promotion to SA level, with the ability to run your matters selfsufficiently and lead client marketing activities. Offering quality work, a collaborative working culture and competitive package, this role absolutely must be considered.

Positions are available from 3 years PAE, through to Senior Associate level in the areas of corporate (M&A, ECM), banking & finance (transactional or regulatory experience), projects (energy, infrastructure, project finance), insolvency & restructuring, tax or employment law. Strong academics and top tier training/experience is essential. Mandarin language skills, or existing experience in these markets would be advantageous. Sponsorship/visa assistance and top package, plus relocation offered.

Stacey Back Director p






The Chairman of Quarter Sessions, William Mackie, presided at the first sittings to be held in the new Court House on 2 January 1837. He affirmed that the laws to be applied were those of the courts of England and reminded the gathering that all Aborigines were to be treated as British subjects and had ‘every right to our protection.’ A few months later, on Good Friday, the Colonial Chaplain officiated at the first religious service in the building, although this led to criticism in the Perth Gazette as to the usage of the same building for the purposes of both Church and State. There was said to be ‘a disunion in the two purposes which the most laboured invention cannot overcome.’ In the years that followed, Reveley’s Court House was to be used for a variety of purposes. By then, however, possibly because of his involvement in the questionable milling venture, Reveley had decided to return to England. He and his artist wife Amelia boarded an American whaler at Fremantle on 30 November 1838. It seems from an advertisement in the Perth Gazette that this remarkable man, who in Browning’s words once saw Shelley plain, left behind a valuable collection of books on architecture in Latin, French, Italian and English. The so-called ‘disunion of purposes’ was highlighted by the trial of fifteen year old John Gaven for murder, the first European executed in the colony, which took place in 1844. But the Court House continued to be used as a church, and as a school also. When the court was sitting, the school had to be held very quietly upstairs in the jury room and Quarter Sessions were usually held on Saturdays, probably so as not to interfere too much with the school. Then, for six years commencing in 1857, the building was used as an Immigration Depot while court sittings were being conducted in a new building in Beaufort Street annexed to a gaol. They were returned to the old Court House in due course, probably because of lack of space in the gaol. The value of the Court House to early Perth is reflected in some early diaries, including a journal kept by Bishop Salvado, founder of a Benedictine Community at New Norcia in bushland to the north of Perth. Salvado and his fellow monks had come to the Swan River colony in 1846 to establish a mission for Australian Aborigines. Soon after his arrival, in need of funds to save his fledgling mission, Salvado hit upon the idea of presenting a piano concert in the Court House with himself as the sole performer. Having walked from New Norcia to Perth the intrepid monk appeared in the tiny hall ‘with my tunic 10 | BRIEF MARCH 2017

all in tatters’ and with shoes that had ‘forgotten their soles in the bush.’ At the end of his arduous three hour recital he was greeted with rapturous applause. Three years later the Court House was the scene of a meeting that led to the British government sending convicts to the colony to relieve the shortage of labour. At another public meeting, well before the end of the convict era, a demand was made for representative government, the beginnings of a push for autonomy that wasn’t fully recognised by England until the final decade of the nineteenth century. Entries in the diary of the Court’s Registrar, Alfred Stone, written some years after Salvado’s triumph, speak of the Court House being used for the anniversary tea meeting of the Templars Society, for a grand Ethiopian concert given by six American singers and for rehearsals and performances of the Revd. J.B.Wittenoom’s band. At one performance ‘there were three long tables down the whole length of the courtroom … the whole thing a very pleasant evening.’ Not so pleasant, as the years ran on and the roof began to leak, was the occasion in 1867 when the Editor of the Perth Gazette entertained his readers with a report that ‘an unusual sight was to be seen on Wednesday in the Supreme Court – a Judge presiding under an umbrella.’ It seems that the rain-sodden jurist finally gave up and adjourned the court for a day. A nephew of Alfred Stone recalled attending the court at a time when the bench was situated beneath the gallery at one end of the courtroom. ‘When the jury returned a true Bill, the foreman would appear in the little gallery about 3ft square just above the head of the Chairman – a place evidently used as a pulpit when the courthouse served as a place of worship. The foreman had a billiard cue, at the end of which he would place the Bill, fastened in a little clip which was attached to the cue, and then hand it over the head of the judge to the Registrar.’ By 1879 the old Court House was so dilapidated that it became the living quarters of the government gardener. The Supreme Court was forced to move into the Commissariat store nearby, also designed by Reveley. But this proved inadequate. From 1895 the original Court House, upgraded to some extent, was used as a second court. Eventually, in 1903, a majestic new Supreme Court building was completed on the Commissariat site, close to Barrack Street. Two years later the old Court House was completely renovated and converted for use as the State Arbitration

Court. It was used as such until 1965 when it became the offices of the Law Society of Western Australia. It then became the Francis Burt Law Centre and has been reconstituted as a law museum Upon entering the Court House visitors will find that the configuration of an older-style court has been preserved. The bar table and adjacent jury box are overlooked by a raised bench where the presiding judge (or sometimes three judges) would normally sit. High above the bench, attached to the back wall, one finds a royal coat of arms in the traditional form. This small fixture made of local wood will serve to explain my particular interest in the history of this building, for the carving was done by my great grandfather, Lewis Hasluck. The Hasluck family owned a jewellery business in Hatton Gardens, London, but as one of several sons, my great grandfather ventured to Perth in 1870 in search of better opportunities. He brought with him a variety of skills derived from his involvement in the family business, including a deft touch in designing and carving. When a new judge noted the absence of a royal coat of arms above the bench Lewis Hasluck was commissioned to rectify the omission. My grandfather remembered that as a boy he saw his father, Lewis, carving the coat of arms in a shed at the back of the family home in Collie Street, Fremantle, where they were then living. There was some delay in payment due to a difference of opinion as to which party was to provide and cover the cost of the original slab of jarrah wood. But when this was resolved, and the payment made, the coat of arms was handed over. It has held its place above the bench in the old Court House until the present day with my great grandfather’s signature on the reverse side. In addition to the coat of arms there are many other indications in this quiet building that the past is ever-present in the workings of the legal system and in the community it serves. There are a good many reminders also that the rule of law arises over many years from a partnership between the living and the lives and times of those who have gone before. The Court House is the oldest surviving building in Perth and is classified as such by the National Trust. On its 180th anniversary it is still in use and has much to offer as an educational facility and place for reflection. ABOUT THE AUTHOR: Nicholas Hasluck is a former judge of the Supreme Court of Western Australia and is well-known as a writer. His latest novel The Bradshaw Case concerns a native title claim in the Kimberley affected by ancient rock art.

appeal in the criminal jurisdiction.

What do you consider to be your 3 most significant judgments in terms of setting precedent or clarifying an area of law?

An interview with the Hon Justice Buss President of the Court of Appeal What is your background? I was born in Perth. I attended primary school in New South Wales and secondary school in Perth. I studied law at the University of Western Australia and was admitted to practice in 1977. I worked, initially, at a small law firm. Between 1980 and 1987 I worked at a large law firm. I was a partner of the firm between 1982 and 1987. In 1987 I went to the independent Bar and in 1993 I became Queen's Counsel. On 1 February 2006 I was appointed as a Judge of the Supreme Court of Western Australia including a Judge of Appeal. On 18 July 2016 I was appointed as the President of the Court of Appeal. I am married and between us Virginia and I have five fantastic children, an elderly Burmese cat and a young Labrador retriever.

Your main experience before being appointed to the bench was in commercial law. You sit on a lot of criminal matters. Did you find it challenging to familiarise yourself with this area of law? Do you think your commercial background gives you a unique perspective? Before being appointed a judge I practised primarily as a commercial lawyer, but worked in all areas of the law except criminal law, family law and industrial law. I have always enjoyed undertaking different kinds of legal work. As a judge, I have found criminal law and all other areas within the Court of Appeal's jurisdiction interesting and challenging. I am fortunate to derive considerable satisfaction from my work. I do not think my commercial background gives me a unique perspective. Numerous judges of the Supreme Court and the Court of Appeal, with a similar background to mine, have sat regularly as trial judges and judges of

This is not an easy question for me to answer. However, three judgments that I found especially interesting and enjoyable to write are The State of Western Australia v AH [2010] WASCA 172, on the proper construction and application of the Gender Reassignment Act 2000 (WA), HAR v The State of Western Australia [No 2] [2015] WASCA 249, on the proper construction and application of s 25 of the Evidence Act 1906 (WA) and Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84, on the indoor management rule at common law as amended and supplemented by s 128 and s 129 of the Corporations Act 2001 (Cth). Whether my judgments are significant or even useful for any purpose is for others to decide.

What characteristics distinguish a good advocate from an excellent one? An excellent advocate has mastered the brief; has a detailed knowledge of the relevant facts and the relevant law; states concisely the issues that are critical in the determination of the appeal; addresses those issues logically; is able to answer with assurance any questions from the Bench; has an engaging and persuasive style; and deals with all relevant matters thoroughly and without unnecessary repetition. A good advocate has most of those qualities but to a lesser degree. Excellent advocates are rare. I was not one of them.

Do you have any advice for young lawyers today? My advice to young lawyers is to set high (but not impossible) standards for themselves; to do the best they reasonably can in the circumstances; to learn from others and from their own experiences (including their mistakes); to have realistic expectations as to what they can and cannot do; to be interested in the legal and regulatory framework applicable to their work; to endeavour, where possible, to practise in different areas of the law; to be honest and fair in their dealings with others; and to make time for pleasurable activities unrelated to work and the law.

What role does the Court of Appeal play and why is it important to have permanent judges (rather than ad hoc judges)? The Court of Appeal was created on 1 February 2005. It was established after the commissioning of a number of reports over several years. The final report was prepared by a committee established

by Chief Justice Malcolm and chaired by Justice Ipp. The report concluded that a permanent Court of Appeal would advance the administration of justice in this State and recommended that it be created. Justice Ipp's committee identified a number of advantages offered by a permanent Court of Appeal over the then existing appellate system. The advantages were apparent from the experience with permanent Courts of Appeal in New South Wales, Victoria and Queensland. The advantages included improvement in the quality of appellate judgments; greater consistency in judgments; the delivery of judgments more promptly; shorter hearings; facilitating the principled development of the law; and allaying any perception that appellate judges might be reluctant to overturn the judgments of other members of the same court. Those and other advantages were referred to by the Attorney General, the Hon JA McGinty, in his second reading speech on the Acts Amendment (Court of Appeal) Bill 2004 (WA). In my opinion, the advantages identified by Justice Ipp's committee and referred to in Mr McGinty's second reading speech are as important today as they were when the Court of Appeal was established.

Are there any procedural changes you would like to see during your tenure? Recently, the Supreme Court (Court of Appeal) Rules 2005 (WA) have been reviewed to identify improvements that should be made to the practice and procedure of the court. The amendments to the Rules will be made soon. The court is endeavouring to make decisions and give ex tempore reasons, where possible, immediately after hearing applications for leave to appeal against conviction or sentence. The Judges of Appeal consider regularly whether procedural changes should be made to enhance the court's efficiency.

What challenges does the Court of Appeal face in coming years? The principal challenges of the Court of Appeal have always been and continue to be the prompt and efficient hearing and disposition of appeals and the production of reasons for decision of a quality to be expected from an intermediate appellate court. All of that has to be done with the resources at our disposal. It is important that judgments be delivered as soon as reasonably possible, but without diminishing the standard of the reasons.

Interview arranged by Cathy Graville, member of the Law Society's Young Lawyers Committee


The Old Court House Law Museum: Changing the Displays By Caroline Ingram Old Court House Law Museum

In July of 2008, the then manager of Community Services, Maxina Martellotta, and Museum Officer, Sarah Toohey, presented to the Oral Histories, Building and Museum Sub-Committee a proposal for an interpretation plan for the Old Court House Law Museum. The purpose of this plan was to provide a cohesive approach to the themes and storylines told in the Museum and to create interpretation that offered strong connections to the lives and experiences of museum visitors. The Old Court House Law Museum is a community service initiative of the Law Society of Western Australia and was formed during the 1970s. It is housed in arguably one of the most significant heritage buildings in Western Australia and aims to connect people to the laws of Western Australia. The proposal was approved and the museum entered into an exciting phase in its development. Expressions of interest were called for and, in 2009, after receiving a grant from Lotterywest, Dr Brian Shepherd was engaged to prepare the interpretation and design plan. The plan was collaboration between Dr Shepherd and Alan Muller of Alan Muller Design, while Gina Pickering of Latitude Creative Services provided specialist advice regarding the integration of media using modern technologies. It recommended an approach that highlighted the heritage significance of the Old Court House and placed emphasis on the early colonial period in which the building played such an important role.1 As such, it was named Small Court House, Big Stories: the first 50 years of law in Western Australia. Dr Shepherd’s recommendations followed modern practice in museology and recommended that the interpretation within the museum should aim to engage its audience and to provoke interest and discussion rather than to instruct. “When visitors leave, they should remember

12 | BRIEF MARCH 2017

having visited a special place that is both thought provoking and challenging.”2 The plan was designed to allow implementation in four stages. Stage one was the implementation of an audio production. This was to be an introduction to the Museum for visitors in the form of a handheld audio device. In 2010 the Museum was successful in its application to Lotterywest for an Interpretation of Cultural Heritage Grant and early the next year Latitude Creative Services was approached to create the audio production for the Museum. The production was envisioned to introduce visitors to the development of the Stirling Gardens, the Justice Precinct and the Old Court House and to highlight the significance and changes in use of the Old Court House. Multiple stakeholders were approached to contribute to the project. Those who contributed were Noongar elders Alisha Doolan Eatts, Dr Richard Walley, Rev Sealin Garlett and Irene Stainton, historians Professor Geoffrey Bolton and Geraldine Byrne, the Hon Chief Justice Wayne Martin AC and Museum Officer Sarah Toohey. The result is a moving and creative interpretation of the Old Court House, including the significance of the site prior to the establishment of the Swan River Colony. Visitors to the Museum who take advantage of this free audio are surprised and engaged by the quality of the production and the light it shines on the history of the law in Western Australia. In late 2011, Lotterywest funding was received enabling the Museum to implement the next stage of the Interpretation plan. Elsh Creative, later renamed Fabrik, was chosen to design, fabricate and install the remaining three stages of the interpretation plan. Stage two was envisaged to be a display in the room known as ‘the Judge’s Chambers’. This exhibition aimed to show the legal and social context in which the Court

Image courtesy of Justin Tonti-Filippini.

House emerged, its importance as a building and the nature of its use in the early years. In this room are displayed some of the ‘treasures’ of the Old Court House Law Museum’s collection: the wig tin and pince-nez belonging to the first Chief Justice in Western Australia, Sir Archibald Paull Burt, the writing compendium used by William Henry Mackie when he was Chairman of the Quarter sessions in the early 1800s and Alfred Hawes Stone’s unofficial records of criminal proceedings. Stories told in this exhibition include Stirling’s efforts to establish the rule of law in the colony, the early jury system in Western Australia and the clash between the existing system of Indigenous lore and the application of the British legal system. One panel on Indigenous lore was written by Whadjuk representative Barry McGuire. In 2012, funding was received from Lotterywest to enable the design of the third stage of the exhibition, but it was not until 2014 that the Museum’s application for funding for the fabrication

and installation of this exhibition was granted. Stage three of the design was an exhibition in the south east room of the Museum. The title of this exhibition is People and the Law and it was designed to look at the human experience behind the law in the early days of Western Australia. This room looks at the personal stories of those involved with the law, both from the perspective of those behind the bench and those brought before it. Displayed in this room is the leather fitted dressing case used by Sir Stephen Henry Parker on his travels. Covered in luggage labels, this case travelled with Parker on his official visits to England, first in 1890, leading a delegation to argue for self-government for Western Australia and again in 1900 when he represented Western Australia’s interests during the passing of the Commonwealth bill.3 The exhibition is also very popular with children who have the opportunity to try using some of the objects on the touch table. To date, the most popular is the typewriter! In 2016, the Museum received funding from Lotterywest that will enable it to complete the vision first conceived in 2009. During January and February 2017, the exhibitions in the entrance area

and the north east room of the Old Court House will be completely refurbished. Visitors entering the Museum will be welcomed in the language of the Whadjuk people in a beautiful sentiment written by Noongar elder Marie Taylor. Inside the entrance, visitors will see the robes worn by the judiciary in the early 1900s and the jury barrel, used to select jurors before the days of electronic balloting. The exhibition in the north east room of the building looks at some of laws which applied to Western Australians living during the 1900s. The exhibition, entitled From Past to Present: The changing face of the law in Western Australia, is introduced by a quote from Senator the Hon Rosemary Crowley: “…we cannot accurately know our present if we do not know our past”.4 The stories told in this room look at the way our history has shaped the law we use today and is designed to bring context and meaning to the historical displays in the previous rooms. Visitors should leave the Museum with an understanding of how the history of the law has evolved to the complex system of law used today and how it is relevant to modern day living. It has been a nine year journey, but the

Old Court House Law Museum now offers visitors an engaging space which encourages discussion and reflection in line with modern museological practice. It is not uncommon to find a visitor moved to tears or anger by a particular story or exhibit or to hear the comment “I never thought of that before!” It is now truly a space which reflects the Museum’s statement of purpose to connect people to the law of Western Australia and to inspire reflective discussion. Perhaps the end result might best be summed up by one visitors comment in 2016: “A fascinating insight into both justice and injustice”. NOTES: 1.

Brian Shepherd, Alan Muller Design & Latitude Creative Services, Interpretation and Design plan: The Old Court House Law Museum law Society of Western Australia, Old Court House Law Museum, 2010, p. 6.


Brian Shepherd, Alan Muller Design & Latitude Creative Services, Interpretation and Design plan: The Old Court House Law Museum Law Society of Western Australia, Old Court House Law Museum, 2010, p. 34.


Wendy Birman & Geoffrey C. Bolton, 'Parker, Sir Stephen Henry (1846–1927)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/ parker-sir-stephen-henry-7957/text13853, published first in hardcopy 1988, accessed online 16 November 2016.


Rosemary Crowley, Images of Women, Women and Museums Conference Proceedings, 11-13 October 1993.

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

I would highly recommend The College of Law masters. Not only is it very practical, but it’s taught well and it’s immediately applicable to one’s day to day practice.

– N AT H A N A E L K I T I N G A N

S E N I O R A S S O C I AT E , M A C P H E R S O N K E L L E Y, L L M ( A P P L I E D L AW ) G R A D U AT E

WAT C H N AT H A N A E L’ S S T O R Y @ W W W . C O L L AW . E D U . A U / A L P Contact us: 1300 506 402 or alp@collaw.edu.au


30th Anniversary of the Francis Burt Law Education Programme, Old Court House Law Museum and Mock Trial Competition

2017 is a year of significant anniversaries for the Law Society. Besides marking 90 years since the Society was founded, we celebrate the 30th anniversary of the Francis Burt Law Education Programme, the Old Court House Law Museum and the Mock Trial Competition. Invited guests will attend an event at the Old Court House on Friday, 24 March, being precisely 180 years after the date on which the first church service was held in the building (Good Friday 1837). The Francis Burt Law Education Programme was established in 1987 as the Francis Burt Law Education Centre, incorporating the Museum. The Society’s Mock Trial Competition was introduced in the same year.

Francis Burt Law Education Programme The initial idea for a Law Education Centre arose from a suggestion by the then Chief Justice and former Society President, Sir Francis Burt. At its opening during Law Week 1987, Sir Francis said of the new Centre: “It is basically an educational idea which in its operation will transmit to the young some understanding of the social importance of the law and some understanding of what it is about and how it operates.” A Community Legal Education Officer was appointed with the assistance of the Department of Education to run the Centre. In 2011, the Centre was renamed the Francis Burt Law Education Programme. Since its inception, the Programme has had the goal of supporting teachers and students in the study of the law and our legal system. The Programme offers activities and resources mapped to the Western Australian school curriculum for both teachers and students. Primary and secondary school teachers may also take advantage of professional learning

14 | BRIEF MARCH 2017

opportunities. The Programme allows school groups the chance to visit the Supreme Court, including observing matters in session. Within the last few years, this activity has been extended to the Federal Court, District Court and Magistrates Court. Participants in the Programme often participate in scripted trial re-enactments and other activities appropriate to the age of the group in the Old Court House. These activities are also open to adult groups, including vocational college and community groups, international language colleges, professional groups and university groups. Court visits and trial re-enactments help to demystify the legal system, giving participants an excellent insight into the law in action. These have proved to be some of the most popular activities presented by the Programme over the course of its 30-year history. Between 1988 and 2015, 148,684 people participated in the activities of the Francis Burt Law Education Programme. In recent years, consultations have been

held with stakeholders so as to develop a culturally appropriate law and civics education programme for Aboriginal youth and Aboriginal communities. This is intended to deliver a learning model that will foster positive interactions between young Aboriginal people and the law. Sir Ronald Wilson Lecture In 1989, the Society established the annual Sir Ronald Wilson Lecture, in honour of the first Western Australian practitioner to be appointed to the High Court of Australia. The inaugural lecture was given by Lord Mackay of Clashfern, Lord Chancellor of the United Kingdom, at the Government House Ballroom before an audience of 500 practitioners and other guests. Recent topics have included The High Court: Legal Answers to Contemporary Political, Social and Administrative Issues presented by Greg McIntyre SC and Protecting the Human Rights of Australians through Anti-Terrorism Laws and their Enforcement presented by Winthrop Professor Stephen Smith.

Youth Civics Leadership Day As part of Law Week each year, the Law Society invites schools to nominate two Year 10 students who have demonstrated leadership skills and civics awareness within their school or community to participate in Youth Civics Leadership Day. The event includes a session on civic awareness and the law, a leadership skills workshop and a presentation from a motivational speaker. During a luncheon, participants have the opportunity to interact with young lawyers from a number of diverse organisations. A Supreme Court judge presents students with a certificate of participation at the conclusion of the day. The Hypothetical Co-presented by the Law Society and Legal Aid WA, the Hypothetical is a panel discussion of a range of topical hypothetical scenarios relating to youth issues. Examples include drug abuse, stealing, out of control parties, high speed car chases, rights and responsibilities when interacting with police, driving without a licence, underage drinking and supply of alcohol to minors. The Hypothetical targets Year 7-10 students, with scenarios developed to give students an understanding of the factors that are considered by the courts, prisons and community services when dealing with young offenders. Members of the panel typically include representatives from the Western Australian Police, Legal Aid WA, the Children’s Court of Western Australia, the Juvenile Justice Team and other youth-focused community service organisations. Cluedunnit Kids Competition The Cluedunnit Kids Competition provides Year 5 and Year 6 student teams with an opportunity to investigate a mock criminal offence with the goal of identifying a fictional offender. Teams submit their findings in electronic or written form to a panel of experts from the legal profession and compete against other teams from schools across Western Australia. The Competition helps students develop research, analytical and creative skills, as well as fostering teamwork. Subsidised School Visits Programme Schools and community organisations that lack the financial resources to participate in the Programme are invited to participate in the Subsidised School Visits Programme, which is sponsored by Curtin University, Edith Cowan University,

Murdoch University and The University of Notre Dame Australia. The cost of bus hire and the court visits tour fee is covered by the Society, so there no cost for participating schools.

Old Court House Law Museum The Old Court House Law Museum is located in the oldest public building in the City of Perth. The Old Court House was the first purpose-built courthouse in Perth, and was completed in 1836. Hearings of the Civil Court and the Court of Quarter Sessions (which dealt with major criminal cases) were held there from 1837 until 1858. It was used by the Supreme Court of Western Australia at various times between 1863 and 1903, and for a number of years was home to the Arbitration Court. The building has also been used for many other purposes, including as a church, a school, a store house and as the premises of the Society. The Museum has a slightly longer history than the Programme and Mock Trial Competition, having been installed at the Old Court House in 1974. The Museum took on an expanded role within the Francis Burt Law Education Centre after the Centre was established some 13 years later. The Museum is one of only a few law museums in the world. The Museum underwent a major refurbishment in 1993-94. As part of the renovations, the floorplan of the building was altered to reflect a criminal courtroom, with the addition of a dock and jury-box. A court hierarchy chart was installed, presenting a comprehensive visual presentation of the court system. An interactive ‘Scales of Justice’ display encouraged visitors to test their knowledge of crimes and consequences. During 2004/2005, a working group was established to oversee an oral histories project. Over subsequent years, funding from the Public Purposes Trust has allowed the Society to record the memories of eminent Western Australian legal practitioners and members of the judiciary. Copies of the oral histories are donated to the State Library of Western Australia, an important step in ensuring the oral histories are easily accessible. For the 2016/2017 year, the oral histories project has moved to a themed approach, encompassing the topic of ‘Women in the Law’. A major goal is to make the oral histories collection more accessible to the public by posting details on the project and the collection online. Since 2010, the Museum and its displays have gone through a redesign process. That process included the implementation

of an audio production outlining the development of the Old Court House and the surrounding area, a display in ‘the Judge’s Chambers’, aimed at showing the legal and social context in which the Old Court House operated, and the creation of an exhibition entitled People and the Law, examining the human experience behind the law in early colonial times. In 2015/2016 the museum saw a 92% increase in visitor numbers, and in 2017, a new exhibition was created, From Past to Present: The changing face of the law in Western Australia, examining how history has shaped the law with which we interact today.

