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VOLUME 43 | NUMBER 10 | NOVEMBER 2016

DEMUSHING THE FIRST YEAR LAW STUDENT'S MIND THE CHANGING NATURE OF LEGAL EDUCATION WHAT MAKES A GOOD LAWYER?

LEGAL EDUCATION EDITION


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Contents Volume 43 | Number 10 | November 2016

21

31 06 Edith Cowan University's New Moot Court Opened by Chief Justice Wayne Martin AC

21 Marsh v Baxter: Notice as the basis for liability for pure economic loss in negligence

08 Articled Clerkships are alive and well in WA and Leo Cussen Centre for Law provides the Training

28 Higher Legal Education in Australia: Historical perspectives and contemporary trends

10 Nominations for 2017 Council

31 What makes a good lawyer?

12 An Update on the Legal Practice Board Practice Management Course Condition

33 The changing nature of legal education

14 What is the College of Law?

36 Western Australian Land Tax: The effectiveness of the anti-avoidance provisions

16 Demushing the First Year Law Student's Mind

Disclaimer The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. Copyright Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

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

COVER Legal Education Edition

REGULARS 02

President's Report

03

Your voice at work

04

Editor's Opinion

42

Family Law Case Notes

43

Young Lawyers Case Notes

44

Law Council Update

45

Pam Sawyer

46

Professional Announcements

47

Classifieds

47

New Members

48

Events Calendar

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Catherine Graville, Melissa Koo, Jason MacLaurin, Alain Musikanth, Maureen O'Connell, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor

Vice President Hayley Cormann

Proofreaders David Garnsworthy, Ann Kay Brief is the official journal of The Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Chief Executive Officer David Price

01


President's Report Elizabeth Needham President, the Law Society of Western Australia

COUNCIL ELECTIONS

attend free of charge.

Voting will soon open to elect the Law Society's Council for 2017. Ballot papers will be transmitted electronically by CorpVote Pty Ltd; an independent company which specialises in the planning, management and delivery of secure, independent ballots and elections for all types of organisations.

October's Society Club was the first to be held at The Western Australian Club, situated at 12 St Georges Terrace, Perth. The venue offered guests magnificent, sweeping views of the Central Business District, Swan River, Kings Park and beyond.

Eligible members will receive ballot papers, together with instructions on how to vote, on Tuesday, 8 November 2016. Voting closes on Tuesday, 22 November 2016. In this edition of Brief you will find information about who has been elected unopposed to the position of President and the two Vice President positions and nominated for a position on the Law Society's Council. I encourage you to make your voice heard and cast your vote to decide who will make up the Law Society's Council in 2017. The Council has a vital role in setting the strategic direction for the Law Society and ensuring it maintains a high value membership and organisational excellence for its members. LAW SOCIETY RESPONSE TO REVIEW OF WOMEN LAWYERS OF WESTERN AUSTRALIA INC. 20TH ANNIVERSARY REVIEW OF THE 1994 REPORT OF THE CHIEF JUSTICE'S TASKFORCE ON GENDER BIAS In September 2014, Women Lawyers of Western Australia Inc. released its 20th Anniversary Review of the 1994 Report of the Chief Justice’s Taskforce on Gender Bias (known as the 2014 Gender Bias Review Report or GBRR). Chapter 2 of the GBRR deals with 'Career Paths for Women in the Legal Profession'. It contains a total of 42 recommendations. The Society has completed a review of the GBRR and will be made available on the Society's website shortly. SOCIETY CLUB I was delighted to attend the final Society Club of the year on the evening of Thursday, 20 October 2016. Society Club is the Law Society's regular social and networking event, which members can 02 | BRIEF NOVEMBER 2016

Attendees enjoyed a pleasant evening of refreshments and canapés while catching up with colleagues and friends, as well as making new connections and broadening their networks within the legal profession. Society Club was hosted by the Law Society's Indigenous Legal Issues Committee, which was formed with the purpose of encouraging, supporting and advancing Aboriginal lawyers, law graduates and law students, as well as providing advice to Council about issues of importance to Aboriginal and Torres Strait Islander peoples which in turn aids the Council in setting policy, encouraging or responding to law reform, and engaging with the wider community about these issues. Attendees heard about the important work of the Committee from its Convenor, Krista McMeeken. Thank you to our sponsors Profile Legal Recruitment and Leap Legal Software. Three lucky winners were thrilled to take home some great door prizes provided by Profile Legal Recruitment, Leap Legal Software and The Western Australian Club. The Western Australian Club has recently become a member privilege partner of the Law Society and this Society Club event was an excellent way to begin the partnership. This means that Law Society members now have the privilege of having their WA Club nomination fee waived, upon application for membership. You can find out more by visiting lawsocietywa.asn.au/member-privileges. END OF YEAR CELEBRATION Registrations are now open for the Law Society's End of Year Celebration. As the year draws to a close and with the holiday season about to start, celebrate with us in an intimate garden setting on Wednesday, 7 December 2016 from 5.30pm.

Lamont's Bishops House will provide the perfect backdrop to an evening of refreshments, delicious canapés and relaxed conversation. Entertainment will be provided by talented West Australian musicians and fantastic door prizes are on offer, courtesy of our sponsors. Join friends and colleagues at the Law Society's final event for 2016. Don't miss out – book online now at lawsocietywa. asn.au/event/end-year-celebration/. LAW SOCIETY ANNUAL GENERAL MEETING The Law Society's Annual General Meeting took place on Tuesday, 25 October 2016 at the offices of Herbert Smith Freehills, Level 36, QV1 Building, 250 St Georges Terrace, Perth. Susan Fielding, the Hon Kevin Parker AC RFD QC and Chris Zelestis QC were nominated and approved for Life Membership of the Society at the Annual General Meeting. Copies of the Annual Report and Audited Financial statements are available on the Law Society's website. CHIEF JUSTICE'S LAW WEEK YOUTH APPEAL TRUST – DONATION TO HOLYOAKE Members will recall that Holyoake, a leading provider of drug and alcohol counselling services, was chosen as the recipient for funds raised at last month's Gala Dinner, hosted by the Law Society and the Western Australian Bar Association. Attendees at the Gala Dinner were incredibly generous in their support of a silent auction for the Chief Justice's Law Week Youth Appeal Trust. Through the Trust, $15,000 was donated to Holyoake. I was delighted to present a cheque to Angie Paskevicius, Chief Executive Officer of Holyoake, before October's meeting of the Law Society's Council. The donation from the Trust will assist Holyoake in continuing its outstanding work to support young people to engage in education, employment and the community.


Your voice at work A snapshot of recent Society initiatives

SUBMISSION TO THE AUSTRALIAN LAW REFORM COMMISSION INQUIRY INTO ELDER ABUSE On 24 February 2016, the AttorneyGeneral, Senator the Hon George Brandis QC, announced that the Australian Law Reform Commission would conduct an inquiry into protecting the rights of older Australians from abuse. The Commission will take into consideration existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from abuse by formal and informal carers, supporters, representatives and others. These include, but are not limited to, regulation of: •

financial institutions;

superannuation;

social security;

living and care arrangements; and

health.

The Commission will also consider the interaction and relationship between relevant Commonwealth, State and Territory legislation, in addition to best practice laws and legal frameworks including the National Disability Insurance Scheme and the Aged Care framework. The Commission released an Issues Paper on 15 June 2016 calling for submissions by 18 August 2016. A request for an extension of time was sought and granted until 26 August 2016. The Law Society's submission to the inquiry was drafted following consideration by the Law Society's Elder Law and Succession Committee. The submission outlined a number of 'real-life' examples of elder abuse that have occurred in Western Australia. The Australian Law Reform Commission is scheduled to release a Discussion Paper on 12 December 2016, with further submissions on the

Discussion Paper being open until 27 February 2017. The Commission's Final Report is to be delivered to the Attorney-General by May 2017. LETTER TO DIRECTOR GENERAL OF THE DEPARTMENT OF HEALTH – COMPENSABLE PATIENTS AND MEDICAL CLAIMS BY PUBLIC HOSPITALS On 20 October 2015, the Law Society's Council approved a letter to the Hon Dr Kim Hames MLA, Minister for Health, in relation to medical claims against compensable patients by public hospitals. Public hospital fees for compensable and motor vehicle third party insurance patients in Western Australia are regulated by the Department of Health under the Hospitals and Health Services Act 1927. The Hospitals (Services Charges for Compensable Patients) Amendment Determination (No.2) 2014 sets out the fees that can be charged by hospitals for patients who are due to receive compensation settlements. Members of the Law Society's Personal Injuries and Workers' Compensation Committee had expressed concern that: •

the Department of Health had not implemented any transparent or proper procedure for the recovery of monies under the Determination; the current manner of recovering monies from compensable patients who have received treatment from public hospitals may give rise to inequities between patients; and the mechanism in place may lead to avoidant behaviours (with failure to notify of potential compensation) ultimately reducing the revenue recovered by the Health Corporate Network.

On 17 December 2015, the Minister responded and advised that the

Department of Health was, at the time, rewriting the Act and that the issues raised by the Law Society would be considered as part of the process. The Health Services Act 2016 came into operation on 1 July 2016. It appears that the new legislation does not address the concerns raised by the Law Society. The current Minister for Health, the Hon John Day MLA, has advised that the Law Society's concerns will now be addressed in new regulations. The Law Society has again written to the Minister to ensure these issues are adequately addressed before the regulations are finalised. LAW SOCIETY BRIEFING PAPERS ON MENTALLY IMPAIRED ACCUSED AND ISSUES AFFECTING INCARCERATION RATES OF ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN Members may recall that the Law Society has developed a series of Briefing Papers which encapsulate its policy positions on a number of important legal and community issues, including, but not limited to: •

the Death Penalty;

Family Violence;

Diversity and Equality;

Imprisonment of Fine Defaulters;

Legal Assistance Funding;

Mandatory Sentencing; and

Deaths in Custody and Incarceration of Aboriginal and Torres Strait Islander Peoples.

The Law Society's Council has approved two further Briefing Papers on Mentally Impaired Accused and Issues Affecting Incarceration Rates of Aboriginal and Torres Strait Islander Children. The Briefing Papers can be viewed in full at lawsocietywa.asn.au/ submissions.

03


Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This month's Brief has a focus upon legal education, which is an important and pertinent topic in the current legal environment. Regrettably, to many practitioners, a focus upon legal education sometimes only occurs on the last day (or evening) of March, when frantically seeking out an internet course that provides much needed and missing CPD points. Recent world events also give rise to vexing questions about legal education, such as whether you can get an extension of time to comply with the annual CPD requirements because the Ecuadorian government cut off your internet, at the request of the US State Department, in the middle of a 10.30pm online CPD course. The current environment also raises serious questions such as: "are we producing too many graduates?", "is law becoming the new arts degree?", "how do you best teach a profession that depends so heavily upon the actual experience of practice?", "how do we use the best, and avoid the worst, aspects of the internet/ modern technology?" and "hey – where's the trigger warning for this course?" The gap between the number of each year's law graduates and the number of employment opportunities is a real concern, and one unlikely to be resolved in the short term. It may be going too far, however, to say that a law degree is becoming the next arts degree. If this is in fact the case, it is very unfair, given that law students have to take courses such as trusts and equity, rather than having the luxury of taking courses whose titles contain words such as "Post-modernism", "Kanye" or "Game of Thrones".1 Formal legal education was not always a pre-requisite for success in the law. Abraham Lincoln, whose wit, home-spun practical thinking, expression and powers of persuasion as a lawyer are legendary, had very little formal education and did not attend college (it was not required, at the time, to practice law in Illinois). Lincoln's wit did not fail him even on this subject. In 1858, in response to a questionnaire sent to former members 04 | BRIEF NOVEMBER 2016

of Congress asking, inter alia, about their education, Lincoln described his education as: "defective". There is a trend in higher education, particularly overseas, to take the notion of a "trigger warning" or a "safe space" well beyond the (serious and deserving) initial conception underlying those concepts2 so as to involve objecting to courses that contain confronting, disturbing or just plain controversial material or issues. There might be a market in producing edited and redacted copies of the law reports to omit such disturbing material, so as to not offend people who are, for instance, squeamish and nauseated about the prospect of finding a snail in their beverages. As to the traditional rigors of legal education, often involving uncomfortable moments and harsh truths that might require, in today's higher education environment, a trigger warning, I am pleased to see that Kenneth Yin's article in this edition of Brief references the great 1973 film The Paper Chase. While there are many courtroom dramas and films about the practice of the law, The Paper Chase was one of the few to involve a drama about law school itself (trigger warning: the lead male actor's surname is 'Bottoms'). The film touched upon the torments in learning the law in a way that the only other prominent movie about law school, Reece Witherspoon's Legally Blonde, didn't really adequately address. The brilliantly caustic, enigmatic (and fictitious) Harvard contract law lecturer in The Paper Chase, Charles W. Kingsfield Jr, portrayed by John Houseman, might struggle, in today's environment, to avoid being the subject of trigger warnings, student complaints, lawsuits, or being shamed on a Facebook hate-site, due to his cutting comments to students in lectures such as: "Mr. Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer" (trigger warning: this quote contains an offensive suggestion regarding the gender-specific parental status of who a young male should call to

deliver dispiriting news). Houseman's character was apparently based upon real-life Harvard lecturer Edward H. 'Bull' Warren who was reputedly the first to greet an incoming Harvard law school class with the uplifting words: "Look to your left, look to your right, because one of you won't be here by the end of the year." The Paper Chase also managed to weave in a romantic sub-plot, with Lindsay Wagner (yes, the bionic woman) delivering the memorable and devastating line: "I know there's a lot of things to say, but it really isn't worth saying them, so please just get out" which, uncannily, could just as well pass as a fair summary of the sort of sentiment expressed from the bench in a Court-appearance gone bad. Brief thanks all its contributors to this month's edition, and encourages anyone interested in contributing to Brief to please submit items and articles, which are always appreciated.

Last month's article, Disclosure of mental illness and implications for your practising certificate, Libby Fulham, Legal Practice Board, has received interest from our readers and as such is reproduced in its entirety on the Health and Wellbeing section of the Society's website.

NOTES 1.

Special mention should also be given to the University of Staffordshire, which has a course in "David Beckham Studies", which actually sounds more like the most unlikely front-page headline in The Sun newspaper.

2.

Which initially concerned the need to forewarn, for instance, Vietnam War veterans or victims of serious crimes – and particularly sexual crimes – of the potential for material to cause a re-visitation of traumatic episodes.

Brief welcomes your thoughts and feedback. Send all letters to the editor to brief@lawsocietywa.asn.au


Latest Opportunities – November 2016 As 2016 draws to a close, activity in the Perth legal market remains steady, with many employers still looking to fill key positions before the end of the year, and many candidates looking to secure new positions now, for a New Year start. We currently have a number of exceptional job opportunities and quality legal candidates 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 November.

Insurance Lawyer

Commercial Litigator

3-4 years PAE

2-5 years PAE

Well positioned for growth, this premier firm has an immediate career progression opportunity in their thriving local Insurance practice. You will specialise in complex professional indemnity claims for clients in resources, engineering & construction and financial services sectors; general liability matters and will advise on legal and insurance risks related to major projects.

Led by highly respected partners, this market leading Dispute Resolution team has an exciting growth opportunity for a talented Commercial Litigator to join their successful practice.

As part of a close knit, growing team, this rare role will give you a high level of autonomy for your level, regular client contact and involvement in BD activities. Offering a consistent workflow, direct interaction with your supervising partner, ongoing professional development and training is strongly encouraged.

Acting for a diverse range of local, national and global clients, you’ll gain exposure to a varied range of complex commercial litigation matters, including corporate, contractual, insolvency, property, mining and project based disputes. Supporting an established team with court document and advice preparation, research tasks and briefing counsel on larger matters, you will also have carriage of smaller files and opportunity to do lower level appearance work.

You’ll require proven expertise in PI/liability with a specialist insurance team/firm, 3-4 years PAE in the area and solid academics. Excellent time to join a growing team, well placed for growth.

Candidates with 2-3 years PAE, through to sub-SA level will be considered for this position. Solid commercial litigation experience with a top-tier team, strong academics, willingness to work as part of a team and the drive and ambition to progress your career will be crucial to your success.

Property & Finance Lawyer

Workplace Relations Lawyer

2-3 years PAE

2-5 years PAE

This top tier practice offers true international work, with Perth being the hub for all the firm’s key projects and transactions happening within the region. The team is looking to strengthen its capabilities with the addition of an exceptional junior lawyer.

This prominent firm has emerged as one of Perth’s most sought after practices. An employment/IR specialist, with solid advocacy experience is required to support an established base of market leading employers within resources, construction and other key industry sectors.

As part of a small team based locally, you will be at the coalface of real cross border finance work and given the autonomy to work across every aspect of project, corporate and property finance transactions and commercial property projects. You’ll work under the direct guidance of awarded partners who are genuinely committed to the development of their team and extremely personable in approach.

The primary focus of your role will be to advise on and manage any dispute matters, as well as prepare employment contracts, policies, enterprise agreements and other commercial documents. You will also have active involvement in client training, presentations and networking activities as you assist the lead partner with the growth and development of this practice.

Existing exposure to these areas would be well regarded, although candidates with at least 2 years with a top tier firm, outstanding academics, a demonstrated history of strong performance and genuine desire to specialise in front-end project work will also be considered.

Within a smaller, cohesive team structure, prime opportunities for progression exist and quality candidates with a minimum of 2-3 years PAE, through to SA level will be considered for this position. You will be guaranteed direct client contact, mentoring and collaboration with a talented partner and opportunity to manage your own matters.

Stacey Back Director p

m

e

www.

.au


Edith Cowan University's New Moot Court Opened by Chief Justice Wayne Martin AC 1.

2.

3.

4.

Law students at Edith Cowan University's Joondalup campus now have access to Western Australia's newest moot court. On 7 September, Vice Chancellor Steve Chapman CBE welcomed the Hon Wayne Martin AC who officially opened this state of the art facility. The University's moot court is supported by sophisticated IT systems, including remote video conferencing capability, recording and voice-activated cameras. University staff, members of the profession (including alumni), industry and students enjoyed an address by his Honour on the history of mooting and the contributions of technology to the courtroom. "It is vitally important for students who wish to practise law to have the opportunity to gain experience in the use of those systems in a facility like the new moot court," said his Honour.

1. 2. 3. 4.

The ECU moot court has been designed to simulate a real courtroom. Unlike traditional mooting, which has focussed on appellate or arbitration proceedings, Associate Dean of Law Rupert Johnson highlighted the authentic nature of the learning space that the University's moot court provided, which included a witness stand and jury box. Third year law students are already using this facility to develop skills in witness examinations. It is not only campus-based students who will access the new moot court; Mr Johnson said that students enrolled in WA's only accredited online law degree will also utilise the online facilities as part of their law studies. Mr Johnson noted that a moot court is a well-established marker of a maturing law programme and will also provide opportunities for engagement with the broader northern suburbs legal community.

Law students are also delighted, with Director of Edith Cowan University Student Law Society competitions, Dino Todorov, saying the moot court would be hugely beneficial for law students, with the facilities providing a novel and integrated method of advocacy training. ECU law students have already been active in mooting competitions in Vienna, Hong Kong and India, winning prizes in the 2015 and 2016 Young International Mediation Competition in Hong Kong. Concetta Macri this year won the Colin J Wall Award for best mediator at this competition, following in the footsteps of ECU law student Dave Endersby who won this award in 2015.

Lynn Makokha, President ECU Student Law Society and the Hon Wayne Martin AC, Chief Justice of Western Australia. The Hon Wayne Martin AC, Chief Justice of Western Australia; Steve Chapman CBE, Vice Chancellor and Dr Hendy Cowan AO, Chancellor, Edith Cowan University. Chief Justice Wayne Martin delivering his address. Rupert Johnson, Associate Dean of Law, Edith Cowan University and Mark Borrello, Borrello Graham Lawyers.

06 | BRIEF NOVEMBER 2016


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Articled Clerkships are alive and well in WA and Leo Cussen Centre for Law provides the Training Linda Baxter Director, Continuing Professional Development at Leo Cussen Centre for Law

Some practitioners are confused about the status of Articled Clerkships and may think that a Practical Legal Training (PLT) Course is the only permissible option for a law graduate to get admitted to practise in WA. But that is not the case. Articled Clerkships are still recognised by the Legal Practice Board in the same way they always have been. The only change is that Leo Cussen Centre for Law (Leo Cussen) runs the Articled Clerks' Training (ATP) Program instead of the Legal Practice Board. Employers are still choosing to recruit Articled Clerks (AC) because some employers prefer to provide customised and individual training, specific to the employer's legal practice needs, over the 12 months of Articles. Some employers and graduates feel more comfortable with the Articles system. Each year since 2011, the Chief Justice of Western Australia has opened our ATP in Perth and has frequently espoused the benefits of the Articles system as a pathway to admission to practise. Leo Cussen has run the ATP for the last six years and is the only provider permitted by the Legal Practice Board to provide the training. Leo Cussen developed, a new ATP program which addressed the regulatory requirements but with new materials and instructors with approval of the Legal Practice Board. The AC's also undergo advocacy training during the Program and whilst usually nervous and unsure beforehand they are elated afterwards as it

08 | BRIEF NOVEMBER 2016

increases their confidence and propels them into a higher level of competence. It is very satisfying to witness the AC's progress during the Program and see their transformation over a relatively short period of time. They tell us how much they have gained from the Program and have formed long lasting networks in the profession both with the instructors and their fellow AC's. The Program is completely practical, run over three weeks, with an optional fourth week, and covers all eight compulsory Admission topics such as; Lawyer's Skills, Property Law Practice, Commercial & Corporate Practice, Civil Litigation and many more. The topics are all delivered face-to-face in an interactive workshop style at Perth's QV1 building, with training and assessment taking place during topic delivery. This means that instructors work closely with AC's to improve and develop their knowledge and skills 'up close' and can work on any areas that need further

development. There are no exams or ongoing training component and after the three weeks of intensive training the AC's are ready to hit the ground running in their employment. Leo Cussen has played an important part in the Australian legal training landscape since 1972 and is recognised for its Practical Legal Training Course and our Victorian Traineeships Program which is roughly the equivalent of the Articled Clerks' Training Program. The Articled Clerks' Training Program was added to our training suite six years ago. Competition between PLT providers is very important as a means of continuous improvement and so our entering the PLT market in WA in 2017 is positive for law graduates and the profession. For further information on our Articled Clerks' Training Program please contact lbaxter@leocussen.edu.au and for more information on our PLT please contact ssouthgate@leocussen.edu.au.


Nominations for 2017 Council Elected Unopposed – for a one year term President

Vice President

Vice President

Alain Musikanth

Hayley Cormann

Greg McIntyre SC

I am a barrister at Francis Burt Chambers practising in commercial litigation and Senior Vice President of the Law Society.

I seek re-election to Council as a Vice President for 2017. My experience in commercial and professional negligence litigation at Clayton Utz for over a decade and on Council for five years, including two of those on Executive as Treasurer and subsequently Vice President, provide a solid foundation for my continued contribution to our profession. I also serve on the Professional Indemnity Insurance Management Committee and have the primary care of a young family.  Among other things, my professional and personal roles and responsibilities put me in a unique position to bring to the legal profession and our broader community, through Council, a relevant and important breadth of experience, diversity and pragmatism.  My key priorities include continuing to help ensure women in our profession have the best possible opportunities to succeed, as well as to work towards achieving the benefits available through a national legal services market underpinned by a uniform regulatory system. 

Law Society of Western Australia • Council member 2009-16 • Convenor, Human Rights and Equal Opportunity Committee • Convenor, Access to Justice Committee • Convenor, Administrative, Constitutional and Migration Law Committee • Chair, Reconciliation Action Plan Working Group • Member, Aboriginal Incarceration and Justice Reinvestment Working Group • Member, WA Legal Aid Campaign Local Organising Committee • Member, Senior Advisors Panel • Mentor, Mentoring programme

Having served on Council and various Society committees over the years, I hope to continue contributing to the work of the Society and to its capacity to serve as an effective advocate for the benefit of all members and the profession as a whole.

Law Council of Australia • Chair, Australian Environment and Planning Law Group • Member, Australian Human Rights Committee • Member, Access to Justice Committee Legal Practice Board • Member, Professional Affairs Committee

Ordinary Members - Six to be elected for a two year term. One to be elected for a one year term. Ordinary Member

Ordinary Member

Ordinary Member

Marshall McKenna

Ray Christensen

Paula Wilkinson

I currently serve on several Law Society Committees as well as Council and would like to continue to contribute in those capacities. I wish to continue my commitment especially in regard to the overall wellbeing of the profession in the face of technological and other challenges to the way in which we practice, the placement of graduate lawyers and in terms of the stress and other factors affecting the mental health of all practitioners.

I have previously served as a Junior Council Member of the Law Society and am currently a Member of the Law Society’s Courts Committee.

I am an Accredited Family Law Specialist (NSW), a Master of Applied Law (Family Law), an adjunct lecturer for the NSW College of Law teaching the Faculty property units for the L.LM in WA, a member of the Content Committee for the NSW College of Law and a founding director of Kim Wilson & Co. I am a member of the Law Society's Accreditation Committee, a past member of the WA Law Council (1999-2001) and of the FLPA Council. I joined the Society's Mentoring programme in 2015. My areas of particular interest include policy development and law reform, CPD programmes, young lawyers, and the continuing development of member services. I believe I could make a contribution in representing the interests of members as a result of my years in practice including 18 years in my own firm, my involvement on committees and in legal education.

Ordinary Member

Ordinary Member

Ordinary Member

Brahma Dharmananda SC

Catherine Fletcher

Ante Golem

Brahma Dharmananda SC practices as a barrister. He was a partner of Mallesons Stephen Jaques. At Mallesons, Brahma was extensively involved in management, including a managing partner, head of the litigation group, and a member of the firms’ Board. Brahma served on the Law Society Council in 2014-15. Brahma wishes to make a further contribution to the Society.

I seek re-election as an Ordinary Member of the Council of the Law Society. During my current term I have taken a keen interest in social justice, diversity and criminal justice issues. As Deputy Convenor of the Joint Law Society and Women Lawyers Committee I am assisting with the implementation of various recommendations of the 2014 Women Lawyers of WA Gender Bias Report and the Law Council of Australia’s NARS Report which deal with issues affecting the career paths for women in the law and the appointment of women to senior and judicial positions. I want to continue working on retention and work/life balance issues for lawyers and the availability of flexible working positions for judicial officers. I have worked in Government, academia and the community legal sector and currently work at the Children’s Court of WA. I am also a member of the Advisory Board of the Notre Dame Law School.

I am a partner of Herbert Smith Freehills, in the Disputes team. I seek election as Ordinary Member of the Council. I have a longstanding commitment to community and pro bono work and am presently a member of the Sir Ronald Wilson Lecture Committee. If elected to the Council I would:

10 | BRIEF NOVEMBER 2016

I am focussed on ensuring that the high standards of our profession are upheld and that any Court-related issues are heard and addressed by the Society. I am a Senior Associate of Zilkens Lawyers. I practice in all fields of commercial law and civil litigation.

listen and consult with members of the Society as to their areas of interest and concern;

promote the interests of the Society’s members at governmental and regulatory levels; and

support and build on the work the Society does in engaging with the broader community and the various initiatives of Law Access.


Ordinary Member

Ordinary Member

Ordinary Member

Stefan Sudweeks

Darren Renton

Cory Fogliani

I am a partner at Jackson McDonald and practice as a commercial litigator. In the past, I have served on a court subcommittee of the Law Society and an ad hoc committee to consider legislative change.

My name is Cory Fogliani. I am a lawyer at W.G. McNally Jones Staff. I have nominated for election on to the Law Society’s Council.

I am aware of the challenges we’re experiencing in our profession and believe I’m now in a position to add value to strengthen the legal profession.

I am a member of the independent Bar practicing at Equus Chambers primarily in the area of criminal law and have over 20 years’ experience. I have been a member of the Law Society since 1993 and have previously served on the Criminal Law Committee. I am currently a member of the WA Bar Association’s Council, and have been since 2015 as well as being the present Chair of the Professional Standards Committee of the Anglican Diocese of Perth, a position I have held since July 2015. I am interested in serving on Council to make a contribution towards the future direction of the profession and to ensure that members continue to receive excellence from the Society.

Ordinary Member

Ordinary Member

Elisabeth Edwards

Nicholas van Hattem

I am a ten year experienced construction lawyer. After commencing my career at Allens Arthur Robinson, where I progressed to Senior Associate in the Projects team, I moved in-house to CPB Contractors (formerly Leighton Contractors) to set up the legal function for the WA Branch. I am currently Regional Legal Counsel at Multiplex Constructions and am responsible for delivering all legal services to the WA construction business. I have been a member of the Law Society since commencing my legal career and am currently the Deputy Convener of the In-house/Government Lawyers Committee. I have previously served on the Clear Writing and Law in Asia Committees. My private practice and in-house sector experience gives me insight into the issues and pressures facing the WA profession. If elected to Council, I will work to promote the needs of in-house and government legal practitioners and raise their profile within the Society.

I am a solicitor at the State Solicitor’s Office. I seek election to particularly support the Law Society’s efforts to support collegiality in the profession, access to justice, and providing guidance to law graduates and new practitioners. Since joining the Society in 2009, I have previously served on the Society’s Criminal Law, Access to Justice and Young Lawyers Committees, and four years on Council. I am also the Founding Convenor of the Piddington Society and Director of the Piddington Justice Project.

I seek election to Council to give back to the profession and to make a positive contribution to society using my 25 years experience in the legal profession and my experience gained in my executive roles at my firm.

The Society plays an important role within the profession and the community. For many of us, the Society is the primary thread that links the individual members of the profession together. That thread provides each of us with opportunities to network with other members of the profession that we might not otherwise meet. The Society also plays a vital role in connecting members of the broader community, who are in need of legal assistance, with members of the profession. I am seeking your vote in the Council elections. If I am elected, I will be a strong advocate within the Council for strengthening the role that the Society plays in connecting the members of the Society with each other, and with the broader community.

Junior Members - Three to be elected for a one year term. Junior Member

Junior Member

Junior Member

Cory Fogliani

Jodie Moffat

Deblina Mittra

My name is Cory Fogliani. I am a lawyer at W.G. McNally Jones Staff. I have nominated for election on to the Law Society’s Council.

One year on the Law Society Council has whetted my appetite for Council work, and I would like to continue to contribute to both the practical operations and the achievements of the Society by returning for a second year as a Junior Member. I believe my ongoing career experiences as a mature aged junior practitioner with a full family home life brings a slightly point of view to the Council table, which benefits all.

I am a young lawyer working at Slater & Gordon and I was admitted to practice in December 2015. I hope to represent other junior members of the profession in bringing their concerns and priorities to the attention of the Council. I graduated in 2014, unsure of whether I wanted to enter practice. Luckily, I began work soon afterwards as a graduate in Family Law and I have loved every minute of it since. I am passionate about engaging in an ongoing, productive conversation with the community about how lawyers can provide access to justice to the broader public. I recently pioneered an association with a community legal centre and our firm to provide family law advice, their most requested area of pro bono work. I am excited to see this develop into a lifelong partnership and I hope to bring my enthusiasm and new ideas to the Council.

The Society plays an important role within the profession and the community. For many of us, the Society is the primary thread that links the individual members of the profession together. That thread provides each of us with opportunities to network with other members of the profession that we might not otherwise meet. The Society also plays a vital role in connecting members of the broader community, who are in need of legal assistance, with members of the profession. I am seeking your vote in the Council elections. If I am elected, I will be a strong advocate within the Council for strengthening the role that the Society plays in connecting the members of the Society with each other, and with the broader community.

Junior Member

Junior Member

Noella Silby

Daniel Coster

Having recently been through the transition of graduating from law school at the University of Notre Dame, and being admitted to practice in October 2016, I know what a daunting process this can be. I am interested in determining how the legal profession can improve on preparing young people for practice and the early stages of their career. For example, ways in which the profession can work with law schools to implement practical units or workshops which give an insight into life in practice. Prior to my admission, I have had two years’ experience working as a paralegal in my current workplace – a specialist employment law firm – which has enabled me to set the foundations for a career in Perth. As a junior member on the Law Society Council, my experience and interests will enable me to be a voice for newly admitted practitioners, law graduates and students.

I have been a solicitor at Tottle Partners since my admission in November 2012, working in personal injuries (primarily motor vehicle accidents and medical negligence). Having worked under the guidance of supportive and understanding partners, I have gained a deep appreciation of the benefits of a collegial and mentoring environment on professional development. I have been active in mentoring law students and graduates since commencing practice, having been a student mentor for the Young Lawyers Committee and also with ECU’s mentoring programme. I have been a moot judge for various competitions and also a guest presenter with the Francis Burt ‘Lawyers Visits to Schools Network’. If elected, I will advocate for law graduates and junior lawyers starting out in the profession. In particular, I have an interest in promoting awareness of mental health issues and the need to foster a supportive environment for junior lawyers to develop into future leaders.

Have your say

Elections will be held to fill the seven Ordinary member vacancies and three Junior member vacancies. Ballot papers will be electronically transmitted by CorpVote Independent Voting Services to members eligible to vote on 8 November 2016. The ballot will close on the election date of 22 November 2016.

11


An Update on the Legal Practice Board Practice Management Course Condition Joshua Thomson SC Convenor, Professional Development Committee, Legal Practice Board

From 1 July 2016 all practitioners who are not Principals of a law practice will have the practice management course condition (PMC Condition) imposed on their local practising certificate. Since the inception of the PMC Condition the Legal Practice Board (Board) has been managing and considering applications by practitioners for the revocation or variation of the condition. The Board's Professional Development Committee (PDC) would like to provide information and clarification to the profession on a range of issues that may arise in the administration of the PMC Condition. GRAND-PARENTED PRINCIPALS CHANGING STATUS A Principal of a law practice who has been grand-parented, and hence does not have the PMC Condition imposed on their practising certificate, may cease to act in the capacity as a Principal for extended periods of time. If they then choose to re-enter practice as a Principal and do not lodge a Form 11 (Notice of Intention to Commence as a Principal) the Board may not become aware of that change of status until and/or unless the change was disclosed in the practitioner's practising certificate (PC) renewal application. In those circumstances, when the PDC becomes aware of the practitioner's change of status and is of the view that the PMC Condition (in part or whole) should be imposed (due to prolonged absence from Principal status), the Board can: 1. renew the certificate with the PMC Condition imposed: section 47(1)(a) of the Legal Profession Act 2008 (the Act); or 2. if during the certificate's currency, seek consent from the practitioner to impose the PMC Condition (see section 47(3)(i) of the Act). In the absence of that consent, the Board will give notice to the practitioner of its intention to impose a condition under the provisions of sections 52 and 56 of the Act and provide 12 | BRIEF NOVEMBER 2016

opportunity for submissions from the practitioner. In most such cases a varied form of the PMC Condition allowing the practitioner to continue in the role as Principal, but requiring completion of the PMC within a stipulated time, will be used. It should be noted that rule 6 of the Legal Profession Rules 2009 (the Rules) requires practitioners to notify the Board of a change of status, and rule 18C of the Rules requires practitioners to advise the Board, in the approved Form (Form 11), of their intention to become a Principal. These rules apply despite decisions made in regard to the PMC Condition status of practitioners. The PDC takes a general position that if previous Principals have been out of Principal status for a period of 5 years or more, then their individual suitability to not have the PMC Condition imposed will be considered; and these matters will be dealt with on an individual basis and as they arise, either by delegated authority by the Executive Director or Deputy Executive Director of the Board, or by referral to the PMC for consideration. OTHER PRINCIPALS CHANGING STATUS For practitioners who have not been grand-parented but who have had the PMC Condition removed after either completing the PMC or demonstrating experience justifying revocation or variation, the PDC also takes the general position that following a prolonged absence from Principal status, individual suitability to not have the PMC Condition imposed will be considered. These matters will be dealt with on an individual basis and as they arise, either by delegated authority by the Executive Director or Deputy Executive Director of the Board, or by referral to the PDC for consideration. GRAND-PARENTED BARRISTERS MOVING TO THE AMALGAM When a grand-parented Barrister decides to go, or return, to the amalgam they will be doing so without the PMC

Condition imposed on their then current local practising certificate. In those circumstances, when the PDC becomes aware of the change of status and if it is of the view that the PMC (in part or whole) should be imposed, as set out above, the Board can renew the certificate with the PMC Condition imposed or seek consent from the practitioner to impose the PMC Condition. Again, in the absence of that consent, the Board will give notice to the practitioner of its intention to impose a condition under the provisions of section 52 and 56 of the Act and provide opportunity for submissions from the practitioner. The circumstances of grand-parented barristers going to, or returning to, the amalgam may vary greatly, from those who have previously had no practice management experience, to others who have had considerable experience over many years. As there is currently no PMC Condition on the practising certificates of grand-parented barristers, the imposition of a PMC Condition would have to be done at renewal; by consent or by giving notice as set out above. These matters will be dealt with on an individual basis and as they arise, either by delegated authority by the Executive Director or Deputy Executive Director of the Board, or by referral to the PDC for consideration. OTHER BARRISTERS MOVING TO THE AMALGAM For barristers who have not been grandparented but who have had the PMC Condition varied to permit them to practise as a barrister without completing the PMC, the PMC Condition continues to apply and would require completion of the PMC prior to commencing as a Principal in the amalgam. APPOINTMENT OF EXTERNAL INTERVENERS In certain circumstances, the Board's Professional Affairs Committee (PAC) has (and will continue to) see fit to appoint practitioners who are not Principals as,


amongst other things, a Manager under the provisions of Part 14 of the Act to firms that are under PAC scrutiny and management. Such appointees may have the PMC Condition imposed on their practising certificate. Clearly, the PAC are of the view that practitioners appointed as Managers have the requisite skills to act in the capacity of a Principal and to manage the firms under which they accept the appointment. However, those practitioners are not intending to commence as a Principal in their own right and hence will not, as a matter of course, lodge a Form 11 (Notice of Intention to Commence as a Principal) or Form 12 (Request to Revoke the Condition on a Local Practising Certificate). Appointed Managers in these circumstances are encouraged to seek revocation or variation of the PMC Condition. In circumstances where the management appointment is on a restricted or very short term basis, the Manager is encouraged to seek a variation to the PMC Condition. Managers appointed by the Board are prima facie seen to be able to act in the capacity of a Principal. In such circumstances, and upon application, the appropriate revocation or variation of the PMC Condition will be granted. THE SITUATION FOR LOCUMS When a firm wishes to appoint a locum for a stipulated period of time, that locum practitioner may at that time have the PMC Condition imposed on their practising certificate. Once again, those practitioners are not intending to commence as a Principal in their own right and hence will not, as a matter of course, lodge a Form 11 (Notice of Intention to Commence as a Principal) or Form 12 (Request to Revoke the Condition on a Local Practising Certificate). It may be that the locum will not be taking on any of the responsibilities associated with being a Principal, and will be acting as an employed practitioner and in contact with the true Principal during the absence. In these circumstances, a simple notification is required as the locum's status has no implication on the PMC Condition. However, if acting in the capacity of a Principal, locums should seek revocation or variation of the PMC Condition. In circumstances where the locum arrangement is on a restricted or very short term basis, the locum should seek a variation to the PMC Condition.

PRACTITIONERS AS 'ACTING PRINCIPAL' Circumstances may arise where a practitioner with the PMC Condition imposed on his or her practising certificate is asked to be an 'Acting Principal' during a period of absence (for example on leave) of their Principal. Again, these practitioners are not intending to commence as a Principal in their own right and hence will not, as a matter of course, lodge a Form 11 (Notice of Intention to Commence as a Principal) or Form 12 (Request to Revoke the Condition on a Local Practising Certificate). As with some locums, it may be that the 'Acting Principal' will not truly be taking on any of the responsibilities associated with being a Principal, and will be acting as an employed practitioner and in contact with the true Principal during the absence. In these circumstances, a simple notification is required as the practitioner's status has no implication on the PMC Condition. However, true 'Acting Principals' should either comply with the PMC Condition, or seek revocation or variation of the PMC Condition. In circumstances where the 'Acting Principal' arrangement is on a restricted or very short term basis, the practitioner should seek a variation to the PMC Condition.

which is appropriate for their working situation, but who may wish to act as a sole practitioner for limited matters outside their normal working position. In these circumstances the practitioner is effectively acting as a sole practitioner and Principal, but may not be intending to practise solely in that capacity and hence will not, as a matter of course, lodge a Form 11 (Notice of Intention to Commence as a Principal) or Form 12 (Request to Revoke the Condition on a Local Practising Certificate). In these circumstances, practitioners with a second place of practice need to be aware that the PMC Condition should be complied with and they should either comply with the condition, or seek revocation or variation of the PMC Condition. In circumstances where the second place of practice arrangement is on a restricted or very short term basis, the practitioner should seek a variation to the PMC Condition. Practitioners with a second place of practice need to comply with the PMC Condition and seek a revocation or variation of the PMC Condition demonstrating their capability to act as a Principal. IN SUMMARY: -

if previous Principals have been out of Principal status for a period of 5 years or more then their individual suitability to not have the PMC Condition imposed will be considered on an individual basis and as they arise;

-

when barristers are going to or are returning to the amalgam they will either have the PMC Condition imposed on their practising certificate or have the PMC Condition revoked based on their demonstrated capability to act as a Principal; and

-

practitioners with the PMC Condition imposed and who seek to take a position that would equate to Principal status (whether as external interveners, locums or as a second place of practice) need to comply with the PMC Condition, and should seek a revocation or variation of the PMC Condition and demonstrate their capability to act as a Principal.

As a general principle, 'Acting Principals' need to comply with the PMC Condition and should seek a revocation or variation of the PMC Condition and demonstrate their capability to act as a Principal. Another example is where the Board may, if it thinks it appropriate, appoint a practitioner (who might be an employee of an incorporated legal practice, or otherwise subject to the PMC Condition) to exercise the functions of the legal practitioner director (as Principal) in the absence of the existing legal practitioner director. In this situation, as with external interveners, the Board would not make such an appointment if the practitioner did not have the requisite skills or experience to practise as a Principal. Appointed practitioners in these circumstances are encouraged to seek revocation or variation of the PMC Condition. In circumstances where the management appointment is on a restricted or very short term basis, the appointee is encouraged to seek a variation to the PMC Condition. PRACTITIONERS WITH A SECOND PLACE OF PRACTICE Circumstances may arise where a practitioner may have the PMC Condition imposed on their practising certificate

Practitioners who have enquires regarding the operation and administration of the PMC Condition on local practising certificates should see the Legal Practice Board Website (www. lpbwa.org.au/Legal-Profession/PracticeManagement), or contact the Board at general@lpbwa.com or on (08) 6211 3600. 13


What is the College of Law?

The College was created in 1974 when articles of clerkship was abolished in New South Wales in favour of a structured practical legal training course provided by the College. The College of Law is the school of professional practice for lawyers. We deliver innovative and practice-focused legal education and training to enhance the careers of practising professionals across Australasia and its region. Since the College's establishment it has grown into a national organisation, providing pre and post-admission legal education.

14 | BRIEF NOVEMBER 2016

IS THE COLLEGE A PRIVATE COMPANY AND WHO ARE ITS SHAREHOLDERS? The College of Law Ltd is a not-for-profit company limited by guarantee and is registered with the Australian Charities and Not for Profits Commission. The College has no shareholders and doesn't pay a dividend. The College exists to provide legal education to lawyers. Income obtained from providing that education is reinvested by the College in legal education for the legal profession. IS THE COLLEGE A UNIVERSITY? The College is a registered Higher Education Provider (HEP). The Commonwealth higher education regulator, Tertiary Education Quality and Standards Agency (TEQSA), recently awarded the College Self Accrediting Authority (SAA), reflecting

an achievement of academic standards, governance and quality similar to that expected of a university. WHAT INVOLVEMENT DOES THE COLLEGE HAVE IN WESTERN AUSTRALIA? The College seeks to become an integral part of the local profession in each jurisdiction in which it provides courses. That commitment means that instead of providing a one size fits all 'national' PLT course, the College provides jurisdiction specific practical legal training courses. It does so in New South Wales, Queensland, South Australia, Victoria, Western Australia, New Zealand and most recently the Northern Territory. That also means the College seeks accreditation of its courses from local regulators (such as the Legal Practice Board in Western Australia).


In Western Australia, the College's campus is located opposite the Commonwealth Law Courts, in the Durack Centre, on the corner of Victoria Avenue and Adelaide Terrace. The College commenced a Western Australian Legal Practice Course in 2009 and since then approximately 2,000 entry-level lawyers have graduated from that programme.

"The legal profession is on the cusp of unprecedented change. The introduction of fixed fees, outsourcing of legal work, intelligent systems and the internationalisation of Australian legal practice are beginning to impact on the legal market ... "

WHAT DO COLLEGE PLT GRADUATES LEARN?

complete an oral assessment one-onone with an assessor.

College graduates undertake a structured Practical Legal Training (PLT) programme (15 weeks full-time or 30 weeks part-time) to develop their practical skills and proficiency in the actual day-to-day practice of law. The curriculum is determined by the National Competency Standards for Entry Level Lawyers, developed by the Australasian Professional Legal Education Council (APLEC) and the Law Admissions Consultative Council (LACC). These bodies have stipulated the subjects required to be undertaken and the electives offered in all PLT programmes and are not at the discretion of PLT providers. Students in the College's PLT programme undertake a series of practical, task-based activities and then

DOES THE COLLEGE ONLY PROVIDE PRACTICAL LEGAL TRAINING? The College also offers fully-accredited postgraduate degree programmes in applied law. The Applied Law programmes, including the LLM (Applied Law), are differentiated by their focus on the practice of law, with majors in Dispute Resolution, Commercial Litigation, Commercial Transactions, Family Law and In-house Practice. They enable students to develop existing practice specialisations or move into new areas of practice. They are conducted primarily online in order to meet the needs of busy practitioners. The College also provides Practitioner Education Intensives and the Western

Australian Legal Practice Management course. All the courses are designed to assist practitioners to up-skill and further develop their professional career. WHAT CAN WE EXPECT FROM THE COLLEGE IN THE FUTURE? The legal profession is on the cusp of unprecedented change. The introduction of fixed fees, outsourcing of legal work, intelligent systems and the internationalisation of Australian legal practice are beginning to impact on the legal market and how lawyers practice, and the skills lawyers will need in the future. The challenge for the College is to assist current and future practitioners to have the skills to meet the opportunities that lie ahead in what appears to be a very challenging and exciting future.