Mock Trial Competition The Mock Trial Competition was introduced in 1987 to increase the awareness of the law and legal institutions amongst young people. There was a significant uptake of the Competition by schools from the very beginning, which has only grown over the years. There has been a noticeable increase in student participation numbers in recent years, with 1203 students from 55 schools taking part in 2016. The Competition is sponsored by the Department of the Attorney General and is open to students enrolled in Years 10, 11 and 12. The Competition involves a simulated court case in which teams contest a fictitious WA legal matter. The cases are presented by two teams – a prosecution/plaintiff team and a defence team – made up of students playing the roles of barristers, solicitors, witnesses and court officials. The Competition is a fun, dynamic way of introducing students to the law. It provides students with an opportunity to learn valuable skills in research and how to develop a persuasive argument. The Competition would not be possible without the support and input of volunteers from the legal profession, who generously donate their time to act as coaches or judges.

Conclusion Since its inception, the Programme, the Museum and the Mock Trial Competition have relied on the invaluable support of the Public Purposes Trust, the Department of Education, and Department of the Attorney General. The Programme, Museum and Mock Trial Competition continue to provide important services to the community and help promote understanding of the law and our legal system.


Mock Trial Competition Testimonials Past coaches and judges talk about their experiences with the Law Society's Mock Trial Competition

Natasha Clark Politics and Law Teacher, Chisholm Catholic College My most rewarding experiences in the Mock Trial Competition: 1) Our first ever win (2006). 2) Gradually getting better until we made it into our first final (2008). a. Making finals for nine consecutive years – to get that kind of consistency was a huge feat. b. And during those years, waiting to see each round what new suit Arpad Ollari-Hazy (the thenCoordinator) would be wearing! 3) Narrowly beating top guns Mount Lawley SHS in the semi-final to get into our first ever Grand Final in 2016, after they had knocked us out of finals several times before. 4) Being part of a high standard Grand Final against Carey Baptist College where every team member (on both teams) did their role well, before Chief Justice Martin – and after a nail-biting wait, finding out we had won! What is the value of the Mock Trial Competition to the Law Society, its members and the wider community in your opinion? The competition is well organised, rewarding and fun. Leo Simoens (2007) recalls a flurry of research to find out what a “schooner” of beer was, for a criminal trial; he went on to be part of UWA’s outstanding 2015 Jessup Moot team. Other former students have gone on to start groups including Envoy at UWA, and AlphaMotivate (David Castelanelli, SF 2014). For many students the competition is a highlight of their school years; and it builds camaraderie – we had former students Cassandra Chu Yu Chee and Georgina Due (QF 2012, pre-law UWA)

16 | BRIEF MARCH 2017

and Coraline de Zilwa (SF 2009, Law at Murdoch and Judge’s Usher) come along to watch the 2016 Grand Final. A big thank you to all the people involved in Chisholm’s teams, past and present, including our lawyer coaches (especially Paul Pascoe and Jackie Musk in 2016), and all the judges who have given us tips along the way. Even if we lost, we always learned something. Our Grand Final win was very much based on contributions from all those who have been involved over our 11 years in the competition. Would you recommend the Mock Trial Competition to others? (and if so, why?) Definitely! I started a team at Chisholm when I began teaching. As a former lawyer turned teacher (there’s lots of us out there) I was interested to get involved… and haven’t regretted it since. It has been and remains the most fun I have had as a teacher. It’s addictive too – one of my students commented after our Grand Final win that “I won’t know what to do with myself now”. You get hooked on the contest of legal wills and skills, and it’s a great opportunity for teachers and lawyers to train up the next generation, without the worry of billable hours or imprisonment! It’s also entertaining to watch – especially crossexamination, when you never quite know what a witness will say.

Sam Pack Articled Clerk, State Solicitor’s Office This is the first year I've been involved with the Mock Trial Competition. It's been both entertaining, because there are always amusing moments in a mock trial, and rewarding. I know how much I learned over the years from countless mock trials, moots and other competitions. It's fantastic to be able to give back. I think volunteering is a smart move for a junior practitioner. I found it eye-opening, transitioning from competitor to judge.

Sitting in the judge's chair is an entirely different experience. While it's only a glimpse of what life is like up on the bench, as I move out into the world of real courtrooms and real judges I think even the smallest insight is invaluable. Being part of the grand final case working group was a great experience. I enjoyed collaborating to produce an interesting, challenging and somewhat ridiculous scenario. The biscuits at the meetings were a bonus. While I was disappointed I couldn't make it to the grand final this year, I hope to have better luck next time around.

Magistrate Elaine Campione Magistrates Court of Western Australia Having never expressed any interest in law as a career, I was surprised when my son Caelan told me he was applying for the school mock trial team. I was secretly delighted that he would get an opportunity to better understand my profession and my passion for the law. He was a witness in all but one of the trials and I enjoyed assisting him to memorise his evidence in chief and prepare for cross examination – when he would let me. I am very proud of him and his team mates, the Chisholm Challengers, for winning the 2016 Law Society Mock Trial Competition.

some participants are only 15 years of age and the Year 11s were also juggling their ATAR commitments.

Right from the outset I was struck by how well run and organised the competition was. It is regarded as a very prestigious competition, as evidenced by over 130 participant teams from public, private and independent high schools. Some schools even fielded two teams, such was the level of interest from their students. The competition was well supported by the supervising teacher, Ms Natasha Clark, student coaches, other school staff at Chisholm College and of course parents. The success of the Chisholm Challengers became a whole of school experience and I am sure piqued the interest of other students that law may be a worthwhile area of study. I have had the privilege of watching the Chisholm Challengers and their opponents at all seven of their keenly fought trials. I was very impressed by the high standard set by all competitor teams and the way in which they grasped difficult legal concepts. In particular, the advocacy skills were worthy of an appearance in my court. The development of these skills is in no small way due to the support and nurturing of their coaches and the “judges”. Such a wonderful group of dedicated lawyers prepared to be so generous with their time, knowledge and experience to assist these aspiring lawyers. I was particularly struck by the kindness of the “judges”, always taking the time at the conclusion of the mock trial to provide constructive feedback to every team member even when the hour was late. I was impressed by how dedicated and disciplined the Chisholm Challengers were – early morning meetings with their legal coach, after school meetings and even giving up part of their October school holidays to prepare as a team. They then met to prepare each recess and lunch break as they got closer to the grand final. An outstanding level of commitment when you consider that

No matter what stage of the competition a participant reached it was a rich and rewarding experience and I am sure each student left with a sense of achievement. The participants were fortunate to have exposure to legal principles and process at a micro level. They learnt skills that will assist them in their future endeavours, even if a career in law is not their goal. They learnt how to analyse a legal problem and construct a case consistent with their case plan. They gained advocacy skills and learnt how to deliver a persuasive argument. They developed confidence in public speaking and also the ability to think on their feet. They learnt that it was OK to argue their point (even in front of the Chief Justice!) and when to concede the objection. They worked co-operatively as a team no matter their individual role and were supportive of each other. The Mock Trial Competition provides a wonderful opportunity to students to have in-depth exposure to the legal process. It inspires a passion for law and also for social justice. It is obviously a useful exercise for those who are considering studying law, but its benefits extend even to those who are not. The Law Society and its members can be justifiably proud of this event. Even though my son has told me that he wants to be something “way cooler” than a lawyer, the benefits of the competition to him are immeasurable.

Zia van Aswegen 2013 Murdoch Scholar What has been your most rewarding Mock Trial Competition experience? The most rewarding Mock Trial Competition experience for me was being able to work with a real lawyer. It was a great opportunity to learn how they think and approach legal problems and to be taught the same skills. What impact did the Mock Trial Competition have on your decision to work towards a career in the legal profession? The Mock Trial Competition had a significant impact on my decision to work towards a career in law. Participating in the Mock Trial Competition is what initially sparked my interest in the legal profession and allowed me to explore a new set of skills I hardly knew existed.

The Mock Trial Competition allowed me to have the confidence to apply for the Mock Trial Scholarship at Murdoch University. What is the value of the Mock Trial Competition to the Law Society, its members and the wider community in your opinion? I believe the value of the Mock Trial Competition to the Law Society, its members and the wider community is significant. It is a great opportunity for the Law Society to introduce the legal profession to high school students in a more creative and interactive way. This allows the students to gain a valuable insight into the profession at a time when they have to make decisions for their future careers.

Lorraine Finlay Law Lecturer and Alex McVey, Tutor, School of Law, Murdoch University When you are practicing law it is all too easy to get caught up in the day-to-day minutiae and to forget why you wanted to actually be a lawyer in the first place. Judging the Mock Trial Competition provides a perfect antidote to this. It gives you the opportunity to witness enthusiastic and dedicated high school students engaging with the law for the first time. From opening statements to cross-examinations, these students try their hands at each part of a real-life trial, including acting as witnesses, associates and orderlies. The volunteer judges then grade student participation, and provide feedback so that they may hone their trial advocacy skills. The trials themselves are not only a great learning experience for the students, but are also enjoyable to judge. Providing feedback to these students allows practitioners to pass on their legal knowledge and experience to a group of enthusiastic students who might, one day, become lawyers themselves. Even if practitioners have limited experience in courtroom advocacy, students are grateful to receive guidance on issues of substantive content and argument structure. We would highly recommend judging the Mock Trial Competition to other law graduates and practitioners. It is such a pleasure to mentor young high school students through what might be their first exposure to a career in law, whilst incidentally refreshing yourself with trial advocacy process.


State Government and Opposition respond to the Law Society’s Policy Positions

FAMILY VIOLENCE The vast majority of dangerous, abusive and violent behaviour that occurs in the privacy of people's homes is committed by men against women. In early 2015, the Council of Australian Governments (COAG) agreed to take urgent collective action to address the unacceptable level of violence against women in Australia. LAW SOCIETY POLICY POSITION

In December 2016 the Law Society of Western Australia wrote to both the Hon Michael Mischin MLC, Attorney General of Western Australia, and Mr Mark McGowan MLC, Leader of the Opposition asking them to respond to the Law Society’s policy positions on a range of legal issues affecting community members and the legal profession in Western Australia. The letters and policy statements in their entirety are available at lawsocietywa.asn.au.

18 | BRIEF MARCH 2017

The Law Society seeks the support of both parties to: •

Properly fund courts dealing with family law matters, as well as family violence support services;

Develop and implement domestic violence strategies for particularly vulnerable groups, including Indigenous Australians and those from culturally and linguistically diverse communities; and

Identify and implement measures designed to reduce the prevalence of domestic and family violence.

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government is strongly committed to address the problem of family violence in Western Australia and passed landmark legislation in November 2016, representing the biggest overhaul of family violence legislation in the State’s history, the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA) (the ROAR Act), which formed the centrepiece of a comprehensive legal reform program in respect of family violence. The ROAR Act is part of the Government’s overarching family violence response plan, entitled Freedom from Fear: Working towards the elimination of family and domestic violence in Western Australia – Action Plan 2015. Both the Action Plan and the ROAR Act aim to increase safety for victims of family violence, and strengthen integrated, accountable and effective interventions targeting perpetrators of family violence and abuse. The ROAR Act introduced a new Family Violence Restraining Order (FVRO) – supported by new definitions, objects and principles – all of which promote an evidence based, contemporary

understanding of the dynamics of family violence within the justice system. Of particular importance are the following innovative changes: •

A new definition of ‘family violence’ modelled on the definition in the Family Law Act 1975, that refers to behaviour that coerces, controls and causes fear in the victim;

Express inclusion of cyber-stalking and technology-facilitated abuse in the definition of family violence as behaviour that may form the basis for seeking an FVRO – a first for Australia;

Narrowing the court’s discretion to not make an FVRO where the grounds for an FVRO are met (that is, the court must make an order unless there are ‘special circumstances’);

Relaxation of the rules of evidence in final order hearings, with procedural fairness safeguards for both parties, to minimise re-traumatisation of victims during court hearings; and

Special provision for extended duration of an FVRO where the respondent is imprisoned to cover

the period of imprisonment plus two years post-release. The legislation also doubled the 10-year maximum sentence for the offence of unlawful assault causing death, which was introduced to deal with ‘one-punch’ homicides but had also been useful in family violence cases when murder or manslaughter could not be proven. The laws also offered protection to pregnant women and their unborn child, with a person who intentionally causes grievous bodily harm to a pregnant women which results in the loss of her pregnancy, will face up to 20 years’ imprisonment. Importantly, perpetrator accountability is also a key focus of the ROAR Act. For the first time in Western Australia, a court will be able to make a mandatory Behaviour Change Program orders as an adjunct to an FVRO. To complement the ROAR Act, the Liberal-led Government has also introduced a new integrated court model, known as the Family Violence List, in metropolitan Magistrates Courts and has committed to introducing legislation to enable Western Australia to participate in the National Domestic Violence Order Scheme. 19




WA Labor has released a number of policies in relation to law reform matters including, but not limited to, commitments to:

The Government provided Legal Aid WA with an additional $3 million in 2015-16 (over and above the expensive cases funding) to ensure that sufficient funding is available to provide representation to persons facing charges on indictable matters. Legal Aid WA also received a 14 percent increase in Commonwealth funding under the National Partnership Agreement for Legal Assistance Services. However, funding provided has had to reflect the general economic and financial position of the State.

The Law Society is seeking the support of both parties to:

Create a judicial system that is focussed on the victims of crime;

Address the recommendations from the Law Reform Commission of WA discussion paper into Family and Domestic Violence;

Introduce laws against nonconsensual publication of intimate photos and videos;

Legislate to end the time limit therefore allowing child sexual abuse victims to take legal action;

Provide legal protection of the accommodation and housing rights of victims of family and domestic violence victims;

Strengthen legislation by addressing the recommendations of the Enhancing Family and Domestic Violence Laws: Final Report prepared by the Law Reform Commission of WA;

Make it easier and less traumatic for victims to obtain violence restraining orders;

Introduce an electronic monitoring trail for violent offenders.

The Government is continuing to monitor legal assistance arrangements, to manage the impact of the withdrawal of Aboriginal Legal Services WA from a number of outer metropolitan and regional court locations and to make representations to the Commonwealth regarding the funding cuts made to Community Legal Centres. I have made a number of approaches to the Commonwealth Attorney General on the funding challenges faced by the legal assistance sector, including on the future funding and resourcing requirements of Community Legal Centres from 2017-18 onwards.

MENTALLY IMPAIRED ACCUSED Unfitness to stand trial

LEGAL ASSISTANCE FUNDING The Law Society has promoted the Law Council of Australia Legal Aid campaign and the ongoing strategy for the campaign in Western Australia. LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties to: •

Return the Commonwealth’s share of legal aid commission funding to 50% with the States and Territories being an additional $126m in the 2016 Commonwealth Budget;

Immediately provide a further $120m to cover civil legal assistance, with the States and Territories contributing $80m, comprising a total of $220m, as recommended by the Productivity Commission;

Immediately reverse further Commonwealth funding cuts to legal assistance services announced in 2014, including those due to take effect from July 2017.

20 | BRIEF MARCH 2017

Western Australia has a particularly unsatisfactory regime for dealing with accused person who are unfit to stand trial. The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), does not place limits on the period of custody orders for persons detained after being found not mentally fit to stand trial. It does not provide for any process of review. The person is detained at the ‘Governor’s pleasure’.

Indefinite sentences Section 98 of the Sentencing Act 1995 (WA) provides for indeterminate sentences. In Chester v The Queen [1998] 165 CLR 611, referring to s 662(a) of the Criminal Code (the predecessor to the current provision), the High Court in a joint judgement said: “… the stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is determinable by executive, not by judicial decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community.”

Determination of unfitness 1. Laws and legal frameworks affecting people involved in court proceedings in Western Australia should be reformed to reflect the National Decision-Making Principles proposed by the Australian Law Reform Commission and to facilitate Australia’s compliance with art 12 of the United Nations Convention on the Rights of Persons with Disability. 2. The criteria for unfitness should focus on the defendant’s ability to make rational decisions in order for a person to effectively participate in a trial. 3. It is important that mechanisms are implemented to ensure that defendants who would otherwise be determined to be unfit to stand trial are provided with adequate supports to be able to stand trial for the following reasons: (a) To ensure that innocent people are not pleading guilty (or being advised to plead guilty) in order to avoid the consequences of unfitness; and (b) Defendants, found unfit to stand trial, who are placed on supervision orders are unable to have their supervision orders revoked because they continue to breach the conditions of the order.

Limits on detention 1. The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) should be amended to place limits on the period of custody orders for persons detained after being found not mentally fit to stand trial. 2. The period of detention should not exceed the period which a court determines the individual would have been detained if convicted, bearing in mind all the circumstances which the court would have taken into account in sentencing the individual. The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) should be amended to provide that a custody order must not be made unless the statutory penalty for the alleged offence includes imprisonment or detention. Such an order should not be permitted to run for longer than the alleged offences, if proved, would justify.

LIBERAL GOVERNMENT RESPONSE Mental health and wellbeing is a cornerstone of maintaining a healthy life. However, almost half (45%) of all Australians will experience a mental health problem over the course of their lives; 1 in 5 will do so in any given year.

no longer than the term the person would likely have received, had they been found guilty of the offence; •

Introduce new procedural fairness provisions, which provide for rights to appear, appeal and review;

Ensure determinations about the release of mentally impaired accused from custody, and the conditions to be attached to such release (if any), are made by the Mentally Impaired Accused Review Board but with a right of review before the Supreme Court on an annual basis; and

With the impacts of mental ill health and alcohol and other drug dependency being so widely felt, it is important that these issues are given prominence within Cabinet and Government. Only the Liberal government has recognised this need, having undertaken significant reform to Western Australia’s mental health system since 2008. This includes appointing Western Australia’s first Minister for Mental Health and establishing our first Mental Health Commission; the appointment of the State’s first Mental Health Advisory Council in 2011 and introducing a new Mental Health Act in 2014, which improves the rights and protections for involuntary patients and supports the active involvement of families and carers. Since the Liberals formed government in 2008, the funding for mental health and alcohol and other drug services has increased by an unprecedented 83.9%, from $470.8 million to $865.8 million. This has enabled services and supports to expand across the state. The Liberal-led Government has undertaken significant work to reform the way the justice system deals with people affected by mental ill health. This has included the implementation of Western Australia’s first mental health court diversion and support project, as well as the opening of Western Australia’s first Disability Justice Centre. The Liberal-led Government is committed to introducing a Bill that will amend the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act) as informed by the report on the CLMIA Act Review tabled in Parliament in April 2016. LABOR OPPOSITION RESPONSE WA Labor has committed to introducing the following reforms to the Criminal Law (Mentally Impaired Accused) Act 1996 in the first year of office which will: •

Allow the judiciary the discretion to impose a range of options for mentally impaired accused such as community-based orders for mentally impaired accused found unfit to stand trial; Limit terms so custody orders are

Introduce a provision whereby, if requested by counsel for the accused, the prosecution must establish a prima facie case before a custody order can be made.

There is clearly further work to be done to reform the Act, however these initial steps are urgent for the well-being of mentally impaired accused.

enduring powers of attorney and guardianship. Further information on these and WA Labor’s other policies can be found at www.markmcgowan.com.au

ROYAL COMMISSION INTO INSTITUTIONALISED RESPONSES TO CHILD SEXUAL ABUSE The Royal Commission into Institutionalised Responses to Child Sexual Abuse was established by the Australian Government in November 2012 with the final report due by 15 December 2017. The Western Australian Government has introduced a Bill into Parliament which will remove the limitation period for bringing a claim for child sexual abuse. LAW SOCIETY POSITION

PROBATE The Law Society is concerned that the legacy for a husband or wife, which may include a de facto partner as defined in the Administration Act 1903 (WA) (the Act), usually referred to as the statutory legacy, is manifestly inadequate leading to hardship in already difficult circumstances for many Western Australian community members whose partners die intestate. The current statutory legacy in Western Australia is $50,000 or $75,000. This statutory legacy has not been amended since 1982. In order to increase the amount of the statutory legacy it is necessary to amend Section 14 of the Act.

The Law Society seeks the support of both parties to: •

The development of a single or nationally consistent redress scheme;

Ensure that funding for legal assistance services is made available to assist applicants in the development of any redress scheme;

Consider nationally consistent reforms to civil litigation laws affecting survivors of child sexual abuse through the Law, Crime and Community Safety Council; and

Support the Limitation Amendment (Child Sexual Abuse Actions) Bill 2015 removing the limitation period.



The Law Society recommends the statutory legacy be increased with reference to the median house price and set by Regulation.

Civil litigation reform in the context of child sexual abuse claims was considered by a Cabinet Subcommittee. On 17 January 2017, the Premier announced that legislation will be drafted to remove the limitation period for victims of child abuse and that no cap would be placed on the maximum damages that can be awarded to survivors.

LIBERAL GOVERNMENT RESPONSE The Government intends to progress amendments to the Administration Act 1903 (WA) during the course of 2017.

LABOR OPPOSITION RESPONSE LABOR OPPOSITION RESPONSE WA Labor has released a number of policies in relation to law reform matters including, but not limited to, commitments to expedite the enactment of amendments to the law surrounding

WA Labor has released a number of policies in relation to law reform matters including, but not limited to, commitments to legislate to end the time limit therefore allowing child sexual abuse victims to take legal action.


Policies relating to sentencing

that their bail will be revoked until such time as they are sentenced. The explanatory memorandum (or accompanying speech) does not set out a detailed analysis (by case study or statistical analysis) or basis for a genuine concern that accused’s on bail pending sentencing (but after conviction) have failed to attend upon sentencing date.

BAIL A large remand prisoner population is a problem. Firstly, a remand prisoner by definition is yet to have their guilt adjudicated by the Court. The taking of a person’s liberty, especially in circumstances where they are presumed innocent, should not be done lightly and only in appropriate circumstances. Secondly, and perhaps more important politically, detaining people unnecessarily in custody during the criminal process is expensive. LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties in regard to the following matters: The following matters are proposed as considerations in the election process: 1. Resources should be allocated to ensuring that those accused that have bail granted are able to take up bail. 2. Adequately fund bail co-ordinator positions, particularly Aboriginal and Torres Strait Islander positions are essential. 3. Adequately fund prison visiting services (such as Legal Aid and ALSWA) to ensure that those who are unable to meet the conditions of bail are quickly identified, and if appropriate, applications to vary bail conditions are made. 4. Making it easier to seek the removal of prohibitive conditions (such as surety conditions). 5. Clarity in terms of the proposed amendments regarding the requirement to take into account victim (and family) views regarding bail. At present it is not clear whether “if available” imports a requirement that those views must be sought before bail is considered. The practical effect could be that bail applications are delayed for a significant number of matters (given the breadth of the term “serious”). 6. The effect that post conviction-presentence bail changes might have on whether an accused enters a plea of guilty and (more likely) the timing of when that plea might be entered. There is a real risk that accused people may delay the entering of a plea of guilty for fear 22 | BRIEF MARCH 2017

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government supports initiatives to reduce unnecessary incarceration. Amendments proposed in the Bail Legislation Amendment Bill 2016 sought to allow greater flexibility to dispense with bail or to vary or revoke bail conditions when appropriate. This is intended to have a favourable effect in reducing the numbers of people in custody while on remand for minor offences. The Bail Legislation Amendment Bill 2016 also introduced additional considerations which a bail decision-maker must take into account. In order to ensure that this does not cause delay in decisionmaking, the additional factors are qualified, for example, "to the extent that it is practicable … the physical and mental health of the accused" and "… in the case of a serious offence, the views of any victim … (if available to the authorized officer or judicial officer) …". In these instances there is no intention that the decision-making be delayed for an investigation into the additional factors. Should the Liberal-led Government be reelected, this Bill would be reintroduced.

DEATH PENALTY Contrary to the right to life and the right not to be subjected to cruel, inhuman or degrading punishment (as enshrined in the Universal Declaration of Human Rights and the international Covenant on Civil and Political Rights) the death penalty still exists in many countries around the world. LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties to: •

Support and implement the recommendations arising from the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Report into Australia’s Advocacy for the Abolition of the death penalty;

Promptly conduct a review of legislative arrangements for

extradition and mutual assistance to ensure that they uphold Australia’s obligations as a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights; •

Strengthen Australia’s domestic legal framework and arrangements to ensure Australia does not expose a person elsewhere to the real risk of execution; and

Develop a strategy for the abolition of the death penalty, which outlines the methods to be employed to proactively advance the objective of global abolition.

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government does not support the reintroduction of capital punishment. LABOR OPPOSITION RESPONSE WA Labor has a long standing opposition to the death penalty and is committed to working with the Federal Government to strengthen Australia’s advocacy against the death penalty.

IMPRISONMENT OF FINE DEFAULTERS Many Australian jurisdictions have removed the possibility of imprisonment being imposed solely on the basis of continued fine default, with imprisonment only available once a defendant has failed to meet the requirements of a community service order. However, imprisonment for repeated fine default does still occur in other jurisdictions. These laws often affect those living in rural and remote Australia, the poor, and Indigenous Australians. For example, 43% of the 1,358 people who entered prison in WA, solely for the purpose of clearing fine defaults in 2013, were Indigenous Australians. Difficulties may arise where individuals are reliant on vehicles for their employment or where they are unable to pay a fine or readily arrange alternative methods of payment. LAW SOCIETY POLICY POSITION The Law Society recommends there be amendments to legislation at a Commonwealth and State level to allow for powers that would provide for automatic garnishing of Centrelink benefits, subject to a safeguard that fine defaulters are not deprived of a minimum living income, and salaries by employers and companies to prevent defaulting on court fines.