LEGAL PRACTICE MANAGEMENT COURSE Making a Move? This course is approved under the Legal Profession Rules for those required to undertake a Legal Practice Management Course.

EMAIL US lpmc@collaw.edu.au

CALL US 08 9214 0200

VISIT US collaw.edu.au/lpmc

15


Demushing the First Year Law Student's Mind Aristotle to the Rescue?1 Kenneth Yin Lecturer, School of Business and Law, Edith Cowan University, Barrister and Solicitor (Retired)

INTRODUCTION In addition to doctrinal studies, Australian law students must undertake studies covering generic legal skills. The logical starting point of these studies should be the students' own realisation that they do not think like lawyers. Mastery of syllogistic thought enables law students to recognise flaws in legal reasoning and to express answers coherently. It is suggested that a dedicated programme imparting skills in syllogistic thinking is, therefore, a beneficial development in legal pedagogy.2 Aristotle is historically regarded as the foremost champion of syllogistic thought – hence the reference to him in the title. This paper is divided into the following parts: Part 1 is entitled Minds Full of Mush3 where the defining features of the mind untrained in legal thinking are identified. Part 2, entitled Demushing the Mind of the First Year Law Student, contains key definitions and ideas, including the suggestion that syllogistic logic provides 16 | BRIEF NOVEMBER 2016

the foundation to learn legal problemsolving.4 It is ultimately suggested in the Conclusion that the dedicated teaching of syllogistic reasoning would be a beneficial development to the curriculum of legal education in Australia. PART 1 – MINDS FULL OF MUSH A first year law lecturer will often ask a class to consider the following questions: What makes a good lawyer? What attributes should a lawyer possess? Why do you think you will make a good lawyer? What motivates you to do law? Loosely, the following responses can be expected: a good lawyer needs to know the law and how to think like a lawyer, and also have a passion for justice and the courage of his or her convictions. The idea that the practice of the law demands courage and a sense of conviction is likely fostered partially by images in popular culture such as in Elle Woods' famous speech in Legally Blonde:5

On our very first day at Harvard, a very wise professor quoted Aristotle: "The law is reason free from passion." Well, no offense to Aristotle, but in my three years at Harvard I have come to find that passion is a key ingredient to the study and practice of law — and of life. It is with passion, courage of conviction, and strong sense of self that we take our next steps into the world, remembering that first impressions are not always correct. You must always have faith in people. And most importantly, you must always have faith in yourself. Nevertheless, most students do understand that part of one's legal education is to learn to think like a lawyer, an idea expressed likewise in pop-culture by the equally iconic "minds full of mush speech" in The Paper Chase:6 The study of law is something new and unfamiliar to most of you, unlike any other schooling you have ever known before. You teach yourselves the law, but I train your minds. You


come in here with a skull full of mush and, if you survive, you leave thinking like a lawyer. Professor Kingsfield was of course referring to the fact that in law school, one learns how to think like a lawyer, and this was different from learning the law. The need to undertake studies covering lessons to think like a lawyer is reflected in 'Threshold Learning Outcome 3 – Thinking Skills'7 (TLO 3). The introduction includes the following: Graduates of the Bachelor of Laws will be able to: (a) identify and articulate legal issues, (b) apply legal reasoning and research to generate appropriate responses to legal issues, (c) engage in critical analysis and make a reasoned choice amongst alternatives, and (d) think creatively in approaching legal issues and generating appropriate responses. Students often ask for an explanation of what it is to 'think like a lawyer' in the first place. The comprehensive answer can certainly be found in textbooks dedicated to achieving this outcome.8 The following passage in the first year text which I prescribe is typical: Those wishing to understand and practise law in Australia today need to develop knowledge and skills in diverse areas ... this knowledge and these skills – or, at least, an introduction to them – are covered in this book.9 It is suggested that a student's own recognition of his or her untrained mental state is an important milestone and in fact is the logical starting point of the journey designed to conclude satisfactorily with the ability to think in a lawyerly way. For that reason, a lecturer should try to furnish the student with an illustration of an untrained mental state early in his or her study of the law. Although, as suggested, a comprehensive explanation of it is readily accessible in first year texts when read in conjunction with TLO 3, the lecturer's challenge is not so much to engage with the nuances of these explanations, but rather to provide a concise explanation of a 'mushy' mind for the limited practical purpose of being the figurative starting point on that

journey. Bearing in mind again that the beneficiary of this explanation is the first year law student rather than someone insisting on pedagogical accuracy, the answer to that question likely reveals itself through the following two-phased exercise: First, to suggest that the acquisition of legal thinking skills is aligned with the mastery of the ability to show a logical link between the law and its application. Foundational legal texts devote much content to showing the 'logical connection' between the law and its application, some being devoted to this aspect alone.10 It might nevertheless be suggested by some that this is not the only legal skill demanding mastery.11 The suggestion is valid; on the other hand, legal problem solving comprises a significant part of legal studies, and, in turn, the ability to demonstrate a connection between the law and its application is a skill particularly demanded by legal problem solving. In a reprise of the "skull full of mush" idea, Professor James Gardner in his seminal work on advocacy made the following observations regarding a failure to show the connection between the law and its application: Most people do not think in an orderly way. Thoughts do not traverse the mind like a military parade, four abreast in neat rows … not surprisingly, most people argue the way they think – haphazardly, without clear structure, and often without recognising or consciously understanding the logical connections between their own arguments and contentions [emphasis added].12 The illustration of a flawed answer to a legal problem, especially one where the author has manifestly failed to show the link between the law and its application, is thus the paradigm, albeit admittedly utilitarian, illustration of an unlawyerly mind, and provides a handy starting point to show the first year law student the mindset demanding realignment through legal education. This logically brings us to the second phase of the exercise, namely actually to present a few easily understandable illustrations of mushy, unstructured thinking. Given that our first year law student will likely know little black letter law and might struggle to appreciate authentic legal reasoning, this second aspect could itself be broken down into two separate parts, namely to provide some

illustrations based on commonplace reasoning, followed by some examples based on authentic legal doctrine.13 Dealing with commonplace examples first, students can be introduced to the 'reasoning' in examples such as:14 John is already 16 and does not need to wear glasses yet, but he is certain to be short-sighted later in life as his parents both are shortsighted. I have little doubt that the painting is a forgery, or it would not cost so little. Given some guidance, law students will mostly appreciate that the flaw in each example is the failure to demonstrate the connection between some general assumption (analogous to a rule of law), and the facts to which it is to be applied. In the first example, the general assumption is that: "children of shortsighted parents are certain to suffer from short-sightedness" and the facts to which it is to be applied are that "John has short-sighted parents"; the conclusion is that "John will definitely become short-sighted". Following this explanation, students having now been exposed osmotically to the mindset of deconstructing an argument into a relevant general assumption and its application, usually have less difficulty in identifying the flaw in the second example. In the next series of exercises, one could explore analogously flawed examples, but now based on authentic legal principle, e.g.: Because of the rule in Derry v Peek,15 we can see that John committed deceit. Quite clearly, Peter's response was not an acceptance. Veronica's argument is supported by the principles in Turner.16 The first year law student, having been given some, although limited, instruction in syllogistic thinking, should be able to see that the author has failed to show the logical links between the relevant rule of law and its application in the particular circumstances of the case. In the first example, it is not clearly demonstrated what the principles in Derry are, nor the basis upon which it is said that, based on them, John committed deceit. Exasperated lecturers who must assess such answers frequently describe them as resembling 'alphabet soup' or similar.

17


PART 2 – DEMUSHING THE MIND OF THE FIRST YEAR LAW STUDENT Since the focal point in this part is the suggestion that the syllogism is a beneficial tool to be applied in the teaching of legal skills, a basic definition of a 'syllogism' should be provided. The following commonplace definition cum explanation presently suffices:17 1. Logic A form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion; for example, All humans are mortal, the major premise, I am a human, the minor premise, therefore, I am mortal, the conclusion. 2. Reasoning from the general to the specific; deduction. Aristotle is historically regarded as a foremost proponent of syllogistic thought.18 IRAC is an acronym for issue-ruleapplication-conclusion with which the reader is likely to be familiar as it is commonly introduced as the formulaic problem solving template in first year law texts.19 IRAC itself is essentially a legal syllogism, as explained next: IRAC is just another way of saying "the deductive syllogistic process."20

once re-expressed as an Aristotelian syllogism as follows: Major Premise: Children of shortsighted people will always be shortsighted. Minor Premise: John is 16 and does not yet wear glasses; however both his parents are short-sighted. Conclusion: John will be shortsighted later in life. And, similarly for the next example: Major Premise: Forged paintings are inexpensive.

Consistently, Professor James Boland argued that the syllogism should provide the grounding for an understanding of legal analysis and reasoning and of IRAC.21

Minor Premise: The painting in question is inexpensive.

The usefulness of the syllogism template as a pedagogical tool for the teaching of legal logic can best be explained by illustration. For this, we return to both of the two commonplace examples in PART 1 namely:

The two subsequent examples based on authentic legal principles cannot even be similarly deconstructed. The flaws are fatal. The reader needs further information as to the content of the relevant legal principles as well as how they are said to be applied to the facts. Any attempt to express them in syllogistic form actually highlights the substantial and structural shortcomings in the original argument.

John is already 16 and does not need to wear glasses yet, but he is certain to be short-sighted later in life as his parents both are shortsighted. And I have little doubt that the painting is a forgery, or it would not cost so little. Each of these examples contains an implicit major premise and an oblique minor premise, with the result that no supportable conclusion can be derived, since no nexus between those premises and the conclusion is evident. This criticism, and logical flaws in the reasoning, readily reveal themselves

18 | BRIEF NOVEMBER 2016

Conclusion: The painting is a forgery.

The first year law student should by the end of this exercise have a clearer picture of the starting point of this journey, namely the recognition of a mushy, unlawyerly mind. It is suggested that presenting the discussion via the template of the Aristotelian syllogism has enabled him or her to do so. It then becomes equally useful at a relatively early stage in studies also to introduce to the class the manifestation of a more trained, lawyerly mind. The Aristotelian syllogism again provides the

means to illustrate this. For this, we go back to Elle Woods' speech in Legally Blonde. Despite Elle's apparent disagreement with the wise professor (and Aristotle, and presumably also Professor Kingsfield), her own journey through Harvard had already demonstrated that all of them, and she herself, were equally 'correct'. The defining moment of the movie, which marked the confluence of Elle-wisdom and Aristotelian logic, was her cross-examination of Chutney Windham, when she deduced that Chutney had not washed her hair. This cross examination can be expressed as the following Aristotelian syllogism: Major Premise: The cardinal rule of perm maintenance is that one is forbidden to wet one's hair for at least 24 hours after getting a perm at the risk of deactivating the ammonium thioglycolate. That is the type of thing that someone who had had many perms, say 30, in her lifetime, would know. Minor Premise: Chutney had had at least 30 perms in her life and thus fell within the description of someone who had had many perms in her life. She would therefore know that it was a cardinal rule of perm maintenance not to wet her hair for at least 24 hours after a perm. She had had a perm in the morning of the day her dad was shot and would have known not to wash her hair that day. Conclusion: Chutney did not wash her hair the day her father was shot. The Chutney syllogism is accordingly a powerful allegory for Elle's personal journey through Harvard which led to the


courtroom that day and also underlines Elle's own attainment of the mastery of legal logic via the vehicle of the Aristotelian syllogism. Although students will not be likely this early in their studies to be confident themselves of creating the Chutney syllogism (or something equally sophisticated), the stark logic of the syllogism framework should at least strike a resounding chord with them as being a template capable of being easily mastered. Two essential learning outcomes should be thereby achieved: First, to demonstrate graphically the power of the Aristotelian syllogism as the template for the development of problem solving skills; secondly, the provision of an entrée to IRAC itself by reinforcing the notion that IRAC is at its core the legal equivalent of the Aristotelian syllogism. This is achieved because the underlying IRAC template in the Chutney syllogism (or something similar) is likely to be readily recognised although it is not based on authentic legal principles.

development to the first year law curriculum, and one which aligns with TLO 3, to include the teaching of syllogistic logic as part of first year studies in law. COPYRIGHT NOTE: A significant amount of the material in this article is drawn from a text to be published by LexisNexis Butterworths, Australia, described at n 2 below, of which the author is one of two co-authors and whose publication is imminent but has not taken place. Additionally, this paper itself is a work-in-progress of an article intended for subsequent publication in an academic journal. Accordingly, for avoidance of doubt, copyright is maintained by the author on his own behalf and on behalf of all owners whose interests are reflected in those publications.

1.

My family of LinkedIn connections might find this title familiar as it is part of the title to an update that I posted on 28 August 2016. I liked it so much I thought I would use it again!

2.

These, compendiously, are amongst the key concepts explored in a first year law textbook written by Anibeth Desierto of Edith Cowan University and Curtin University, and me: K Yin and A Desierto, Legal Problem Solving and Syllogistic Analysis: A Guide for Foundation Law Students (LexisNexis Butterworths, Australia, 2016) (in press). See especially pp 1 – 8 (the introduction to that text). Pending its release, which is imminent, fuller details can also be found at: https:// store.lexisnexis.com.au/product?9780409343229.

3.

This is a reference to the famous "skull full of mush speech" in the iconic lawyer movie Paper Chase. Source: <https:/Ien.wikipedia.org/wiki/The_Paper_ Chase_%28TV_series%29>. The title of the paper is of course likewise a nod to that speech.

4.

Yin and Desierto, above n 2, 4.

5.

<http://www.moviequotes.com/fullquote. cgi?qnum=153175>. See also Yin and Desierto, above n 2, 1.

6.

https://en.wikipedia.org/wiki/The_Paper_ Chase_%28TV_series%29. See also Yin and Desierto, ibid.

7.

Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement (December 2010) <http:// www.cald.asn.au/assets/lists/Resources/ KiftetalLTASStandardsStatement2010%20TLOs%20 LLB.pdf> The introduction reads further as follows: This Good Practice Guide was commissioned by the Law Associate Deans Network to support the implementation of Threshold Learning Outcome 3: Thinking skills. The Threshold Learning Outcomes (TLOs) for the Bachelor of Laws were developed in 2010 as part of the Learning and Teaching Academic Standards (LTAS) Project, led by Professors Sally Kift and Mark Israel. TLO 3: Thinking skills is one of the six TLOs developed for the Bachelor of Laws.

Unfortunately, most first year legal writing texts give the syllogism very truncated coverage, if any at all.23 Professor Boland is surely correct. Professor Boland's article was written in 2006 and is American but his observation applies equally to present Australian first year legal texts. We suggest that it would be a beneficial

9.

C Cook, R Creyke, R Geddes, D Hamer & T Taylor, Laying Down the Law, 9th ed, LexisNexis Butterworths, Australia, 2014, 9.

10.

Including our own. See Yin and Desierto, above n 2, generally.

11.

Some others being legal research, vocational skills such as drafting, advising, negotiating, an appreciation of the court structure and an appreciation of the workings of stare decisis etc.

12.

J A Gardner, Legal argument: The Structure and Language of Effective Advocacy, 2nd ed, LexisNexis, United States, 2007, 3. See also Yin and DeSierto, above n 2, 3.

13.

Incidentally, readers familiar with education theory might appreciate that this method of introducing the idea of unlawyerly thinking via an illustration of an everyday analogy aligns generally with the pedagogy of scaffolding and deep thinking. See e.g. I. Verenikina, 'Understanding scaffolding and the ZPD in educational research', Proceedings of the International Education Research Conference, 30 Nov – 3 Dec, 2003; T.M. McDevitt and J.E. Ormrod, Child Development and Education, 2002, Merrill Prentice Hall, New Jersey; G. Jacobs, 'Providing the scaffold: A model for early childhood/primary teacher preparation', Early Childhood Education Journal, 2001, Vol. 29 (2), 125. All these are explored in detail in the adjunct online resources of Yin and Desierto, above n 2 (to be made accessible to lecturers).

14.

See also Yin and Desierto, above n 2, 17.

15.

(1889) 14 App Cas 337 (HL), the famous deceit case, which should need no introduction.

16.

Turner Kempson & Co Pty. Ltd. v Camm [1922] VLR 498. The author has not provided the full citation, but that incidentally is not the focal point of this discussion.

17.

Source: The Free Dictionary http://www. thefreedictionary.com/syllogism. The basis and rationalisation for syllogistic thought is a fundamental concept in our book and explored more deeply in it. See especially Yin and Desierto above n 2, chapters 1 and 2.

18.

See e.g.: Stanford Encyclopedia of Philosophy: <http://plato.stanford.edu/entries/aristotle-logic/>. See also Yin and Desierto, above n 2, 2.

19.

See e.g. Cook et al, above n 9, 122; Turner et al, above, n 8, 143.

20.

A Schnee, 'Legal Reasoning "Obviously"', The Journal of the Legal Writing Institute 3:105 (1997] 105 (Schnee), 106. See also Yin and Desierto, above n 2, 9.

21.

J Boland, 'Legal Writing Programs and Professionalism: Legal Writing Professors can join the Academic Club' (2006) 18(3) St Thomas L Rev 711, 719. See also Yin and Desierto, above n 2, 5.

22.

Above, n 20.

23.

Boland, above n 21, 719.

NOTES

CONCLUSION Given that IRAC is fundamentally a legal syllogism,22 Professor Boland lamented that:

example, is a clear illustration of such: C Turner, J Boylan-Kemp & R Huxley-Binns, Unlocking Legal Learning, 3rd ed, Hodder Education, London, United Kingdom, 2012.

8.

Simply from its title, the following publication, for

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Notice as the basis for liability for pure economic loss in negligence Fiona Vernon1

The case of organic farmers, Steve and Susan Marsh, and their GM canola growing neighbour, Michael Baxter, attracted a great deal of interest in Australia and abroad. The action raised claims in both negligence and private nuisance. Both the trial judge, Justice Kenneth Martin,2 and President McLure of the Court of Appeal,3 considered the nuisance claim to provide the greatest prospects for success. Additionally, nuisance was the sole basis for the most significant remedy sought at trial but not on appeal, of a permanent injunction.4

Most of the attention, however, both at trial and on appeal, was on the negligence claim. Accordingly, that claim provides the focus of this paper. The central issue in the negligence claim was whether Mr and Mrs Marsh could, by giving Mr Baxter notice warning of what they asserted to be a future risk to the profitability of their organic farming business, establish liability in negligence for pure economic loss suffered when that risk apparently came to pass. Mr and Mrs Marsh were unsuccessful at first instance. On appeal, the majority comprising of Justices Newnes and Murphy, decided against Mr and Mrs Marsh, with President McLure in dissent. The majority held that on the facts of the case, the information given by Mr

Marsh to Mr Baxter about the risk did not provide a reliable foundation for finding that Mr Baxter had actual knowledge of the risk.5 The precise circumstances in which it might be possible to fix liability in negligence for pure economic loss by warning the defendant of the existence of a risk remains undecided. GM CANOLA, SEVENOAKS AND EAGLE REST Controversy surrounds direct manipulation of a plant's genome in a laboratory using recombinant DNA techniques (GM). I am not qualified to assess the scientific and philosophical merits, or otherwise, of the plants resulting from the application of such techniques. In the particular case of canola, however, the trial judge found

21


that "GM canola is entirely benign, it not being in any way toxic, harmful or otherwise dangerous to humans, animals or land".6 In Western Australia, growing a GM crop of any kind was prohibited in 2004.7 In 2010 an exception was allowed for GM canola.8 That year Mr Baxter grew GM canola on his farm at Sevenoaks, near Kojonup. For a number of years Mr and Mrs Marsh had managed their neighbouring farm, Eagle Rest, according to organic principles. They raised sheep and farmed cereal crops, predominantly oats, but not canola. In order to label their produce 'certified organic', Mr and Mrs Marsh required accreditation from one of the organisations accredited under the Export Control Act 1982 (Cth). Although there was no legal requirement for domestic produce to be certified in order to be labeled 'organic', in practice the major supermarket chains required this.9 Mr and Mrs Marsh obtained accreditation through the National Association of Sustainable Agriculture Australia Ltd (NASAA).10 It was a requirement of the contract Mr and Mrs Marsh entered into with NASAA, under which NASAA provided certification, that they farmed in accordance with the NASAA Organic Standard.11 In 2008, Mr Marsh showed Mr Baxter some canola plants he had found growing on Eagle Rest. Rabbits were thought to have transported the seeds, from which these plants had grown, from Sevenoaks to Eagle Rest.12 Mr Marsh told Mr Baxter that if growing GM canola ever became legal in Western Australia, and was grown by Mr Baxter, and was blown or carried onto Eagle Rest, Mr and Mrs Marsh's organic certification could be imperiled and that GM organisms were not allowed in a certified organic system.13 In March 2010, Mr Baxter told Mr Marsh that he had decided to grow GM canola in two paddocks adjacent to Eagle Rest. He subsequently entered into a licence agreement with Monsanto to grow a variety of GM canola. As a result of this information, Mr and Mrs Marsh moved their organic wheat crop from a paddock near the Sevenoaks' boundary to a paddock further away from Sevenoaks.14 In May 2010, Mr Baxter planted GM canola on two paddocks, called 'Ranger' and 'Two Dams'. These paddocks were separated from Eagle Rest by a five metre 'buffer zone' (as required by grower licence agreement Mr Baxter had entered into with Monsanto), a 22 metre road reserve and a line of trees on both sides.15 22 | BRIEF NOVEMBER 2016