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government is progressing a raft of changes to the fines enforcement process; including discussions with the Commonwealth on the potential garnishment of social security benefits. Whilst committed to imprisonment as an enforcement option of last resort, the Government is developing legislative initiatives around improving the way Work and Development orders operate, permitting police officers to “stay” a Warrant of Commitment and more flexible time to pay arrangements. In addition, amendments included in the Sentencing Legislation Amendment Act 2016 will act to reduce the courts’ reliance on fines up front. The amendments provide for an enhanced Conditional Release Order as an alternative to a fine and for the introduction of a suspended fine.

MANDATORY SENTENCING Increasingly, Australian Parliaments are intervening in sentencing practices. In WA, this includes the recent expansion of the 'three strikes' home burglary laws. Politicians enacting mandatory sentencing laws claim to be responding to the public calling for harsher sentences, with the courts perceived as too lenient on crime. Unfortunately, the public is largely misinformed about crime and justice matters. Mandatory sentencing regimes are the most concerning manifestation of these parliamentary interferences. Such regimes impose unacceptable restrictions on judicial discretion and independence, and undermine fundamental rule of law principles. LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties to: •

Adopt policies which reject mandatory sentencing and repeal laws that impose minimum terms of imprisonment;

diversionary non-custodial options, which may be more effective for reducing crime while remaining compatible with the rule of law and Australia’s human rights obligations. • LIBERAL GOVERNMENT RESPONSE The Liberal-led Government is in favour of providing flexible sentencing options for offenders as is evident from the recent new sentencing options introduced through the Sentencing Legislation Amendment Act 2016. However, the Government is also of the view that the current limited use of mandatory sentences is suitable for those offences to which they apply and proposals outlined in the recently announced methamphetamine strategy are in line with community expectation and concerns. LABOR OPPOSITION RESPONSE WA Labor has released a number of policies in relation to law reform matters including, but not limited to, commitments to: •

Partner with a Western Australian University to establish a Bureau of Crime Statistics and Research to provide independent, evidence based research on crime and justice;

WA Labor has released a number of policies in relation to law reform matters including, but not limited to, commitments to introduce no body, no parole laws.

PRESUMPTION AGAINST BAIL The Northern Territory’s Government has introduced new legislation into Parliament to make bail rules stricter for repeat juvenile and adult property offenders. LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties to:

Re-establish the Law Reform Commission as an independent body and task it to report on various matters of current sentencing policy;

Create a sentencing database in WA that will provide comprehensive data of all sentences imposed across the Supreme, District, Magistrates and Children’s Court jurisdictions.

Consider alternative, evidence-based justice strategies that are more likely to achieve lower rates of crime and improved community safety.


NO BODY, NO PAROLE The Labor Opposition in Western Australia has introduced a 'no body, no parole' Bill into Parliament that would prevent people convicted of murder from being able to qualify for parole unless they provide police with the location of the body of their victim.

Refrain from the creation of new mandatory sentencing regimes;

Provide flexible sentencing options for offenders; and



Withdraw any plans to remove the presumption in favour of bail for repeat property offenders; and

Repeal mandatory sentencing laws and implement alternatives to mandatory sentencing, such as justice reinvestment strategies and

Considers that there is no need for the amendment as it is covered under the current provisions relating to parole.

The problem with these laws is that a person who is innocent and wrongfully convicted would never be able to qualify for parole (for example, Andrew Mallard).

an offence relating to the death of a person, the extent (if any) to which the prisoner has assisted in the location of the person’s remains;” and

Does not support the Opposition Bill to amend section 5A by inserting “(ca) if the prisoner is in custody for

The Liberal-led Government does not intend to amend the Bail Act 1982 (WA) to provide for a presumption against bail for repeat property offenders.

Policies relating to the Closing the Gap strategy CLOSING THE GAP Historically, the Closing the Gap strategy is a long term, Coalition of Australian Governments (COAG) framework that builds on the foundation of respect and unity provided by the 2008 National Apology to Aboriginal and Torres Strait Islander Peoples. In 2008, COAG agreed to six ambitious targets to address the disadvantage faced by Indigenous Australians in life expectancy, child mortality, education and employment.



Consideration of the increased use of infringement notices in appropriate cases;

Making the bail process more flexible through amendments to the Bail Act 1982; and

Expansion of ‘Open Days’, where Aboriginal people can directly access services in relation to the payment of fines and obtaining, maintaining and regaining a motor driver’s licence.

The Law Society seeks the support of both parties to: •

Establish 'justice targets' under the Closing the Gap framework to reduce rates of Indigenous imprisonment and violent offending; Establish a national agency to collect and evaluate comprehensive data on corrections, law enforcement, juvenile justice, diversionary measures, to inform government policies around crime and imprisonment;

Repeal or amend all laws which provide for a penalty of imprisonment for offences arising from a fine default; and

Abolish mandatory sentencing laws.

LIBERAL GOVERNMENT RESPONSE The Premier, the Hon Colin Barnett MLA, made a commitment in October 2014 to reduce Aboriginal over-representation and Aboriginal deaths in custody. The Liberalled Government’s response, developed by the Justice Ministers Group, has included: •

Introduction of sentencing options as alternatives to a fine, in an effort to reduce imprisonment for a fine default, through the Sentencing Legislation Amendment Act 2016;

Examination of the processes leading to imprisonment for fine default, in particular, looking at ways of improving how Work and Development Orders (WDOs) are administered and managed;

24 | BRIEF MARCH 2017

LABOR OPPOSITION RESPONSE The disproportionate representation of Aboriginal people in Western Australian prisons is widely recognised as a serious and long standing problem. The impact of the Liberal National Government’s policy on imprisoning fine defaulters in a contributing factor, with the numbers of Aboriginal people being imprisoned for fine defaults increasing dramatically in the last eight years. WA Labor recognises the need for a program of legislative reform to address the disproportionate incarceration rate of Aboriginal and Torres Strait Islander men, women and children and a McGowan Labor Government would be keen to work closely with the Law Society when we have access to the resources of government that are not available to us in Opposition. WA Labor is also committed to improving the health and welfare of Aboriginal people by focusing on improving education and economic opportunities and delivering appropriate health services.

ACCESS TO JUSTICE ISSUES FACED BY ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE OF WESTERN AUSTRALIA In Western Australia, there is no automatic right to free legal representation or assistance when accused of a crime. Instead, to obtain free assistance an individual must prove that they qualify for the services provided by Legal Aid, the Aboriginal Legal Service of Western Australia or a community legal centre that is funded to advise on criminal law issues. However, due to a lack of funding to these services, the ambit of those able to obtain assistance is ever decreasing. LAW SOCIETY POLICY POSITION The Law Society seeks support of both parties to: •

Improve funding to Community Legal Centres (CLCs), in particular to the Aboriginal Legal Service of Western Australia (the ALS) and the Family Violence Prevention Legal Service (the FVPLS). The overrepresentation of Indigenous people within our judicial system is greatly due to limited access to justice. The funding of CLCs has been proven to greatly reduce incarceration rates. In relation to Indigenous people, dedicated legal services are the preferred and most culturally appropriate provision of community legal services. Research shows that Indigenous people, and in particular women, are dissuaded

from approaching mainstream legal services, with language barriers and cultural sensitivity being the main reason for this. Greater funding to Indigenous legal services, such as the ALS and the FVPLS would provide greater access to justice to Indigenous people and would greatly decrease their incarceration rate. •

Improve funding for interpretation and translation services within the Courts, allowing Indigenous people to communicate with the Court in their native Australian language. For some Indigenous people, English is a second language. This creates confusion and misunderstanding for the legal system and procedures. Justice would be greatly improved if Indigenous people were given better access to interpretative and translation services in relation to judicial proceeding. Indigenous people could be granted a statutory right to have interpreting services available at all stages of the judicial proceedings, as is the case in certain areas of Canada. They could also have the statutory right to lodge documents and correspond with the court in their native languages, as is the case in certain areas of Norway. In order to do this, funding for interpretation and translation services within the court must be improved. Improve funding for Indigenous judicial and corrective service staff. It has been proven in the Rangatahi Youth Courts of New Zealand that the incorporation of cultural beliefs and practices into court procedure places greater expectations on Indigenous offenders and causes greater remorse. The effect that these practices have had on court proceedings can also be applied to other areas of the judicial system.

By using Indigenous judicial and corrective service staff, an element of cultural expectation can be applied to the offender and used to encourage better social behaviour in the future. It also improves communication between accused persons and the correction system, allowing the accused to better understand the reasoning behind what is happening, and for the judicial and corrective service staff to better understand the offending behaviour. LIBERAL GOVERNMENT RESPONSE Funding for the Aboriginal Legal Service of Western Australia and other culturally appropriate legal assistance services is the responsibility of the Commonwealth Attorney General, while the WA Government provides funding to the Family Violence Prevention Legal Service through Legal Aid. The State Government through individual courts, has, and will continue to, provide interpreters when requested and/or required. The Department of the Attorney General has established Aboriginal Liaison Officer (ALO) positions in a number of courts with a total of 7 positions currently classified under section 50D of the Equal Opportunity Act 1984 (WA) where Aboriginality is considered an essential requirement for the role. The ALO role is to optimise Aboriginal peoples’ access to, confidence in and use of the range of services provided by Courts and seeks to reduce overrepresentation of Aboriginal people as offenders in the criminal justice system. LABOR OPPOSITION RESPONSE WA Labor recognises the need for a program of legislative reform to address the disproportionate incarceration rate of

Aboriginal and Torrs Strait Islander men, women and children.

DEATHS IN CUSTODY AND INCARCERATION OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES 15 April 2016 was the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission was established in October 1987 in response to a growing public concern about the number of deaths of Aboriginal people in custody. The National Report of the Royal Commission was released in April 1991. The inquiry was limited to the deaths of Aboriginal and Torres Strait Islanders after an arrest or conviction, whether by suicide, natural causes, medical conditions and/or injuries caused by police. The terms of reference for the inquiry limited it to such deaths between 1 January 1980 and 31 May 1989, which included 99 cases. LAW SOCIETY POLICY POSITION The Law Society supports both parties to work with Aboriginal and Torres Strait Islander communities to invest in holistic early intervention, prevention and diversion strategies to militate against involvement with the criminal justice system and incarceration and to: 1. Implement smarter, evidence-based and more cost-effective solutions which drive sustainable change and which help to prevent deaths in custody by avoiding the use of incarceration, other than as a last resort. This is a long term goal which 25

must be driven over a number of campaign cycles. 2. In the short term, recognising that there is a significant number of Aboriginal and Torres Strait Islander peoples in incarceration, the Law Society recommends that cultural values are integrated into the prison system in a community-led manner to create a sense of ownership both of the prison and the processes it follows and, more importantly, the issues facing the community which are driving such high rates of incarceration. 3. Recognise any solution to the high and growing levels of the incarceration of Aboriginal and Torres Strait Islander peoples must be developed in partnership with the community and provide for leadership by the community in order to be successful and sustainable. 4. That the 12 key principles for reform outlined by the Change the Record campaign are adopted by the government in order to close the gap in the rates of imprisonment by 2040 and cut the disproportionate rates of violence to at least close the gap by 2040 with a prioritised focus on strategies to assist women and young people. LIBERAL GOVERNMENT RESPONSE The Liberal-led Government has approved a raft of measures aimed at reducing Aboriginal deaths in custody and overrepresentation more generally in the justice system. Reforms to sentencing legislation also aim to have a positive impact in reducing over-representation. A new sentencing option of suspended fine will allow a court to suspend a fine that would ordinarily be imposed for a period of up to 24 months, provided the person does not re-offend during that time. Enhancements to Condition Release Orders aim to give the court a genuine alternative to a fine, by allowing offenders to demonstrate good behaviour and take part in approved activities or unpaid community work. Conditional Release Orders have been developed in such as way so as to provide scope for Aboriginal organisations to become involved in providing activities or work for Aboriginal offenders. The Government has a clear intent to deal with low-level offenders by means other than through the court and by means others than a fine. These reforms will have a positive impact in seeing fewer Aboriginal people entering and becoming

26 | BRIEF MARCH 2017

entrenched in the justice system.

MANDATORY SENTENCING AND HOW IT CONTRIBUTES TO THE INCARCERATION OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES IN WESTERN AUSTRALIA For almost 25 years, mandatory sentencing has been used by successive governments in Western Australia as a ‘populist approach to sentencing’ to counter media hysteria, attract voter support and to give the perception of being ‘tough on crime’. These laws impose minimum sentences for certain offences, preventing judges from considering the personal circumstances and mitigating factors of each case. This trend continues with the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015. Mandatory sentencing laws raise serious concerns as to the WA Government’s compliance with the ‘separation of powers doctrine’ and international human rights law, especially in relation to their disproportionate impact on Indigenous people, and particularly Indigenous young people. LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties to have mandatory sentencing laws that apply to young people repealed and that the Government instead take a ‘justice reinvestment’ approach including: 1. Investing in Indigenous-led and culturally relevant prevention; and 2. Intervention and diversionary programs that target at-risk young people and empowers communities. Taking a strategic and holistic approach like this would bring Western Australia in line with international obligations and will make communities stronger and safer.

LIBERAL GOVERNMENT RESPONSE The introduction of mandatory sentencing for offences such as home burglaries and assaults on public officers was in line with community expectations and concerns, and has limited application.

ISSUES THAT CONTRIBUTE TO THE INCARCERATION OF ABORIGINAL AND TORRES STRAIT ISLANDER WOMEN IN WESTERN AUSTRALIA Delineating how ‘issues that apply to women’ contribute to the incarceration rates of Indigenous people is not a simple task, partly due to the inherent difficulty of definitively identifying any one factor as causative of imprisonment rates. What is clear is that there has been a particularly drastic increase in the incarceration rates of Indigenous women over the last decade. Despite only accounting for 2.4% of the adult female population, in 2015 Indigenous women comprised 36% of women prisoners in Australia. This paper attempts to illuminate why this is so and draws on the recommendations of the 2014 Gender Bias Taskforce Report. LAW SOCIETY POLICY POSITION In relation to the incarceration rates of Indigenous women, the Law Society seeks the support of both parties to: •

Fund adequate safe houses for

Indigenous offenders and this Court will continue to be resourced. However, an evaluation of the Kalgoorlie Community Court did not reach the same conclusion and was subsequently closed. There are no current plans to expand Indigenous Community Court to other locations. As indicated previously, reforms to enhance sentencing options of a suspended fine will allow a court to suspend a fine that would ordinarily be imposed for a period of up to 24 months, provided the person does not re-offend during that time. Enhancements to Conditional Release Orders aim to give the court a genuine alternative to a fine, by allowing offenders to demonstrate good behaviour and take part in approved activities or unpaid community work. Conditional Release Orders have been developed in such as way so as to provide scope for Aboriginal organisations to become involved in providing activities or work for Aboriginal offenders. Indigenous women and children to escape family and domestic violence, and provide affordable housing for those left homeless by these situations. •

Encourage the Western Australia Police to strengthen their efforts to recruit and retain Indigenous women and men as police officers and in corrective service roles.

The State Government fund the operation of Indigenous community courts, including Indigenous-led sentencing alternatives.

Enhance non-custodial sentencing, a more flexible approach to fines enforcement and the review of laws which have disproportionate effect on Indigenous women, such as mandatory sentencing.

Where imprisonment is appropriate, the potential for rehabilitation should be optimised by ensuring adequate funding to address the needs of Indigenous women through the availability of culturally appropriate treatment programs to all prisoners and to avoid overcrowding.

LIBERAL GOVERNMENT RESPONSE The Department provides access for all staff to cultural awareness training and the issues relevant to cultural background and gender. The Department operates the Barndimalgu Family Violence Court in Geraldton. An evaluation found the court to be particularly effective for dealing with


sentences on young offenders. This directly contravenes the ConRC, which states that detention for those under 18 must only be a measure of last resort, and that all sentences prioritise the best interests of the child. The CRC have recommended the laws be repealed. Instead the WA Government continues to extend mandatory sentencing. •

Legislate to ensure that children and adults are detained in separate facilities. When Australia ratified the ConRC, it made a reservation to Article 37(c), which requires children to be separated from adults in prison, unless it is in the child’s best interests not to do so. This is used as justification for children being detained with adult prisoners where separation is not “considered to be feasible having regard to the geography and demography of Australia.” The CRC has repeatedly recommended that the reservation be withdrawn.

Commence work with all state and territory governments, through COAG, to identify and address gaps in the collection of standard and disaggregated data related to youth contact with the justice system. The Council of Australian Governments (COAG) provides an avenue for federal, state and territory governments to improve the coordinated collection and use of data to reform the youth justice system. There are many inconsistencies and gaps between states and territories in collecting relevant data. Inadequate information is one of the barriers preventing policy makers from more effectively responding to the overrepresentation of Indigenous young people in detention.

Work with relevant WA agencies and stakeholders to identify areas of unmet need for bail accommodation. Fund indigenous community controlled bail accommodation and support services to ensure that Indigenous young people are not held in detention on remand solely due to a lack of other options. Particular focus should be given to young girls and boys in out of home care, and those with mental health issues, and cognitive impairments. Between June 2013 and June 2014 Indigenous young people were 23 times more likely than their nonIndigenous counterparts to be in un-sentenced detention. Indigenous young people are often held in

Western Australia has the highest rate of over-representation of Indigenous youth in detention in Australia. Change is needed. In 2013–2014, Indigenous young people in Australia were 26 times more likely to be in detention than nonIndigenous young people. Aboriginal and Torres Strait Islander young people make up just over 5 percent Australia’s population (10 - 17-years old), but 59% of those are in detention. LAW SOCIETY POLICY POSITION The State Government address the high rates of incarceration of young Indigenous people in WA in the following ways: •

Legislate to amend laws that do not conform with the Convention on the Rights of the Child (ConRC), with regards to detention as a measure of last resort, mandatory sentencing and age of criminal responsibility. Across Australia children are criminally responsible from 10 years of age despite the Committee on the Rights of the Child (CRC) having concluded that 12 is the lowest internationally acceptable minimum age of criminal responsibility. The Criminal Code Act 1913 (WA) sometimes requires magistrates to impose mandatory minimum


detention on remand simply due to a lack of suitable accommodation and support to comply with bail conditions. •

Develop justice targets to reduce Indigenous youth detention rates and create safer communities. These should be developed in consultation with Indigenous People and their representative offender and victim organisations. Develop youth bail legislation to require that pre-trial detention should occur only as a last resort where there is flight risk or risk to administration of justice upon release. Assessment should be case-by-case regarding necessity and proportionality. International human rights standards require that detention for persons awaiting trial must be the exception rather than the rule.

significantly higher than other states and territories. LAW SOCIETY POLICY POSITION

The Department of Corrective Services has recently released a green paper to review the Young Offenders Act 1994 (WA). The purpose of the review is to determine whether the Act is achieving its objectives within the context of critical issues and contemporary trends in youth justice. The Government is always open to the expansion and improvement of justice related data collection and use. This Department also has a history of supporting criminological research either directly, or through organisations such as the Australian Institute of Criminology and the Telethon Kids Institute.

JUSTICE RE-INVESTMENT As at June 2016, Indigenous people represented 28% of the total full-time prisoner population nationally, while only accounting for approximately 2% of the population nationally. This is an increase from 21% of the total prisoner population in 2003. In WA, the proportion of Indigenous prisoners is much higher. As at 31 March 2016, Indigenous people constituted 38% of the total full-time prisoner population. WA accounts for 22% of the national Indigenous prison population. The imprisonment rate of Indigenous people per 100,000 of the adult Indigenous population in WA is

28 | BRIEF MARCH 2017

WA Labor commits to: •

Partner with a Western Australian University to establish a Bureau of Crime Statistics and Research to provide independent, evidence based research on crime and justice; and Create a sentencing database in WA that will provide comprehensive data of all sentences imposed across the Supreme, District, Magistrates and Children’s Court jurisdictions.

The State Government adopts a justice reinvestment strategy as well as advocate for a nationally consistent approach by: •

Establishing an independent body which has access to government department databases and statistics so that high-risk communities can be identified;

Advocating for the adoption of standardised data collection nationally and the contribution to such data by the Government of Western Australia;

The identification of savings within the justice system;

WA Labor has explored the issue of Justice Reinvestment in Opposition and in government, with access to greater resources, would be interested in working with the Law Society and other stakeholders to further explore how this could apply to a Western Australian context.

The development of, and reinvestment of the justice system savings in community-led and Indigenous-led diversionary and early intervention programs and initiatives to reduce recidivism;

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government does not intend to amend the legislation in respect of the age of criminal responsibility.


Additional Federal and State funding to support the diversionary approach; and The development of a pilot programme in remote WA with ‘step 1’ of the programme commencing by the end of 2017.

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government supports the development of evidence-based crime prevention strategies tailored to address the drivers of crime at the community level. The Government is also committed to a tougher approach towards the small number of offenders who commit serious violent offences, particularly in relationships, while at the same time offering the courts alternative sentencing dispositions for persons convicted of lower level offences. To this end, the Government has introduced measures such as suspended fines and Condition Release Orders as alternatives to a fine. In addition justice agencies are looking at alternatives to jailing serious fine defaulters, moving some low level offences from the courts to infringement notices and Western Australia Police is trialling a diversion initiative called 'Operation Turning Point'. The Society’s recommendations around improved crime data collections and analysis including geocoding and more robust, evidence-based policy development are accepted.

Policies relating to the legal profession DIVERSITY AND EQUALITY The extent which gender bias continues to exist in the law and administration of justice in Western Australia. LAW SOCIETY POLICY POSITION The Law Society adopted the National Equitable Briefing Policy on 24 May 2016; and is implementing (where possible) the recommendations made in the 20th Anniversary Review Report 'Final Directions Paper' to promote gender diversity within the legal profession. LIBERAL GOVERNMENT RESPONSE The Department of the Attorney General coordinates an interagency response to the Gender Bias Review recommendations. Considerable progress has been made in implementing these, including: •

Updating the Equality before the Law Benchbook;

Supporting the appointment of capable, experienced women to judicial positions;

Supporting flexible working arrangements within States Solicitor’s Office; and

New court facilities in Kalgoorlie, Kununurra and Carnarvon that better support the needs of child witnesses and victims.

Western Australian public sector legal agencies have already implemented policies that allow staff to meet family demands without sacrificing their career goals. The State Solicitor’s Office does support to the extent possible, flexible work arrangements, including working from home arrangements so that employees can more effectively balance home and work responsibilities. In 2016, the State Solicitor’s Office had more than fifty percent of legal staff that were women and a quarter of the legal staff work part time. In terms of salaries: •

46 percent of practitioners are classified at Class 4 (currently attracting full time salary of $229,435) and of these roles, half are occupied by women;

Half of the 60% of practitioners classified at Class 3 currently attracting full time salary of $193,945 to $218,056) are women with a majority working part time; and

Women comprise half of the new articled clerks that started in 2016.

Of the 23 appointments this government has made to judicial positions, 7 have been women, including the first female State Coroner.

JUDICIAL RESOURCES A lack of judicial appointments and resources is causing delays within the Supreme Court of Western Australia. The delay in obtaining a trial date is an issue which the Court regards as unacceptable. The effects of trial delays include: •

Magnification of the harm to victims by delaying vindication and closure, and protracting their engagement with the criminal justice system.

Many of those awaiting trial are also in custody on remand. Those who are acquitted at trial may have served more than a year in prison, although found not guilty.

Delayed trials are much less efficient due to potential problems with the location of witnesses and the fading of memories.

standards in listing times for trials and delivering judgments.

The Supreme Court of Western Australia has the second highest number of judicial officers per 100,000 people amongst comparable states. Appointments were made in July and November 2016, meaning that the Supreme Court has full complement of 21 judges. LABOR OPPOSITION RESPONSE In terms of resourcing matters, it is difficult for the Opposition to get a full and detailed picture of the State’s finances and we are yet to see how much more financial damage the Liberal Government will do in the next two months. As reported recently on the front page of The West Australian newspaper ('Budget Sham' 27 December 2016) there are at least $1 billion in Liberal-National Government spending commitments not included in the Budget papers. For these reasons, we will not know the true state of the finances until we gain government. Noting that the Liberal-National Government has increased debt by more than 800 percent (from $3.6 billion to $33 billion), has a $3.4 billion deficit predicted and ratings agency Moody’s has slashed the State’s AAA credit rating down to AA2, a WA Labor Government would always act in a financially responsible way when making budget decisions.

LEGAL PROFESSION UNIFORM LAW The Uniform Law harmonises regulation of the legal profession, cuts red tape and creates a single system to govern legal practice. The scheme also promotes informed consumer choice and has strong consumer protection measures. The Uniform Law's overall objectives are to promote the administration of justice and an efficient and effective Australian legal profession through:

Maintain existing levels of judicial resources; and

Provide additional resources to ensure that the Courts meet national

empowering clients to make informed choices about their legal options;

efficient, effective, targeted and proportionate regulation; and

a co-regulatory framework with appropriate independence for the legal profession.


LAW SOCIETY POLICY POSITION The Law Society seeks the support of both parties to:

consistency between States and Territories in the law applying to the Australian legal profession;

ensuring legal practitioners are competent and maintain high ethical and professional standards;

enhancing the protection of clients and the public;

The Uniform Law is applied in NSW and Victoria by local application Acts. Certain jurisdiction-specific arrangements, such as the operation of local authorities and fees, are dealt with by local application Acts and Regulations. The Uniform Law and Uniform Rules replaced the Legal Profession Act and Regulations in both States on 1 July 2015. LAW SOCIETY POLICY POSITION The Law Society endorses the adoption of the Uniform Law in Western Australia, subject to the following variations: •

The entrenchment of a Western Australian representative on the national Legal Services Council;

The continuation of a local regulatory body that is run by representatives of the legal profession and that is independent of government; and

Maintenance of the following aspects Western Australian legal costs regime: •

A legal costs committee with the power to determine costs scales;

The power of courts to make special costs orders; and

That costs agreements that are not compliant with disclosure obligations are voidable but not automatically void.

LIBERAL GOVERNMENT RESPONSE The Liberal-led Government is awaiting a full evaluation by participating jurisdictions. It continues to support the development of a seamless legal profession across Australia through State legislation, provided the regulatory arrangements are in the interests of the WA public and all elements of the legal profession. LABOR OPPOSITION RESPONSE WA Labor supports Legal Profession Uniform Law across Australia with the proviso that the Supreme Court and the WA Legal Practice Board retain control of the admissions and disciplinary functions of the Board.


KBI is a specialist insurance brokerage that partners with clients seeking insurance advice and commercial solutions to complex risks. KBI has developed a reputation as a leader within our niche areas. We work closely with our clients to manage their business risks and protect their key people.

A NEW STANDARD IN INSURANCE DID YOU KNOW? ¾ We currently partner with many of Western Australia’s leading law firms to manage their insurance programs ¾ We assist our clients with their cash flow by financing their existing Law Mutual Professional Indemnity insurance policies, Practising Certificates and all other insurance policies, into monthly payment plans ¾ We can secure extremely competitive rates on Professional Indemnity Top Up Insurance ¾ We are experts in Cyber Insurance for law firms and Travis Kenzle is a regular presenter on the topic to the Western Australian legal community ¾ KBI has partnered with Employee Benefits specialist Steadfast Life to provide Group Life and Salary Continuance Insurance solutions to law firms. Benefits under our program include automatic acceptance for Life Insurance/Salary Continuance/TPD, comprehensive coverage and competitive premiums

To discuss the above and find out more about the innovative developments occurring within the insurance sector, contact Travis Kenzle, Managing Director.

www.kbigroup.com.au | 08 6467 7999 | info@kbigroup.com.au KBI Pty Ltd. Authorised Representative (AR 450152) of PSC Connect Pty (AFSL 344648).

KBE Human Capital is Western Australia’s leading Legal Recruitment firm. Our Consultants have developed a reputation for providing a highly personalised service and adding value to our networks, over and above recruitment. We have long established relationships with the leading national/ international and most prominent Western Australian law firms and always aim to provide lawyers with an unrivalled level of knowledge and exceptional level of service.

Boutique firm with unique culture and no billable targets. Following rapid growth and gaining an increased market share, you will receive extensive client contact with excellent exposure to the micro/junior market.

Rapidly growing national firm. Work closely with three highly regarded Partners. Two positions available for lawyers with 1-5 years’ PAE. The successful lawyers will be provided with primary conduct of matters across IPO’s, RTO’s, ECM and related ASX/ASIC compliance advice. The Partners are known for their relaxed approach and attracting a high profile client base across the junior and mid-cap markets.

Small national boutique completing extensive cross border work. This would suit mid-level lawyers looking to upgrade to a high quality mix of public and private deals.

Large national Corporate/M&A team, working alongside well-known Partners who are recognised internationally for their expertise.

M&A Activity/Partnership Opportunities KBE Human Capital has been engaged to establish several new law firms who are looking to enter the WA market in 2017. We are also advising a group of top/mid-tier Partners with transportable fee bases of varying sizes who are seeking Partnership opportunities within boutique practices.

In 2016, KBE Human Capital facilitated the continued growth of several national/international firms by transitioning entire practice groups to our client firms, with a focus on specialist practice areas with $1m+ fee bases. We regularly assist Partners/firms looking to transition out of practice and/or join larger teams in benefiting from economies of scale and sharing fixed costs to increase overall profitability. We have ongoing mandates to secure high calibre Partners across various Practice Groups. To be considered by our clients, you will be a Salaried/Equity Partner or Senior Associate/Special Counsel with the ability to bring across some form of transportable fee base. In the alternative, you will demonstrate a track record of rapidly developing a client base using your existing networks, across one of the following areas: • • • • • •

Construction & Projects Corporate/M&A Environment & Planning Family Insolvency Insurance

• • • • • •

Litigation Local Government Property Tax Wills & Estate Planning Workplace Relations

Market Snapshot 2017 has started very positively for the majority of our client base, with the outlook and sentiment undoubtedly significantly stronger than this time last year. Please see below a snapshot of some of the roles available within our client firms: Commercial Lawyer role for junior seeking the tutelage of a highly respected Partner, with some exposure to Litigation. This is a new opportunity for a Commercial Lawyer with 2-5 years’ PAE who is keen to expand and develop their skills under the tutelage of a highly respected Partner. The firm is small, cohesive and high performing, and provides specialist advice in relation to complex transactions for clients across a broad range of industries. Areas of practice include Property, Employment, IT and IP, general Business/Commercial Law, and Wills and Estate Planning. The Partner will provide you with exposure to some Litigation if you would like to further expand your skillset, however this is by no means a requirement. Corporate/M&A Lawyers for multiple firms across all tiers. If you are an Associate or Senior Associate with 2 5 years’ PAE or 5-10+ years’ PAE, then you are in high demand. With the resources and commodities markets beginning to rebound, now is an excellent time for Corporate/M&A/ECM Lawyers with quality experience to assess your career options and ensure your salary levels remain in line with current market trends. We have active roles with quality boutiques through to the largest international firms, with an overview of some urgent roles below:

Top-tier international firms. Career development roles for lawyers looking to step up and gain exposure to major transactions and significant deal flow across both public and private M&A, Corporate Advisory/Compliance and ECM. Corporate/Commercial Lawyers from boutique firms seeking career advancement are encouraged to apply. Most of these positions are client facing roles where you will enjoy high levels of responsibility and extensive client contact. You must be comfortable advising senior stakeholders and dealing with boards of directors, company secretaries, in-house counsel, regulatory bodies and managing high profile transactions with supervision/ guidance from the Partners. New to market global firm. Unique opportunity to join this premier international brand at ground level and become part of a global team with plans to disrupt the Perth market. Excellent career prospects.

Energy and Resources Lawyers for international top-tier firm. This firm has an internationally renowned Energy & Resources team, acting for a diverse range of listed and unlisted clients in the areas of energy, O&G, mining and major projects. Given the firm’s current market positioning and in line with its growth plans for 2017, the Partners are now seeking well-rounded E&R Lawyers and Associates with 2-6 years’ PAE and Senior Associates with 5-9 years’ PAE to join their team. You will also enjoy the level of support to be expected from an international firm, and be remunerated at above market rates. Family Lawyers to take over existing firms/client bases. KBE Human Capital is actively assisting a number of clients on multiple exclusive briefs. We are interested in speaking with family law practitioners with 3+ years’ PAE. Our clients include leading national, full service WA firms and long established boutique firms who are looking to add high calibre lawyers to their teams. Several roles are leadership positions, mentoring junior lawyers with a lesser focus on billing and technical work, and the rare ability to take over existing practices as Senior Lawyers transition to retirement. In-House Counsel – Corporate/Compliance/ECM focus. 2-6 years’ PAE. Join a highly collegiate team of lawyers and take on an important role providing a range of corporate/ commercial law and general advice to key stakeholders within the organisation’s diversified company portfolio. You will work directly with Senior Counsel and the Board of Directors, with some exposure to Co Sec work. Insolvency Litigation Lawyer. 5-8+ years’ PAE with the option to step into a leadership/Partner role within 12-24 months. Our client is interested in speaking with Senior Associate level lawyers who are confident of building a fee base and able to bring across a network that can rapidly develop a fee base of $50K+ or a demonstrated network within the Insolvency Accounting firms, with exceptional business development skills. Insurance/PI Lawyers for two top-tier firms. These are newly created opportunities for junior and mid-level lawyers with

Chris Bates

Maryann McKenna

Managing Director

Principal Consultant

M: 0411 645 984 E: chris@kbehumancapital.com.au

M: 0423 867 110 E: maryann@kbehumancapital.com.au

1-3 years’ PAE and 3-7 years’ PAE to join two of Perth’s best regarded specialist insurance practices, within a national and international firm. The firms have very strong reputations and Partners who are recognised as experts in the insurance field, with exposure to matters across a variety of insurance areas, including professional indemnity, commercial property claims, workers’ compensation, product liability and property liability, employers’ indemnity, and medical malpractice. Insurance Lawyer with Workers’ Compensation focus. One of Australia’s best regarded specialist national insurance teams is seeking a junior to mid-level lawyer to join the Perth practice. The successful lawyer will have 2-6 years’ PAE and work primarily across Workers’ Compensation matters, with the opportunity to gain exposure to professional indemnity, product liability and public liability. This role would suit a client facing lawyer who enjoys business development and extensive client contact. Litigation Lawyers for top-tier firm. This is a new opportunity for a junior (2-4 years’ PAE) and mid level Litigation Lawyer (3-8 years’ PAE) to join a rapidly growing top-tier firm and work alongside Partners who are regarded as among the best strategic litigators in Australia. You will act for domestic and international clients across a range of industry sectors, and complete a diverse mix of energy and resources, construction and insolvency litigation within Australia and multiple foreign jurisdictions. Native Title Lawyer for fully integrated national firm. This is a new opportunity for an experienced Native Title Lawyer with 2- 7 years’ PAE to join a fully integrated national team in their growing Native Title practice. The practice has extensive experience in developing Native Title strategies, and will provide you with exposure to: approval solutions, Indigenous heritage issues, negotiations of agreements with Traditional Owners, and involve Representation in Courts and Tribunals. Lawyers from related E&P, E&R or Corporate/Commercial areas of law are encouraged to apply. Workplace Relations Lawyer to join a rapidly growing midtier practice. This national firm is seeking a highly ambitious Workplace Relations Lawyer with 2-3 years’ PAE to work in the team’s expanding Perth office. You will gain broad work exposure across a number of industries and direct access to the firm’s most highly valued clients, working closely with Partners and Special Counsel locally and across the National Workplace Relations team. This role will see you providing specialist advice to clients (predominantly employer) across all facets of Workplace Relations, Industrial Relations, general Employment Law, and some OH&S. Some exposure to OH&S will be beneficial but is not a prerequisite. Workplace Relations Senior Associate/Special Counsel to lead a tier one practice. The Employment practice group of this international firm has engaged KBE Human Capital to secure a Senior Associate or Special Counsel to head the Workplace Relations, Health & Safety practice for the firm’s Perth office. The role will involve working closely with Employment/OH&S Partners across Australia as well as managing existing panel and non-panel work, servicing long standing WA government, ASX listed and global company clients of the firm. You will handle a range of contentious and non-contentious matters, conduct training for clients and advise boards on a broad range of Workplace Relations matters. The successful candidate will be of at least Senior Associate standing with 5+ years’ PAE. Candidates with strong Workplace Relations/ OH&S experience with backgrounds outside of private practice will be considered, as long as they have the relevant level of experience. We are currently working on numerous exclusive briefs to source high calibre lawyers from 2 years’ PAE through to Equity/Salaried Partners, in addition to the roles listed above, and it would be a pleasure to meet with you to discuss the opportunities currently available in the WA legal market. Please contact Chris Bates or Maryann McKenna for further information. KBE Human Capital is a proud supporter of Parkerville Children & Youth Care

KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au

The finality of planning approvals: the unexplored impact of the Interpretation Act 1984? (Part 2) Part 1 of this article appeared in the February 2017 edition of Brief

By Peter Lochore Barrister, Francis Burt Chambers

Planning approvals are important, so it is imperative to know whether, once a decision is made, it can be amended, and if so, in what circumstances and to what extent. In Part I of this article I reviewed the powers to amend subdivision and development approvals. I finished with a quote: it is a well-established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute”.1 In this article I will explore whether, on the proper construction of the Planning and Development Act 2005 (WA) (PD Act) read with a planning scheme: 1. a local government (or a development assessment panel as its surrogate) is empowered to vary or set aside its decision on a development application and make yet another decision. 2. the Western Australian Planning Commission (WAPC) is empowered to vary or set aside its decision on a subdivision application and make yet another decision. These re-considerations could be at the request of an applicant, or at the instigation of the planning decisionmaker.

What further reconsideration powers exist? In this article I argue that: (1) ‘slip rule’ type powers are exercisable by planning authorities; and (2) the WAPC has the power to amend

32 | BRIEF MARCH 2017

subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading.

Question not answered by functus officio At first glance the doctrine of functus officio suggests that after a decisionmaker has made a decision the decision-maker then has no jurisdiction and is therefore precluded from reexercising the power. However, the general proposition must yield to the legislation under which a decision-maker is acting. In any event, the doctrine of functus officio is nowhere near as confining as it is often characterised: Minister for Immigration & Multicultural Affairs v Bhardwaj.2

The relevant sections of the Interpretation Act 1984 Section 3(1) of the Interpretation Act 1984 (WA) applies the provisions of that Act to every written statute unless in relation to a particular written law: (a) express provision is made to the contrary; or (b) the intent and object of the Act or something in the context of the Act is inconsistent with such application; or (c) in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application. Section 48 of the Interpretation Act provides that statutory powers may be exercised from time to time as the occasion requires. Section 5 defines

‘power’ to include any privilege, authority or discretion. Section 50(2)(c) of the Interpretation Act provides that where a written law confers power to grant an approval, such power includes power to withdraw that approval. Section 50(3) provides that this applies, subject to section 3(3), to laws passed after the commencement of the Interpretation Act. Section 55 of the Interpretation Act provides that where a written law confers a power to do any thing of an administrative or executive nature, the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty, notwithstanding that the power or duty is not in general capable of being exercised or performed from time to time. For example, as the act of issuing a warrant was administrative, a court can rely on s 55 to re-issue a warrant to correct an error.3 One limitation of s 55 is that it does not apply where the power is spent (and thus can no longer be exercised).4 Most critically though, this provision cannot be invoked when all relevant facts and circumstances are before the decision-maker and he or she simply changes his mind.5

Inconsistency Express provisions There is no provision of the PD Act which is expressly inconsistent with the applicability and operation of sections 50(2) (read with section 48) and 55 of the Interpretation Act. Other inconsistency Local planning schemes are made pursuant to the PD Act. Therefore, the critical question of ‘other inconsistency’ is whether the intent and object, subject matter or context of the PD Act are inconsistent with the applicability and operation of sections 50(2) (read with section 48) and 55 of the Interpretation Act.

Section 55 of the Interpretation Act This section enables the correction of errors or omissions. The interesting question in its application to planning approvals is what constitutes an error or omission. I contend that the scope of this power should be consistent with the statutory ‘slip rule’ power given to the State Administrative Tribunal (SAT) in section 83 of the State Administrative

The starting point for planning approvals must be that once an approval or refusal is given that the decision is final.10 Powerful arguments for finality, certainty and likely reliance by third parties can be derived from:

Tribunal Act 2004 (WA) to rectify a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation or a defect in form.6 That is to say: (1) the WAPC ought to be taken to have the power to amend subdivision approvals so as to correct clerical mistakes (including omissions), miscalculations or defects in form; and (2) local governments (including development assessments panels as surrogates) ought to be taken to have the power to amend development approvals to correct clerical mistakes (including omissions), miscalculations or defects in form. In my view, this power should be considered to be discretionary (noncompellable), and must be exercised consistently with good administrative practice. However, this power should only be able to be exercised within a reasonable (presumably short) time from the making of the decision.7 While the Rules of the Supreme Court require applications for judicial review to be made within 6 months,8 a longer period is justified in that case as it is necessary for legal advice to be obtained and evidence to be prepared.9 This error-correction power should only be exercisable within a shorter period.

Section 50(2)(c) (read with section 48) of the Interpretation Act Section 50(2)(c), read with section 48, of the Interpretation Act appears to give planning approval bodies the power to withdraw an approval from time to time as the occasion requires.

(1) the PD Act’s stated purposes of providing for an efficient and effective land use planning system in the State and promoting the sustainable use and development of land in the State;11 and

authority should be hesitant to exercise its power.16

What further reconsideration powers exist? I therefore conclude that, in addition to those discussed in Part 1 of my article, there are two further species of reconsideration powers. They are: (1) ‘slip rule’ type powers of errorcorrection exercisable by the WAPC, local governments and DAPs; and (2) the power for the WAPC to amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading. NOTES: 1.

Falkiner v Director-General of Planning NSW [2002] NSWLEC 159; (2002) 125 LGERA 138, 151 [60] (Pain J, after referring to section 65 of the Interpretation Act 1987 (NSW)).


Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [5] to [8]. See also the observations of the Full Court in Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 at [58].


De Alwis v State of Western Australia [2014] WASC 161 at [79]-[80].


Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [58] (The Court).


Venture Management Ltd v Commissioner of State Taxation (WA) (1991) 4 WAR 283, 295 (Franklyn J).


This possibility was left open by the Full Court of the South Australian Supreme Court in Remove all Rubbish Co Pty Ltd v City of Munno Para (Minister for Environment and Planning intervening) (1991) 56 SASR 254, 259 (Cox J, with whom King CJ agreed).


For discussion of a reasonable time to exercise a power of revoke a registration see Donovan v City of Sale [1979] VR 461.


Rules of the Supreme Court 1971, Order 56 rule 1, definition of “limitation period”.


Strict time limits on judicial review have long been accepted as necessary to protect the interests of those relying upon the validity of the approval: see for e.g. R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.


Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 [30] (French J); The Queen v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404, 406-7. As to the finality being critical to good administration generally see Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [8].


Planning and Development Act 2005 (WA), section 3(1) (b) and (c). In Hamersley v Bartle Chaney J observes that a provision which enables amendment to an existing approval is clearly capable of assisting efficient and effective land use planning: [2013] WASC 191, [86].


Sloane v Minister for Immigration (1992) 37 FCR 429 at 443 [30] (French J referred to the potential for endless requests for reconsideration);


While the statutory context differs, the discussion of the Victorian Civil and Administrative Tribunal is instructive on this question – see Malvestuto Pty Ltd v Shire of Yarra Ranges [2001] VCAT 1788 at [5].


Subsection 50(3) of the Interpretation Act applies section 50 to written laws, which includes regulations. It would be nonsensical to infer the existence of a second review process alongside that created by the respective regulations.


Agencies and bodies with a relevant interest who are invited to comment on applications such as utilities (water, power, telecommunications) or the Department of Health (such as for sewerage proposals).


As to new evidence in appeals, see Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, [411] – [416].

(2) the subject matter and context of the PD Act. Further, without a limit, some applicants may generate continual requests for reconsideration creating an additional administrative burden.12 A change of heart will not be sufficient – planning decisions cannot be revoked simply because the decision-maker decides it has changed its mind.13 However, the general need for finality in planning decisions need not completely exclude the operation of section 50(2). What is determinative I suggest, is the fact that there are now express powers allowing local governments and DAPs to amend development approvals. Thus, in my view there is now little scope to find an additional amendment power based on the application of section 50(2) of the Interpretation Act.14 Subdivision approval is different. I contend that there is scope for section 50(2)(c) of the Interpretation Act to allow the WAPC to revoke a subdivision approval and substitute a new decision if the WAPC becomes aware that its original decision was made in reliance upon information that it now knows to be materially inaccurate, incomplete or misleading. The inaccurate, incomplete or misleading information could be from the applicant, but it could also come from a referral authority.15 However, as with applications for fresh evidence in appeals, the starting point ought to be that if the facts were available earlier but the omission is not attributable to the fault or neglect of the party, the planning


Ceremonial Sitting on the occasion of the retirement of the Chief Justice The Hon Robert French AC

Transcript from ceremonial sitting held in Canberra, Monday, 5 December 2016 Thank you, Mr Attorney, Mr Clark and Mr O’Sullivan for your remarks. I suppose if I were to treat them as submissions I would respond, as I have sometimes been tempted to respond, counsel said everything in support of the point that it was possible to say and a little more. I begin by acknowledging His Excellency the Governor‑General Sir Peter Cosgrove and Lady Cosgrove and thank them for the honour they do the Court by their attendance. I acknowledge also the President of the Senate, the Honourable Senator Stephen Parry. One of His Excellency’s distinguished predecessors, Major General the Honourable Michael Jeffery is also present. Major General Jeffery and Mrs Jeffery attended my swearing‑in on 1 September 2008, just four days before the expiry of his term and the swearing‑in of Dame Quentin Bryce as Governor‑General. With us on the Bench, as has already been observed, are former Chief Justices Sir Anthony Mason, Sir Gerard Brennan and the Honourable Murray Gleeson, together with former Justices William Gummow and Kenneth Hayne.

34 | BRIEF MARCH 2017

The Chief Justices of the Federal Court, the Family Court and the Supreme Courts of the States and Territories are also in attendance, other than the Chief Justice of Western Australia who could not be with us today. I have had the privilege in the past eight years of working with them as Chairman of the Council of Chief Justices. We meet as members of a national judiciary committed to its efficient and effective working and to its proper relationship with the other branches of government. I also acknowledge the Honourable Michael Black, a former Chief Justice of the Federal Court and Chair of the National Legal Services Council, and may I express the hope that within the framework established under that Council the vision of a uniform regulatory regime for the legal profession within Australia will ultimately be realised. We managed a standard gauge railway, we should be able to manage a standard regime for the legal professionals. In addition to the Attorney‑General of the Commonwealth we are joined today by former Attorneys‑General Justice Robert McClelland, now a judge of the Family Court of Australia, the Honourable Daryl

Williams, Nicola Roxon and Mark Dreyfus, who is currently shadow Attorney‑General in the Commonwealth Parliament. At the Bar table are the Solicitors‑General of the States and Territories and the acting Solicitor‑General for the Commonwealth. They join Presidents of the Bar Associations, many of whom, like the Solicitors‑General, have been familiar faces in this Court over the last eight years or so. Fiona McLeod, the President elect of the Law Council of Australia is also present. Among Senior Counsel at the Bar table is David Jackson QC, who was a judicial colleague of mine for a few short months before he left the Federal Court in May 1987. His is another familiar face in this Court. At the junior end are two of my sons, Robert and Thomas. In the body of the Court are three people with whom I joined in 1975 in establishing a law firm in Perth, then euphoniously named Warren, McDonald, French and Harrison which, by a process of evolution not uncommon in Australia over the last three decades, has become the Perth office of Norton Rose Fulbright.

To all of those whom I have mentioned and to the many Federal and State judges and other friends, former associates and present and past staff of the Court I extend a warm welcome and, on behalf of the Court, express our appreciation for the trouble you have taken to be here. A number of the judges with whom I have worked over the last 30 years are no longer with us but remain in the memory of many as exemplars of legal excellence and high commitment to public interest. There is a photograph in my chambers of my official welcome to the Federal Court in December 1986. On the Bench to welcome me then were the Chief Judge of the Federal Court, Sir Nigel Bowen, Justice John Toohey of that Court who a few weeks later took up office as a Justice of this Court, Sir Ronald Wilson who was then a Justice of this Court and Sir Francis Burt then Chief Justice of Western Australia. Each of them set a formidable standard for a young newly appointed judge. Among many fine colleagues with whom I served on the Federal Court were the late John Lockhart, Bryan Beaumont, Ian Sheppard and Bill Pincus, and I

am pleased that Jeanette Beaumont is able to be present for this ceremonial sitting. Each of those judges played a substantial part in shaping the Federal Court into the important national court that it is today. We meet, of course, in a place which is part of an ancient land. It has borne the history of tens of millennia of human occupation that preceded the arrival of British laws and institutions that informed the formation of the Constitution under which this Court was created. To recognise that history and, as is now customary, the first people of Australia and their modern descendants, is to acknowledge an essential part of our national identity. We do that with an awareness of how different Australia has become since the arrival of British laws and institutions. Australians today come from 180 different countries. Nearly half of our population was either born overseas or have at least one parent born overseas. The interaction of our justice system with indigenous Australians and with Australians who have come recently from other cultural traditions is a

continuing challenge for our courts. It reflects difficult social realities which confront law makers, policy makers, public administrators, indigenous and other community leaders. The need for courts to be able to provide equal justice in the way they treat indigenous people has been a particular concern of bodies such as the Australian Institute of Judicial Administration and the National Judicial College of Australia which have devised and delivered cultural awareness programs for the judiciary over many years. Recently the Judicial Council on Cultural Diversity, chaired by Chief Justice Wayne Martin, was established. It reports to the Council of Chief Justices. It seeks to ensure that people from culturally and linguistically diverse groups are not prejudiced by ignorance or mutual misunderstanding in their interactions with the court system, whether as parties to proceedings or as witnesses or otherwise. That is not a matter of preferential treatment. It is simply a matter of trying, so far as practicable, to deliver fairness and equality of treatment for all Australians in their dealings with our courts.