In August 2010, Mr Marsh asked NASAA to tell him what GM 'contamination' would result in decertification. NASAA replied that 'contamination', for decertification purposes, was genetic contamination (that is, the transfer of genes between plants) and that it was doubtful that GM canola from Eagle Rest could 'infect' their wheat crop.16 In late September 2010 Mr Marsh gave Mr Baxter a document entitled 'Notice of Intention to Take Legal Action', which attached an extract from the NASAA Organic Standard. In late November 2010, Mr Baxter arranged for the GM canola crops to be swathed before harvesting. Swathing involves cutting the canola stems about a foot above the ground, before the crop is ripe. The cut stems are gathered together in 'windrows', which lie on top of the stems remaining in the ground. The canola seed pods dry over a period of two to three weeks and the crop is then harvested. Swathing was the preferred agricultural harvesting technique used by canola growers,17 and there were a number of agricultural advantages to swathing canola before harvest.18 Mr Baxter had financial and farming reasons, based on an independent agronomist's advice, for swathing his GM canola crop.19 Mr Baxter had not, however, swathed any canola crops before hiring a contractor to swath the GM canola he planted in 2010.20 Soon after swathing, a number21 of GM canola swathes were spread by wind over a number of Eagle Rest paddocks, in various concentrations, with most landing in a paddock of pasture and a paddock in which a rye and spelt crop was growing.22 This would not have occurred had the GM canola crops not been swathed.23 There was evidence that strong winds could carry swathes.24 Mr Marsh discovered the swathes and notified NASAA. After inspections of the farm, NASAA decided that the presence of GM canola on Eagle Rest was a major non-compliance with the NASSA Standard, although not caused by any fault of Mr and Mrs Marsh. In December 2010, NASAA suspended Eagle Rest's organic certification and then decertified 8 of Eagle Rest's 13 paddocks. Eagle Rest was not re-certified until October 2013.25 As a result of the loss of certification, Mr and Mrs Marsh were unable to sell their produce as 'certified organic'. Damages for that loss were agreed in the sum of $85,000. The only organic produce growing on a decertified paddock that might otherwise

have been labeled 'certified organic' was a wheat crop growing in a paddock where swathes of GM canola were found in an area where there was no crop.26 Mr and Mrs Marsh's organic oat crops were growing on paddocks that were not decertified. Their sheep, which had eaten some of the canola pods, had already been decertified, because it had been necessary to drench the sheep.27 The rye and spelt crops could not be labeled as 'certified organic' as drenching had taken place in that paddock.28 The majority also found that canola seed can be easily and economically screened out of harvested cereal grains such as wheat and oats.29 In the following year, eight self-seeded GM canola plants were discovered on Eagle Rest. No other GM canola plants were subsequently found on the farm.30 Mr and Mrs Marsh had claimed at trial that Mr Baxter was negligent both by planting GM canola in the 'Ranger' and 'Two Dams' paddocks and by swathing that canola. The claim that Mr Baxter was negligent in planting GM canola was not pursued on appeal where the issue was whether Mr Baxter owed Mr and Mrs Marsh a duty of care not to swath the GM canola before harvesting it. As there was no allegation of physical damage to Eagle Rest, or the animals or crops on that farm, the claim in negligence was for pure economic loss.31 PURE ECONOMIC LOSS CLAIMS IN NEGLIGENCE The scope of this tort is narrower than for negligently caused physical damage.32 McLure P refers to two policy reasons for this. The first is the concern not to impose indeterminate liability whether as to the length of time liability would be imposed, the class of potential plaintiffs to whom the duty might be owed, or the amount of the liability. The second reason is that the legitimate pursuit of one's own economic advantage is an accepted part of a competitive economy, even where it is understood that pursuit might economically disadvantage another person.33 Prior to 1968, there was no recognised common law duty of care in Australia to avoid another person suffering pure economic loss. Since Mutual Life & Citizens' Assurance Co. Ltd v Evatt34 (a negligent misstatement case) a number of cases establishing exceptions to the general rule against liability have been decided. No general principle for determination of such cases has, as yet, emerged.35 Mr and Mrs Marsh's claim did not fit within any of the decided cases.36 Accordingly, it was necessary


for the immunity conferred by the legitimate protection or pursuit of interest doctrine, that doctrine can have little, if any, application in a case where the defendant already owes a duty of care to do or not to do something.43

to consider what are referred to in the authorities as the 'salient features' of the relationship between the parties.37 What may constitute a salient feature, and the importance of any particular salient feature, will depend on the facts of a particular case.38 In Perre v Apand, however, McHugh J said that there were five salient features likely to be relevant to all cases of liability for pure economic loss: foreseeability, indeterminacy of liability, autonomy, vulnerability (which McHugh J considered to be similar, if not identical, to the concept of control39) and the defendant's actual knowledge of the risk and its magnitude. 40 Foreseeability, whilst essential, is not sufficient, on its own, to ground a claim of pure economic loss.41 McHugh J, in Woolcock Street Investments v CDG Pty Ltd, explained autonomy as follows: Speaking generally, a person owes no duty to prevent economic loss to another person even though the first person intends to cause economic loss to that other person. This particular immunity from liability reflects the common law's concern with the autonomy of the individual and its desire to give effect to the choices of the individual by not burdening his or her freedom of action. Thus, as long as a person is legitimately protecting or pursuing his or her commercial interests, the common law does not require that person to be concerned with the effect of his or her conduct on the economic interests of other persons.42 In Perre v Apand, McHugh J explained the circumstances in which consideration of autonomy would not be relevant as follows: Because protection of the individual's autonomy is the reason

On vulnerability, Crennan, Bell and Keane JJ said, in Brookfield Multiplex Ltd v Owners â&#x20AC;&#x201C; Strata Plan No 61288: Vulnerability â&#x20AC;Ś is concerned not only with the reasonable foreseeability of loss if reasonable care is not taken by the defendant, but also, and importantly, with the inability of the plaintiff to take steps to protect itself from the risk of the loss.44 Mr and Mrs Marsh argued for the duty on the basis that the risk of harm was reasonably foreseeable, the physical proximity of the two farms, that Mr Baxter had actual knowledge of the risk and its magnitude, as a result of the 2008 conversation and the 2010 notice, and that they could do nothing to avoid the risk.45 NUISANCE In nuisance, a balance must be struck between neighbours' competing claims to use their land without undue subordination to the other's interests.46 Liability is strict and the exercise of reasonable care is not necessarily enough to discharge liability.47 The considerations applicable in negligence and nuisance overlapped. The principal question was whether the interference with Mr and Mrs Marsh's use and enjoyment of Eagle Rest, caused by the incursion of GM canola swathes, was objectively substantial and unreasonable. Coupled with this was consideration of whether Mr and Mrs Marsh were abnormally sensitive, by reason of their contractual relationship with NASAA.

FORESEEABILITY AND KNOWLEDGE In considering the issues of foreseeability and actual knowledge, two relevant risks were identified: firstly that GM canola might be blown or carried from Sevenoaks to Eagle Rest and, secondly, that, as a result of the presence of any GM canola on Eagle Rest, Mr and Mrs Marsh would lose their organic certification on all or part of Eagle Rest. The case that these risks were foreseeable was run on the basis that Mr Baxter had actual knowledge and foresight of the risk that Mr and Mrs Marsh's organic certification might be affected or lost if GM material got onto Eagle Rest.48 The Court's consideration of foreseeability and actual knowledge were, as a result, intertwined. Transfer of canola seed to Eagle Rest In relation to this risk, the trial judge decided that, whilst Mr Baxter knew that seeds could be carried by animals or birds from Sevenoaks to Eagle Rest, that was "a very different seed transfer mechanism to the subsequent windblown events tied to swathing".49 Martin J found that, whilst there was evidence that strong winds could carry canola swathes,50 there was no evidence about the likelihood of canola swathes being blown from Sevenoaks to Eagle Rest, the strength of winds required to achieve this, or the frequency of such winds in the Kojonup area in December.51 In addition, he accepted Mr Baxter's evidence that he thought the buffers in place52 would be sufficient to prevent any swathed material getting from Sevenoaks to Eagle Rest.53 Accordingly, in his Honour's view, the transfer of GM canola by wind was neither foreseeable nor actually foreseen by Mr Baxter. McLure P said that, whilst a higher level of generality in formulating duty is necessary to avoid the duty question being determined by the answer to

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the breach question, in the absence of a general test or principle for liability in negligence outside the recognised categories, an approved approach was to pose the question whether the pure economic loss suffered from the windborne escape of swathes of GM canola resulted from a breach of duty. This requires consideration of the particular means of escape. Accordingly, her Honour considered that the trial judge had not misapplied the foreseeability test by considering the mechanism of seed transfer.54 McLure P found, however, that the evidence established that a reasonable person in Mr Baxter's position ought to have known of the risk of strong winds moving swathes from Sevenoaks to Eagle Rest.55 Whilst the trial judge had accepted Mr Baxter's evidence that he did not believe there was a real risk of swathes being blown from his farm to his neighbour's farm,56 McLure P found that a reasonable person in his position ought to have known such a risk existed from strong winds.57 The majority, on the other hand, found that it was not necessary that the precise mechanism of transfer be foreseeable.58 The transfer of GM canola seed by some means was foreseeable and was actually foreseen by Mr Baxter, by reason of his conversation with Mr Marsh in 2008.59 Newnes and Murphy JJA noted that the trial judge had found that Mr Baxter could not reasonably have expected swathes to be picked up and carried to Eagle Rest by strong winds, taking into account the buffer, road reserve and trees, and that this finding was not challenged in the appeal.60 Their Honours considered that there was no basis upon which to challenge the trial judge's finding that Mr Baxter had given considerable thought to these matters.61 Loss of organic certification on all, or part, of Eagle Rest With respect to this risk, the trial judge found that NASAA did not have power to decertify under the NASAA Standard as there had been no sensible risk of contamination to any organic product being grown on Eagle Rest.62 It followed that risk could not have been foreseen. The majority found that the terms of the 2008 conversation were too general to inform Mr Baxter of the possibility that the mere presence of swathed GM material on Eagle Rest could lead to decertification.63 Newnes and Murphy JJA did not consider it was necessary to determine whether the sanction of decertification was open to NASAA

24 | BRIEF NOVEMBER 2016

under the NASAA Standard although they observed that difficult questions of construction were raised.64 Their Honours found that a reasonable person in a position of a third party to the contract with NASAA would neither have known, nor ought to have known, the true construction of the NASAA Standard as a result of the 2010 notice.65 The majority found that the 2010 notice was overstated in material respects, did not identify what was meant by 'contamination' and did not disclose the provenance, authority or proper construction of the document attached to the notice that replicated a part of the NASAA Standard.66 Even if a reasonable person would have understood the NASAA Standard to be a contractual document governing the relationship between NASAA and Mr and Mrs Marsh, if that person was entitled to take the view of the construction of the NASAA Standard the trial judge had taken, they would not have foreseen a risk of economic loss to Mr and Mrs Marsh by swathing.67 In those circumstances, the majority found that proof of delivery of the 2010 notice provided evidence that Mr Baxter had notice of Mr and Mrs Marsh's assertions but "does not provide a sufficient or reliable foundation for finding that [Mr Baxter] had actual knowledge that the appellants were, objectively, at risk of decertification and economic loss if [Mr Baxter] harvested his GM crop by swathing."68 McLure J found that the reasonableness of the decertification was relevant to the nuisance claim.69 However, her Honour found that decertification was reasonably open to NASAA, in the sense that it was open to it under the NASAA Standard, rather than being reasonable from a policy perspective, which assessment would differ depending on one's view of GM technology.70 McLure P considered that, in 2010, the respondent had actual knowledge of the risk that GM canola might be carried on to Eagle Rest with the result that its organic certification might be lost or jeopardised.71 Accordingly, that risk was reasonably foreseeable. This dissenting finding was based on the contents of the 2010 notice and, it appears, on the 2008 conversation.72 AUTONOMY Newnes and Murphy JJA73 said that this was not a case where Mr Baxter already had a legal obligation not to harvest his GM crop using conventional agricultural techniques. Mr Baxter was not in

" ... a balance must be struck between neighbours' competing claims to use their land without undue subordination to the other's interests."

breach of the Monsanto licence and had swathed the GM canola in legitimate pursuit of his interests.74 The majority considered that the only contention to the contrary was whether Mr Baxter was liable in nuisance, on the basis that his swathing of the GM canola was unreasonable. If Mr Baxter was liable in nuisance, he was already, relevantly, fettered in his ability to use his land, and could not invoke autonomy to prevent his liability in negligence.75 In that respect, the majority found that Mr Baxter had not unreasonably interfered with Mr and Mrs Marsh's use and enjoyment of Eagle Rest, and that they were, in any event, hypersensitive to the interference constituted by the incursion of canola swathes, as a result of their contract with the NASAA.76 Their reasons included that organic farming was an isolated activity in the Kojonup area, where conventional broad acre farming was the norm, canola was widely grown and swathing was the preferred method of harvest (albeit not one that Mr Baxter had used before). In addition, conventional farms would not have been affected by the incursion of GM canola swathes because the trading standard for conventional, non-GM, canola allowed up to 0.9% of adventitious (that


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These client facing If you are interested in having a confidential discussion better service their existing client/referral networks roles will provide the successful candidates with high about the above positions or looking for more and drive business development activities with a vision levels of responsibility and extensive client contact. comprehensive market advice, please contact Chris to growing into a medium sized law firm. You will be comfortable advising senior stakeholders and dealing with board, company secretaries, in-house Bates or Maryann McKenna. • Partner – Corporate/Equity Capital Markets. KBE counsel, regulatory bodies and managing a significant Human Capital is working exclusively with a key deal flow. client to secure a Corporate Partner to inherit/lead

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is, the unintentional presence of) GM canola. McLure P, on the other hand, said that Mr Baxter did not have an "unfettered legally recognised interest in the way he used Sevenoaks in relation to the production of GM canola" because he was restricted by the Monsanto licence agreement, and an incorporated management plan.77 Her Honour did not, however identify any particular provision that fettered Mr Baxter's ability to choose to swath the canola, or any breach of the licence agreement. McLure P considered that McHugh J's comments on autonomy in Perre v Apand, relied on by the majority, were limited in scope to particular situations of trader and customer, or commercial competitors.78 Her Honour accepted, however, that Mr Baxter's autonomy would override Mr and Mrs Marsh's interests if Mr Baxter's interference with the use of Eagle Rest had been reasonable,79 which concept arose in the context of the nuisance claim. Her Honour's view was that the interference was unreasonable. A central element of her Honour's reasoning was that, whilst there was evidence that Mr Baxter had legitimate reasons to swath his GM canola,80 it was necessary to determine the nature and extent of the prejudice Mr Baxter would suffer by not swathing.81 Her Honour adjudged that this prejudice would not be appreciable and, in any event, was outweighed by the prejudice to Mr and Mrs Marsh.82

on Sevenoaks, Mr Baxter was in control of the site and manner of harvest of the crop, Mr and Mrs Marsh had warned Mr Baxter of the risk to them of GM canola escaping onto Eagle Rest before he has swathed the crop, and that they had taken steps to reduce the risk of contamination by changing their crop rotation.86 The majority, on the other hand, held that this was not a case where it could be said, as in Perre v Apand, that "the economic loss would flow directly and inevitably and the possibility of its occurrence would not be speculative".87 If there was a risk, it was one Mr and Mrs Marsh knew of well in advance. The NASAA Standard required that they provide an appropriate 'buffer' including trees, hedges or the erection of artificial barriers, to avoid a known risk of contamination.88 Whilst there was some conjecture in the expert evidence about the possibility of an effective barrier, there was no evidence that appropriate physical barriers would not have prevented the 2010 incursion of swathes.89 In addition, Mr and Mrs Marsh could not be said to have been relevantly vulnerable if, on the proper construction of the contract with NASAA, there was no power to decertify for the mere presence of GM material on their farm.90 It was not obvious that they remained at risk of withdrawal of certification if they had undertaken preventative measures such as tree screening or the erection of physical barriers.91

McLure P considered that there were reasonable grounds upon which NASAA was entitled to decertify Eagle Rest. As such it was not necessary to consider whether Mr and Mrs Marsh would have been able to obtain certification on less onerous terms from another certifier. Her Honour found that Mr and Mrs Marsh were relevantly vulnerable because of the physical proximity of Eagle Rest to the site of the cultivation of GM canola

26 | BRIEF NOVEMBER 2016

NOTES 1.

Fiona Vernon is a barrister at Francis Burt Chambers. She acted as junior counsel for the defence at the trial, appeal and special leave applications of this dispute.

2.

Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377 (TR) at [306] and [307].

3.

Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 (CA) at [241] and [242].

4.

The other remedy sought was damages, in an amount agreed shortly before trial of $85,000 for the period between December 2010 and November 2013 – CA [28] per McLure P.

5.

CA [666] per Newnes and Murphy JJA.

6.

TR [170], [171], [173], [176], [648], [657], [659], [660], [688] and [730]; CA [31] per McLure P and [662] per Newnes and Murphy JJA. It was, in any event, not part of the Marshs' case that there was any risk of physical harm from GM canola; see TR [176].

7.

Genetially Modified Crops Free Areas Order 2004 under the Genetically Modified Crops Free Areas Act 2003 and subject to exemption orders allowing, principally, GM cotton and canola to be grown for research purposes.

8.

The exception was allowed by ministerial order issued under the Genetically Modified Crops Free Areas Act 2003 (WA) – TR [87].

9.

CA [172] per McLure P and [638] per Newnes and Murphy JJA.

10.

Through a subsidiary NASAA Certified Organic (NCO).

11.

CA [6]-[7] per McLure P and [395] per Newnes and Murphy JJA.

12.

TR [452].

13.

CA [395] per Newnes and Murphy JJA.

14.

TR [91] – [93], [420], [421]; CA [402] – [403].

15.

TR [731].

CONCLUSION

16.

CA [670] per Newnes and Murphy JJA.

17.

TR at [21] and [714].

The possibility that the giving of a warning or notice might result in liability in negligence for pure economic loss in different circumstances would appear to remain open. In February, the High Court dismissed the application for special leave to appeal. That application was decided on the basis that the case was not a suitable vehicle for the determination of the question of when a notice might be the mechanism for liability.92 The prospect remains that this question might interest the Court in the future, if a suitable vehicle were found.

18.

TR at [24].

19.

CA [741] to [745] per Newnes and Murphy JJA.

20.

TR at [680]; CA [21] and [140] per McLure P.

21.

The Marshes did not clear the canola swathes from Eagle Rest for some time. When they did so, in April 2011, they counted 245 swathes; TR [388], [438] and [686].

22.

CA [451] and [624] per Newnes and Murphy JJA.

23.

CA [35].

24.

CA [697] per Newnes and Murphy JJA.

25.

CA [416] to [424] per Newnes and Murphy JJA.

26.

TR [536], [691] and [736] (three swathes).

27.

TR [689] In organic farming the requirements of the health of the animals, including chemical drenching, take precedence over compliance with the organic regime, albeit with consequences for the organic operations of the farm.

28.

CA [670] per Newnes and Murphy JJA.

In my view, however, a plaintiff asserting liability based on the giving of a warning or notice to establish actual knowledge of a risk will, in addition to considerations of the contents and circumstances of the giving of the notice, have to overcome the difficulty presented by the 'salient feature' of autonomy, and McHugh J's comments in Perre v Apand and Woolcock Street Investments. A common factor in the

29.

CA [594].

30.

TR [669] and [736].

31.

As distinct from economic loss suffered as a consequence of personal injury or property damage.

32.

CA [308] per McLure P.

33.

CA [308] per McLure P.

34.

(1968) 122 CLR 556; Following Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 in the UK. See McLure P's discussion of the authorities at CA [295] to [300].

35.

CA [309] per McLure P.

36.

CA [301] per McLure P.

37.

CA [310] per McLure P.

VULNERABILITY AND CONTROL The trial judge noted that vulnerability was an important element in the determination of liability in Perre v Apand.83 Martin J did not, however, consider that the concept of vulnerability extended to what he called "selfinflicted vulnerability", namely Mr and Mrs Marsh entering into a contract with the NASAA.84 In any event, his Honour did not find any degree of vulnerability arose from Mr and Mrs Marsh's contract with NASAA under which they appeared to have been wrongly denied their contractual right to use the label 'certified organic'.85

decided cases where a plaintiff has succeeded appears to be that the court was able to identify a basis for finding that the defendant's autonomy was already fettered.93 The limits, if any, to McHugh's statement in Perre, that a person is entitled to legitimately pursue his or her social or business interests without concern about the effect of that conduct on the economic interests of others, referred to by McLure P, are yet to be determined.


38.

CA [310] per McLure P.

39.

Perre v Apand [1999] HCA 0036; (1999) 198 CLR 180 at [127] per McHugh J.

40.

Perre v Apand [1999] HCA 0036; (1999) 198 CLR 180 at [105] per McHugh J; repeated in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 [74] per McHugh J and approved in Barclay v Penberthy [2012] HCA 40; (2012) 246 CLR 258 [42].

per Newnes and Murphy JJA. 57.

CA [136] The Marshes did not lead evidence of the typical wind conditions in Kojonup in November and December. McLure P in dissent says, in effect, that Mr Baxter bore the onus of producing evidence that strong winds were unexpected or unusual – CA[132].

58.

CA [704].

59.

CA [658].

41.

CA per McLure P at [304] referring to Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 [12].

60.

CA [607] [729] and [730].

61.

CA [731].

42.

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 [78] per McHugh J.

62.

TR [532].

63.

CA [667] – [668].

64.

CA [566] and [583]. The range of possible constructions is, however, considered at [567] to [582].

43.

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 [117].

44.

Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 [2014] HCA 36; (2014) 88 ALJR 911 [130]; referred to by Newnes and Murphy JJA CA [681].

45.

No issue of indeterminate liability arose.

46.

CA [246] per McLure P citing Fleming The Law of Torts (9th ed) at p467.

47.

CA [248] per McLure P, citing Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 [119] and [126].

question of liability in nuisance. 80.

CA [270].

81.

CA [291].

82.

CA [292]. The relevance of this proposition was said to be on the basis of Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825 and Robinson v Kilvert (1889) 41 ChD 88.

83.

In Perre v Apand, the plaintiff was economically vulnerable to the presence of potato blight on a neighbouring farm, because the law in Western Australia prohibited the import into WA of potatoes harvested within 20 km of an outbreak of potato blight. The plaintiff was unable to protect itself from that risk, which the defendant controlled.

84.

TR [321] and [741].

85.

TR [321] and [741].

86.

CA [341] and [342].

87.

CA [687].

88.

CA [614].

65.

CA [584].

66.

Mr Baxter was not cross examined on his understanding of this document – CA [660].

67.

CA [660] – [665].

89.

CA [616].

68.

CA [666].

90.

CA [683].

69.

CA [264].

91.

CA [684].

70.

CA [201] to [211].

92.

71.

CA [350].

Marsh v Baxter [2016] HCATrans 22 (12 February 2016).

72.

CA [127], [128] and [10].

93.

73.

[693], quoting McHugh J in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 [114]-[117].

See Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529, and Perre v Apand Pty Ltd (1999) 198 CLR 180, described by McLure P as cases of 'relational loss', Bryan v Maloney (1995) 182 CLR 609 where there was liability to the original owner; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, where there was no liability to the original owner; Barkclay v Penberthy (2012) 246 CLR 258; Brookfield Multiplex Ltd v Owners-Strata Plan No 61288 (2014) 88 ALJR 911 at [143]; Hawkins v Clayton (1988) 164 CLR 539 and Hill v Van Erp (1997) 188 CLR 159 (where a duty to the maker of the will has been breached with loss to a beneficiary but no resulting loss to the estate).

48.

CA 659 per Newnes and Murphy JJA.

49.

TR [335].

50.

TR [607].

74.

CA [695].

51.

TR [315], [723] and [724].

75.

CA [694] to [696].

52.

Including the road reserve and a line of trees on each boundary.

76.

AC [778] to [786].

53.

TR [315] and [717].

77.

54.

CA [322] and [323].

The majority found at CA [669] that Mr Baxter had complied with the licence agreement, as did the trial judge.

55.

CA [324].

78.

CA [356].

56.

This was not challenged on appeal – CA [607[, [729]

79.

CA [354] to [357], in apparent reference to the

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27


Higher Legal Education in Australia: Historical perspectives and contemporary trends Professor Doug Hodgson BA, LLB, LLM, FAAL Dean, School of Law, The University of Notre Dame Australia (Fremantle Campus)

Since commencing my career as an academic lawyer at the Faculty of Law, Monash University, Melbourne in 1983, the landscape of higher legal education within Australia has changed quite markedly. This article will attempt to concisely set out the significant changes which have occurred over the past 33 years within the legal education sector and proffer my thoughts on what constitutes an effective contemporary legal education and what makes a good lawyer. However, I issue the following qualification â&#x20AC;&#x201C; my views are entirely personal and do not reflect those of any institution or interest group. In terms of a regulatory spectrum, the legal education sector has gone from a period of what might be termed underregulation to what many might complain to be over-regulation during that time period. One of the most significant contemporary influences on the development of Australian legal education occurred with the release in March, 1987 of the so-called Pearce Report.1 The Report was commissioned in 1985 by the Commonwealth Government and was completed and released in the context of chronic underfunding of Australian legal education and the introduction of the socalled Dawkins Reforms for the higher education sector. The members of the review committee included my former colleague the late Dame Enid Campbell, the then Sir Isaac Isaacs Professor of Law, Monash University, Professor Dennis Pearce, Professor of Law, The Australian National University (Convenor), and Professor Don Harding, Professor of Law at the University of New South Wales. Although the 30th anniversary of its release is next year, it still exerts a significant influence on the development of Australian legal education.2 The Report consists of four volumes containing 48 recommendations to the Commonwealth Tertiary Education Commission as well as 64 suggestions to Australian law schools. Prior to the Pearce Report, the traditional model of legal education delivery involved lengthy two-hour 28 | BRIEF NOVEMBER 2016

lectures on doctrinal and "black letter law" subjects accompanied by onehour tutorials typically characterised by a lack of interactive engagement between the tutor and the students and insufficient structure, followed by an end-of-semester 100% final closed book examination. As Professor Sally Kift has observed, the 1980's Law student was a receptor of information on narrow legal rules delivered by the lecturer and tutor, with academic success being gauged by how well the student had absorbed the information and how accurately he or she could regurgitate and apply this information in answering the examination questions.3 The main teaching methodologies included; the 'expository' or straight lecture method, and the case discussion or Socratic method (the latter typically used in North American law schools since the 1960's and favoured by the Pearce Committee). The preponderance of Australian legal scholarship consisted of the identification and analysis of black-letter rules with little emphasis on socio-legal research.4 The Pearce Report stressed the need for greater funding of Australian law schools in order for them to remain competitive with their British Commonwealth common law legal education counterparts in maintaining the highest standards of scholarship and pedagogy. Specifically, the Report identified three areas where many Australian law schools had not been meeting benchmarks: lack of due attention to the theoretical and critical dimensions of legal education and the importance of skills teaching, lack of sufficient opportunities for small-group teaching, and insufficient Law Library collections. While the Pearce Committee did not advocate a single uniform type of legal education for all law schools to implement (preferring instead an eclectic approach involving students being exposed to a variety of teaching methods), it did identify minimum benchmarks to be satisfied to ensure that the Law degree awarded is recognised as a professional Law degree. The Pearce Report had a significant effect

on tertiary legal education, described as "the most comprehensive and significant investigation undertaken of Australian legal education".5 In the aftermath of the Pearce Report, Australian legal education has witnessed, inter alia, the increasing popularity of combined Law and non-Law course degree structures, the introduction of a greater range of elective unit offerings, the greater use of small-group teaching, embedding of skills tuition within the legal curriculum, greater provision of coursework higher degrees, and research-led teaching. Doctrinal teaching and scholarship have given way to a greater focus on non-doctrinal teaching and research (so-called socio-legal teaching and research) which consider Law through a wider contextual prism of social, economic, political and cultural implications. This has involved a more critical, theoretical, interdisciplinary and reform-oriented approach to Law teaching and scholarship by Australian legal academics. Over the past two decades, the legal education curriculum has also been significantly shaped by the so-called Priestley 11 subjects6 or "prescribed areas of knowledge" required to be successfully completed for admission into practice as a legal practitioner in Australia. These subjects were named after the Priestley Committee which was chaired by Lancelot John Priestley and which in 1992 determined the minimum academic study requirements for legal practice. Consequently, all Australian law schools must teach these subjects within the legal education syllabus and they are now set out in the Legal Profession Uniform Admission Rules 2015 under the Legal Profession Uniform Law (Legal Services Council). From time to time since 1992, calls have been made to alter and/or extend the list of Priestley 11 subjects to include subjects/skills such as Alternative Dispute Resolution and Statutory Interpretation (either as separate Law subjects or their embedding within other compulsory subjects).


Some of the other more notable changes to higher legal education over the past 30 years include information technology developments such as the delivery of on-line lectures which can be viewed by students from the comfort of their own homes and electronic or digital information retrieval. Law libraries have been transformed from hard copy-based to digital resource holdings. Most law journals have now been phased out in their hard-copy format and replaced by electronic platforms, many on an open-access basis. Law Deans now face increasing levels of Commonwealth and State regulation in periodically applying for re-accreditation of their Law degree courses through the Australian Qualifications Framework (AQF) and through their respective State-based law admission authorities. In 2013, the Council of Australian Law Deans (CALD) introduced a further layer of regulation when it established a voluntary accreditation process for Australian law schools for the purpose of demonstrating compliance with the CALD Standards 2009.7 We now have a system of "rolling accreditations" as a result.

unit offerings subjects on international refugee law, international human rights law, international criminal law, international humanitarian law (laws of armed conflict), international indigenous law and international trade, business and investment law. Such transnational aspects of the curriculum demonstrate the increasing impact of United Nations normative frameworks in domestic legal systems, including that of Australia. Legal academics, like judges, are also increasingly interested in, and informed by, the latest legal developments occurring in other common law jurisdictions such as Canada, the U.S.A., the United Kingdom and New Zealand. Two-way reciprocal Law student exchanges with overseas universities for academic credit have increased, and international bodies such as the International Association of Law Schools (IALS) have emerged, holding periodic international and regional meetings and conferences attended by law Deans or their representatives.9

In relation to the stakeholders, there has been a significant increase in the percentage of female Law students and legal academics since the 1970s and the minimum entry-level qualification of a Master of Laws degree has been superseded by a Doctor of Philosophy. More legal academics are statutory office-holders, members of law reform, anti-discrimination bodies and administrative tribunals. They increasingly involve themselves in public policy debates, provide media commentary, undertake government reviews, and make parliamentary submissions. There is generally greater engagement and consultation between law schools and professional legal bodies on matters of mutual interest and concern, and many Australian law schools today benefit from the wise counsel and advice of their law advisory boards.8 There is now increasing engagement by law schools with their alumni, something U.S. law schools have done very well for over a century. Apart from donations for student scholarships and prize sponsorships, alumni also engage in sessional teaching and serve as members of law advisory boards.

While research and scholarship (apart from teaching, administration and committee work) remain important tasks of academic lawyers (not uncommonly occupying 40% of their time), they are increasingly being externally assessed and evaluated, particularly by the Australian Research Council (ARC) established by the Commonwealth Government. Since 2012, Australian law schools have been ranked against each other on the basis of the quality of their peer-reviewed research outputs through three-yearly audits conducted by external independent experts.10 Commencing in 2018, they will also be assessed by the ARC on the extent of their research engagement with external research partners and the actual impact of their research outputs on changes to the Law and public policy. The maxim "publish or perish" is being superseded by "collaborate or crumble" as legal academics come under increasing pressure to win competitive collaborative research grants and generate income for their university employers in an increasingly corporatised higher education environment, often to the detriment of the quality of the overall educational experience being offered to Law students.11

In relation to changes to the legal curriculum, there is what I would term a discernible trend towards its 'internationalisation'. Going back 30 years, a law school may have offered only Public International Law, Conflict of Laws (Private International Law) and Comparative Law as part of its syllabus. Today, it is not uncommon to find as part of the pool of elective

In relation to teaching and assessment methodologies, and in part in response to the Pearce Report, the 100% final examination has been replaced by a combination of a final examination and pieces of "continuous assessment" undertaken during the semester which can amount to 50% of the final grade for the unit. Like medical schools, there is a discernible shift towards problem-based

learning (PBL) in Australian law schools. Internship opportunities at community legal clinics and government departments have been expanded and Assistant Deans of Teaching and Learning are increasingly occupied with tasks related to curriculum mapping, the systematic embedding of practical legal skills throughout the legal curriculum (skills matrices) and the articulation of Course Learning Outcomes (CLOs) and Unit Learning Outcomes (ULOs) to provide law students with a more responsive preparation for legal practice. CALD and Australian law schools are increasingly concerning themselves with the health and wellbeing of Law students, particularly their mental health, in acknowledgement of the demands and challenges of a rigorous professional legal education programme.12 In light of these developments, what then constitutes a good contemporary legal education? The answer will depend in no small measure on the answer to the question what makes a good lawyer, such that the legal education provided will be tailored to achieve the so-called Law graduate attributes. Without purporting to be exhaustive, I enumerate below what I consider to be the core attributes and essential qualities law schools should be inculcating in their students: •

Sound oral and written communication skills (the ability to express oneself clearly, concisely and logically)

Sound conceptual, critical analytical, reflective thinking and research and information retrieval skills

A keen sense of, and interest in, the dictates of justice and fairness

A firm commitment to humanity, the rule of law and public service through the dual prisms of human rights and social justice (what might be termed "active citizenship")

Sound understanding and appreciation of professional and ethical standards and their appropriate application

The qualities of empathy and sensitivity to the needs and interests of others

Cultural and contextual awareness (valuing different perspectives and standpoints – what might be termed 'interdisciplinarity')

Sound listening skills

Passion for causes but dispassionate in their advocacy

An enquiring mindset and an international/global outlook

An ability to work individually and as 29


part of a team •

Sound time management and task prioritisation skills

Appreciation of the need for ongoing life-long learning and continuing professional development

Comprehensive technical knowledge of the Law and sound problemsolving skills

How then can law schools best inculcate these attributes in their students? Based on what has worked best in practice, I proffer my own personal suggestions as follows: •

Inter-active, engaged and applied tuition in a small-group environment

A multi-pronged approach to legal education involving both doctrinal and non-doctrinal/socio-legal paradigms

An "up-front and personal" approach to tuition which minimises to the greatest extent practicable oneway on-line learning/i-lecture opportunities Tuition delivered by a cohort of staff which includes a healthy and complementary staffing profile mix of professional career academic lawyers and sessional staff drawn from the ranks of experienced practitioners A rigorous, practical skills-based legal curriculum which challenges law students to strive to attain their full potential The offering of units such as Alternative Dispute Resolution, Advocacy, Legal Philosophy and Legal Ethics to produce a more well-rounded and marketable law graduate A legal curriculum which teaches students how to find, apply and,

30 | BRIEF NOVEMBER 2016

where necessary, reform the law •

A legal education programme which contextualises the law through suitable experiential learning opportunities (including study abroad programmes and internship placements)

In conclusion, while, as the Pearce Report acknowledged, there is no single universally-acclaimed legal education methodological approach, an enquiry in relation to which reasonable minds may reasonably disagree, I personally prefer the eclectic approach which takes and amalgamates the best features from the leading legal education theories as I have outlined herein. When I commenced my career as an academic lawyer some 33 years ago, most law schools were led by what I would refer to as "scholar law Deans" who commanded respect among their colleagues and the legal profession in general. While this remains the case in some instances, contemporary law Deans have had to evolve and concurrently embrace the increasing need to perform the roles of negotiator, facilitator, subtle lobbyist, commercial entrepreneur and marketer in creatively diversifying law school revenue-generation streams and identifying alternative pathways into legal education programmes. This has been in response to Australian higher education having to become increasingly (and predictably) corporatised and financially self-sufficient as successive governments have cut back on tertiary education funding from the taxpayer. This is against a backdrop of law schools and universities in Australia and overseas being ranked against each other and across disciplines on their annual performance (mostly on the basis of research output and research income metrics).13 Nevertheless, one must not lose sight of the historical status of higher legal education as a profession rather

than a business and if we lose sight of that, we risk alienating the most important law school stakeholder – its students – and relegating the overall quality of the student educational experience to the dictates of commercial expediency and market forces. That would not serve the public interest in justice and its efficient administration. NOTES 1.

Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A discipline assessment for the Commonwealth Tertiary Education Commission (AGPS, 1987) (Pearce Report).

2.

David Barker, AM, "The Pearce Report – Does it Still Influence Australian Legal Education?" (2014) 7 Journal of the Australasian Law Teachers Association 77-86.

3.

Sally Kift, "For Better or For Worse?: 21st Century Legal Education" (Paper presented at the Educating New Entrants to the Legal Profession (Session 16.4), Law Asia Downunder 2005 Conference, Gold Coast, Queensland, 24 March 2005.

4.

Michael Chesterman and David Weisbrot, "Legal Scholarship in Australia" (1987) 50 Modern Law Review 714.

5.

Eugene Clark, "Australian Legal Education a Decade after the Pearce Report" (1997) 8 Legal Education Review 213, 214.

6.

These subjects include Administrative Law, Civil Procedure, Company Law, Contracts, Criminal Law and Procedure, Equity (including Trusts), Ethics and Professional Responsibility, Evidence, Federal and State Constitutional Law, Property and Torts.

7.

The Council of Australian Law Deans adopted The CALD Standards for Australian Law Schools on 17 November 2009.

8.

In relation to the composition of law advisory boards, the Australian sector practice typically includes judges, barristers, solicitors, retired legal academics and government lawyers with a representative cross-section of experience.

9.

In September, 2013, the IALS adopted the Singapore Declaration on Global Standards and Outcomes of a Legal Education at its Global Law Deans' Forum.

10.

The pilot project was conducted in 2010 and two formal ERA audits have since taken place in 2012 and 2015, with the next one scheduled for 2018.

11.

See, for example, the results of the Student Experience Survey (SES) administered by the Commonwealth Department of Education and Training in relation to the Quality Indicators for Learning and Teaching.

12.

CALD has recently produced a set of health and wellbeing guidelines for Australian law schools to use in developing their own policies.

13.

This is done through rankings conducted by, for example, the Australian Research Council in its Excellence in Research for Australia (ERA) three-yearly audits and world rankings including the Times Higher Education World University Rankings, the QS World University Rankings and the Center for World University Rankings (CWUR).

Overall quality of educational experience #1 in Australia

Skills development #1 in WA

Teaching quality #1 in WA

qilt.edu.au

qilt.edu.au

qilt.edu.au


What makes a good lawyer? Reflection, Clinical Education and practitioners of the future Anna Copeland

What are the skills and knowledge that legal educators want to develop in law students? What does the legal profession want from law graduates? What makes a good lawyer? While these seem like straight forward questions, the answer is often quite different depending on whether you are asking the legal educator or the legal practitioner. Not all law graduates will end up in legal practice, but whether they all make use of what they have learnt at law school depends on what we teach them. Legal education has to be about more than the law, it has to prepare students by encouraging them to reflect and grow as practitioners and people. Few would argue with the proposition that legal education must start with the concepts underpinning the system we refer to as the rule of law. Students must have a solid grounding in concepts such as burden of proof, procedural fairness, contractual obligations, duty of care etc. They must also understand legal frameworks, and the role of legislation, regulations, rules and policies. Whether they need to be across the detail of the content of this law is often contested, certainly in some areas the 'content' will have changed substantially within the few years between law school and practice. However even if comprehensive knowledge of the content may be rendered unnecessary due to likely obsolescence, graduates have to understand how legislation works and most importantly how to find, interpret and apply the precise legislation to the legal problem at hand. As Justice Kirby has famously and eloquently put it The world of common law is in retreat. It now circles the orbit of statute. Where statute speaks â&#x20AC;Ś there is no escaping the duty to give meaning to its words. This raises then issue of knowledge of statute (i.e. content) or knowledge of how to find and interpret the statute (i.e. research and analysis skills). One enduring criticism of law schools is that they focus on legal content at the expense of practice skills. Some have

argued that the legal academy has privileged the knowledge itself over the application of that knowledge, and therefore requires a distinction between thinking and doing.1 This model is not unfamiliar across tertiary education and it goes something like this: professional educators first teach students the basic relevant law, then teach them the applied relevant law (perhaps through a case study or problem question) and then give them a practicum in which to work on applying that law to the everyday problem of practice, often through externships or PLT course.2 This process does not sound foreign to anyone engaged in the teaching of law over the last few decades. However, the ongoing difficulty in the eyes of educationalists such as Donald SchĂśn and others is that it privileges basic knowledge over practice and narrowly defines what practice is. In this process the basic knowledge is pre-eminent and alone gives legitimacy to the applied knowledge which in turn legitimises the practice. But, in SchĂśn's view, the practice is far broader than anything the basic knowledge can clearly support. He points to the reality faced by those who practise and try to teach practice: that the knowledge that seems relevant to the problems they address is often not the knowledge that is taught in the classroom.3 It is the assumption that professional practice is merely the application of a body of knowledge to a practical situation which is so unhelpful and inadequate, yet has been dominant

within legal education. This particular issue has not gone unnoticed by legal educators. A review of Australian law schools undertaken by the Pearce Committee in 1987 led to recommendations that teaching be integrated with intellectual skills,4 while the Carnegie Report in the United States called for an "integration of realistic and real-life lawyering experiences throughout the curriculum, and challenges [to] American law schools to produce lawyers who are not only smart problem-solvers but also responsible professionals committed to service of both clients and the larger society".5 This is because legal practice is not just about substantive legal knowledge, it is also about processes: the process of building rapport with a client so that they can get the full picture; the process of applying the different silos of legal knowledge taught in law school to think about a holistic solution to the client's issue; the process of applying legal knowledge and thinking through the effect on the client and their situation while discussing this with the client to ensure they are acting on instructions. These are but a few of the complex processes that are part of practice, and they all rely on reflection. It is the practitioner's ability to reflect, and then to alter their part in the process to produce a better outcome, which develops them as a practitioner. Clinical Legal Education offers a unique opportunity to develop law students and young practitioners in reflective practice. 31


CLINICAL LEGAL EDUCATION Next year, Murdoch School of Law will celebrate 20 years of offering a comprehensive Clinical Legal Education Program. The program is made possible through a collaboration with SCALES Community Legal Centre and gives Murdoch law students the opportunity to work in a real legal practice, offering legal advice and representation to clients that are marginalised or disadvantaged. Under the supervision of staff that are both qualified practitioners and trained supervisors, the Clinical Program provides a unique opportunity for law students to develop their legal skills while gaining a deeper understanding of law in context. Students have the opportunity to work on a range of legal matters, and use a broad range of skills, including interviewing, formulating and giving advice, advocacy and representation. Clinical legal education has a unique ability to expose students to new, strange and previously unimaginable experiences. Unlike a case study, or even a simulation, which is selected or written by the educator, a real client enters the students' experience as a bundle of unpredictable, often contradictory, facts, feelings and impulses. Students must respond to all of these. Of course they need to develop the skills which will enable them to identify the relevant legal facts, just as they would in a class exercise, but they cannot do it in the kind of isolation that non-clinical methods allow. Almost any client seeking legal advice will have a problem which encompasses different areas of law, and the facts are never presented neatly. This means that students dealing with such situations cannot simply rely on their knowledge of the law, they need to consider the client's situation, the limitations of time and money and even the broader considerations for the client such as reputation or future relationships. They need to develop new strategies and approaches to problem solving, and they have to listen and understand the complex issue of the client. They have to understand the broader context in which they work, and they have to have a firm and clear grasp on what their role as a lawyer is. These complex issues are all part of day-to-day legal practice, but to learn from their experience and to develop their skills and insights, the students must learn how to reflect. Reflection allows us to think about our experiences, to analyse how we dealt with them, what assumptions we relied on, and importantly what we could do differently next time. Reflection is "the 32 | BRIEF NOVEMBER 2016

magic ingredient which converts legal experience into education."6 The best way for the student to learn to reflect is to be exposed to these experiences over and over. We should successively ask them to respond, to think about their response, and then to alter their response the next time as a result of their thinking. The multiple layers of the clinical method stimulate a deep, rich reflection in this way. Students often feel the weight of responsibility of working with real clients. That sense of responsibility can inspire them to put aside their focus on their own performance (i.e. grades) and immerse themselves in their client's case. They become part of the experience because they are in the role of the practitioner, with a responsibility to do the best for their client; not simply a spectator with an opinion on how to proceed. Teaching students to reflect in this context has two interrelated benefits. First, it gives them a framework as they grapple with how they process this new and daunting experience and how they make sense of it. Secondly, it improves their ability to actually use the knowledge they have: to see their client's issues in the broader context and then use this knowledge to build a solution. Reflection can be applied to a range of areas of clinical legal education. In the area of skills acquisition, reflection may be used to develop a student's client skills, such as accurate fact gathering. Take, for example, the student who assumes a client who cannot recall detail must be lying: if the student has the opportunity to consider the experience of their client, including the client's personal history and circumstances, then the student may start to question this assumption. The student may discover that their client is receiving counselling for post-traumatic stress, or that the client suffered a brain injury which interferes with memory. The student might acquire these extra facts as part of the process of taking instructions, but if the student can go beyond simply noting them and think about how these factors might influence or affect their client, then they have begun to reflect. Learning to reflect has benefits far beyond the practice of law; reflection can serve as a useful link between study and practice. Students who are taught how to reflect, and who are exposed to the benefits arising from reflection, are unlikely to stop reflecting once they have handed in their last journal entry for their clinical course or graduated from law school. Properly developed, genuine reflective skills become a practice, a habit that leads the practitioner to greater

understanding of themselves and their practice: What [an individual] has learned in the way of knowledge and skill in one situation becomes an instrument of understanding and dealing effectively with the situations which follow. The process goes on as long as life and learning continue.7 In addition to fostering growth, reflection can also promote resilience, which has become more important in light of recent research pointing to the particular difficulties the legal profession has with mental stress and depression.8 Reflection gives students a structure and a process that can be applied not only to their legal practice but also to themselves and their experiences. Changes in the job market and the proliferation of law schools means that legal education is being called upon to meet the needs of many different groups: legal practitioners want graduates practice ready, students want training and education that will give them the edge in the tight employment market, and the community wants a legal profession that sees pro bono and community service as an integral part of its role. All of these demands come back to the ability of legal education to develop in law students; not only legal knowledge; but practice skills. More importantly, it demands that legal education teaches higher skills, such as reflection, which will enable law graduates to understand their role within the profession and the professions role within the community. ABOUT THE AUTHOR Anna Copeland is the Director of Clinical Legal Education Programs at Murdoch University School of Law and the coauthor of an upcoming book on Clinical Legal Education to be published by ANU press. The research on which the book is based can be accessed here: https://perma.cc/M227-4PA8. NOTES 1.

See the work of Donald A Schon for example; 'Educating the Reflective Legal Practitioner' (1995) 2 Clinical Law Review 231, 249.

2.

Donald A Schön, 'Educating the Reflective Legal Practitioner' (1995) 2 Clinical Law Review 231, 235.

3.

Ibid.

4.

DE Pearce, E Campbell, and D Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission: A Summary and Volumes I–IV (1987) AGPS.

5.

William M Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond and Lee S Shulman, Educating Lawyers: Preparation for the Profession of Law (2007) John Wiley and Sons.