Eight years is not a long time in the history of this Court. However, since 1 September 2008 there have been five retirements from the Court and five new appointments. Each is a change which has necessarily altered its composition and dynamic as a working institution. It is a tribute to the Justices that they have nevertheless maintained an essentially collegial culture during that time. That kind of culture cannot be imposed. It depends upon a recognition by each member of the Court of the importance of the Court as a national institution of government serving the people of Australia which transcends the individual contributions and judicial reputations of its members. There are, of course, different views about how far collegiality should go. There has been criticism by some of separate judgment writing as a confusing self‑indulgence and of joint judgment writing as a submergence of independence in compromise. You cannot please all of the people all of the time. There is no gold standard of collegiality to be measured by the number of joint judgments versus individual judgments in any given period in the Court’s history. The balance will necessarily vary from time to time. I can say without qualification that in this respect my time on the Court has been a profoundly satisfying one. Although there are, inevitably, different approaches by individual Justices to particular cases and to their tasks generally, all have recognised that what they are doing in deciding cases, in stating the law and in developing the law, is done for the Australian people. A collegial approach with mutual respect demonstrated in the way that judgments are written, even in dissent, helps to maintain public confidence in the authority of the Court and the legitimacy of its decisions. Generally speaking, dissenting Justices in this Court do not try to delegitimise the majority view by asserting that it presages the end of civilization as we know it. A culture of collegiality and the traditional avoidance by governments of overtly ideological appointments means that changes in the composition of the Court, whether of Justices or Chief Justices, attract only transient interest. Despite our surroundings in the vaulting spaces of this No. 1 Court in this great national building, what we are doing today acknowledges that change in the composition of the Court, including the

36 | BRIEF MARCH 2017

office of Chief Justice, is important but not an event of great national drama. That is as it should be. The transition from one Chief Justice to another can be described as a passing of the baton. Metaphorically I received the baton from the Honourable Murray Gleeson, together with a non‑metaphorical bottle of fine whisky to help tide me over troubled times. The whisky is long gone. And now it is my turn to pass on the baton. I am delighted, as are the other members of the Court, that I need reach no further than to my friend and colleague on my immediate right, the Honourable Justice Susan Kiefel, whose appointment to this office has been so warmly welcomed around the country. More will be said about her when she is sworn in as Chief Justice on 30 January next year. I wish her every success in the discharge of the high responsibilities of this office. She and my colleagues also look forward to welcoming as a new member of the Court the Honourable Justice James Edelman at that time and who, despite his present residence in the State of Queensland, is being claimed by all relevant authorities as a West Australian. We welcome his presence in the Court today. There are many people I would want to thank for the support and friendship that Valerie and I have enjoyed over the last eight years on this Court. There are too many to list individually. I mention in that respect the people who work for the Court. The Court has a small but dedicated and efficient staff who provide a friendly and supportive working atmosphere. I acknowledge the commitment of all of them, and particularly the Court guides whose interaction with the public has attracted so many positive reviews that the Court has received a certificate of excellence from TripAdvisor. I have resisted the temptation to affix it to the front doors. The Chief Executive and Principal Registrar, Andrew Phelan, has had a transformative effect upon the administration of the Court, as well as on the work of the Council of Chief Justices of which he acts as secretary. He and his wife, Monica, have become friends and I am pleased that he will continue to serve the Court after my retirement. I express my gratitude to the personal staff who have worked in my chambers since I joined the Court. Jill Kelly, who had served as personal assistant to Chief Justice Murray Gleeson, Jennifer

Braid and for the last few years, Julie Riley. Julie has been my Canberra‑based personal assistant, the front of house for my Canberra chambers and it has been a great pleasure working with her. Judy Sulcs, my executive assistant who has been based in Perth, began working with me when I joined the Western Australian Bar in 1983 and she has worked with me continuously since that time. She is a friend and has been in effect a kind of business partner in the business of my chambers. Her work ethic, interpersonal skills and common sense have been indispensable to my judicial career. The association is not over as she will continue to work with me following my retirement from the Court. I do not know what I have done to deserve such long lasting commitment, nor do I know what I did to deserve the good fortune of marrying Valerie 40 years ago. She had her own career as a lawyer and judge in Western Australia while managing our young family when I was periodically absent, particularly during the native title years. In fact, our eldest son was once heard to remark to one of his friends when I was at home “I think that’s my father, he takes my mother out sometimes.” Her love and strength and clear‑eyed and unsentimental support have been an essential element of such success as I have enjoyed. I turn 70 in March next year. My retirement is mandated upon attaining that age by section 72 of the Constitution. As is apparent, I have decided to jump shortly before being pushed and have tendered my resignation with effect from 29 January 2017. My successor will therefore be able to begin her term of office on the first sitting day of the new year. I have also decided to have this special sitting now rather than closer to my retirement date and there are two reasons for that. One is the selfless desire to give Justice Kiefel and Justice Edelman clear air for their swearings‑in and welcomes as the new Chief Justice and Justice of this Court respectively. The other is selfish – to enable me to recapture for a moment the memory from my school days of the December speech night at the end of the school year with the long summer holiday ahead and beyond that the promise of new learning and new experiences. On behalf of all of the Justices of the Court, I thank you again for attending today. We invite you to join us for afternoon tea outside the court room.

Ceremonial Sitting on the occasion of the swearing-in of the Chief Justice The Hon Susan Kiefel AC Transcript from ceremonial sitting held in Canberra, Monday, 30 January 2017

Your Excellency, Mr Attorney for the Commonwealth, your Honours, members of the legal profession, ladies and gentlemen. Thank you for your attendance today. Mr Attorney, Ms McLeod, Mr O’Sullivan and Mr Hughes. I am heartened by your kind words, as I have been by the many expressions of goodwill and support that I have received. I am mindful, however, that it is possible that compliments could in the future be replaced by criticism, from other quarters. I shall therefore bask in them, but only briefly. The Court is honoured by the presence of their Excellencies the Governor‑General and Lady Cosgrove, of former Chief Justices the Honourable Sir Gerard Brennan and the Honourable Robert French and of the Right Honourable Dame Sian Elias, Chief Justice of New Zealand. I am delighted that my former colleagues the Honourable William Gummow, the Honourable Michael Kirby, the Honourable Kenneth Hayne and the Honourable Susan Crennan are sitting with us today. I am pleased to have been sworn in as Chief Justice by my dear colleague, Justice Virginia Bell. This occasion is therefore historically significant on two counts. The Court welcomes you, Mr Attorney, the Shadow Attorney‑General, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Federal Court, the Chief Justices of State

and Territory Supreme Courts and judges of those courts, the Acting Chief Justice of the Family Court and judges of other courts, retired judges, the Solicitors‑General of the Commonwealth and of the States and Territories, and the Presidents and members of Bar Associations and Law Societies and of the Law Council of Australia. I am personally honoured by the attendance today of members of my family, especially my husband and my sister, and our friends. Some have travelled a considerable distance to be here and I am deeply appreciative that they have done so. There have been six Chief Justices of this Court since the time that I commenced my legal studies. I have had something of a personal connection with three of them. Sir Gerard Brennan was still in practice as a Silk at the Brisbane Bar when I began my legal studies. He was kind enough to seek me out in order to loan me his treasured texts on Roman law and thereafter would enquire as to my progress. It was of some pleasure to me that, many years later, Sir Gerard was a member of the Court when it sat, ceremonially, on the occasion when I announced my appointment as a Senior Counsel for Queensland. A similar ceremony will take place in this Court tomorrow. I came to know Sir Harry Gibbs through a solicitor, Gerald Patterson, who was a close friend of Sir Harry’s

and one of my staunchest supporters when I first came to the Bar. Whenever our paths crossed, Sir Harry was kind enough to express an interest in how I was getting on at the Bar. His greatest act of kindness, though, was during one of my first appearances in this Court. He reminded me of the next step in my argument when a question from Sir Garfield Barwick resulted in me suffering a temporary loss of memory. I have enjoyed a friendship with the retiring Chief Justice, the Honourable Robert French, since shortly after I joined the Federal Court in 1994. I believe that we may both have learned much from our time on that Court about the importance of civility and collegiality. At a ceremony in this Court, in December last, fitting tributes were paid to the considerable public service that he has given as a judge and the contribution that he has made to the law. It has been my privilege to serve with Chief Justice Gleeson and Chief Justice French since I joined this Court and a pleasure to work with my colleagues. At the opening of the High Court in 1903 the first Chief Justice, Sir Samuel Griffith, said that “[w]e know that we shall be expected to solve difficult questions, to compose strife between states, and possibly between the states and the Commonwealth”. Sir Samuel was right on each count. There have also been important historical events affecting the Court, such as


when the right to appeal to the Privy Council was finally abolished. It was important because it enabled the High Court to assume its present position as the final arbiter of appeals in Australia and more confidently to develop the common law of Australia. In the year preceding the opening of this Court, Australian women were given the right to vote at federal elections. It was then that they truly became part of “the people” to whom our Constitution refers. That year also saw the first woman graduate in law from an Australian university. It would not be until 1987 that a woman, the Honourable Mary Gaudron, was appointed to this Court. When I came to the Bar in 1975 there were very few women members of the profession. This is not the occasion to consider why this was so. The point presently to be made is that this has changed and so has the composition of this Court. In more recent times the appointment of more women to this Court recognises that there are now women who have the necessary legal ability and experience, as well as the personal qualities, to be a Justice of this Court. There seems no reason to think that that situation will not be maintained in the future. It may well improve. Sir Samuel Griffith also spoke of the “weighty and responsible duties” the new Justices had undertaken. Chief Justices, like the other Justices, give a part of their lives to the service of this Court and thereby to the people of Australia. That service is not given for the purpose of personal acknowledgment or the enhancement of reputation. It is given to ensure that this Court is maintained as an institution in which the government, the legislature, the legal profession and the people of Australia can have confidence.

The presence of so many Chief Justices here today, from Australia and New Zealand, is a reminder of the co‑operation which is effected through that national and trans‑Tasman body, the Council of Chief Justices of Australia and New Zealand. The presence of so many judges from different courts reminds us that, whilst the High Court stands at the apex of Australian courts, its position depends upon the existence of all Australian courts. Its work relies upon the diligence and dedication of judges of courts at every level. This Court will strive to assist these courts by providing decisions which are clear and which offer practical guidance. It is sometimes said that Justices of this Court must write judgments with an eye to the past and also to the future. We could also look around us, as did judges of the English tradition in the past. Communication and translation technology allows us an even wider perspective. We can observe how other courts reason in areas of common interest. Identifying and comparing our different approaches can provide us with a deeper understanding of our own laws. In the not too distant past the term “globalisation” may have been thought to be little more than a slogan, but it may now be considered to be a way of thinking about the world rather than ourselves in isolation. This Court maintains dialogues with overseas courts, including courts in the Asia Pacific region. Some are undertaken to share knowledge and find solutions to common problems. Others are engaged in to foster a mutual understanding of the work of our respective courts, the constitutional framework within which our courts

57 hours of content

44 seminars available

operate and the laws which we apply. It is no less important that the people of Australia understand our court system. It is to be hoped that the 37,000 school children, from over 750 schools around Australia, who visit the Court each year will be encouraged to learn more about this Court. The High Court is conscious of its educative role. It provides materials about the Court and the Constitution to schools, it makes written arguments in matters coming before the Court accessible and it provides audio‑visual recordings of its hearings on its website. It has recently made arrangements with the Constitution Education Fund Australia for the establishment of an Australian Constitution Centre at the Court, by which it is proposed to promote public understanding and an appreciation of the Australian Constitution, its history and contemporary relevance. Since its inception this Court has provided the stability and certainty for which the framers of the Constitution hoped. In accordance with the Constitution, this Court must sometimes declare that legislative or executive power has been exceeded. The Court does so respectfully, conscious of its constitutional role and the role which the Constitution gives to the legislature and the government. The Chief Justices who have preceded me have been persons of the highest integrity and ability. I have been given a great responsibility. With the co‑operation of my colleagues I trust that I shall discharge it well and justify the confidence that has been reposed in me. On behalf of the Court I thank you all for your presence today.

Access CPD on your terms


38 | BRIEF MARCH 2017

Ceremonial Sitting on the occasion of the swearing-in of the Hon James Edelman Transcript from ceremonial sitting held in Canberra, Monday, 30 January 2017

Mr Attorney, Ms McLeod, Mr O’Sullivan and Mr Howard, thank you all very much for your very generous remarks. On these ceremonial occasions it is customary to magnify any positive qualities of the judge and to minimise shortcomings. Each of you has done this magnificently. I am conscious, however, that it is a focus on shortcomings that does make for the better judge and the better person. The Court and I are honoured by the presence this afternoon of the retired Chief Justices and Justices of this Court who join us on the Bench. As a person who has become something of a cross‑breed between Western Australia and Queensland, it is a particular pleasure to sit at the Bench with former Chief Justice French and Chief Justice Kiefel from those two States, whose respective retirement and appointment has created the vacancy that I now fill. It is particularly a source of pride to join the Court at legal instant after the historic appointment of Chief Justice Kiefel. I also gratefully acknowledge the honour

accorded by the presence today of the Chief Justice of New Zealand, the Chief Justices of the Federal Court and the Courts of the States and Territories, the Acting Chief Justice of the Family Court of Australia, the numerous Justices of the Federal Court, the Supreme Courts and Courts of Appeal in Western Australia, New South Wales, the Australian Capital Territory and the President of the Children’s Court in Western Australia.

when measured against a single lifetime, but in the life of the law it will not be much more than a blink of the eye. Many principles of our law have been developing for centuries. Indeed, in three cases in England and another in Australia only since the turn of this century, the House of Lords and High Court of Australia relied upon the work of jurists who worked on similar problems in the classical period of Roman law nearly two millennia ago.

Apart from the judiciary, I also thank for the honour of their attendance the Attorney‑General and Shadow Attorney‑General, President of the Senate, the Speaker of the House of Representatives, Solicitors‑General of the Commonwealth and the States and Territories and the Presidents of the Bar Councils or Associations of the States and Territories.

Although in the long run any individual’s role or service in the law is short and usually ephemeral, the interpretation and occasional development of the law has a direct and serious impact on individuals. This engagement with the lives of others and the process of adjudication as a judge on the Supreme Court in Western Australia and then on the Federal Court has been a remarkable experience with deep friendships formed with colleagues engaged in the same endeavour to the same ends. I thank those friends and colleagues for travelling here today.

Mention has been made today of the potential length of service that comes with an appointment at the age of 43. Twenty‑seven years as a Judge of this Court might seem to be a long time

Shearn HR Legal - Human Resource + Recruitment wishes all our Clients & Candidates a very prosperous New Year, welcoming our 19th year in exclusive legal recruitment! Call Julianna for your 2017 requirements now! Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

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


The Federal Court and its judges, through the finest leadership, embody all of the qualities of collegiality, respect and civility that Australia inherited from the English tradition. Although I depart that court today, I have already found

influences, as we have heard, were the late John Toohey, the late Peter Birks, and Malcolm McCusker. Each took a different approach to the law but all shared, and share in common, the powerful quality of an understated

"Mention has been made today of the potential length of service that comes with an appointment at the age of 43. Twenty‑seven years as a Judge of this Court might seem to be a long time .... but in the life of the law it will not be much more than a blink of the eye." the same approach from my colleagues now on this Court, as well as Registry staff and associates. This December will mark the 200th anniversary of another export from the English legal system to Australia. That was the trip from England to Australia on the Lady Castlereagh by my ancestor Emanuel Solomon. Emanuel came as a convict, but he became a lawmaker in Adelaide and many of his direct descendants have followed suit. They include my grandfather and uncles, my sisters, and cousins both close and distant, all of whom have great generosity of spirit and have made the journey to be here, including my parents‑in‑law who travelled, against my protest, from Edmonton for the day. Part of my delight to have so many of my family members here today is that it is an opportunity publicly to acknowledge the extent and significance of my debt to my parents, Dinah and Ray. My learning in the law, however, was not merely a family affair. I learned, and continue to learn, from many others. Three of the most significant

confidence that comes with deep learning, coupled with an open mind and a willingness, to use the words of Learned Hand, “for the least to be heard side by side with the greatest”. It was exactly 20 years ago from today that I commenced work as an associate to Justice Toohey. Four of the six Judges who sat with Justice Toohey that year and who have shown kindness and offered guidance to me since were Chief Justice Brennan, Justices Gummow, Kirby and Hayne. Each of those Justices from that year is here today, together with four other associates and good friends. However, the strongest memories of that year were invoked this morning when I walked into the same chambers that I now occupy in Canberra which were occupied by Justice Toohey 20 years ago. The feeling of continuity may be apt. Ronald Dworkin once described the process of adjudication by a metaphor of a chain novel with each judge writing a part of the story. Where the story contradicts itself, to use the words of Isaac Isaacs in different context, the

judge needs to evolve order out of chaos. The metaphor may not be perfect but, looking backwards, the continuity of the common law can seem like a chain novel. As judges decide cases between litigants the story evolves, usually slowly, as each judge attempts to write that which is true to the story and, when the texture is truly open, both true and right in the sense of consistent with the underlying values of the law. I am deeply conscious of the increased responsibility that I now bear in that process. I conclude by acknowledging that almost all that I know of right was learned from a loving family, and particularly from three women whose selflessness was far greater than the sometimes significant demands of social convention at the time. The first two, my late grandmother and my mother, were responsible for much of my upbringing. They gave almost everything they had to their family and the rest to those less fortunate than us. The third, my wife Sarah, moved 10,000 miles to Perth six years ago in a tumultuous change to her career. She moved to a country with which she had little connection. An irony of my appointment as a judge adjudicating in a country where a fundamental underlying legal value is equality of all under the law is that my passion for the law has often meant that Sarah has willingly assumed an unequal share of what should be an equal division of family labour. For that, and for so very much more, I can only thank her and my two beautiful children, Tatiana and Jonah, for being such a fundamental part of my journey, as I hope I am and will remain in theirs. To you all, I thank you for your attendance today.

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

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

40 | BRIEF MARCH 2017

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

2016 WA Lawyer of the Year Awards Winners (L-R): Michael Geelhoed, Glen McLeod and Claire Rossi. Photo: The Scene Team (www.thesceneteam.com.au)


WA Lawyer of the Year award recipients

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

Practitioner with more than five years’ experience

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

2015 – John Fiocco

2016 – Claire Rossi and Glen McLeod 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier

Do you know someone who could be WA Lawyer of the Year? Nominations for WA Lawyer of the Year Awards are now open until Friday, 21 April 2017. Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years’ experience) and Lawyer of the Year (less than 5 years’ experience). Winners are announced at the Law Week Cocktail evening, hosted by Bankwest on Thursday, 18 May 2017. For full criteria and further information, please visit lawsocietywa.asn.au/law-week

2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack 2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

Proudly sponsored by Lawyer of the Year

(more than 5 years’ experience)

Lawyer of the Year

(less than 5 years’ experience)

lawsocietywa.asn.au Law Week 2017

The Coronial Jurisdiction: Lessons for Living Keynote Address from the 2016 Asia Pacific Coroners Society Conference Pan Pacific Hotel Perth, WA | 9 November 2016

The Hon Wayne Martin AC1 Chief Justice of Western Australia

Introduction It is a great honour and a pleasure to have been invited to address the 2016 conference of the Asia Pacific Coroners Society. I am very pleased to welcome all delegates to our city, and hope that you have a most enjoyable stay. Delegates not from Perth will, almost by definition, have travelled long distances to get here and I am very glad that you have taken time out of your busy schedules in order to attend this conference. I extend a particular welcome to delegates from outside Australia and express the confident hope that during your time at the conference you will be able to build or strengthen networks of communication with delegates from other jurisdictions who have a common interest in the vitally important work performed by coroners and related professions in our region.

Acknowledgment of traditional owners I would like to commence by acknowledging the traditional owners of the lands on which we meet, the Whadjuk people, who form part of the great Noongar clan of southwestern Australia and pay my respects to their elders past and present and acknowledge their continuing stewardship of these lands. Visitors to Perth may not be aware that we meet on a place of particular significance to the Whadjuk, as we meet on land adjacent to the banks of a river named by the colonists as the Swan River because of the many black swans which made the river their home at the time the colonists arrived, but which is known to the Whadjuk as Derbarl Yerrigan. Along with other lakes and rivers situated on the coastal plain between the scarp to our east and the

42 | BRIEF MARCH 2017

ocean to our west, Derbarl Yerrigan is one of the homes of the Wagyl, a serpentine creature of great significance in the dreamtime lore of the Whadjuk.

The conference topic I have often said that the gross overrepresentation of Aboriginal people in the courts of Western Australia is the biggest single issue confronting those courts and tragically the Coroner's court is no exception to that observation. I have taken the theme for my address 'Lessons for Living' from the general theme of the conference - 'Pathways to Prevention'. In this paper I will endeavour to briefly chart the historical evolution of the contemporary jurisdiction and functions of a coroner in the Australasian region, with particular reference to the vital function of contributing to the reduction in the incidence of preventable deaths in the communities served by a coroner.

Historical evolution of the coronial jurisdiction Coroners' Courts have been described as: one of the most ancient parts of the English legal system, dating back to at least 1194 ‌ The coroner was an appointment originally made as custos placitorum coronae, keeper of the pleas of the Crown.2 The Coroners' Society of England & Wales has observed that: the role of the Coroner has adapted over the eight centuries since the office was formally established in 1194, from being a form of medieval tax gatherer to an independent judicial officer charged with the investigation of sudden,

violent or unnatural death.3 A brief analysis of the process of evolution from medieval tax gatherer to independent judicial officer sheds some light on the characteristics of the functions performed by contemporary coroners.

The Articles of Eyre 1194 The office of coroner appears to have been formalised by the publication of the Articles of Eyre in 1194, although historians contend that the office existed before that date, albeit performing a more limited role.4 In medieval England an 'eyre' was a form of circuit court conducted by itinerant justices moving throughout the kingdom. The reason for formalising the role of coroner in the Articles regulating the conduct of the circuit courts has been described by McKeough in these terms: almost certainly in order to check the increasing corruption practised by sheriffs who were royal bailiffs, the King's administrative officials at a local level. Hubert Walter, Justiciar [the King's chief minister] during the absence of Richard I, decided that by utilising the country gentry and middle classes whom he felt he could control, certain sources of revenue could be safeguarded. Because the execution of justice depended a great deal on local knowledge and not very much on the expertise of professional judges, the county court was very important and it was here that the coroners would enrol the pleas of the Crown to be presented to the eyre upon its arrival as a record of local events as they affected the King's interests.5

A foot in both camps Although the primary role of the coroner was to protect the interests of the Crown, it was the freeholders of the relevant local district who selected the person who was to perform that role. The medieval coroner's connection to both the Crown and the local community made him: a very prominent figure - an important link between the itinerant justices and local administration, and hence between the crown and the people.6

Revenue collectors The functions of the medieval coroner have been succinctly described by the Coroners' Society of England & Wales: The duties of the early coroners were varied, and included the investigation of almost any aspect of medieval life that had the potential benefit of revenue for the Crown. Suicides were investigated, on the grounds that the goods and chattels of those found guilty of the crime of 'felo de se' or 'self murder' would then be forfeit to the crown, as were wrecks of the sea, fires, both fatal and non-fatal, and any discovery of buried treasure in the community which, as 'treasure trove', remains one of the coroner’s duties today [in the UK], although it is likely that this particular medieval duty will finally be removed. Sudden death in the community had always been considered important since the early days of the office and was also investigated by coroners, although for reasons far different to those of today. After the Norman Conquest, to deter the local communities from a continuing habit of killing Normans, a heavy fine was levied on any village where a dead body was discovered, on the assumption that it was presumed to be Norman, unless it could be proved to be English. The fine was known as the 'Murdrum', from which the word 'murder' is derived and, as the system developed, many of the early coroners' inquests dealt with the 'Presumption of Normanry' which could only be rebutted by the local community, and a fine thus avoided, by the 'Presentment of Englishry'.7 In addition to the revenue derived from the 'Murdrum', revenue was derived by the Crown from the forfeiture of the

goods of any felon who had caused a death, and from the forfeiture of any thing which had caused a death.8 The forfeiture of goods or animals involved in fatalities was known as 'deodand' from the Latin 'deo dandum' meaning 'to be given to God' although in fact the chattels were forfeit to the Crown unless the owner paid a fine equal to the value of the goods or animals, as assessed by the coroner's jury.9 The practice of deodand was eventually abolished by statute, although not until 1846.10

Magna Carta and the coroners Last year we celebrated the 800th anniversary of the execution of Magna Carta by King John and the rebellious barons who had baled him up at Runnymede. Amongst the reasons we celebrate the execution of that document is that within its provisions, generously construed over the centuries, are to be found the seeds of the notion of an independent judiciary and the rule of law to which everyone, including the monarch was subject. However, perhaps predictably, more base fiscal considerations lay at the heart of the dispute between the King and the barons. The Hon James Spigelman AC has observed: The largest number of clauses of the Magna Carta, in all versions, were those directed to preventing the King’s abuse of incidents of feudal tenure and social structure to 11 raise revenue. Given the role of the medieval coroner as a collector of revenue for the Crown, in that context it is not surprising that one of the provisions of the charter limited the role of the coroner, and other local officials in relation to legal proceedings and confined those functions to the judiciary, providing a form of limited guarantee of the rule of law, at least viewed in the context of a feudal society.

The process of evolution The evolution of the role of the coroner in England and Wales between the 13th and 19th centuries has been succinctly described: The Coroner system continued to adapt over the centuries, but in the nineteenth century major changes relating to the investigation of death in the community occurred. In 1836, the first Births and Deaths Registration Act was passed, prompted by the public concern and panic caused by inaccurate

'parochial' recording of the actual numbers of deaths arising from epidemics such as cholera‌ There was also growing concern that given the easy and uncontrolled access to numerous poisons, and inadequate medical investigation of the actual cause of death, many homicides were going undetected. By then, the coroner's fiscal responsibility had diminished and the Coroners Act of 1887 made significant changes here, repealing much of the earlier legislation. Coroners then became more concerned with determining the circumstances and the actual medical causes of sudden, violent and unnatural deaths for the benefit of the community as a whole.12

Coroner's qualifications The evolutionary change in the primary functions of a coroner resulted in change in the qualifications required for appointment to that office. Until 1926 in England and Wales the only qualification required for appointment to the office of coroner was land ownership,13 continuing the traditional link between the coroner and the local community he14 was appointed to represent, although during the 19th century it seems that medical practitioners commonly acted as coroners, given the increasing focus upon the ascertainment of the medical causes of unexplained deaths.15 However, in 1926 an amendment to the Coroners Act (UK) required that a coroner be a barrister, solicitor or legally qualified medical practitioner of not less than five years standing.16 Differing social and professional circumstances in colonial Australia necessitated a rather different approach to the office. Police magistrates or local justices were often used as substitutes for coroners, and coronial juries were increasingly dispensed with in all jurisdictions other than New South Wales.17 The fact that legal officials were used more commonly in Australia than in the 'mother country' during the 19th century should not be taken to support an inference of a more legalistic approach to the function in the colonies, because very often police magistrates and local justices in Australia were not legally trained. Indeed, in Western Australia it was not common for lawyers to appear regularly in coronial inquiries until the 1990s.18


Today in most Australian jurisdictions, coronial functions are overseen by specialist coroners appointed with a status equivalent to that of either a judge or a magistrate (depending on the jurisdiction). However, in some jurisdictions, including Western Australia, coronial responsibilities can and do devolve to regional magistrates who do not have extensive specialised training in the performance of the function, although more significant cases will usually be dealt with by the State Coroner's office.