6.

Georgina Ledvinka, 'Reflection and assessment in clinical legal education: Do you see what I see?' (2006) 9 International Journal of Clinical Legal Education 29, 29–30.

7.

John Dewey, Experience and Education (1938) Collier Books, Macmillan.

8.

See, for further discussion, N Kelk, G Luscombe, S Medlow and I Hickie, Courting the blues: Attitudes towards depression in Australian law students and lawyers (2009) Brain and Mind Research Institute Monograph, 1; and Massimiliano Tani and Prue Vines, 'Law Students' Attitudes to Education: Pointers to Depression in the Legal Academy and the Profession?' (2009) 19(1/2) Legal Education Review 3–39.


The changing nature of legal education Associate Professor Natalie Skead and Professor Erika Techera The University of Western Australia

The winds of change are blowing in the direction of legal education, not only in terms of the students themselves, but also the expectations and pressures placed upon them as they exit university. Law Schools need to be prepared and brace themselves if they are to remain standing. THE CHANGING LAW STUDENT The past decade has seen a rapid rise in the number of law schools in Australian Universities, with the number now standing at 39; two non-university providers also offer accredited law degrees. In Western Australia, the number of Universities offering an accredited professional law degree has almost doubled since 2005 with Curtin University the most recent entrant in 2012. This increase in law schools has necessarily resulted in greater accessibility to a legal education for those with an interest in studying law. No longer is the study of law available only to the privileged few. As noted by Israel, Skead and Heath et al, while the stereotypical Australian law student "from decades past" may have been "white, English speaking from a metropolitan area, a recent graduate from an elite private high school, studying full-time in one of the eight 'sandstone' researchintensive universities, and with existing links to the legal profession",1 this is no longer the case. Increasingly Australian law students are representative of a more socially, culturally and ethnically diverse Australia.2 This changing demographic â&#x20AC;&#x201C; and perhaps the resultant benefits of a more inclusive, broader and, therefore, more meaningful legal education â&#x20AC;&#x201C; is reflected in the expanding entry pathways into professional law degrees in the Group of Eight3 universities. Graduate Access Melbourne, for example, is a special entry and access scheme for those wishing to gain entry into postgraduate study, including into the Juris Doctor (JD) and

whose particular circumstances may have affected their academic performance in previous tertiary studies.4 Similarly, the University of Western Australia Law School (UWALS) introduced an Equity and Diversity Pathway into the JD in 2015. This pathway stipulates lower entry requirements for applicants holding, or who have held, a refugee or humanitarian visa, or who have "experienced significant personal, medical, social, educational, cultural or financial disadvantage or hardship, including any disadvantage or hardship resulting from an applicant's sexual orientation or gender identity".5 THE ROLE OF LAW SCHOOLS Beyond just providing access via alternative entry pathways, law schools have a responsibility to respond to and support their more diverse student cohorts in a variety of ways. Mentoring and support Ensuring the success of students in an increasingly diverse cohort requires law schools to recognise the particular needs of different students and then to provide support mechanisms that cater to those needs. For example, international students may need English language support. While this is commonly provided for at an institutional level, law schools might provide addition support for these students, for example, by allowing them to take a dictionary into an examination. Students who experience financial difficulties and are self-supporting may not be able to afford prescribed or recommended resources. Law schools can assist by establishing a book loan scheme.6 A range of more general academic support programmes should also be made available, particularly for those students who enter the professional law degree via an alternative pathway and who may therefore need assistance in establishing an effective and healthy study regime. A student who is, for instance, the first member of their family to study at university may not have family members to turn to for guidance. In this

sense additional pastoral care may be needed. This can be university-, Faculty-, or student-led, and is likely to provide improved outcomes for the broader student cohort.7 Mentoring schemes matching students with mentors at appropriate points in their law studies can also assist in improving the students' law school experience and their academic success. This may range from an internal academic mentor in early years to an external professional mentor towards the end of the degree. In this state, current programmes include the Law Society's Young Lawyers Committee Law Student Mentoring Programme8 and the Women in Law Mentoring Scheme run by UWA's Blackstone Society.9 Nikolas James examines the benefits of a mentoring programme that "matches law students with legal professionals who are available to support the students in their journey through law school and their transition to professional practice".10 The benefits identified by James include: gaining an "insight into law and its operation in practice"; getting "support and guidance when making study and career choices"; having "a role model" and "professional networking opportunities"; and having access to an expert to "discuss discipline knowledge".11 Classroom interactions Israel, Skead and Heath et al have written recently on the importance of legal academics attending to increased law student diversity at the micro level in the law classroom by adopting learning and teaching strategies that celebrate difference and signal inclusion of all.12 If the legal academy is to provide a legal education that is effective, meaningful and appropriate for all students, it is critical that law teachers not only recognise the changing demographics of their students but that they respond to those changes in their teaching practices and interactions with students. A diverse academy Central to an appropriate and effective response to the increase in law student diversity is law schools taking steps 33


where possible to ensure a more diverse academy through recruitment and training. If students are to be provided with a broad range of educational options then staff must be drawn from different jurisdictions, practice areas and backgrounds. As financial pressures are placed upon universities, the value and importance of adjunct staff is clear. A broad curriculum While the core curriculum is strictly regulated at a national level with prescribed areas of knowledge,13 there is scope within a professional law degree to cater to the wider interests of a more diverse student cohort through an interesting and varied suite of option units. These may include units with a commercial focus, such as Corporate Insolvency, Mergers and Acquisitions or Human Capital; or units with an international focus such as Public International Law, Conflict of Laws, International Criminal Law, International Environmental Law, or Law of the Sea; or a hybrid of both such as International Trade Law, World Trade Organization Law, International Sales Law or the like. Alternatively, for those students who are more interested in social justice, units such as Law and Religion, Human Rights, Animal Law or Health Law may be more appealing. And then there may be practice-based options for those committed to a career in private legal practice: Forensic Advocacy, Mooting, Advanced Evidence and Proof. Preparing students for life after law school Aside from the prescribed substantive content, a professional law degree must cover, the Council of Australian Law Deans has endorsed the six Threshold Learning Outcomes (TLOs) LLB14 and JD15 graduates are expected to know, understand and be able to do. These TLOs address critical legal skills including knowledge (TLO 1), ethics and professional responsibility (TLO 2), thinking skills (TLO 3), research skills (TLO 4), communication and collaboration (TLO 5) and self-management (TLO 6) and, typically following an extensive process of progressive and coordinated mapping, have been embedded into the professional law degrees of most Australian law schools.16 It is incumbent upon law schools to review their professional law degrees regularly so as to ensure they continue to integrate the development of the TLOs appropriately across the degree. The successful acquisition of the TLOs by a law graduate will go some way to equipping the graduate with the skills and attributes necessary for a career 34 | BRIEF NOVEMBER 2016

in law. However, in an environment of much-publicised fierce competition for graduate employment, demonstrating these outcomes may not be enough. Law schools are in a position and, arguably, have a responsibility to do more for their students. This may include giving students the option of gaining 'hands-on' experience in the workplace through clinical legal education and internship programmes. Where possible, the available placements should reflect the diversity of the students themselves ranging from local to regional, rural, national and even international options with commercial, government, not-forprofit and social justice employers.17 In addition, opportunities to gain formal and informal exposure to, and engage with, members of the legal profession and the broader legal community may assist students to build relationships and develop networks. As noted by Karen Barton, "[p]reparation for any profession is a complex process of acquisition of knowledge, skills, experience and habits expressed as codes and values".18 Barton continues: As one of the 'learned' professions requiring advanced learning and high principles, law enjoys a special standing in society. In return for its status and rank, the legal profession is expected to exhibit the highest levels of honesty, trust and morality, … This, in turn, entrusts to legal education a particular problem of addressing not only substantive elements of the body of law, but a means through which the characteristics of the calling of law are imparted and instilled … there is a need to prepare the new generation of lawyers for these challenges by instilling in them qualities such as resilience, character, empathy and curiosity.19 Law schools and law teachers are uniquely placed to guide students in developing these attributes and defining their own individual professional identity.20 Doing so, however, requires recognising that there is no one-sizefits-all – each student has to find his or her own meaning in law. In this way legal education can provide "practical and active support to ensure the future viability of the legal profession"21 – a legal profession that accommodates, understands and values diversity in its members and in the clients it serves. SUPPORTING LAW GRADUATES AS THEY ENTER THE PROFESSION For many years much attention has been focused on pathways for students into

law school and the content, structure and delivery of law curricula – leading to some of the developments outlined above. Far less attention has been given to providing post-graduation support for law graduates. Given the increasing numbers and the diversity of law graduates, the need for Australian law schools to do better in this area is well-recognised. The range of career paths Historically, career information in law schools focused on opportunities to move into private practice, often overwhelmingly commercial and corporate roles. Over time the language and focus changed to include 'alternative careers'. This terminology is unfortunate as it creates the impression that a position with an organisation or in a field other than private practice is not the 'norm'; it is 'alternative' to what might be expected. Although the language of alternative careers does still prevail in some jurisdictions,22 in most cases Australian law schools have moved on to raising awareness about the fuller range of career options and pathways for law graduates.23 Law student societies have had, and continue to have, an active role to play in this regard typically by holding 'careers fairs'24 and providing online careers information.25 Arguably law schools could do more in raising awareness of the different careers that are available to law graduates. It is wellknown that despite the growing diversity in law student demographics, many students continue to perceive private law careers as superior to other positions. This can be clearly seen around the clerkship and graduate recruitment application periods which many students find distressing. Opportunities to invite not only practitioners but also those who have pursued a range of other careers in law onto campus to meet with students can be provided throughout the degree programme.26 This not only provides a direct benefit to students but also engages alumni and other stakeholders with current students and the law school community. A competitive edge through experiential learning As pressure continues on law jobs, students are seeking greater opportunities to enhance their degrees. One of the ways to give students a competitive edge in the employment market is to offer a broad range of electives units referred to above. In particular, experiential opportunities allow students to build knowledge alongside critical practice skills.27 The value of clinical education is wellestablished, both for students and the


broader community, and the majority of law schools offer some elective and extra-curricular activities in this regard.28 Expanding places to ensure all students can have such an experience will become a challenge as the number of law schools and law students grows. The increasing importance of technology in practice Increasingly attention is being drawn to the future of the legal profession and the predicted impact digital technology will have on the practice of law.29 The response has been to build expertise in graduates by offering electives in areas such as digital technology and cybersecurity, with some offering more innovative units in this area.30 The issues extend beyond the use of technology in practice (for example digital discovery) and include aspects such as the use of social media and ethical concerns (particularly in litigation). It is expected that law schools will expand their subjects in the future to meet the growing need for technological and digital expertise, as well as incorporating some of the challenges into core subjects such as civil procedure, criminal law and ethics. It will, however, remain a challenge for law schools to provide opportunities and develop subject offerings for an uncertain future. Post-graduate opportunities Further study is another way in which law graduates can gain a competitive advantage in a tough employment market. Many law students consider further study straight after law school. This places pressure on legal educators to provide programmes that meet current and future needs and cater to the broader interests of a more diverse student market. The last five years has seen an expansion of postgraduate coursework offerings across a number of areas.31 UWALS has, for example, expanded its Masters and Graduate Diploma courses from five to 16 in recent years.32 As with the qualifying law degrees, students are demanding flexibility both in terms of the choice of areas for study as well as mode of delivery. This is an area where consultation and collaboration with stakeholders, including the legal profession, industry and government, is critical. Again this places pressure on law schools which need to provide programmes for young professionals in the local marketplace, whilst meeting university-wide demands to attract international students with different learning needs and agenda.

Practical Legal Training and Continuing Professional Development Increasing graduate numbers places pressure on places for Practical Legal Training (PLT). In addition, legal practice board requirements for Continuing Professional Development (CPD) have seen public and private entities offering these services. Both of these areas have strong educational components in which law schools have become more involved. PLT has been offered by Australian National University and a private provider (College of Law) for some time, but as pressure for places in these programmes mounts, other alternatives have emerged providing support and assistance to law graduates as they exit law schools and transition to the legal profession and beyond. In Western Australia the Piddington Society33 has attracted support, particularly its Justice Project,34 which offers a guaranteed PLT place. In the CPD space, the UWALS has established the UWA Professional project – an online platform of recorded and live webinar CPD events accessed via annual subscription.35 The service will be offered to students free-of-charge in their final semester of the JD to aid them in transitioning to the legal profession and a one year subscription will be gifted to all UWALS JD graduates to take the pressure off these young lawyers in their first year in practice. UWA Professional has received considerable support from alumni and the legal profession who provide content and participate in the events.

3.

As described on their website, 'The Group of Eight (Go8) comprises Australia's eight leading research Universities … The Go8 was incorporated in 1999, … and are focussed on, and are a leader in, influencing the development and delivery of long-term sustainable national higher education and research policy, and in developing international alliances': https://go8.edu.au/ page/about.

4.

For details of Graduate Access Melbourne see http://futurestudents.unimelb.edu.au/admissions/ access_melbourne_and_equity_programs/graduateaccessmelbourne.

5.

http://www.law.uwa.edu.au/courses/juris-doctor-jd/ juris-doctor-selection-criteria.

6.

See, e.g., The Blackstone Society's equity textbookscheme, Black Books http://www.blackstone. asn.au/equity-textbook-scheme/.

7.

Kate Galloway and Rachel Bradshaw, 'Responding to Changed Parameters of the Law Student: A Reflection on Pastoral Care in the Law School' (2010) 3(1) Journal of the Australasian Law Teachers Association 101.

8.

https://www.lawsocietywa.asn.au/committee/ younglawyers/.

9.

http://www.blackstone.asn.au/wilms/.

10.

Nikolas James, 'Professional Mentoring Programs for Law Students' (2011) 30(1) University of Tasmania Law Review 4.

11.

Ibid.

12.

Israel, Skead, Heath et al above, n 1.

13.

http://www.lawcouncil.asn.au/LACC/images/pdfs/LA CCPrescribedAcademicAreasofKnowledge-June2008. pdf.

14.

http://www.cald.asn.au/assets/lists/Resources/ KiftetalLTASStandardsStatement2010%20TLOs%20 LLB.pdf.

15.

http://www.cald.asn.au/assets/lists/Resources/JD%20 TLOs%20(March%202012)%20Andrew%20Kenyon. pdf.

16.

Normann Witzleb and Natalie Skead, 'Mapping and Embedding Graduate Attributes across the Curriculum' in Kift, Sanson, Cowley and Watson Excellence and Innovation in Legal Education LexisNexis 2011. See, too, Natalie Skead, Sarah Murray and Penny Carruthers, 'Taking up the challenge: Embedding, mapping and maintaining threshold learning outcomes in the transition to the JD – the UWA experience' (2013) 47(2) The Law Teacher 130; Normann Witzleb and Natalie Skead, 'A bottom-up approach to developing LLB course outcomes and an integrated curriculum' (2009) 43(1) The Law Teacher 62.

17.

For a concise discussion on the benefits of clinical legal education and internships see, William Sullivan, Anne Colby, Judith Welch Wegner et al, Educating Lawyers: Preparation for the Profession of Law, The Carnegie Foundation for the Advancement of Teaching, JosseyBass, 2007, 120-122.

18.

Karen Barton, 'Introduction' in Fiona Westwood and Karen Barton, Eds The Calling of Law: The Pivotal Role of Vocational Legal Education, Routledge, London and New York, 2016, 3.

19.

Ibid, 3.

20.

Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities LexisNexis Butterworths Australia 2014, Ch 1.

21.

Barton, above n 18, 4.

22.

http://www.careers.cam.ac.uk/sectors/law/cmslawalts. asp; https://www.law.georgetown.edu/careers/ careerplanning/private-sector-settings/alternative.cfm.

23.

http://www.law.unsw.edu.au/careers/students/ careerpaths.

24.

http://sydney.edu.au/careers/student_events_ workshops/careers_fair/law.shtml; http://www.anu.edu. au/events/law-careers-fair.

25.

http://www.blackstone.asn.au/careers-handbook/.

26.

http://www.law.uwa.edu.au/the-school/ opportunitiesand-engagement.

27.

Sullivan, Colby, Wegner et al, above n 17.

28.

Jeff Giddings, Promoting Justice Through Clinical Legal Education, Justice Press 2013.

29.

Many peak legal bodies have committees focused on this issue; for example, Law Council of Australia, Legal Profession Futures Committee.

30.

http://law.unimelb.edu.au/students/jd/enrichment/pili/ subjects/law-apps.

31.

http://www.lawyersweekly.com.au/news/19088lawschools-boost-postgraduate-offerings-in-2010.

32.

http://www.law.uwa.edu.au/courses/coursework.

33.

http://piddingtonsociety.com/.

34.

http://www.pjp.org.au/.

35.

www.professional.uwa.edu.au.

CONCLUSION It may be that the number of law schools in Australia will continue to grow and that, with this growth, there will be a larger and more diverse law student population. As they have done in the past, law schools will be required to adjust to meet the changing needs and expectations of law students – and the legal profession. The rapid pace of these changes and the myriad of career options for law graduates make this a significant challenge for legal educators that are both time and resources poor. Nonetheless, it is often in such circumstances that new and exciting opportunities, partnerships and innovations emerge. NOTES 1.

2.

Mark Israel, Natalie Skead, Mary Heath, Anne Hewitt, Kate Galloway and Alex Steel, 'Interaction and Diversity in the Australian Law Classroom' (2016) 39 Research and Development in Higher Education: The Shape of Higher Education 127, 128 http://herdsa.org. au/ publications/conference-proceedings/researchanddevelopment-higher-education-shape-higher-12. Ibid, 129.

35


Western Australian Land Tax The effectiveness of the anti-avoidance provisions John Pickering Warren Syminton Ralph

Land tax in Western Australia is imposed pursuant to the Land Tax Assessment Act 2002 (LTAA). With regular land revaluations by the Valuer-General and the increasing value of land in Western Australia coupled with the need for the State Government continually to raise more revenue, land tax paid on commercial properties will undoubtedly continue to rise. The 2015-16 State budget increased rates of land tax to the following:

OUTLINE OF THE LAND TAX LEGISLATION Land tax is payable by the owner, or a person taken to be the owner, of land at 30 June each year. Joint owners of land are jointly and severally liable for any tax payable3 and the joint owners are assessed land tax as if the land were owned by one person4. In simple terms, jointly owned land is not aggregated with other land owned by the individual owners.

Aggregated Taxable Value of Land

provision of the Act specifically requires the land tax to be assessed on the lots or parcels jointly. Similarly, if a trustee owns taxable land held in trust for another person and the trustee is also the beneficial owner of other land, the land tax payable on the land held in trust is assessed separately from the land tax payable on the land held beneficially (that is, it is not aggregated with the other land), unless for any reason the land tax payable on

Rate of Land Tax

Â

Not Exceeding

$0

$300,000

Nil

$300,001

$420,000

Flat rate of $300

$420,000

$1,000,000

$300 + 0.25 cent for each $1 in excess of $420,000

$1,000,000

$1,800,000

$1,750 + 0.90 cent for each $1 in excess of $1,000,000

$1,800,000

$5,000,000

$8,950 + 1.80 cents for each $1 in excess of $1,800,000

$5,000,000

$11,000,000

$66,550 + 2.00 cents for each $1 in excess of $5,000,000

$11,000,000

Â

These rate increases were estimated "to raise additional revenue of $184 million in the financial year ended 30 June 2016, and a total of $826 million (or 24.4%) over the four years to 30 June 2019."1 Land which is used solely for primary production and land used as a primary residence by the owner remain exempt from the tax. Land tax is paid on the unimproved value of land. As is evident from the table above, it is incremental and all taxable land owned by a taxpayer is aggregated to ascertain the rate of tax payable. The purpose of this paper is to review the effectiveness of the current antiavoidance provisions2 and in this context, the discussion inevitably turns to whether or not land is properly aggregated to the one owner and whether or not it can be disaggregated.

36 | BRIEF NOVEMBER 2016

$186,550 + 2.67 cents for each $1 in excess of $11,000,000 A trustee5 in whom the legal estate of taxable land is vested (whether solely or jointly with other trustees) is liable for the taxes payable on the land, as if the trustee were the beneficial owner of the land. However, the trustee is not personally liable for the taxes to any greater extent than the amount of any funds or securities for money of the beneficiary that the trustee holds, or has the controlling power over, after receiving an assessment notice for the taxes6. If a person owns two or more lots or parcels of taxable land, land tax is payable on the aggregated taxable value of all the taxable land owned by the person. Where a trustee owns two or more lots or parcels of taxable land held, in severalty, in trust for different persons, then the land tax payable for each lot or parcel is assessed separately, unless another

the trust land and the beneficially held land is liable to be jointly assessed independently of this subsection7. Unpaid land tax is a statutory charge on the land for which the tax is payable, whether or not the notice of assessment has issued or the tax is due for payment8. AN HISTORICAL PERSPECTIVE The first land tax in Australasia was enacted in New Zealand in 18789 10. It contained provisions similar to those with which we are familiar today. For example, joint owners were assessed as if they were the sole owners of the land. However, they were jointly and severally liable for the tax11. Land tax was calculated on land held in trust as if one person was the sole owner. The beneficiaries were liable to pay tax on their share of the amount so calculated12. However, the trustee was personally liable for the tax which the beneficiary


should have paid13. Notably, the New Zealand Act contained a general anti avoidance provision which is remarkably similar to the current general anti avoidance provision – s45 of the LTAA. The legislative history of the New Zealand anti avoidance provisions was conveniently summarised by Lord Donavan in the Privy Council case of Mangin v Commissioner of Inland Revenue14. In Australia, the imposition of a land value tax on land owners by the various States was initially designed to break up large holdings of underutilised land held by absentee owners and speculators, as well as to raise revenue. It was often introduced in conjunction with, or in tandem with, income tax. Land tax soon became an integral part of the revenue base for most States and the Commonwealth. Land tax was introduced in South Australia in 188415. The NSW Act16, based largely upon the New Zealand model, was enacted in 1895. It would seem that the legislation was in fact drafted by the New Zealand Tax Commissioner17. The Act was repealed in 1906 and land tax was not re-imposed in NSW until 1956. The NSW Act contained the following general anti avoidance provision: 63. Every contract, agreement, or understanding, whether arrived at or evidenced by matter of record under seal or by writing or by parol, having or purporting to have or which might have the effect of removing, qualifying, or altering the operation of any assessment, return, exemption, or deduction, or of in any way affecting the incidence of any assessment, or tax, or displacing the benefit of any exemption, or deduction authorised by or consequent upon any provision of this Act shall (whether such contract, agreement, or understanding shall have been or be made before or after the passing of this Act) be wholly void and inoperative so far as such contract, agreement, or understanding purports or is intended to have or might have the effect aforesaid, but without prejudice to the validity of such contract, agreement, or understanding in any other respect or for any other purpose: Provided that the interest of the lessor in any lands subject to any such agreement made before the commencement of this Act by a lessee to pay the

land tax shall, for the purposes of contribution under section twelve, be calculated upon a basis excluding the value of the reversionary interest. Tasmania18 and Victoria introduced a form of land tax based upon the unimproved value of land in 191019. Queensland introduced land tax in 191520. The Commonwealth also introduced land tax in 191021 (abolished in 1953). It contained a general anti avoidance provision, very similar to the income tax general anti avoidance provision, contained in s260 of the Income Tax Assessment Act 1936 (ITAA36) (s260 is now only applicable to arrangements entered into or carried into effect prior to May 1981). Land tax in Western Australia was introduced in 1907,22 primarily as a response to the need for the State to find an additional source of revenue following the conclusion of the 'special financial arrangements' which had been negotiated upon joining the Commonwealth. The legislation largely replicated the NSW legislation23 and like most legislation introducing new taxation measures, it was not enacted without a considerable political fight. The Western Australian legislation (1907) contained the following general anti avoidance provision, the operative part of which was essentially the same until 1976: 70. Every contract, agreement, or understanding, whether arrived at or evidenced by matter of record under seal or by writing or by parol, having or purporting to have or which might have the effect of removing, qualifying, or altering the operation of any land assessment, return, exemption, or deduction, or of in any way affecting the incidence of any land assessment or tax, or displacing the benefit of any exemption, authorised by or consequent upon any provision of this Act shall (whether such contract, agreement, or understanding shall have been or be made before or after the passing of this Act) be wholly void and inoperative so far as such contract, agreement, or understanding purports or is intended to have or might have the effect aforesaid, but without prejudice to the validity of such contract, agreement, or understanding in any other respect or for any other purpose:… In 1976, Western Australia repealed the 1907 Act and replaced it with the Land Tax Assessment Act 1976. Section 57

of the 1976 Act provided (in terms very similar to the 1907 Act) that: 57. Every contract, agreement, or understanding, whether arrived at or evidenced by matter of record under seal or by writing or by parol, having or purporting to have or which might have the effect of removing, qualifying, or altering the operation of any assessment, return, exemption or of in any way affecting the incidence of any assessment or tax, or displacing the benefit of any exemption, authorized by or consequent upon any provision of this Act shall (whether such contract, agreement, or understanding shall have been or be made before, or after the coming into operation of this Act) be wholly void and inoperative as against the Commissioner so far as such contract, agreement, or understanding purports or is intended to have or might have that effect, but without prejudice to the validity of such contract, agreement, or understanding, in any other respect or for any other purpose. Finally, in 2002, Western Australia enacted the LTAA, s4524 of which provides: (1) A contract, agreement or understanding that has or purports to have or might have the effect of removing, qualifying or altering the operation of an assessment or exemption, or of in any way affecting the incidence of an assessment or land tax or displacing the benefit of any exemption, is wholly void and inoperative as against the Commissioner so far as the contract, agreement, or understanding purports or is intended to have or might have that effect. (2) Subsection (1) has effect whether the contract, agreement, or understanding — (a) is arrived at or evidenced by matter of record under seal or by writing or by parol; or (b) was made before or after the commencement of the land tax Acts. (3) Except as provided in subsection (1), that subsection does not prejudice the validity of the contract, agreement, or understanding.

37


SECTION 45 For s45 to apply: 1. there must be either a contract, agreement or understanding; 2. the contract, agreement or understanding, must be one which has, purports to have or is intended to have or might have, one or more of the following effects: a) removing the operation of an assessment or exemption; or b) qualifying the operation of an assessment or exemption; or c) altering the operation of an assessment or exemption; or d) in any way affecting the incidence of an assessment; e) in any way affecting the incidence of land tax; or f)

displacing any benefit of any exemption; and

3. if any of the above occur, then the relevant contract, agreement or understanding is wholly void or inoperative against the Commissioner but only so far as the relevant contract, agreement or understanding has or purports or might have that effect. In the context of land tax avoidance, it seems to the author that the only practical situation in which s45 could apply is paragraph 2(e). That is, if there is a contract, agreement or understanding, which has, purports to have or might have, the effect of in any way affecting the incidence of land tax. There is little or no case law on s45 or its predecessors. It has remained unchanged since it was enacted. However, there are many judgments concerning the application of s260 of the ITAA36 which provide some guidance as to how the Courts will interpret s45. It was said of s260 (equally applicable to s45), prior to the introduction of Part IVA of the ITAA3625: Section 260 is a difficult provision, inherited from earlier legislation, and long overdue for reform by someone who will take the trouble to analyse his ideas and define his intentions with precision before putting pen to paper.

38 | BRIEF NOVEMBER 2016

The Commonwealth enacted the general anti-avoidance provision (Part IVA of the ITAA36) in 1981. S260 then only had operation in respect to transactions which were entered into or carried out prior to 27 May 1981. Part IVA applies to schemes entered into or carried out after 27 May 1981. It applies to a scheme or arrangement entered into for a purpose of enabling a taxpayer to derive a tax benefit. In this context, it enables the Commissioner to make a determination to cancel the tax benefit. In the context of land tax, under the Victorian Land Tax Act 2005,26 where the Commissioner considers a person has participated in a tax avoidance scheme (applying criteria specified in the Act), the Commissioner may disregard the scheme, determine the land tax which would have been payable and assess the relevant taxpayer accordingly. Similar provisions apply in Tasmania27 and Queensland28 where, in a manner similar to Part IVA, the Commissioner may cancel a land tax benefit and raise an assessment accordingly. In South Australia, the land tax antiavoidance provision is drafted in similar terms to the LTAA (other than it is drafted by reference to the purpose or purported purpose of the contract, agreement or arrangement). It also requires that the Commissioner give notice to the taxpayer that the particular contract, agreement or arrangement is void for the purposes of the Act29. It is supplemented by a provision similar to Part IVA in the Taxation Administration Act 199630. In contrast to Victoria, Queensland, South Australia and Tasmania, s45 of the LTAA does not require any administrative action by the Commissioner for it to apply to void an offending arrangement. WHAT PRINCIPLES CAN WE TAKE FROM THE DECIDED CASES? The approach to statutory construction adopted by the High Court in revenue matters was summarised by the majority in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue31 (references removed): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of

the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. There are two drafting distinctions (apart from dealing with different subject matter) between s45 and s260. Firstly, s260 refers to (1) a 'contract, agreement or arrangement,' whereas s45 refers to a 'contract, agreement or understanding'. This distinction seems to be more one of form rather than substance. In any event, in the context of the ownership of land, it is difficult to think of a situation whereby s45 would void an 'understanding' which would result in land tax being assessed to anyone other than the owner and which would have the resultant reduction in taxation. Secondly, s260 looks to the 'purpose or effect' of the contract, agreement or arrangement, whereas s45 refers to the 'effect' of the contract, agreement or understanding, or its 'purported effect' or the 'effect that it might have' and the intention of the parties. In 1985 (that is four years after the effective repeal of s260), the High Court (Gibbs CJ, Wilson J, Brennan J, Dawson J and Deane J (dissenting)) handed down its decisions in the Gulland, Watson and Pincus32 cases, concerning the application of s260 to arrangements put into place by three medical practitioners to reduce their income tax. The facts of these cases are not relevant to this paper but fortunately, the High Court has summarised many of the often seemingly contradictory principles which arise from the previous cases concerning the application of s260 and which, in the author's view, translate fairly readily to s45. Firstly, s45 is an annihilating provision. It is not a charging provision. It does not allow the Commissioner to substitute a new or fictitious set of facts to provide a


basis upon which to raise an assessment 33 . If the relevant contract, agreement or understanding is void by virtue of s45, the Commissioner is left with determining the land tax liability on what is not annihilated. It raises some fundamental difficulties because annihilating the offending 'arrangement' may not always result in the assessment of the appropriate person. For example, if there were an acquisition of land by related major and minor interest holders which had the effect of avoiding the aggregation of the land to the majority interest holder and s45 were to apply to annihilate the acquisition of the minor interest in land, then the vendor and the major interest holder would be liable (as joint owners) for the land tax. That is, the land would not be aggregated with other land owned by the major interest holder. Secondly, the motivation of the parties to the contracts, agreements or understandings is irrelevant. The 'purpose' is the result aimed at by the parties, the 'effect' is the result achieved (generally, the purpose and the effect coincide). However, the purpose or effect must be determined by reference to the terms of the arrangement or the overt acts by which it was implemented34. In the case of s45, whether the contract, agreement or understanding has, purports to have or might have or is intended to have the relevant effect (including 'affecting the incidence of land tax') requires an analysis of the contract, agreement or understanding to ascertain the intention of the parties. It is also necessary to undertake an analysis of the objective facts to ascertain whether the

contract, agreement or understanding has had or might have that effect (i.e. the alteration of the incidence of land tax). It is important to recall that s45 applies to void an offending contract, agreement or understanding but only 'so far as the contract, agreement, or understanding purports or is intended to have or might have that effect'. Thirdly, it is unnecessary that the effect or intended effect be the sole or dominant intention of the relevant contract, agreement or understanding35. However, it must be a substantial effect of the contract, agreement or understanding. Fourthly, not every contract, agreement or understanding which results in tax savings will be struck down by s45. For example, a sale of property so as to reduce the burden of taxation will not necessarily be struck down. In that case the incidence and burden of taxation will fall where the Act intends36 (i.e. on the purchaser). However, if the burden of the tax is shifted to a person who is not liable to pay tax, it may attract the operation of s4537. Fifthly, s45 will not apply to a contract, agreement or understanding that has or might have the effect of reducing the incidence of tax but which is capable of explanation by reference to ordinary dealing, such as a business or family dealing38. Sixthly, s45 may not apply where there is no antecedent transaction or situation. For example, s45 may not apply to a contract, agreement or understanding which results in the acquisition of new interests in land by related parties, as

there is no alteration of the incidence of taxation. Factors which will serve to characterise an arrangement as one which has, purports to have or might have the relevant effect include the size and complexity of the arrangement, and: •

whether the arrangement is artificial and complex, pointing its contrived nature;

whether the arrangement is lawful; and

whether the arrangement represents the mere exercise of choice offered by the Act39.

S45 therefore looks to the effect which a contract, agreement or understanding has or purports to have or might have. However, it only voids the contract, agreement or understanding to the extent that the contract, agreement or understanding purports or is intended to have or might have that effect. In the author's view, s45 has a very limited operation which is evidenced by the lack of its application over many years. Sections 45A and 45B Under the LTAA: land includes all tenements and all interests in land; joint owners means persons who own land jointly or in common, whether as partners or otherwise; owner — (a) in relation to land (except an interest in a home unit), means a person who is entitled to the land for any estate of freehold in

39


possession; or (b) in relation to an interest in a strata title home unit, means the proprietor of the lot as defined in the Strata Titles Act 1985; or (c) in relation to a non-strata home unit, means a person who is entitled to an exclusive right to occupy the home unit because the person — (i) is a shareholder in the body corporate which owns the land on which the building containing the home unit is erected; or (ii) is the registered proprietor of an undivided share in the land on which the building containing the home unit is erected; or (d) in relation to any liability to pay land tax for land (including an interest in a home unit), if a person or body is taken to be the owner of the land under section 8, means the person or body.40 As indicated above, jointly owned land is assessed as if the joint owners are a separate taxpayer. That is, the interest in the jointly owned land is not aggregated with any other land holdings which the individual joint owner may have. Prior to 2006, it was common practice for land owners to avoid the aggregation provisions by enabling parties (often related to the land holder) to hold a very small interest in the land to create a joint ownership of the land. In 2006, the law was amended to enact ss45A and 45B41 of the LTAA, which enable the Commissioner to make a determination to disregard an interest in a lot or parcel of land, held by a minority joint owner. The Commissioner can only make such a determination if the interest is a 'minor interest in the lot or parcel of land' and he is of the opinion that the purpose, or one of the purposes, for the 'creation' of the interest, was to reduce the amount of land tax payable for that, or any other, lot or parcel of land.42

Relevantly, the term 'minor interest' is not defined. The Explanatory Memorandum to the amending legislation, stated: A minor interest is not defined for the purposes of these provisions. Generally, a minor interest is a part or share of property that is less than 50%. However, the mere presence of a minor interest will not in itself be the trigger for the Commissioner to determine to disregard that interest. Other factors are to be considered in addition to the minor interest. Rather, the concept of a minor interest is used in this section to clarify that no interest of 50% or greater will be the subject of a determination by the Commissioner. South Australia has similar legislation. The South Australian Act specifically provides that an interest of less than 50% is a 'prescribed interest'43 (i.e. minor interest). If the minor interest is 5% or less, the onus falls upon the land owner to establish that he, she or it did not have the relevant purpose at the time of creation of the interest. The legislation sets out the matters to which the Commissioner 'may' have regard. They are: (a) the nature of any relationship between the owners of the lot or parcel of land; and (b) the form and substance of any transaction giving rise to the interest, including the legal and economic obligations of the parties and the economic and commercial substance of the transaction; and (c) the lack of consideration, or the amount or value and source of the consideration, for the transaction giving rise to the interest; and (d) whether any professional advice was received in relation to the transaction giving rise to the interest; and

Having made the determination to disregard the minor interest, under s45B:

(e) the way in which the transaction giving rise to the interest was entered into or carried out; and

(a) the owner of the interest is to be taken not to be an owner of the lot or parcel of land for the purposes of this Act; and

(f) any other matter the Commissioner considers relevant.44

(b) the land is to be taken to be wholly owned by the owner of the land who does not have an interest the subject of a determination.

The legislation looks to the events which occurred at the time of the 'creation' of the interest.

PROPOSITION 1 It is highly unlikely that the simple acquisition of a pre-existing minority interest from a third party would be caught by these provisions. This is because the acquisition of an interest in land (minority or otherwise) will be judged at the time of creation of the interest and by the purpose for the creation of the minority interest, by reference to the statutory considerations referred to above. This is a subjective purpose based upon objective facts. Motive is irrelevant45. PROPOSITION 2 The joint acquisition of land by both a major and minor interest holder could attract the application of the section, subject to the application of the relevant statutory considerations, if you accept the proposition that the acquisition of the land using this structure results in the 'creation' of a minor interest46. The meaning of 'creation' includes 'the fact of being created'47. In this context, it would not be contrary to the language of the section for the term 'creation of an interest' to encompass the consequence of the acquisition of a minority interest. PROPOSITION 3 The section does not apply if two related parties acquire equal (50%) interests in the land, simply because the acquisition would not 'create' a minority interest. Similarly, for the same reasons, it would not apply should the owner of a 100% interest in the land transfer a 50% interest to a related party. PROPOSITION 4 The transfer of a majority interest in land to a related party, leaving the vendor with the remaining interest, may have the effect of creating a minor interest. The consequence of making a determination to disregard a minor interest is that the land will be taken to be owned by the majority interest holder. The determination will be ineffectual to aggregate the land with any land owned by the minority interest holder. PROPOSITION 5 If land is held by multiple minor interest holders, it is possible that s45A could apply to each of them. Each interest would have to be considered at the time of its creation. If all the minor interest holders were the subject of a determination to disregard, then by virtue of s45B, no one would be taken to be the owner. The question would then arise as

40 | BRIEF NOVEMBER 2016


to whether the Commissioner has a discretion to refrain from making a determination in respect to one minor interest holder in order to make an assessment (and to aggregate the land with land held by that person), particularly if the interest holders acquired their interests under a common set of circumstances and with the same purpose.

9.

Land Tax Act 1878 (NZ).

10.

Land taxation: a New Zealand perspective – Jonathan Barrett and John Veal Atax eJournal of Tax Research (2012) vol. 10, no. 3, pp. 573-588 at p 576 "Notwithstanding an experimental property tax levied in the colonial period, New Zealand’s first direct tax was a land tax enacted in 1878. This was succeeded in 1879 by a property tax, which included personal property in its base, although a substantial exemption of £500 applied. The rate of tax in the first year was 1d/£1 (0.4 per cent). The property tax was repealed by the Land and Income Tax Assessment Act 1891 (NZ). This Act provided for a tax ‘on land and all mortgages held on land and also for a tax on income from business and emoluments’. Initially the tax was levied on a split rate basis: the ordinary land tax was levied at a rate of 1d/£1 (0.4 per cent) on the capital value of land owned less the value of improvements up to £3,000 and less the amount of any mortgages owing. The graduated land tax was levied at rates ranging from 1d/£1 (0.05 per cent) on the unimproved value of land over £5,000 to 1¾d/£1 (0.7 per cent) on the unimproved value in excess of £210,000.From 1894, the land tax was levied on unimproved land value only, …… ."

CONCLUSIONS S45 and ss45A and 45B have application in limited circumstances. However, it will be a very rare circumstance that would see s45 operate to void a transaction, with the consequence of the resulting 'owner' being liable for the tax. Ss45A and 45B may have application to aggregate land when an existing land owner creates a minor interest (subject to a consideration of the matters to which the Commissioner may have regard). However, these provisions have no application to the joint acquisition of land by a major and minor interest holder, even a minor interest of less than 5%.

(2)

relieving any person from liability to pay land tax, or reducing any such liability; or

(c)

defeating, evading or avoiding any obligation or liability imposed by this Act,

the Commissioner may, by notice in writing given to the parties treat that contract, agreement or arrangement as void for the purposes of this Act.

Where the Commissioner has, in pursuance of this section, treated a contract, agreement or arrangement as void for the purposes of this Act, it will be presumed, in any legal proceedings, in the absence of proof to the contrary, that the purpose of the contract, agreement or arrangement is such as would attract the operation of this section."

Part 6A of the Taxation Administration Act 1996. [2009] HCA 41 (p.23).

32.

FC of T v Gulland, Watson v FC of T and Pincus v FC of T 85 ATC 4765.

33.

FC of T v Gulland, etc. (supra) Gibbs CJ (p4771).

34.

FC of T v Gulland, etc. (supra) Gibbs CJ (p4771) Dawson J (p 4793).

35.

FC of T v Gulland, etc. (supra) Gibbs CJ (p4771) Dawson J (p 4793-4794).

36.

FC of T v Gulland, etc. (supra) Gibbs CJ (p4771) Dawson J (p 4793-4795).

37.

Gavan Duffy J and Starke J in DF of T v Purcell (1921) 29 CLR 464 at p. 473.

Land Tax Assessment Act 1910.

38.

Land and Income Tax Act 1907; Land and Income Tax Assessment Act 1907.

FC of T v Gulland, etc. (supra) Gibbs CJ (p4771) Dawson J (p 4795).

39.

FC of T v Gulland, etc. (supra) Dawson J (p 4795-4796) Brennan J (p 4778-4779).

Explanatory Memorandum Land Tax Assessment Bill 2001 – clause 45

40.

Glossary – LTAA.

41.

Revenue Laws Amendment Act 2006.

"This clause provides that any contract or agreement which has the effect of altering or removing the incidence of an exemption or tax may be voided by the Commissioner.

42.

Section 45A (1) of the LTAA.

12.

Section 11 of the Land Tax Act 1878 (NZ).

13.

Section 7 of the Land Tax Act 1878 (NZ).

14.

70 ATC 6001 at p 6004.

15.

Taxation Act 1884 (SA).

16.

Land and Income Tax Assessment Act 1895 (NSW).

17.

Sydney Morning Herald 11 March 1895.

18.

Land and Income Taxation Act 1910 (Tas).

19.

Land Tax Act 1910 (No. 2284) (Vic).

20.

Land Tax Act 1915 (Qld).

21. 22. 23.

Hansard 4 December 1907 Colonial Secretary.

24.

Subclause (1) provides that any contract, agreement or understanding that may remove, qualify or alter the operation of or otherwise affect an assessment or exemption may be voided by the Commissioner to the extent that it would otherwise have effect. Subclause (2) provides that subclause (1) will have effect regardless of how or when the contract, agreement or understanding is arrived at or evidenced. Subclause (3) provides that the contract, agreement or understanding, although voided by the Commissioner, is enforceable for all other purposes."

NOTES

altering the incidence of land tax; or

(b)

31.

Section 10 of the Land Tax Act 1878 (NZ).

Proper structuring at the time of entering a contract to acquire land by joint owners will ensure that land is not aggregated.

(a)

30.

11.

Ss45A and 45B have no effective application to aggregate land to an existing land owner, where the land owner transfers a 50% or greater interest to a related party.

Tax Act Amendment Act 1977) has or purports to have the purpose (whether as the main or a subsidiary purpose) of in any way directly or indirectly—

25.

Kitto J in Newton v FC of T 96 CLR 578 at 596.

26.

Sections 101-102 of the Land Tax Act 2005 (Vic).

27.

Division 3A of the Taxation Administration Act 1997 (Tas).

1.

WA State Budget Papers 2015-2016.

2.

Sections 45 and 45A of the LTAA.

3.

Section 7 of the LTAA.

4.

Section 12 LTAA.

28.

Part 8 of Land Tax Act 2010 (Qld).

5.

Defined in the Glossary LTAA.

29.

Land Tax Act 1936

6.

Section 9 LTAA.

"18—Contracts etc to evade land tax

7.

Section 11 LTAA.

(1)

8.

Section 76 of the Taxation Administration Act 2003.

Where a contract, agreement or arrangement entered into in writing or verbally (whether before or after the commencement of the Land

"(1)

The Commissioner may determine that an interest in a lot or parcel of land as a joint owner (whenever created) is to be disregarded for the purposes of this Act on and from the creation of the interest.

(2)

The Commissioner can only make a determination under subsection (1) if — (a)

the interest is a minor interest in the lot or parcel of land; and

(b)

the Commissioner is of the opinion that the purpose, or one of the purposes, of the creation of the interest was to reduce the amount of land tax payable for that, or any other, lot or parcel of land."

43.

Section 13A (2) and (3) of the Land Tax Act 1936 (S. Aust).

44.

Section 45A LTAA.

45.

Kyren Nominees Pty Ltd v Commissioner of State Taxation 2013 SASC 58 at page 65 (page 8 of the judgement).

46.

See Menzies J in Truesdale v FC of T (1971) 120 CLR 353.

47.

The Macquarie Encyclopedic Dictionary – Macquarie Library Pty Ltd (1995).

41


Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist

Children – Artificial conception – Egg donor held to be a parent

relationship endured and continued beyond the date of conception'.