The role of a coroner in Australasia today The evolution of the contemporary role of a coroner which I have briefly described explains why that role is somewhat anomalous. While coroners are independent judicial officers who must conduct inquiries in accordance with the principles of procedural fairness,19 coronial hearings are inquiries, not trials between adversaries, and a number of the functions of a coroner have an administrative rather than a judicial character. The key points of distinction between a coronial inquest and a trial were succinctly identified by Lord Lane CJ and more recently cited with approval by Toohey J in the High Court of Australia: Lord Lane CJ in The Queen v South London Coroner; Ex parte Thompson said: Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use. What was said by Lord Lane in Ex parte Thompson holds good for coronial inquiries in Western Australia. It is true that the court of a coroner has been regarded

44 | BRIEF MARCH 2017

historically as a court of record: see Garnett v Ferrand (1827) 6 B and C 611, at p 625 (108 ER 576, at p 581). But that is for certain purposes; it remains an inquisitorial body.20 The inquisitorial character of the coronial jurisdiction is exemplified not only in the search for the cause of death, but also in the function most relevant to the theme of this conference - that of making recommendations or 'riders' as they were known, and which is a function of an administrative character.

Recommendations (Riders) The practice of adding 'riders' (recommendations) to findings with respect to the cause of death has been identified at least as early as 1821, in the form of recommendations from a coroner's jury.21 The development of this practice during the 19th and 20th centuries has been described by Moore: This preventative potential was recognised as early as 1842 in England by the Registrar General of Births, Deaths and Marriages. In 1915, an English medical practitioner and barrister, Dr William Brend, highlighted that coronial data could be deployed for public health purposes and concluded that '[i]f prevention of deaths is not now regarded as the main purpose to be served by inquests, the inquiry becomes of relatively little value'.22

Tension emerges However, the perceived tension between the judicial function of finding facts which establish the cause of death, and the administrative function of making recommendations for preventative action has given rise to controversy, conveniently described in the following passage from a case study undertaken by the Australian Institute of Criminology in 1992: The heart of the coronial process has been to gather facts about the who, what, when, where and why of unexpected deaths. Some commentators have viewed with suspicion any deviation from the realm of fact into the realm of opinion. This is partly a response to the fact that coronial processes are inquisitorial rather than accusatorial, and that the formal rules of evidence do not apply. Brodrick [Chair of the Committee

which reviewed the coronial system in England and Wales in 1971] expressed anxiety that in drawing attention to omissions or the blameworthiness of individuals for a death 'he may be doing an injustice to the person criticised'. Furthermore: Comments on the morals, ethics or professional standards of those who have no opportunity to answer back made by someone who speaks from a position of privilege are reprehensible and we should like to see them discontinued. Moreover, it was considered that the 'decision whether any further action is required may depend on many factors of which the coroner will know nothing and we think these matters would be best left to the expert authorities concerned'. Thus, there has been vigorous debate about the authority of coroners to make recommendations and their appropriate status. Jervis, in the 8th edition of On the Office and Duties of Coroners, was clear about his view of the significance of recommendations (which are sometimes known as riders): the addition is no part of the verdict, but is mere surplusage. A recommendation is no part of the verdict and the coroner may refrain from recording it, or, he may allow it to be written in the margin of the inquisition, of which it is not part. These comments were echoed in Pilling's review of the Brodrick Report, endorsing the proposed removal of 'the irritation of riders and animadversions'. In summary, there were fears that the coroner might inadvertently make suggestions which could have the potential to make a bad situation worse. The Brodrick Committee recommended that the right to attach a recommendation should be abolished and that, in order to prevent recurrence of the fatality, the coroner should have 'the right to refer the matter to the appropriate body or public authority, and he should announce he is doing so'. Following the release of the Brodrick Report, the power of the coroner to attach a recommendation to the verdict was abolished in England and Wales in 1980. Waller, in his text

on Coronial Law and Practice in New South Wales echoes a similar concern when he cautions that 'there are dangers that coroners will make definite recommendations without being fully aware of the ramifications, or of competing priorities in a Government department'.23 As noted in this passage, these tensions reached their zenith in 1980, when the Coroners Act 1980 (UK) dispensed with the preventative aspect of the coroner's role. However, that dispensation was short-lived, and four years later the Coroners Rules 1984 (UK) provided coroners with 'a power to report a matter to a relevant authority where a coroner believed action should be taken to prevent the recurrence of fatalities similar to the one under inquest.'24

The tension emerges in Australia In Australia this tension has surfaced in a series of judicial decisions relating to the ambit of a coroner's jurisdiction. It is beyond the scope of this paper to analyse those decisions in detail, and sufficient to record that they are not entirely consistent and turn to some extent upon the precise terminology

used in the legislation defining the coroner's powers in the relevant jurisdiction. So, for example, in Victoria and the ACT, courts have taken a narrower approach to the ambit of a coroner's jurisdiction to inquire into systemic issues associated with the cause of death than in Queensland.25 In the cases taking a narrower approach, courts tend to emphasise that the coronial function does not provide an opportunity for an open-ended inquiry into the merits of government policy, the performance of government agencies or private institutions in a manner akin to that of a royal commission. In those cases in which a broader view is taken, emphasis is placed upon the statutory jurisdiction which expressly empowers a coroner to comment on 'on anything connected with a death investigated at an inquest that relates to … ways to prevent deaths from happening in similar circumstances in the future'.26

ascendant view. That role has been described in the following terms:

The preventative role triumphs Despite the narrow view taken by the courts in some of the cases to which I have referred, it is I think clear that recognition of the importance of a coroner's preventative role is now the

while the determination of certain particulars may be the coroner’s primary function, other purposes have been recognised as valid to pursue. Of these, the promotion of public health and safety and, specifically, the prevention of death may be the most vital. Twenty years ago, the Royal Commission into Aboriginal Deaths in Custody ('RCIADC') noted this capability, observing that '[i]n the final analysis adequate post death investigations have the potential to save lives.' In contributing to the prevention of death, the principal strategy available to a coroner is their power to make recommendations at the conclusion of an inquest. These recommendations 'represent the distillation of the preventive potential of the coronial process. The action taken in response to such recommendations carries the promise of lives saved and injury averted.' Utilising the evidence as to the circumstances surrounding the death, the expertise of the coroner, and, perhaps, the

WHAT’S Building Great Homes since 1988 – Experience the Difference. Call to meet with our designer today and be impressed.



At Artique, it’s about you. Your ideas combined with our expertise to create your dream home. Comprehensively specified with all costs up front – no hidden extras; consulting directly with the Designer/Builder at all times. Your home will be constructed to award winning quality. We build on a relationship of trust – it costs no more to build a custom home with Artique – Call Artique today.




CONTACT ARTIQUE TODAY! info@artiquehomes.com.au www.artiquehomes.com.au

Tel: (08) 9240 1142 Mob: 0417 510 375 11/199 Balcatta Road, Balcatta, WA 6021

Master Builders Excellence Awards Winner 2016

BC # 9669


submissions of those appearing at an inquest, such recommendations can offer possible 'remedies' to avoid future deaths. It is this potential that underpins the frequently quoted motto of the coroner: 'We speak for the Dead to protect the Living'.27 In the case study conducted by the Australian Institute of Criminology, referred to previously, in which the concerns associated with a coroner's recommendations were succinctly identified, the author went on to rebut those concerns in the following passage: As Johnstone points out, however, these arguments do not take account of the fact that the coroner can call experts to provide testimony on the details of any relevant matter; that coroners' suggestions are frequently very general in nature; and that, most importantly, 'there is never likely to be a better time' to make a recommendation. Moreover, the coroner has no power to require formally that any suggested action be carried out. It is always open to the agency to ignore or reject coronial recommendations, either explicitly or implicitly, and with or without communicating the reason for choosing such a course of action. Johnstone points out that as far back as 1907, the potential role of the coroner in the prevention of deaths and injury was acknowledged. He cites the early writings of William Brend, who argued that the Coroners' Court was poorly adapted for the detection of crime; that claims for compensation were settled in other courts and that the only valuable role left to the coroner was a preventive role. This potentially preventive role has been marginalised in some coronial practice through the emphasis on unpacking the facts of individual cases, rather than the systematic identification of patterns of death and injury. This emphasis reflects the over-riding modus operandi of the legal profession as a whole, which has concerned itself solely with dealing with events on a case by case basis, closing the file at the conclusion of each. A preventive focus requires additional steps: identifying patterns; identifying

46 | BRIEF MARCH 2017

remedial responses; making recommendations to implement the response; ensuring that problematic situations are remedied.28 A similar approach was taken in a recent review of coronial practice in Western Australia conducted by the WA Law Reform Commission, which embraced the preventative role of the coroner in many of its recommendations. Chief among those recommendations was its primary recommendation, which was to amend the Act so as to feature a clause which provided that the primary objects of the Act include: to contribute to a reduction in the incidence of preventable deaths and injury by the findings, comments and recommendations made by coroners and by the timely provision by coroners of relevant data to appropriate authorities and research bodies.29

The concurrent jurisdiction of the WA Ombudsman The deaths of vulnerable children Despite the creation and implementation of this important system for the development of a database relating to the causes of death, perhaps it was concern about the capacity of diverse coroners conducting independent and separate inquiries to identify systemic patterns which led the initial establishment of a Child Death Review Committee in WA in 2003, to 'provide quality assurance mechanisms of particular departmental cases where a child has died',31 in response to a recommendation by the Gordon Inquiry.32 In my view, it is of some significance that the Gordon Inquiry was itself prompted by: the coronial inquest into the death of 15-year-old Susan Ann Taylor at the Swan Valley Nyoongar Community (SVNC) in Lockridge in 1999. The Coroner’s report included allegations of physical and sexual abuse at the community, and raised questions, such as the mandatory reporting by health officials of sexually transmitted diseases and the practices of various government departments and other agencies.33

NCIS Coroners who are members of the Society presenting this conference have recognised the importance of the systematic identification of patterns in death and injury by creating the National Coroners Information System (NCIS) in 1997. The creation of that system has been explained: Apart from acting as a safety valve for high-running public emotions, and on occasion allaying suspicion, the coroners' system could be said to serve little other purpose, the criminal and civil jurisdictions having whittled away at what history left of its ancient functions. Even so forensic pathology still allows itself to be hamstrung by the legal adversarial paradigm which emphasises the individual and has less interest in the community. However, in September, 1997, the Australian Coroners Society unanimously endorsed a plan from Monash University to administer a National Coroners Information System… That proposal was based on the premise that coroners can be more effective if they can learn from and apply the experience of coroners who have dealt with the same type of case. More importantly, policymakers and researchers wanting up-to-date national data on classes of deaths reported to coroners will now be able to access such data through the system.30

The Child Death Review Committee that was established carried out reviews of the operation of relevant policies, procedures and organisational systems of the then Department for Child Protection, at the request of the Minister or Director General, in circumstances where a child known to the Department had died.34 Subsequently the legislature of Western Australia conferred this jurisdiction upon the Ombudsman, on the basis that the Ombudsman was an independent parliamentary officer with wide powers of investigation that were not available to the Committee.35 The legislation conferred power on the Ombudsman, in relation to the death of children in the care of, or who had come to the attention of the Department for Child Protection, to: •

review the circumstances in which and why the deaths occurred;

to identify any patterns or trends in relation to the deaths; and

to make recommendations to any department or authority about ways to reduce or prevent such deaths.36

In other words, in respect of such

children, the Ombudsman has been given jurisdiction which is almost exactly concurrent to that of the coroner. Of course I mean no disrespect to the Ombudsman when I observe that this appears to me to be a very strange – although not unique37 – conferral of jurisdiction. The primary function of an Ombudsman traditionally has been to investigate complaints of maladministration by government agencies. Investigations are not undertaken in public, nor is there any specific obligation to publish the outcome of such investigations. By contrast, a coroner is an independent judicial officer who is obliged to undertake an inquest into the death of a person held in care38 transparently and in accordance with the principles of procedural fairness, and to publish the findings made together with any recommendations - on the face of it, a procedure which might be thought to be well aligned with the investigation of the deaths of vulnerable children. If concerns were held about the efficacy or limits of the coroner's role in relation to the deaths of such children, in my respectful view the preferable course would have been to enhance and adequately resource that role rather than duplicate it.39 Deaths due to suspected family or domestic violence I would respectfully make the same observations with respect to the administrative arrangements which have been made, without specific legislative backing, for the WA Ombudsman to review all fatalities due to suspected family and domestic violence. These are described as being undertaken 'to identify key learnings that will positively contribute to ways to prevent or reduce family and domestic violence fatalities.'40 The recent public attention directed to the scourge of family violence is entirely appropriate and long overdue. Given the importance which our community rightly attaches to the need for effective action to reduce family and domestic violence, I would have thought that increasing the powers and resources available to independent judicial officers with training and expertise in the investigation of fatalities and the power to make public recommendations to reduce preventable death might have had much to commend it. I note that where inquests are conducted, the coroner proceeds through open and transparent hearings at which

all may be required to give evidence. This appears to me to be preferable to a review conducted by an official behind closed doors, an official whose powers are limited to the investigation of government agencies,41 and whose powers of recommendation are limited to circumstances in which a finding which may be loosely described as 'maladministration' has been made.42 I have no doubt that the WA Ombudsman reviews the deaths of vulnerable children and fatalities caused by family and domestic violence diligently and in good faith. Nonetheless, when account is taken of: (a) the obligation of a coroner to conduct an inquest openly, transparently and in accordance with the principles of procedural fairness (as compared to the administrative review conducted by the Ombudsman43); (b) the broader potential range of a coronial inquiry (not limited to public administration); and (c) the limited nature of the Ombudsman's powers to make recommendations (at least in respect of deaths due to suspected family or domestic violence); it might be asked what purpose is served by this division of powers and resources. There is much to be said for the view that these critically important functions would be best performed by a coroner's office with augmented powers and resources. The recommendations made by the LRCWA appear to me to provide a good model of the way in which the coroner's powers and resources could be augmented to perform these functions effectively, and without need for duplication by another agency (such as the Ombudsman).

Medical research The NCIS provides a database potentially available to researchers interested in the cause of death. Individual coroners are also in a position to provide extremely valuable information to those engaged in medical or epidemiological research. That capacity would be enhanced by the adoption of objects clauses of the kind recommended by the Law Reform Commission WA (LRCWA) in all relevant legislation, augmented by legislative provisions empowering coroners to provide information and copies of documents not only to interested

agencies but also to those conducting bona fide research.44 In the same vein, the LRCWA recommended that a prevention team be established within the office of the WA State Coroner employing sufficient research and systems information staff to: •

perform various functions, including the analysis of coronial data to identify insipient trends in deaths and opportunities for preventative activities;

conduct consultations with stakeholders to inform the proposed formulation of coronial recommendations; and

liaise with and provide relevant coronial information to approved death prevention bodies, researchers and special interest advocacy groups.45

It is difficult to contest the wisdom of these recommendations.

Responses to coronial recommendations More controversial has been the question of whether an obligation should be imposed upon persons or organisations the subject of coroners' recommendations to respond to those recommendations within a particular time period. For example, in the UK, such persons and agencies must respond to the recommendation within 56 days and in most cases both the report and the response are published. The LRCWA recommended that a similar statutory obligation be imposed upon statutory authorities or public entities the subject of a coronial recommendation, although such agencies would be given three months within which to respond. Under its recommendations, unless the State Coroner ordered otherwise, the State Coroner would be obliged to publish the response on the internet as soon as reasonably practicable after its receipt. The LRCWA also recommended that the government give consideration to the question of whether private entities performing public functions should be subject to the same obligation.46

The role of the media in the coroners' preventive function The media has a pervasive role in contemporary society, and the capacity to dramatically influence the actions of public agencies and private organisations. A question arises as to


the extent to which coroners should conduct their inquiries and frame their recommendations in such a way as to utilise the beneficial influence of this powerful tool in bringing about change likely to reduce the incidence of preventable deaths. The attractions of such an approach are obvious but, at the risk of undertaking the metaphorical equivalent of attempting to teach a group of grandmothers how to suck eggs, I would recommend great caution before undertaking any strategy involving use of the media. There are a number of reasons for this caution and I will mention just some. First, modern media is a particularly unruly horse involving many facets and forms of communication. The advent of the internet has provided a multitude of publishers who are not governed by journalistic ethics or the responsibilities which flow from being a major trading organisation with a substantial balance sheet. Whatever the benefits, and there are many, the likelihood of undisciplined and uninformed commentary has multiplied exponentially in the modern media environment. Second, I am sure I do not need to remind this audience of the vital importance of appropriately respecting the interests of the family and others affected by a death. There is a real risk of those interests not being given due regard by every media outlet, with some aggressively pursuing a storyline which will attract public attention. Third, if the primary purpose of the preventative function is to bring about informed systemic, institutional, organisational or regulatory change, a febrile media campaign may have precisely the opposite effect. Individual agencies and organisations under intense media scrutiny, especially in cases where death has been caused, may well be inclined to respond to that scrutiny by public vindication and defence of their actions and systems. That defensive position would be undermined by change, which is therefore resisted. In my respectful view, legislative provisions along the lines of those recommended by the LRCWA, emphasising the importance of the preventative function, supported by the provision of appropriate resources and systems and augmented by the capacity for appropriate disclosure of documents and data together with a regime of mandatory responses to coronial recommendations is likely to be more effective in bringing about

48 | BRIEF MARCH 2017

changes likely to reduce the incidence of preventable deaths.



Len Roberts-Smith, 'The Conduct of Coronial Inquiries in Western Australia: A Practitioner's Guide' (1994) 24 WA Law Review 172, 172.


Annetts v McCann [1990] ACA 57; (1990) 170 CLR 596.

In this paper I have endeavoured to demonstrate the manner in which the important preventative function of the coroner developed in the context of the historical evolution of the office of coroner generally. Although the preventative function, and its performance, has occasioned controversy from time to time, recognition of the importance of that function is now, appropriately, ascendant. If coroners are provided with the legislative backing and appropriate resources to properly perform that function, the community is likely to benefit through the reduction of the incidence of preventable deaths, which can only be a good thing.


Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 [12], [15].


Jennifer Moore, Coroners' Recommendations and the Promise of Saved Lives (2016) 76.




Boronia Halstead, 'Coroners' Recommendations and the Prevention of Deaths in Custody: A Victorian Case Study' (Australian Deaths in Custody No 10, Australian Institute of Criminology) (1992) 3.


Moore, note 21 above, 32.


Harmsworth v State Coroner [1989] VR 989; R v Coroner Doogan; ex parte Peter Lucas-Smith & Ors [2005] ACTSC 74; cf Atkinson v Morrow [2005] QSC 353; Doomadgee & Anor v Clements & Ors [2005] QSC 357.


Coroners Act 2003 (Qld), s 46(1)(c). The Law Reform Commission of Western Australia (LRCWA) recommended that similar provisions be included in the Coroners Act 1996 (WA) (recommendations 49 and 84) but those recommendations have not yet been implemented. Note however that the recommendations also restrict the coroner's power to comment or make recommendations to only deaths investigated at an inquest and recommendation 85 requires that a coroner must consider the extent of the evidence presented at the inquest in determining whether to make comments or recommendations (LRCWA, Review of Coronial Practice in Western Australia: Final Report (2012)).


Raymond Brazil, 'The Coroner's Recommendation: Fulfilling its Potential? A Perspective from the Aboriginal Legal Service (NSW/ACT)' (2011) 15(1) Australian Indigenous Law Report 94, 94.


Halstead, above note 23, 3.


LRCWA, above note 27, recommendation 1. The recommendation has not yet been implemented however.


Stephen M Cordner & David L Ranson, 'Grim new role for forensic pathologist' (1997) 350 (suppl III) Lancet 6.


The Committee was to seek to understand why children in the care of child welfare authorities had died, determine whether departmental procedures had an impact on events and make recommendations to improve policy and practice (Find & Connect website, 'Western Australia – Organisation, Child Death Review Committee (2003 - 2008)' (2013), available at: https://www.findandconnect.gov.au/ ref/wa/biogs/WE01095b.htm#tab5 (accessed 4 November 2003)).


Gordon S, Hallahan K & Henry D, Putting the picture together, Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities (2002) Recommendation 146.


Ibid, xxi.


Ibid, 412.

conducted in 2015-16) (Chief Coroner, Third Annual Report 2015-16 (2016) 15-16).


I am indebted to Dr Jeannine Purdy for the research which has informed this paper. However, responsibility for the views expressed and any errors is mine alone.


Gary Slapper & David Kelly, The English Legal System (2016) 333.


The Coroners' Society of England & Wales, 'History' available at: www.coronersociety.org.uk/history (accessed 24 October 2016).


Charles Gross, 'The Early History and Influence of the Office of Coroner' (1892) 7(4) Political Science Quarterly 656, 656-660; Jill McKeough, 'Origins of the coronial jurisdiction' (1983) 6 UNSW Law Journal 191, 191. Article 20 declared that: 'In every county of the King's Realm shall be elected three knights and one clerk, to keep the pleas of the Crown'.


McKeough, above note 4.


Gross, above note 4, 665.


The Coroners' Society of England & Wales, above note 3.


'The Coroners and Crime' (1939) 3(2) Journal of Criminal Law 304.


Thomas Wood, An Institute of the Laws of England (Book II) (4th ed) (1742) 212-213.


With the enactment of An Act for the Compensation of Families of Persons Killed by Accidents 1846 (9 & 10 Vic c93) (UK), usually called the Fatal Accidents Act or Lord Campbell's Act.


James Spigelman, 'Magna Carta: The Rule of Law and Liberty' (Centre for Independent Studies, 15 June 2015).


Western Australia, Parliamentary Debates, Legislative Assembly (19 March 2009) 2182b (Mr CJ Barnett, Premier).


The Coroners' Society of England & Wales, above note 3.


Parliamentary Commissioner Act 1971 (WA), ss 19A, 19B.


Oxfordshire County Council, 'The Coroner' available at: www.oxfordshire.gov.uk/cms/sites/default/files/ folders/documents/leisureandculture/history/collectio ns/coroner_0.pdf (accessed 24 October 2016).


See for example, Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 36. Other jurisdictions appear to have conferred similar jurisdictions on other non-curial bodies.


The first female coroner appointed in England appears to have been Miss Mary Hollowell, a solicitor, made deputy-coroner in 1946 and then coroner for North Suffolk in 1951.


Coroners Act 1996 (WA), ss 3, 22(1).


See for example LRCWA, above note 27, recommendation 83.


Ombudsman Western Australia, Annual Report 201516 (2016), 89.


Parliamentary Commissioner Act 1971 (WA), ss 4A, 13(1).


Parliamentary Commissioner Act 1971 (WA), s 25.


Although I note that, as would be expected, the Ombudsman is subject to the requirements of procedural fairness in relation to any reported comment that is defamatory or adverse to any person (Parliamentary Commissioner Act 1971 (WA), s 25(7)).


See, for example, s 115(2) of the Coroners Act 2008 (Vic).


LRCWA, above note 27, recommendation 83.


Ibid, recommendation 87.


Lee Karen Butterworth, 'What good is a coroner? The transformation of the Queensland office of coroner 1859-1959' (PhD theses, Griffith University, School of Humanities) (2012) 80-81.


Coroners (Amendment) Act 1926 (UK), s 1.


Carol Grech, 'Coronial Inquiries into Fatal Adverse Events in South Australian Hospitals: From Inquest to Practice' (PhD thesis, University of Adelaide, Faculty of Heath Science) (2004) 89, but see the Coroners Act 2008 (Vic). The Coroners Act 2009 (NSW) retains the option of a jury trial but only if the State Coroner directs (s 48). Juries are retained for a broader range of inquests in England (Coroners and Justice Act 2009 (UK) s 7), but nevertheless are now only used in a minority of inquests (457 out of 35,473 inquests

Values in Law: How they Influence and Shape Rules and the Application of Law! Centre for Comparative and Public Law Faculty of Law, University of Hong Kong Hochelaga Lecture Series 2016

The Hon James Allsop AO Chief Justice of the Federal Court of Australia

Law, at its very foundation, is conceived and derived from values. These values are such as inform and underpin a rational and fair expectation of how power should be organised, exercised and controlled at a private and public level. These values find their expression not only in the formal law, but also in societal expectations, behaviour and actions (which may, in time, also come to be reflected or incorporated within the law, but which, in any event, do not require formal legal expression for society to understand their correctness or importance). This is not, however, to say that these values, or indeed that the laws, rules, principles and expectations derived from, and reflecting such values, are merely specific cultural manifestations, or that they are culturally or jurisdictionally derived. It may well be the case that such values form part of a culturally-specific heritage. But they are far more than that. At least some transcend cultural boundaries. They lie at the heart of every individual, and at the heart of society – as human values. The essential human values most particularly relevant to public law are: a rejection of unfairness and an insistence on essential equality; respect for the integrity and dignity of the individual; and mercy. Each goes to the core of what we understand humanity and the individual to be, and to what is expected when power is exercised by or against individuals. Dignity can perhaps be seen to drive the soul1; it lies at the foundation of self and ultimately informs the rejection of unfairness. These values find expression in the rules, principles, precepts and norms developed by

society and by the law. But the nature of these values is such as to make it necessary to recognise the limits of text in their expression, drawn ultimately, as they are, from the human condition, and the intuition and sensibility therein. The law, in its creativity and flexibility, has drawn upon these values in numerous manners and forms. The concern of public law to prevent the exercise of power which is arbitrary, capricious, or unreasonable can be seen to reflect a concern with rejecting unfairness. This is the reasonable expectation of each individual that power will not be exercised against her or him in a manner that fails to respect her or his integrity and dignity. The same can be seen in the concern of private law to prevent unconscionability and to deter behaviour that is antithetical to honest, reasonable, mutually beneficial commercial relations. There is an important balance to be struck in this respect. Legal systems and societies cannot be built or sustained by reference only to generally expressed values. Neither, however, can they be built upon strict textually-rooted rules alone. Rather, a balance must be struck of rules, principles, precepts, norms and values. These are not clearly identifiable separate vehicles, but expressions along a gradation of particularity. The proper balance to be struck must recognise the requirement that rule and principle conform to moral standards as the gauge of the law’s flexibility and as its avenue for growth, and in order to accommodate changes in society’s conceptions of the application of unchanged values. The balance must also recognise the danger of absence of adequate rules that may confound law by a drift into a formless void of sentiment and intuition. In the James Spigelman Oration last

year2, I identified certainty as a value. On reflection, I think the preferable approach is to view the reasonable certainty as a part of the product of the striking of the balance to which I refer. That is not to underrate its importance. It is a foundation of a stable and predicable legal system. But it is not reached by rules alone; indeed, a rule for everything is to invite complexity and incoherence. I make the taxonomical distinction between public and private law to reflect the fact that, even though they share a concern with the control of power, there is something super-added, something meaningful, sometimes something menacing in the presence of state authority, adding an urgency or pungency to the exercise of state power. Further, private law has within it values of a broad kind which attend the conduct of private parties in their relevant milieu. In the course of this lecture, however, I trust that it becomes clear that despite the distinction between public and private law, human values inhere across the entire fabric of law.3

The control of power in public law Public law encompasses various areas or subjects in which society as a whole has an interest and where a form of state power is exercised. This includes not only constitutional and administrative law and the law concerned with the organisation of legislative and executive power, but also areas such as criminal law and the law of insolvency. In each area of public law, power is distributed, exercised and controlled primarily by reference to text – constitutional and statutory. Those texts are in turn to be read and understood by reference to the organised values that surround them, and to the purposes 49

and aims of the texts in the social and political milieu of their creation, including a consideration of how people should be treated in the exercise of power in a just and decent society. This is not about being nice. Rather, it is about how those who are the subject of the exercise of power in civil society should be entitled to expect that the lawful exercise of power involves attributes or characteristics that recognise and reinforce human dignity and integrity, and that reflect the high trust that society has placed in those with public power to exercise it lawfully and for the common good. Such considerations, which inform all aspects of public law, include: the reasonable expectations of women and men in their lives, the notion of civil society (meaning a just society in which there is a shared and expected reciprocity), and freedom from the exercise of arbitrary and unreasonable power.4 This influence and place of values can be seen, as an example, in the concern expressed in maintaining the integrity of the judicial process. In 1996, in Kable v DPP (NSW)5 the High Court of Australia was faced with an act of state power (by Parliament) that purported to permit pre-emptive imprisonment. Mr Kable had been convicted of a violent crime: the manslaughter of his wife. As he approached the end of his sentence, he sent letters from prison to individuals that caused it to be thought that, upon release, he might well commit further violent crimes against those individuals. An Act of the New South Wales Parliament was passed that provided for his continued detention by order of the Supreme Court upon satisfaction of certain conditions (not being conviction of any crime). The argument of Sir Maurice Byers on Mr Kable’s behalf reached to the very foundations of civil society: he submitted that the statute

50 | BRIEF MARCH 2017

was not a law, but rather, in substance, an order to the Court to imprison Mr Kable; he submitted that the New South Wales Constitution assumed the rule of law as a constitutional imperative, the continuation of which was a working assumption of the Australian Constitution; he submitted that the statute was inconsistent with a basal element of representative parliamentary democracy thus founded on the rule of law, by its call for imprisonment otherwise than pursuant to conviction for an offence; and the undermining of State courts making them unfit for the investiture of federal jurisdiction. Aspects of these arguments were woven into the reasons of the majority6; a critical feature being the centrality of the chapter of the Constitution (Ch III) devoted to the federal judicature. Justice Gaudron’s starting point was the constitutional structure of an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth.7 The Court was concerned with the freedoms and liberty upon which Australia’s whole system of government is founded. The Court held that the Judicature is vested with a form of power distinct and different from executive and legislative power; the power is based on pre-existing law (though part of the Judicature’s task is the law’s health and direction and so its change from time to time) and, as part of its essential fabric, the execution of judicial power is constitutionally required to be fair, equal and just. This is not rhetoric. These features are part of the defining character of the power. They are features that reach back to the rejection of inequality of status that was the foundation of the Ancient World, and to the recognition of one man or woman’s soul (however lowly she or he were born) as the spiritual equal of the soul of a king.8 The forging of the place of the individual and the recognition of her or his human dignity lie

at the root of our conceptions of fairness and equality. They are the features that engender the consent, trust and respect of society in the administration of justice in its daily contact with people, often in circumstances that can be productive of distress, a sense of abject failure and crushing humiliation. I leave to one side, for another occasion, the discussion of the driving influence of the human demand for dignity and the rejection of unfairness as an immanent human response, even in the absence of a social system grounded on the essential equality of individuals, where rule, authority and imposed certainty for the common good are, or may be, dominant ideas. The prohibition upon the Parliament conferring functions on courts that are incompatible with their essential features of judicial power protects courts, as the vehicles for judicial power, from any suggestion that they wield power (often in circumstances of the above kind) other than fairly, equally and justly. This creates and protects a constitutional guarantee of liberty (that is perceptible to all lay people) that the power of the state will be judged fairly, equally and justly by the institution recognised by the Constitution to undertake that task: the Judicature. Thus, the organisation of power and the independence of the judicial power come to be important elements in reciprocity and consent, as part of the sovereignty of the people. These considerations pervade Kable and are why it is of such enduring importance within Australian public law. The presence of these human values is also demonstrated in the pervasive legal notion of natural justice or procedural fairness9. Procedural fairness, although coherently structured around developed rules and precedents10, has at its heart the abiding informing principle of fairness. In 1985, in Kioa v West11 in the High Court

of Australia, Justices Mason and Brennan agreed that the informing principle was fairness, but disagreed as to the vehicle for the carriage of the principle. Justice Mason viewed it as a principle of the common law affecting (unless limited or excluded by statute) the exercise of public power.12 Justice Brennan viewed it as a part of the statutory command, capable of being limited or excluded by Parliament, such being ascertained in the process of statutory interpretation.13 The difference may be of limited practical importance, arising only when nonstatutory power is being exercised. The difference is, however, important for legal theory. If immanent within the common law, it draws its source from some well of fairness as an incident of the common law. If immanent within the sovereign command of Parliament it implies a necessary character of, and, to a degree, defeasible limit on, that law-making from some well of fairness attending Parliament’s acts. What is unfair will often be a matter of debate; it will often be affected by the terms of a statute or the content of a precedent; but in essence, it is an enduring human response rooted in a civilised society’s expectations of equal and fair treatment of individuals by organs of power. Syllogistic reasoning expressed in language seeking to define an operative rule is often inadequate to express why an exercise of power is unfair. The difficulty arises from the fact that the exercise of power must be assessed in its human dimension taking into account evaluative assessment of, sometimes indefinable, characteristics and nuances of the human condition. This is an example of the limits of text. In many analytical reviews of the exercise of governmental power there is the partly legal and partly human response to the facts: Is this how people should be subjected to the power of the state? It is an expression and reflection of the importance and enduring place of human values and human intuitive response in the development and application of public law. It is crucial, however, that the appropriate balance be struck in the law between rules and values. That balance must itself take account of the particular objects and subjects of an area of law. We can take, as an example, the attempt in criminal law to strike a balance between rule based certainty and individual evaluative justice. It is an overarching object of the law that the legal system be fair, equal and orderly. This reflects a societal need to minimise the distress, uncertainty and

confusion of parties affected by the law. In the context of criminal law, and particularly at the point of ascertaining criminal liability, it has thus been said that “the operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgment and applying a rule, a court exercising criminal jurisdiction should prefer the rule.”14 At the point of sentencing, however, certainty gives way to equality, humanity and a regard for the individual, as well as the just demands of society. The importance of evaluative assessment by the court toward the reaching of just punishment that recognises the humanity of the individual has been a feature of the High Court of Australia’s jurisprudence of the last 15 years in appeals on criminal sentencing. In 2001, in Wong15, a majority of the Court rejected the legitimacy of guideline sentencing in respect of federal crime. The case illustrated the tension implicit in striking the balance of certainty, equality and individual justice. The guidelines were an attempt by the judiciary to introduce a degree of consistency and predictability into the sentencing process, otherwise at large. In the minority, Gleeson CJ recognised that inconsistency (the reduction of which was the aim of the guidelines) could itself constitute a form of injustice,16 stressing the apparent inequality that human discretion can produce, and that criminal justice works as a system. That system should be systematically fair, involving reasonable consistency. In contrast the majority17 rejected the utility and legitimacy of the approach of guidelines because of the “core difficulty”18 of the complexity of the sentencing task. That complexity was not of mathematical or algorithmic significance; rather, it was of human significance – the necessary humanity and individuality of the sentencing task. Sentencing principles must lead, it was said, to “just sentencing of offenders whose offending behaviour is every bit as diverse as is their personal history and circumstances.”19 This emphasis has revealed the competing considerations of rule and principle, consistency, fairness, equality and intuitive response to the individual as moving forces that determine how law responds to intensely human, often tragic or violent, situations.20 The consistency required in the context of sentencing is not numerical consistency, but consistency of principle.21 Sentencing raises the place of mercy. Mary Stuart, foreseeing her fate, said that mercy was for dispensation to subjects not to sovereigns. But it is a mark of equality, dignity and fairness

encapsulated in a human response to wrong, to the individual and to life that raises the humanity of both grantor and grantee. As Sir Victor Windeyer said22 it plays its part not in merely seasoning justice in Portia’s sense, but in acting to avoid the rigidity of inexorable law as the very essence of justice. Again one finds the limits of text: Mercy, like beauty and genius, is not amenable fully to textual expression. Across the entirety of law (both private and public) this same objective of achieving balance has been pursued – a balance built upon the relationship between rule and value, between definition and flexible evaluation. This is not a logically dialectical process of the confronting of opposites, but an attempt to balance the competing demands of law through the recognition that law is life, and life is infused with values.

The control of power in private law Private law is no different in its need to recognise the human and societal dimensions involved in the control of power and to take into account the values that surround private relations. Commerce and trade, in particular, have long held a central place in the formation of sophisticated legal systems, largely because they produce the need for rules of relational activities.23 Commerce must be certain, but fair and just; simple and practical, but comprehensive; and it must be able to be employed and enforced without undue expense, delay or confusion. One obligation of the commercial lawyer and the commercial judge is to understand the limits of legitimate self-interest and the relationship between self-interest, in its inherently selfish character (that is, the search for commercial gain), and honesty, reasonableness, mutual respect, reciprocity, decency and trust, being the qualities that make it possible for commercial people to be self-interested, but to at the same time deal with each other peacefully, with mutual benefit and to promote long term commercial success. It has been said that the law should facilitate and not hinder commerce.24 That is so, but there are some assumptions involved in that proposition. It is honest commerce that is to be facilitated; dishonest commerce is to be hindered. The norms that will bear upon the answer to whether an activity should be facilitated or hindered are the values we bring to our rule making and rule application in commercial law. Thus, there will be attitudes and practices in commerce that will be the subject


of disapproval, control and correction by the state through statute and legal rule: examples are dishonesty, duress, oppressive use of power and market domination. We can see this place of values (not necessarily limited to and often quite different from the essential human values to which I have referred) within the process of contractual analysis. How contracts are to be understood, how they are to be given meaning and how they are to be given operation are questions of technique and legal policy of the highest importance. Often those processes of understanding, meaning and operation take place through interpretation and construction, fact-finding, and ruleapplication; but sometimes (and often at points of particular importance) there is something more happening – something different, something further, something less precise and not amenable to logical expression or definition, which I will call characterisation. Generally this process is one where a value judgment is made by reference to ascribed meaning, found facts, an expressed rule or principle and the relevantly organised values that are to be brought to bear for the task. It is those values that are often disguised, hidden and suppressed. Take the question of whether a contractual provision is ‘of the essence’, a task exemplified by what that great judge, Chief Justice Sir Frederick Jordan, said in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd25: The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of strict or substantial performance of the promise…and that this ought to have been apparent to the promisor. It may look simply like construction (that is, ascription of meaning). But there is something more happening. There is an evaluation of importance based, of course, on what is the meaning of the contract, but in the context of the general nature of the contract as a whole, which inevitably brings a range of contextual values to bear. The test has been variously expressed: ‘root of the contract’, ‘unfair’, ‘fair carrying out of the bargain as a whole’ and ‘in a vital respect’. The essential element is the deprivation of a benefit or an entitlement, or the imposition

52 | BRIEF MARCH 2017

of a burden, sufficiently serious as to change the character of the grant to, or of the obligations or entitlements of, the other party to the contract to such a degree that it can be said to be a commercially different bargain.26 The test is not definitional; it is based on a characterisation of the seriousness of the breach, by understanding the nature and commercial operation of the contract as a whole, understanding the context (including commercial context) and imperatives of a given contract or type of contract, and coming to an evaluation of the seriousness of the breach by reference to all the circumstances and to commercial fairness. It is from that understanding that the relevant values are drawn. That understanding is also essential to the proper interpretation and construction of the contract (in the sense of ascription of meaning). That is because understanding the values and imperatives in and of the contract is essential to any decision about what the parties meant by the words they used. The leaning of the courts towards construing terms as intermediate rather than as essential, for example, is informed by the values of justice and fairness in the avoidance of termination on technical or unmeritorious grounds.27 This illuminates the process of assessing what is serious and what is not as one being based significantly on values. Take unconscionability and good faith. The notions of conscience or unconscionability pervade Equity and private law. They were the insight and guiding force of Equity acting in personam. They were a basis for setting aside or refusing to enforce certain transactions and contracts. They were also a thematic feature of Equity, reflecting a standard exacted of parties, often in a commercial context: restitution, the constructive trust, defences to specific performance. The spirit of Equity lay in the creative tension in, and the dialectical creation of energy by, the reconciliation of the search for rules and predictability (including certainty) and the vindication of values, morality and justice. The bargain is the timeless epitome of human exchange. It is the foundation of commerce. Its binding force lies in the rooted concept of the promise, the faithfulness to one’s word, and the place of trust in the building of human social relationships and structures. The moral roots of the binding character of the bargain also breathe life into the other evaluative considerations, rules and principles that surround the bargain: the rules of construction and implication that smooth and mould the content of

the bargain to its reasonably intended purpose; the rules and principles of addressing injustice in the bargain: non est factum, rescission for mistake or misrepresentation, frustration and its consequences, undue influence, and estoppel. An assessment of unconscionability involves characterisation of conduct as against conscience, by reference to the values organised for the task. That evaluation is not a formless void of personal intuition. Rather it is an evaluation which must be reasoned, to the extent that the limits of text permit, and enunciated by reference to the values and norms recognised by the text, structure and context of any relevant legislation, and by reference to the legal values of the common law and Equity and perceived community values, made against an assessment of all connected circumstances. In Australia, by statute28 the notion of unconscionability has been directly transposed to business relationships, and may be summarised by a concern with fairness and equality, prevention of advantage being taken of ignorance or vulnerability, and good faith and fair dealing. The necessary evaluation includes a recognition of the deep and abiding requirement of honesty in behaviour; a rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage; a recognition that inequality of bargaining power can (but not always) be used in a way that is contrary to fair dealing or conscience, in particular having in mind the explicit and implicit assumptions or impositions of risk attending any transaction and the legitimate business interests of the parties; the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing; and the conduct of an equitable and certain judicial system that is not a harbour for idiosyncratic or personal moral judgment and the exercise of power and discretion based thereon. It is ultimately a process of characterisation. The variety of considerations that may affect the assessment of unconscionability in this process of characterisation only reflects

the variety and richness of commercial life. Because the conclusion as to what is, or is not, against conscience will often be contestable, and is value based, any agonised search for definition, for distilled epitome or for crisp rule is not possible and will lead to disappointment, to a sense of futility, and to the likelihood of error. The evaluation is not a process of deductive reasoning predicated upon the presence or absence of fixed elements or fixed rules. It is an evaluation of business behaviour (conduct in trade or commerce) as to whether it warrants the characterisation of unconscionable, in light of the values and norms recognised by Equity, society, and statute. Private law, like public law, must search for the appropriate balance between rules and values. That search can be seen in the place of rules and implications that give effect to the elements of a duty of good faith and fair dealing: the implied engagement to do nothing to put an end to the circumstances by which the contract can take effect;29 the implied agreement to do all that is necessary to be done for the carrying out of what has been agreed;30 the implication that each party will do all things necessary on his part to enable the other to have the benefit of the bargain;31 and the construction of every express promise as containing a negative covenant not to hinder or prevent fulfilment of the express covenant.32 It can also be seen in: the implied obligation to act honestly and reasonably in exercising a right to rescind a contract unless satisfied with finance;33 the limitation of clauses in a building contract as to satisfaction of a state of affairs to a reasonable construction meaning only what is reasonable and just;34 the limitation of a clause giving absolute discretion to remove work from a contract to what is reasonable;35 the limitation of a right to rescind a sale of land if unable or unwilling to comply with or remove an objection by the purchaser to what was not unconscionable36 or not arbitrary or unreasonable.37 This search can also be seen in the development (and struggle over the structure) of the law of restitution or unjust enrichment, a struggle that has spanned centuries.38 At what level of abstraction is the statement that “a person who has been unjustly enriched at the expense of another is required to make restitution to that other” useful or valid or operative? The High Court of Australia has been clear that such a statement is not an operative rule to decide upon liability; rather, it is an informing and unifying legal concept.39

Yet the place of such an informing or unifying legal concept has been, and will remain, critical to the coherent development of the law of restitution of, or for, unjust enrichment. It assists in the ordering of related ideas and principles that have come into use over time from different sources. An informing or unifying legal concept can also form a bridge between law and Equity. One example is the remedy of money had and received upon a failure of consideration, and the Quistclose trust and the resulting trust; another is the restitutionary monetary remedy (at law, if one likes) for a proprietary benefit traceable in equity (but not law) into the hands of a volunteer.40 One part of the balance between rules and values is the ability of less particularly expressed principle to accommodate changes in values in society, without the need to change rules. Conceptions of legal liability and what is right and just to be vindicated by law change with time and with changes in society. This balance is essential to meet the challenge of the need for stability with the inevitability of change.41 Generally expressed principles are likely to capture such changes without the need for re-expression of particular rules. This helps vindicate the necessity for historical continuity.42 No more eloquent example of this can be seen in the expression by Cardozo CJ of two fundamentally important duties in commercial law – that of the fiduciary and that of the participant in the market in Meinhard v Salmon.43 The “punctilio of an honor the most sensitive” of the former compared to the “morals of the market place” (by which he meant honesty) of the latter. Another part of the balance is that sometimes a sensible, simple rule can only be expressed coherently and without complexity by a generally expressed norm. The rule, as Lord Mansfield said, “easily learned and easily retained”44 is often one based around some norm such as reasonableness or honesty that is formulated to accord with the expectations of honest and reasonable commercial participants. No better example of this can be seen than in the contracts that govern the international shipping industry. They are concise, well-drawn documents, often prepared by industry groups. The standard forms that are the basis of countless daily commercial exchanges, often between strangers, are expressed in terms of values and norms accessible to, and known by, commercial people in the industry. Examples are: “thoroughly efficient state”,45 “due dispatch”,46 “all customary assistance”,47 “suitable” and “unsuitable”,48 “safe dock [or] place”.49

Though these kinds of words may lack an apparent element of morality, they do all contain judgment and evaluation premissed on reasonable performance satisfactory to an honest person familiar with the business of shipping. The broad general rule is informed by common understanding and expectation and knowledgeable dispute resolution, usually by skilled arbitrators. Reasonable evaluation is made comfortable by the stable, well-known values that inform the exercise. This same process of balancing values and rules, and same need to recognise and consider the inhering place and influence of values, attends many other concepts within private law, including the fiduciary relationship, doctrine of penalties, and the nature of insurance. Modern commercial law, as a part of a global commercial community, rests on principle and values (in particular, the values of honest fair dealing) rather than minute rule making. This in turn requires clear recognition and enunciation of the process of evaluation or characterisation. Whilst that process takes its place in a legal framework of relevant and related rules, its separate existence as a conceptual process should also be recognised in order that the values being brought to bear can be understood.

To conclude Law is not just command; it is societal will amenable to rational and general expression, engendering loyalty and consent through its utility and practicality and through its characteristics of certainty, fairness and justice. That amenability to expression must recognise, however, the limits of text to which I have referred. Law can, ultimately, only work practically and usefully through consent and loyalty. And no system of law can engender loyalty and consent without an inhering justice – some intuitive response from acceptable and accepted values, not necessarily by reference to each individual provision within the system, but by reference to its whole, including its defects and its shining examples. Each gives content to the whole. Nothing is perfect. Further, no system of law can engender a sense of security without an acceptable degree of certainty. The need for balance of, and the inevitable complexity of the relationship between, rules and values and their interconnectedness should be recognised as a central feature of the law and the administration of justice. There is no point pretending that such complexity can be addressed by eliminating values and textually expressing more rules. That


process is just to create other values, and likely darker ones, masquerading as rules. We should accept that any system of law worthy of being called just must be founded on fundamental values. Part of that acceptance is the recognition that sometimes rules can only be expressed by reference to values or general concepts and cannot (unless incoherence is to be courted) be reduced to concrete, in-abstract propositions. We live with this every day; we are familiar and comfortable with rules that lack case-specific precision, but which have meaningful content, and which provide for acceptable, if contestable, application: for example, the common sense and evaluative conclusion of causation; the requirement of subjective and objective honesty; the requirement of a reasonable time for conduct in all the circumstances in various situations such as contract; the expectation of a reasonable response to risk created by one’s own conduct when concepts of duty of care are examined. Essential to our being comfortable with these rules expressed by reference to values or general concepts is the existence of a stable contextual framework and a relevantly organised body of values (explicit or implicit) for the resolution of the question. Assessing how power should be controlled and exercised in society (within both private and public law) is the daily task of the law. Law is not value free. Law is not built and defined solely by rule making, by formulae or by inexorable command, but rather it is organised around, and derived from, inhering values (human values) and serves as an expression or manifestation of natural human and societal bonds of conduct.50 The human beauty of the law does not come from the sounds of tongues, talking of grand ideas, so often making them seem physical, limited and prosaic by superficial language, taxonomical arrangement and metallic repetition. Rather, it is in the daily application of life that the dignity of the individual, the mercy of the soul, and fairness as part of the human condition inform the exercise of lawful power. In life’s small, selfish and mundane intersections, these values assume a daily modesty in expression, and in context. But that modesty in expression and in context reaches back towards essential humanity and towards the echoing inflection of the infinity of law. The human beauty of the law does not come from grand expression, but from modest application to the humans in question, to the conflicts in resolution, to the pages of the lives of people – in

54 | BRIEF MARCH 2017

537 [54]-[55]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; Kentwell v The Queen [2014] HCA 37; 252 CLR 601; and CMB v Attorney-General (NSW) [2015] HCA 9; 89 ALJR 407.

fairness required, in dignity expressed and accepted, and in mercy given. This is the human beauty of the law. Hong Kong 20 October 2016


Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 535 [49].


Cobiac v Liddy [1969] HCA 26; 119 CLR 257 at 269.


Plato noted that where there is maritime commerce there must be more law: Laws, Book 8, 842; Montesquieu said that there were more laws in a trading city: The Spirit of Laws Liv.XX, Chapter 18; Jhering spoke of commerce as a pathfinder: Zweck im Recht, I, 237; see R Pound The Formative Era of American Law (Little Brown, Boston, 1938), at 11-12.


Lord Justice Devlin “The Relation Between Commercial Law and Commercial Practice” (1951) 14 MLR 249, at 250, 261-263, 266.


Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-642 (emphasis added).


See discussion in Byrnes v Jokona Pty Ltd [2002] FCA 41 at [70]-[80] and comments of Finn J in GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50; 128 FCR 1 at [493].


GH Treitel, The Law of Contract (11th ed, Sweet & Maxwell, London 2003), at 797 (see also (12th edn, Sweet & Maxwell, London, 2007), at 890); cited in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 at 139 [50].


The Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) both contain provisions which prohibit a person from engaging in unconscionable conduct in trade and commerce in connection with the supply or acquisition, or possible supply or acquisition, of goods or services or financial services.