In Clarence & Crisp [2016] FamCAFC 157 (18 August 2016) the Full Court (Thackray, Ainslie-Wallace & Aldridge JJ) dismissed, with costs, the birth mother's appeal against a parenting order made in respect of her daughter who was conceived with an egg supplied by the respondent by a medical procedure performed on 11 July 2011, the Court saying (at [3]):

Accordingly, we accept the submission of senior counsel for the respondent that nothing turns on the trial judge's discussion of whether the parties had 'separated' …

If the parties were in a de facto relationship on that day [of conception] then they were both the child's 'parents' for the purposes of [s60H of] the Family Law Act 1975 … At first instance, Berman J found that while the parties were living separately at the date of conception, they were in a de facto relationship, so that the respondent was a parent. It was common ground that the parties had commenced a de facto relationship in 2004 but the appellant argued that they separated on 21 March 2011 when the respondent left the home, whereas the respondent argued that she continued to spend four or five nights a week at the birth mother's home until August 2011. The Full Court said (at [12]-[13]): His Honour found that although the respondent had not stayed overnight as often as alleged, she was nevertheless a 'frequent visitor' to the parties' former home. ( … ) The Full Court continued (at [18]-[19]): His Honour found that in the period from 6 May 2011 to 26 July 2011 there had been 850 text messages between the parties on topics which ranged 'from the mundane to the highly personal' … The Full Court concluded (at [27]-[28]): Although we conclude there is no basis for complaint by the appellant, we nevertheless consider that his Honour misdirected himself … when he posed the question of whether the parties had 'separated'. While that is a question which must be asked in the case of a married couple seeking a divorce, it is a potentially misleading question in cases such as the present, where the issue is whether a de facto relationship existed at a particular point in time. However, his Honour ultimately answered the real question he was required to consider when he found … that 'the de facto

42 | BRIEF NOVEMBER 2016

Children – Contravention – Father loses appeal for costs against mother found in "serious contravention" of parenting order In Roffe & Huie [2016] FamCAFC 166 (19 August 2016) Murphy J (sitting in the appellate jurisdiction of the Family Court of Australia) dismissed the father's appeal against an order that he and the mother pay their own costs of his successful contravention application. While initially contesting the application, the mother admitted her contravention of a parenting order by withholding the child from time to time without reasonable excuse. At first instance Judge Demack found the mother's conduct to have been "a serious contravention of children's orders" ([3]) and placed her on a bond for 12 months, conditional on her complying with court orders and attending a family consultant. Murphy J held that the trial judge was not in error in ordering the parties to pay their own costs as the case came within the exception to the mandatory provision in s70NFB(1) (a) of the Family Law Act where "the court is satisfied that it would not be in the best interests of the child concerned to make [an order that the person who committed a contravention pay the applicant's costs]". Murphy J concluded at [31] that there was "sufficient evidence for the trial judge to find that the mother was in poor financial circumstances and potentially could not satisfy a costs order without the sale of her home [in Australia]", the father having argued at [34] that the mother could realise the property she owned in South East Asia. Property – Injunctions made restraining guardians of family trust from changing the terms of its deed of settlement In Josselyn and Ors [2016] FamCA 557 (8 July 2016) Watts J granted Ms J injunctions in respect of her former de facto partner's control of a family trust. After separation Mr J changed the appointment power from his business partner to his brother then added two children of his first relationship as directors of the corporate trustee (he having previously been its sole director). Mr J had also begun arguing that the trust's assets

were no longer relationship property. Ms J's case was that Mr J's post-separation dealings evidenced risk of an intention to defeat her property claim. After referring to the relevant statutory provisions, Watts J (at [13]) cited Mullen & De Bry [2006] FamCA 1380 in which the Full Court said that "[i]n some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with the intent to defeat an order (original emphasis)". Watts J continued (at [46]-[47]): Even if a benign view was taken of all the changes the husband has made since separation to the roles he has in various entities, the expressed view by the husband's lawyers in the letter of 5 May 2016 is some evidence of the possibility of an intention to put assets outside the reach of the de facto wife by the restructuring he has undertaken. That apparent risk may ultimately turn out to be without any foundation. However, there is no downside in making the orders sought by the wife pending further order to guard against that risk. Watts J concluded at [51]:

Senior counsel for the husband said that in respect of the order seeking restraint of distribution of income that the operation of those orders … would create the difficulty of retained profits in the trust and the taxation consequences flowing from it. … I make no order preventing the trustees from distributing income. It is unlikely that income earnt on the investments of the trust in one year, if dissipated, is something that could not be properly adjusted at the final hearing in circumstances where the wife seeks one half of the overall assets held by the parties. However, the injunctive order, as it applies to the corpus of the trust, is a different matter. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.


Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Kwik Transport & Crane Hire Pty Ltd as Trustee for the T&T Unit Trust v Rosales Pty Ltd as the Trustee for the Jones Family Trust [2016] WASC 277 Application to set aside a Statutory Demand – Procedure in Master's Chambers – Non-compliance with programming orders – Refusal of leave to rely upon late affidavits and submissions On the first return date of the plaintiff's application to set aside the defendant's statutory demand, Master Sanderson made the programming orders which had been agreed by the parties. The orders required, inter alia, the defendant to file and serve any affidavit upon which it intended to rely by 7 July 2016 and listed the matter for hearing on 2 August 2016. The day before the hearing, the defendant's solicitor filed a 92-page affidavit in opposition to the application, out of time and without leave. The defendant's solicitor also emailed an affidavit in respect of the non-compliance with the programming orders to the Master's Associate less than two hours prior to the hearing. At the hearing, the Master refused the defendant's application for leave to rely on the two affidavits and its written submissions. The Master considered that the reasons offered for the noncompliance with the programming orders set out in the defendant's solicitor's affidavit were inadequate and there was no reason to offer the defendant (or the defendant's solicitors) an 'indulgence'. Accordingly, the Master dealt with the application to set aside the statutory demand on an 'undefended basis'. Before determining the substantive application, the Master made observations on the process for making programming orders in contested matters and how solicitors should handle situations where a party is unable to comply with programming orders. The Master stated that if the parties do not agree to consent orders for the programming of the matter, the Master will make orders to accommodate the parties, noting that "it is almost invariably the case a party who wishes an extended timeframe for the filing of the affidavit material or submissions gets what they want."

The Master confirmed that in circumstances where a party cannot meet the timetable, the appropriate course of conduct is to firstly contact the other party in an attempt to agree an extension of time and the adjournment and vacation of the hearing. The timetable can be extended without reference to the court and the parties can simply agree and if necessary, advise the Master's Associate. The Master stated it was 'unnecessary' to copy in ongoing discussions between the parties' solicitors regarding the timetable to the Associate. The Master then confirmed the steps which should be taken if the parties cannot agree to the extension to the timetable: … If no agreement can be reached then it is incumbent upon a party who cannot meet a deadline to apply in chambers for a variation of the orders. No chamber summons or interlocutory process is necessary. It is simply a matter of listing the matter by contacting my associate and providing an affidavit which sets out the circumstances. Frequently programming orders will contain a liberty to apply provision. This one does not. That does not matter. The procedure should be obvious and if it is not my associate can always be contacted and practitioners will be advised the matter will be listed for mention. There is nothing complicated or unusual about this course. The issue in the substantive application (to set aside the statutory demand) was the balance of consideration owed under an asset sale agreement by the omission of sick leave entitlements. The Master found that the plaintiff had an arguable offsetting claim which exceeded the amount of the statutory demand and on that basis, ordered that the statutory demand be set aside. Author: Sarah O'Brien-Smith, Associate, Hunt & Humphry Project Lawyers; Deputy Convenor, Young Lawyers Committee

L v The State of Western Australia [2016] WASCA 1011 In L v The State of Western Australia [2016] WASCA 101, the Court of Appeal (Martin CJ, Mazza JA & Mitchell J) allowed the appeals against convictions

of two appellants convicted after a trial by jury in the District Court, on the basis that the trial judge erred in directing the jury on the law concerning criminal responsibility. The error involved leaving to the jury a basis for finding that each of the appellants was a principal offender on the basis of the common law doctrine of joint criminal enterprise. This gave rise to a miscarriage of justice, as the jury was invited to convict on a basis for which the law did not provide. The Court of Appeal held that criminal liability, whether as a principal or an accessory, was to be determined by reference to the provisions of ss7-9 of the Criminal Code (WA), and, so far as the common law doctrine of joint criminal enterprise is inconsistent with those provisions, it is not relevant to criminal liability in Western Australia. Their Honours outlined the relevant provisions of ss7-9 of the Criminal Code at [32]-[40], and set out the proper construction to be given to s7 at [52][54]. In particular, participation in a joint criminal enterprise will not render an accused criminally responsible unless he or she either: 1. does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence, in which case the offender is a joint principal; or 2. deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or 3. deliberately counsels or procures another person to commit the offence. The appeal was not concerned with circumstances involving attempts, conspiracies or accessories after the fact under Part VII of the Criminal Code, where entry into an agreement may constitute an offence. NOTES 1.

Consideration should be given to the views expressed, in obiter dicta, by McLure P, Buss JA and Corboy J in Campbell v The State of Western Australia [2016] WASCA 156.

Author: Jon Papalia, Research Associate to the Hon Justice Fiannaca

43


Law Council Update

2016 AUSTRALIAN YOUNG LAWYER AWARD WINNERS ANNOUNCED 27-year-old Adelaide solicitor Natalie Wade has won the Individual 2016 Australian Young Lawyer Award, for her advocacy for equality within the legal profession and more broadly. Ms Wade works as a solicitor in the Child Protection System Royal Commission, with a focus on children with a disability and their vulnerabilities within the State Care System. She has conducted academic research on the participation of individuals with communication difficulties in courts and her work has been published in the Alternative Law Journal. In 2016, Natalie worked with the Law Society of South Australia regarding the need for changes to access to courts, and greater diversity in the employment of legal practitioners, resulting in the establishment of the Society's Equality, Diversity and Inclusion Committee. Natalie is also a member of the steering committee for the AFL-4Me Program; an initiative run by the Intellectual Disability Association of SA, to provide free VIP tickets to the AFL for children with disabilities and their families. Natalie is a volunteer with the Refugee Advocacy Service of SA, and an advisory member to the Every Woman, Everywhere Campaign; an international campaign advocating for a treaty on violence against women. Natalie is assisting the campaign in drafting a memorandum to the United Nations on the implementation and assessment clauses of the treaty. Law Council of Australia President, Stuart Clark AM, praised Natalie's contribution. "The impact of Natalie's contribution at such a young age is extremely impressive," Mr Clark said. "She has actively supported and worked on campaigns for the needs of vulnerable people and she has supported the endeavours and goals of the young people who follow in her footsteps. She has also been a driving force behind the creation of committees to ensure our profession is truly inclusive and diverse. "She has also achieved all of this whilst 44 | BRIEF NOVEMBER 2016

overcoming a significant physical disability which, as she understands better than most, society does not always accommodate for adequately." The Organisation 2016 Australian Young Lawyer Award was won by NSW Young Lawyers Criminal Law Committee for the Day in the Life of a Criminal Lawyer program, an initiative that pairs undergraduate and Juris Doctor law students with volunteer criminal lawyers to allow students to gain insight into the practice of criminal law. "Unlike other areas of law, the opportunity for law students to gain experience in criminal law is extremely limited," Mr Clark noted. "For students who do not yet know which area to pursue, there are few avenues to gain criminal law experience. This program has addressed this issue and received terrific feedback from all involved. The program has also helped to facilitate greater awareness of employment opportunities outside of the Sydney metropolitan region, with a number of the placements located outside metro areas." THE LAW COUNCIL OF AUSTRALIA IS THE NATIONAL VOICE OF THE LEGAL PROFESSION, PROMOTING JUSTICE AND THE RULE OF LAW. Special advocate regime a vital inclusion in new counter-terrorism bill, but further parliamentary scrutiny necessary The Law Council of Australia has commended the Government for including a special advocate regime in new counter-terrorism laws introduced to the Senate today. The Law Council formally recommended the system of 'special advocates' to participate in control order proceedings before the Independent National Security Legislation Monitor last year. The system would allow each State and Territory to have a panel of securitycleared barristers and solicitors who could participate in closed material procedures where the subject of a control order has sensitive information withheld from them and their legal representative.

Law Council President, Stuart Clark AM, said the special advocate regime was a welcome inclusion to the CounterTerrorism Legislation Amendment Bill (No. 1) 2016, but the Government needed to commit to an immediate review of the scheme by the Parliamentary Joint Committee on Intelligence and Security (PJCIS). "A special advocate regime provides a significant safeguard. The special advocate will be able to see the sensitive information that has been withheld from the subject of a control order and make representations on behalf of that person. This is essential, given that a person's legal representative will also be excluded from accessing certain information," Mr Clark said. "For full accountability, however, the scheme must be immediately reviewed by the PJCIS. The exact relationship and level of interaction between the special advocate, the subject of the control order, and their legal representative requires careful consideration." Mr Clark also noted it is essential that the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, which was also introduced into the Senate today, be reviewed by the PJCIS. "Parliamentary Committee review is necessary to ensure the right balance is struck between protecting Australians while ensuring fundamental legal rights are not jettisoned. "Retaining individuals in prison past the time of their custodial sentence is a serious matter and the highest order of scrutiny should apply," Mr Clark said. The PJCIS should give particular attention to certain elements of the Bill including: •

A minor, who is convicted of a relevant offence, can be subjected to the scheme provided they are 18 when the sentence ends;

It will apply to persons convicted of terrorism offences prior to the enactment of the scheme; and

A person who has been convicted for a 'treason' offence may be subject to the scheme.


pam sawyer

45


Professional Announcements Career moves and changes in your profession

Croftbridge Tim Lethbridge and Elise Croft are proud to announce the establishment of their new firm Croftbridge, which officially opened its doors on 5 September 2016 in West Perth. Tim and Elise have 25 years of legal experience between them and have worked together for the last 10 years. Tim and Elise work in the general commercial litigation sphere, with specialisation in employment law & workplace safety and contested wills and estates. 

Tim Lethbridge

Elise Croft

Rothstein Lawyers Rothstein Lawyers are delighted to advise that with the effect from 1 January 2017 Sophie Louise Manera will become a partner in the firm. Sophie has specific expertise in the area of complex migration and citizenship issues.

commercial work with corporate, personal and government clients. He was admitted as a Barrister and Solicitor of the Supreme Court of Western Australia and the Supreme Court of Marcus Hodge New South Wales in 2001. His early legal career was with two top tier national firms, focusing on commercial, infrastructure, utilities, acquisitions and front-end construction work. Following this, Marcus took a senior in-house role with the Australian Stock Exchange, leading to his appointment as Senior Legal Counsel with construction and services company Clough Limited. Moving into Legal, Commercial and Business Manager roles, Marcus acted on major infrastructure, construction, energy and utilities projects, both within Australia and Asia Pacific. He then worked extensively with Chevron Australia on the Gorgon Barrow Island project, as Senior Counsel and Commercial Manger, in conjunction with Clough and KBR. He is a member of the Institute of Arbitrators and Mediators Australia and is a qualified Adjudicator. Bronte Lenigas, Solicitor

Sophie Louise Manera

All details of the firm remain as before.

HHG Legal Group HHG Legal Group are pleased to welcome: Marcus Hodge, Special Counsel Marcus Hodge is an experienced in-house and private practice lawyer, focusing on

Bronte graduated with Distinction from the University of Western Australia with a Law/Arts degree and a double major in Psychology and Italian.

Bronte Lenigas

She was admitted to the Supreme Court in November 2014 and practiced in the areas of workers' compensation and personal injury. She gained a significant amount of experience in having conduct of a high volume of matters, drafting and providing legal advice, drafting court documents and pleadings and appearing at WorkCover WA and in the District Court.

Lucy Ferreira, Associate Lucy advises and represents clients in the areas of succession planning, estate administration, trusts, asset protection, business structure set up and superannuation.

Lucy Ferreira

She regularly assists private clients, with particular emphasis on high net worth and business owner clients, to formulate and implement multigenerational succession plans and provide advice on asset protection. She has experience in drafting testamentary trusts of various natures such as income protected, capital protected and discretionar, and also has expertise on defensive will provisions and integration with other business structures regarding control and ongoing operation post death. She has assisted with the implementation of Family Court of WA Orders in relation to discretionary trusts adjunct to divorce proceedings, renunciation and exclusion of beneficiaries, releases and indemnities. Lauren Copley, Solicitor Lauren was admitted to practice in 2015 and joins HHG Legal Group as a solicitor in the Commercial Litigation team. Lauren has a wealth of experience Lauren Copley from working in-house for a well-known Western Australian construction company, and has developed extensive knowledge in contract management and high level contract negotiation. Lauren completed her practical legal training in the Domestic Violence Legal Unit with Legal Aid WA.

RISK MANAGEMENT LAWYER: PART-TIME ROLE This leading group is currently looking for a risk management lawyer to oversee the provision of risk management services to their clients. You will work alongside a small team and work upon building and implementing a risk management services program based upon an analysis of relevant professional services risks, claims causality and an understanding of the insured’s capability and risk management systems.

As the ideal candidate you will have: • a strong understanding of professional services risk management; • legal qualifications; • strong customer service skills; • strong numeracy and statistical analysis skills.

To make a confidential application, please send your CV to Ross Wheatley LLB at ross@parkesrecruitment.com.au or for a confidential discussion call Ross Wheatley on 08 6316 4661 or 0401 344 040 quoting reference number 3507.

For a full and up to date list of our Perth legal opportunities please view our website www.parkesrecruitment.com.au 46 | BRIEF NOVEMBER 2016


New Members

Classifieds

New members joining the Law Society (September 2016) Associate Membership Ms Syafrina Hamid Murdoch University Miss Hana Lee University of Western Australia Mr Alan Adrian QICS Law Pty Ltd Ms Tessa Maybery Murdoch University Miss Nancy Zhang University of Western Australia Mr Harley Chatburn Edith Cowan University Mr Kane Barnett Clifford Chance (Sydney) Mr Nicholas White Norton Rose Fulbright Australia Mr Michael Hurrelbrink Curtin University Miss Linda Salsano University of Western Australia Ms Charlotte Sykora Murdoch University Ms Femke Elferink Edith Cowan University Ms Lynn Makokha Edith Cowan University Ms Katherine Webster Murdoch University Miss Kura Wi-Kaitaia Vogt Graham Lawyers Mr Eamonn Bochat Price Sierakowski Corporate Mr George Balot Balot Reilly & Associates Ordinary Membership Mr Justin Betar Betar Lawyers Ms Amanda Cameron Chamber of Commerce & Industry of Western Australia Ms Tanya Lynch Ernst & Young Ms Katrina Piva Ernst & Young Restricted Practitioner Miss Lynn Carrucan Tolson & Co Mrs Bronwyn Meakins Cornerstone Legal Ms Lyndsay Barrett Cornerstone Legal Ms Sindy Goodhew Borrello Graham Lawyers Miss Samantha Humberstone Trinix Lawyers Miss Melissa Coyne Stephen Browne Lawyers

Looking to sell your files and/or legal practice? We are an expanding boutique commercial law firm. Send any enquiries by email in the first instance to perthlawfirm@gmail.com All enquiries will be dealt with in strict confidence.

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

Includes use of shared conference room

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

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

ARBITRATION/ADJUDICATION/ MEDIATION APPOINTMENTS Clive Raymond, former Senior Member of the State Administrative Tribunal, Commercial and Civil Stream, accredited grade 1 Arbitrator, Mediator and registered Adjudicator is now available to accept nominations in any of these capacities. Telephone 0414 602 782.

MISSING WILL Tindall Gask Bentley is one of Australia’s largest and most respected personal injury firms. We are looking for an experienced personal injury lawyer (or lawyers) to join our growing Perth office. We are seeking someone with a good understanding of the Perth market as business development will be a key focus of this role. Enquiries and applications to Susan Treglown 08 8212 1077 or streglown@tgb.com.au.

FOR SALE PARTITIONED OFFICE SUITE

1st Floor, 33 Barrack Street, Perth • • • •

76m2 plus secure storage 4 offices, reception & waiting area Excellent natural light Leased until 31/03/17

Greg Radin 0411 883 995

Would anyone holding or knowing the whereabouts of a Will for the late HELENA KOSCIENLY late of 66 Sanford Road, Centennial Park, Western Australia born on 23 July 1952 who died on 24 July 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

OPPORTUNITY TO JOIN HIGHLY REGARDED BOUTIQUE COMMERCIAL PROPERTY LAW FIRM

Warren Syminton Ralph is currently seeking a Senior Practitioner with their own client base to join the Firm as a Principal. The position is largely autonomous offering the ability to practice as you choose in a full service office environment in the company of other Senior Practitioners. Contact Alex Salvaris on (08) 9435 9435 for a confidential discussion.

47


Events Calendar

With thanks to our CPD partner

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

DATE

EVENT

LOCATION

NOVEMBER MEMBERSHIP EVENTS Friday, 4 November

Mixed Netball Competition hosted by Young Lawyers Committee

Matthews Netball Centre

Wednesday, 16 November

Welcome to the Profession

Pan Pacific Perth

Thursday, 17 November

Inter-Profession Networking

EY Perth

NOVEMBER CPD SEMINARS Monday, 7 November

Law Mutual (WA) Seminar: Commercial litigation handling – your professional liability risks

152-158 St Georges Terrace, Perth

Tuesday, 8 November

Contract law masterclass

The Law Society of Western Australia

Wednesday, 9 November

Review of recent workers’ compensation decisions

The Law Society of Western Australia

Thursday, 10 November

Surrogacy: Lessons from the Baby Gammy Case

The Law Society of Western Australia

Tuesday, 15 November

Gender Equality: a business issue

The Law Society of Western Australia

Tuesday, 15 November

Assessing damages in personal injury matters

The Law Society of Western Australia

Wednesday, 16 November

Keep calm and stay resilient

The Law Society of Western Australia

Wednesday, 16 November

Grants of bail: the imposition of protective conditions and non-protective conditions for children

The Law Society of Western Australia

Friday, 18 November

Lead on Purpose

The Law Society of Western Australia

Friday, 18 November

Ethics on Friday: a practical approach for commercial lawyers

The Law Society of Western Australia

Monday, 21 November

Law Mutual (WA) Seminar: How to stay conflict free for small practices

The Law Society of Western Australia

Tuesday, 22 November

Focus on costs

The Law Society of Western Australia

Wednesday, 23 November

Security for costs: a practical approach

The Law Society of Western Australia

Thursday, 24 November

Law Mutual (WA) Seminar: Professional liability risks and controls in practice – are you accepting suitable matters?

The Law Society of Western Australia

DECEMBER MEMBERSHIP EVENTS Wednesday, 7 December

End of Year Celebration

Lamont's Bishops House

DECEMBER CPD SEMINARS Thursday, 1 December

A view from the Bench

The Law Society of Western Australia

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

48 | BRIEF NOVEMBER 2016


Law Summer School 2017 Australia's Place in the World

Friday, 17 February 2017 – All day University Club, Hackett Entrance #1, Crawley WA 6009 Following on from the success of an outstanding Law Summer School conference this year, Law Summer School 2017 examines Australia's place in the world and aims to present another day of thought-provoking knowledge and discussions. We are delighted to announce some of our guest speakers: • • • • •

Senator the Hon George Brandis QC, Attorney-General for Australia The Hon Robert French AC, Chief Justice of the High Court of Australia The Hon Kim Beazley AC The Hon Justice Nye Perram, Federal Court of Australia Sarah Green, Associate Professor of Law, University of Oxford

Be inspired by fresh ideas and take part, along with esteemed Australian and international legal practitioners, in an extraordinary collegial learning experience. Keep an eye out for registration information in the coming weeks.

Tea break sponsor

Expressions of interest email cpd@lawsocietywa.asn.au lawsocietywa.asn.au

End of Year Celebration Lamont’s Bishops House, 90 Mounts Bay Road, Perth Wednesday, 7 December 2016 5.30pm – 7.30pm As the year winds down and the holiday season takes off, celebrate with us at one of Perth’s most atmospheric outdoor venues. Nestled in beautiful gardens in the heart of the city, Lamont’s promises to provide the perfect backdrop to an evening of refreshments and delicious canapés.

Premium sponsor

Supporting sponsors

Register by Tuesday, 29 November 2016.

lawsocietywa.asn.au

49


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Brief November 2016  

Brief November 2016