Stirling v Maitland (1864) 5 B&S 840 at 852; 122 ER 1043 at 1047 (Cockburn CJ).


Mackay v Dick (1880-81) 6 App Cas 251 at 263 (Lord Blackburn).


Butt v McDonald (1896) 7 QLJ 68 at 70-71 (Griffith CJ).


Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; 45 CLR 359 at 378.


Meehan v Jones [1982] HCA 52; 149 CLR 571.


Stadhard v Lee (1863) 3 B&S 364 at 371-2; 122 ER 138 at 141.


Carr v JA Berrriman Pty Ltd [1953] HCA 31; 89 CLR 327.


Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; 128 CLR 529 at 538.


Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; 128 CLR 529 at 543, 547, 549-555; and see Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13; 130 CLR 575.


JP Dawson Unjust Enrichment: A Comparative Analysis (Little Brown and Co, Boston, 1951), at 41-109.


Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 at 256-257; ANZ v Westpac [1988] HCA 17; 164 CLR 662 at 673; David Securities v Commonwealth Bank [1992] HCA 48; 175 CLR 353 at 375, 389, 406; Roxborough v Rothmans of Pall Mall [2001] HCA 68; 208 CLR 516 at 543-545 [70]-[74]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 156 [151]; Lumbers v W Cook Builders [2008] HCA 27; 232 CLR 635 at 665 [85]; Equuscorp v Haxton [2012] HCA 7; 246 CLR 498 at [29]-[30]; though compare Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 253 CLR 560 at [78] and the discussion in K Mason “Strong coherence, strong fusion, continuing categorical confusion: The High Court’s latest contributions to the law of restitution” (2015) 39 Aust Bar Rev 284.


Heperu Pty Ltd v Belle [2009] NSWCA 252; 76 NSWLR 230 at 260-268 [127]-[163].


R Pound Interpretation of Legal History (Macmillan Company, New York, 1923), at 1-11.


Holmes Collected Essays (Hogarth, London, 1967), at 211; Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at [29], [47].


Meinhard v Salmon 249 NY 458 (1928) at 464.


Hamilton v Mendes (1761) 2 Burr 1198 at 1214; 97 ER 787 at 795.


New York Produce Exchange 1993 Time Charter (NYPE 93) (state of the vessel provided).


NYPE 93 cl 8(a) (performance of voyages).


NYPE 93 cl 8(a) (performance of voyages).


NYPE 93 cl 9(b) (bunkers).


NYPE 93 cl 12 (place of berthing).


WJV Windeyer, Legal History (2nd ed, Law Book Company of Australasia, Sydney, 1959), 3.



This lecture is a distillation (with some development) of three papers presented in 2015: “Conscience, Fair Dealing and Commerce – Parliaments and the Courts” delivered at a seminar in honour of the Hon Paul Finn; “Values in Public Law” the 2015 James Spigelman Oration; and “Characterisation: Its Place in Contractual Analysis and Related Enquiries” delivered at a University of New South Wales and Oxford University Conference on Contracts in Commercial Law. It has also been amended since delivery in Hong Kong after discussions at and after the lecture. In particular, I express my gratitude to Dr Margaret Ng barrister-at-law in Hong Kong. The lecture is not the product of a comprehensive jurisprudential study; it is more a body of observations and views drawn from the necessary reading and thinking involved in judicial life. The tension, sometimes conflict, between rule and value is part of the daily life of judging. See the illuminating thesis of Stephen Margetts Soul Driving (Publishing House Seven, Australia, 2015), from which I take the expression “drive the soul”.


2015 James Spigelman Oration, Values in Public Law.


See also: Tim Game SC and Julia Roy “Unifying Principles in Administrative and Criminal Law” (Speech presented to the Public Law Section of the New South Wales Bar Association on 17 August 2015).


See, for example, as Roscoe Pound put it, in the first of four outstanding lectures delivered at Wabash College in the 1930s dealing with the development of constitutional guarantees: the “fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust relations and order conduct, and so are able to apply the force of that society to individuals. Liberty under law implies a systematic and orderly application of that force so that it is uniform, equal, and predictable, and proceeds from reason and upon understood grounds rather than from caprice or impulse or without full and fair hearing of all affected and understanding of the facts on which official action is taken.” R Pound The Development of Constitutional Guarantees of Liberty (Yale University Press, New Haven, 1957), at 1.


Kable v Director of Public Prosecutions for NSW [1996] HCA 24; 189 CLR 51.


Toohey, Gaudron, McHugh and Gummow JJ.


Kable v Director of Public Prosecutions for NSW [1996] HCA 24; 189 CLR 51 at 99-108.


L Siedentop Inventing the Individual: The Origins of Western Liberalism (Allen Lane, London, 2014) at 60-62, 83.


I leave to one side the differences of emphasis and character encompassed within the different expressions of the principle. See Justice James Edelman “Why Do We Have Rules of Procedural Fairness?” (2016) 23 AJ Admin L 144.


“Natural justice” is traditionally broken down into two rules at common law – the hearing rule and the bias rule: see M Aronson et al Judicial Review of Administrative Action (4th ed, Lawbook Co, Sydney, 2009), at [7.20].


Kioa v West [1985] HCA 81; 159 CLR 550.


Kioa v West [1985] HCA 81; 159 CLR 550 at 582-586.


Kioa v West [1985] HCA 81; 159 CLR 550 at 609-613.


Taikato v The Queen [1996] HCA 28; 186 CLR 454 at 466 per Brennan CJ, Toohey, McHugh and Gummow JJ.


Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584.


Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at 590-591 [5]-[6].


Gaudron, Gummow and Hayne JJ.


Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at 612 [77].


Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at 613 [78].


That is the underlying theme variously manifested and expressed in Markarian v The Queen [2005] HCA 25;228 CLR 357; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at 583; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 528 [25], 532-534 [36]-[45],

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

Property – 27 year same sex relationship – Full Court upholds decision not to make a property order In Chancellor & McCoy [2016] FamCAFC 256 (2 December 2016) the Full Court (Bryant CJ, Thackray & Strickland JJ) dismissed with costs Ms Chancellor’s appeal against Judge Turner’s decision that it would not be just and equitable to grant her application for a property order. The trial judge found that there had been no intermingling of finances or joint bank account; each acquired property in their own name; each was responsible for their own debts and could use their earnings as they chose without explanation ([27]). The Full Court said (at [35]-[36]): “It was ... submitted that the absence of ‘future plans or goals’ was not a relevant consideration ... Although her Honour did not say so … we understand her reference to the absence of ‘future plans or goals’ to be part … of her findings about how the parties kept their affairs separate and conducted their financial lives without being accountable … to the other party. ( … ) There was … ‘common use’ of the homes owned by the respondent, but there was also a modest periodic payment by the appellant referable to her occupation of those homes. Furthermore, her Honour made no findings that would point to any ‘express and implicit assumptions’ [per Stanford [2012] HCA 52 at [42]] that the parties would ultimately share in the other’s property. On the contrary, her Honour properly placed significance on the fact that neither had taken any steps to ensure that the other would receive their property or superannuation in the event of death, and indeed the respondent had executed a will giving her entire estate to her parents. In the absence of evidence of any assumption by the parties that one would benefit on the death of the other, it would not have been open to her Honour to conclude, without evidence, that there was any assumption that there would be some redistribution of wealth upon termination of the relationship by means other than death.”

Children – Mother loses appeal against order for hyphenation of child’s surname In Reynolds & Sherman [2016] FamCAFC 240 (29 November 2016) the Full Court (Ryan, Murphy & Aldridge JJ) dismissed with costs the mother’s appeal of Judge Baumann’s order that the parties’ 3 year old child have the surname “ReynoldsSherman”. The parties had a relationship for one month and never lived together. The child lived with the mother. The Full Court said (from [71]): “The mother submitted that it would be confusing if the child did not have the same surname as the parent with whom he lives … [and] that … the child will be attending the same school as the mother … ([who] is training to be a teacher) and that it will be embarrassing for the child to constantly explain to people why they have different surnames. ( ... ) [73] ... [T]he primary judge … rejected, the mother’s submission … [and] the experience of this Court demonstrates it is now common for children to have a different surname from at least one of their parents, even in intact relationships. [74] We consider that the finding was one that could be made on the evidence and that no error has been shown.” The Full Court (at [92]) approved Judge Baumann’s conclusion that he was “satisfied that it is in the best interests of [the child] that he have a surname which accurately reflects his heritage. To do so enhances his sense of identity with both his father and the mother and their extended families”. Children – Interim relocation from southern NSW coast to Darwin allowed In Larsson & Casey [2016] FamCA 971 (16 November 2016) Gill J allowed the mother’s appeal against an interim order of a Local Court when transferring the case to the FCC at Canberra which restrained her from relocating a child in her care to Darwin. The parties who had two children, “C” (born in 2002) and “B” (born in 2006), separated in 2007. While both children initially lived with the mother, C began living with the father in 2012. From 2014 the parents lived 500 km apart, B living with the mother and C living with the father. The mother remarried (“Mr Larsson”) and

had two children of her new relationship. The mother sought permission to take B with her to live in Darwin, Mr Larsson having moved there for work (with the children of that relationship). The father opposed relocation of B, proposing that if the mother moved to Darwin B should live with him and C. [27] ... [I]n consideration of meaningful relationship[s] between each parent and each child, the settled arrangements engaged in are indicative that each parent treated the arrangements as sufficient for the maintenance of their relationship with the child that was not living with them. (…) [30] Until the commencement of the proceedings B was living in a settled arrangement with his mother, Mr Larsson and his two younger siblings. He is described as having a close relationship with his younger siblings and to be functioning well under the primary care of his mother. The relationship with his brother and father was maintained primarily through 50 per cent of the school holidays, although this year he has been able to spend seven other occasions with his father and brother. ( … ) [33] If B relocates to Darwin there will be no change in the time he spends with his father and brother on school holidays. ( … ) [42] ... the move to Darwin will involve some, but acceptable change to the time B spends with his father and C. It involves no change to the time C spends with his mother. This case, unlike many that involve a significant increase in distance, does not also involve a substantial change in the time spent with each parent.” The mother was granted permission to relocate with B to Darwin and the case was listed before the FCC at Canberra for further directions.

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


Law Council Update Legal profession launching unprecedented national initiative to counter unconscious bias

Same-Sex Marriage Bill report strikes balance between freedom of religion and freedom from discrimination

The Law Council of Australia is launching a major new program to help lawyers understand and address unconscious bias.

The Law Council today said the consensus Parliamentary report into the Government's Same- Sex Marriage Bill strikes a good balance between freedom of religion and freedom from discrimination and called on Parliament progress the report’s findings.

The Law Council has been working with diversity and inclusion specialists, Symmetra, to construct an unconscious bias program customised for the legal profession. It will be offered to all lawyers and legal practices via face-to-face workshops, trainthe-trainer modules, and online courses from March 1 2017. Law Council of Australia President, Fiona Mcleod SC, said a series of national diversity and equality projects had been embraced by the legal profession and this program was an essential element of the whole strategy. "Human beings are hardwired to notice personal characteristics and to prefer those with attributes or experiences similar to our own without conscious awareness," Ms Mcleod said. "Research demonstrates that this can lead to skewed decision-making concerning recruitment, promotion and allocation of work and entrench inequity." Ms Mcleod said that addressing unconscious bias could be the key to unlocking future diversity that would advantage the Australian legal profession - in terms of gender, and also in other fields of diversity. "Addressing unconscious, or implicit bias encourages better decision making and new approaches to problem solving. A deliberate focus on diversity enables organisations to better attract and retain top talent, allows for the use of a greater talent pool and can boost productivity," Ms Mcleod said. The Law Council's new unconscious bias initiative follows a series of major national diversity and equality projects that have been led by the Law Council and embraced by the legal profession, including: the Diversity and Equality Charter and an Equitable Briefing Policy for barristers. Last month, the International Bar Association announced it would be using the Law Council of Australia's landmark National Attrition and Retention Survey of lawyers as a template for its global investigation into the reasons why so many women lawyers are leaving law firms.

The Select Committee on the Exposure Draft of the Marriage Amendment (SameSex Marriage) Bill reached agreement on key issues, many of which align with recommendations made by the Law Council in its earlier submission. These areas of agreement include: • Ministers of religion should be able to refuse to marry same-sex couples; • Removal of 'conscientious objection' provisions; • Creating a new category of independent religious celebrants to cater for those people with religious beliefs, but requiring all other celebrants to marry same-sex couples; and • Strictly confining the exemptions available to 'religious bodies' to discriminate against same-sex couples. Law Council of Australia President, Fiona McLeod SC, said the areas of agreement would, if implemented, improve the Bill significantly. "The Law Council has been a long-standing supporter of same-sex marriage, however, changes to the Marriage Act need to carefully balance freedom of religion with the freedom from discrimination," Ms McLeod said. "We are pleased to see that the Committee suggests that ministers of religion, and certain religious celebrants, should be able to refuse to marry same-sex couples in line with their beliefs. Civil celebrants on the other hand are performing a secular function and so have no other proper basis for exemption. "We are also happy that the Committee agrees with the Law Council that 'religious bodies,' that were not specifically established for religious purposes, should not be exempt from anti- discrimination laws. “We further note that the Committee did not recommend exempting individuals or commercial businesses from anti-discrimination law who hold a ‘conscientious’ objection to providing goods and services for same-sex weddings. "Striking this balance between freedom of religion and freedom from discrimination is a

56 | BRIEF MARCH 2017

challenging task. It is the Law Council's view that the Committee's suggestions achieve this balance well and should therefore be accepted by Parliament,” Ms McLeod said.

Mandatory sentencing undermining firearms trafficking bill Including mandatory sentencing in the Federal Government’s firearms trafficking bill could lead to unjust punishments and unintended consequences. The Criminal Code Amendment (Firearms Trafficking) Bill 2016, being debated in the Senate today, includes a mandatory minimum sentence of five years imprisonment for those found guilty of trafficking illegal firearms. The Law Council of Australia is urging Parliament to amend the Bill to remove mandatory sentencing. Law Council President, Fiona McLeod SC, said the important goal of the Bill was being undermined by the inclusion of mandatory measures. "The Law Council supports increasing maximum penalties for firearms trafficking,” Ms McLeod said. "But mandatory minimum penalties are never appropriate. They are too blunt an instrument and have repeatedly proven not to produce the desired effect. “A minimum mandatory five year penalty would not deter hardened criminals. These kinds of criminals have already likely factored in considerable jail time as a risk they are willing to take. “Mandatory sentencing may lead to unjust punishments by forcing courts to apply a rigid standard with no regard to individual circumstances. "For example, there have been multiple examples of individuals who have a legitimate use for firearms inadvertently looking to travel on planes with gun parts. These individuals could be in prison if these reforms were in force,” Ms McLeod said. Former Victoria Police Chief Commissioner, Simon Overland, inadvertently carried a magazine containing live rounds of ammunition on a flight from Melbourne to Canberra in 2010. Prior to travelling, Mr Overland had removed a firearm from his bag, but forgot to take out the magazine. Under the proposed laws he may be facing a mandatory five year jail term. “Judicial discretion is a core principle of our justice system for a very good reason. The world is complex and judges need to be able to adapt their sentence to the circumstances of an individual case,” Ms McLeod said.

Pam Sawyer


New Members

Professional Announcements Career moves and changes in the profession

IRDI Legal IRDI Legal is delighted to announce the appointment of Jamie Blair to their Estate Planning and Succession team. Previously the head of Estate Planning at one of Australia’s largest law firms, Jamie brings with him a wealth of experience and Jamie Blair an ability to guide clients through even the most complex Estate Planning challenges. Jamie’s appointment strengthens IRDI Legal’s position as a premium Estate Planning service provider.

New members joining the Law Society (January 2017)

Ordinary Membership

Associate Membership

Miss Oralee Logan Office of the Commonwealth Director of Public Prosecutions

Ms Anika Waldin

Ms Holly Lillico Norton Rose Fulbright Australia

Mr Con Gamble Curtin University

Restricted Practitioner

Mr Harry Williams

Mr Alex Penter Wesfarmers Kleenheat Pty Ltd

Mr Giuseppe Zagari Solomon Brothers

Mr Chris Robinson Edith Cowan University

Ms Tahlia Zerafa Office of the Commonwealth Director of Public Prosecutions

Ms Alicia Pull

Anthony R Clarke & Associates Family Lawyers

Ms Pilar Adams Corrs Chambers Westgarth

Ms Luisa Di Bernardo Johansson Services Pty Ltd (trading as Contested Wills & Probate Lawyers)

We are delighted to announce the appointment of Cassandra Joss as a Principal of Anthony R Clarke & Associates as from 20 February 2017.

Ms Sanja Nenadic

Mr Daniel Clarke

Ms Julia Sischo JB Legal Pty Ltd

Part-time Membership

Cass has extensive experience in all aspects of Family Law and since her arrival at the firm has exhibited total commitment to both her clients and the firm.

Ms Cassie Lendich Allion Partners

Cassandra Joss

Anthony Clarke extends to Cass his congratulations upon her promotion and welcomes her as an integral part of the team.

Mrs Joanne Leveridge DLA Piper Australia

Mr Evan John Symons & Co Legal Mr Geoff Cummins HFM Legal

Keeping up to date with the latest legal and professional developments

The Essential Legal Assistant Course Delivered live online 11 week course commencing Monday, 19 June 2017, 5.30pm – 7.30pm Same days, same time, same course content … delivered live online with legal topics delivered via our eLearning portal. This will enable legal support staff in the CBD, regional, rural and remote Western Australia to participate in this programme, from their work or home computer. Expressions of interest email cpd@lawsocietywa.asn.au lawsocietywa.asn.au

58 | BRIEF MARCH 2017


Mint House – 326 Hay St, Perth • • • • •

Lots 18 & 19 (second floor) 141m2 or 282m2 available Sold separately or as one parcel One secure car bay per lot Short term lease remaining

FOR LEASE 2 Office rooms

(approx 12 sqm with window & 15 sqm)

Central CBD Location 1st Floor, 524 Hay St, Perth Each $780 per month

Greg Radin 0411 883 995

Includes use of shared conference room

MissiNG wiLL

MissiNG wiLL

Would anyone holding or knowing the whereabouts of a Will for the late LesLey Kay Lewis late of 99 Burgoyne Road, Albany, Western Australia born on 18 October 1940 who died on 17 May 2016 please contact:

Would anyone holding or knowing the whereabouts of a Will for the late sUsaN JaNe FRaNZ late of 49 Beaufort Road, Yakamia, Western Australia born on 28 September 1954 who died on 27 August 2016 please contact:

TYN RECEVEUR at DAVID MOSS & CO PO Box 5744 ALBANY WA 6332 Telephone: 08 9841 5000 Facsimilie: 08 9841 3178 Email: tr@dmoss.com.au

TYN RECEVEUR at DAVID MOSS & CO PO Box 5744 ALBANY WA 6332 Telephone: 08 9841 5000 Facsimilie: 08 9841 3178 Email: tr@dmoss.com.au


Contact Francois Carles Carles Solicitors Tel 9221 4877 or fcarles@carleslawyers.com.au


Any person or firm having knowledge of any Will made by GARRY LEONARD JOY born 20/12/1957 died 24/6/2015 late of 3 Parnham Avenue, Ellenbrook please contact Paul D’Angelo of D’Angelo Legal, PO Box 1953, West Perth 6872. Telephone: (08) 9381 1147

Any person holding or knowing the whereabouts of the last Will and Testament of the late YVONNE JOAN DORIS BOWER formerly of Unit 7, 9-11 Weston Avenue, South Perth, Western Australia late of 429 Rokeby Road, Subiaco, Western Australia, Secretary who died on 28 June 2016, please contact Williams + Hughes, Solicitors, Ground Floor, 25 Richardson Street, West Perth WA 6005 (08) 9481 2040, email: office@whlaw.com.au within 28 days of this publication of this advertisement.



Any person having knowledge of a Will made by DENNIS FIELD late of 42 Dreyer Street, Tammin, who died on 16 December 2016 please contact Zoe at Bradley Bayly Legal PO Box 5710 St George’s Tce Perth WA 6831 Telephone: (08) 6279 2900 Email: reception@bradleybayly.com.au

Any person having knowledge of any Will made by Kevin Francis Albin formerly of 18 Farmer Way, Parmelia, Western Australia, who died on 10 October 2016, please contact Ian Clairs of Clairs Keeley Lawyers. Telephone: 9228 0811 or email: ian@clairskeeley.com.au

LOST WILL Would any person holding or knowing the whereabouts of a Will made by Hilary Elizabeth Buisman, late of 49 Old York Road, Greenmount, in the State of Western Australia born on the 16th day of May 1929 who died on the 15th day of August 2015 please contact: David McDonald David McDonald Legal 154 High Street, FREMANTLE WA 6160 PH: (08) 9336 6300 david@davidmcdonaldlegal.com.au

PROFESSIONAL QUALITY SERVICE AT VERY COMPETITIVE PRICES Perth CBD North/South of river (within 100 kilometre radius – negotiable) Bus phone: 0423 502 360 Email: caz.beaumont@bigpond.com PRICING $35 PER SERVE/$70 URGENT SERVE $15 PER AFFIDAVIT OF SERVICE $1.10 PER KILOMETRE (ONE WAY)

CAROLYN BEAUMONT Legal Process Server ABN: 53 267 069 332

The French Australian Lawyers Society welcomes new members in Perth. To find out more about the Society you are cordially invited to join us at: Whisper Wine Bar 1/15 Essex Street Fremantle, Friday 31 March 2017 (6-8pm). Prof Gerard Carney will speak on the first French claim to WA by Louis Aleno de Saint Aloüarn in 1772. Reservation is not required. Drinks at standard bar prices. For information contact: Gary Thomas – gthomas@tottle.com or 0418 920 431

BRIEF 2017 For advertising opportunities in Brief 2017 please contact: Moira McKechnie Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au


With thanks to our CPD partner

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

MARCH 2017 Membership Event Friday, 24 March 180th Anniversary Celebration of the Old Court House CPD Seminars Tuesday, 7 March Drafting family law orders and settlement offers Wednesday, 8 March The bottom line depends on business development Wednesday, 8 March Dealing with family violence: a new legal approach Monday, 13 March Outperforming through creating an excellent client experience Tuesday, 14 March Insolvency Law Reform Act Tuesday, 14 March Ethics in Industrial Relations – reflections on a career from bar to bench

Wednesday, 15 March Beware the Ides of March – the dark arts of costs Wednesday, 15 March What the Productivity Commission said about copyright Thursday, 16 March Construction law masterclass Thursday, 16 March Important cases from 2016 for commercial litigators Friday, 17 March Conscious leadership Friday, 17 March Ethics on Friday: when a client’s capacity is in doubt Monday, 20 March Sale of business agreements Tuesday, 21 March Mindfulness and managing your energy Wednesday, 22 March Estate Planning masterclass

APRIL 2017

MAY 2017

Membership Event

Membership Events

Pilates - Five week course commencing Wednesday, 12 April

Monday, 15 May Law Week Breakfast and the 2017 Attorney General’s Community Service Law Awards Tuesday, 16 May Walk for Justice

Wednesday, 22 March Advocate’s immunity Thursday, 23 March eConveyancing and electronic land contracts update Thursday, 23 March Drafting settlement offers and deeds Tuesday, 28 March Will drafting masterclass Tuesday, 28 March Voluntary criminal case conferencing Wednesday, 29 March Outperforming through creating an excellent client experience Wednesday, 29 March Risk assessment of sex offenders Thursday, 30 March The art of identifying case theories in commercial litigation Friday, 31 March Ethics on Friday: ethics begins at home

Wednesday, 17 May Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee Thursday, 18 May Law Week Cocktail Party and 2017 Lawyer of the Year Awards

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614. For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692. For all upcoming events and further information please visit lawsocietywa.asn.au 60 | BRIEF MARCH 2017

MONDAY, 15 MAY – FRIDAY, 19 MAY 2017

LAW WEEK 2017 A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY Embracing the law as part of our daily lives is important. From knowing our rights under the law, creating employment contracts, how a mediation works, through to setting up a business, having a will prepared or simply knowing what to do and where to go for legal assistance, the law plays a vital role. Each year, Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and build a shared understanding of the role of law in society. It is an excellent opportunity for the profession to promote its role in enabling an open, independent and unbiased judicial system. The Law Society of Western Australia showcases a series of events and information sessions focusing on law and justice in the community. Save the Date • Law Week Breakfast and the 2017 Attorney General’s Community Service Law Awards, Monday, 15 May 2017, Parmelia Hilton Perth • Walk for Justice, Tuesday, 16 May 2017 • Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee, Wednesday, 17 May 2017, Supreme Court of Western Australia • Law Week Cocktail Party and 2017 Lawyer of the Year Awards, Thursday, 18 May 2017, Bankwest Place, Perth Visit lawsocietywa.asn.au/law-week for more information and to register for these events. With thanks to Law Week supporters and sponsors

Lawyer of the Year Award and Community Events Sponsor

Lawyer of the Year Award Sponsor

Cocktail Evening Host Sponsor

lawsocietywa.asn.au Law Week 2017

A document management system for your clients

Share via LawConnect

Click to share Your clients view

Your firm

Documents you share by matter Share both ways

Thousands of Australian consumers use LawConnect everyday. LawConnect integrates exclusively with

Book an obligation free demonstration today! sales@leap.com.au | 1300 886 243 | leap.com.au/lawconnect

Profile for The Law Society of Western Australia

Brief March 2017  

Brief March 2017  

Profile for lswa