VOLUME 44 | NUMBER 9 | OCTOBER 2017
Volume 44 | Number 9 | October 2017
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COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).
Mediation Preparations and Approaches
Case Study: The Hon John McKechnie QC
Winning the Mental Game
2017 Sir Ronald Wilson Lecture
Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence
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.
Passing the Buck - Has the diffusion of responsibility for Aboriginal people in our federation impeded closing the gap?
2017 Practical Advocacy Weekend
Book Review: A Practical Guide to Investment Treaties – Asia Pacific
No longer a ‘migration agent’
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Editor: Jason MacLaurin Deputy Editor: Moira Taylor Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, Robert French, Melissa Koo, The Hon John McKechnie QC, Alain Musikanth, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Proofreaders: Alexandria Bishop Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: firstname.lastname@example.org | Web: lawsocietywa.asn.au ISSN 0312 5831
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02 President's Report
44 Law Council Update
03 Your voice at work
45 Pam Sawyer
Senior Vice President: Hayley Cormann
04 Editor's Opinion
46 Professional Announcements
Treasurer: Jocelyne Boujos
06 Ethics Column
42 Family Law Case Notes
47 New Members
Ordinary Members: Jocelyne Boujos, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Elisabeth Edwards, Catherine Fletcher, Rebecca Lee, Marshall McKenna, Denis McLeod, Stefan Sudweeks, Nicholas van Hattem, Paula Wilkinson
43 Young Lawyers Case Notes
48 Events Calendar
President: Alain Musikanth Vice President: Greg McIntyre SC Immediate Past President: Elizabeth Needham
Junior Members: Deblina Mittra, Jodie Moffat, Noella Silby Country Member: Brooke Sojan Chief Executive Officer: David Price
PRESIDENT'S REPORT Alain Musikanth President, the Law Society of Western Australia
Mental health and wellbeing This month’s cover article, ‘Winning the mental game’, is authored by psychologists Daniella Luppino and Dimity Smith. Publication is timely, with 7 to 14 October being Mental Health Week in Western Australia. This year marks the 50th anniversary of Mental Health Week, and the overarching theme is ‘Connect with nature, community and self for mental wellbeing’. As is now reasonably well-known lawyers remain prone, disproportionately among the professions, to experiencing psychological distress over the course of their careers. Indeed, and as noted in the article, research suggests that just over half of students, solicitors and barristers have experienced depression, with some 63% of solicitors having reported ‘moderate’ to ‘very high’ levels of psychological distress. The statistics are plainly alarming, though, perhaps, also unsurprising. Legal practitioners frequently operate within highly pressurised environments. The nature of our work inevitably involves us attempting to solve the problems of others. At the same time, we must both comply with rigorous professional standards and be on constant alert as to potential risks. And then there is the billable hour which, despite the valiant efforts of an increasing number of law firms, still governs the professional lives of many. Factors such as these combine with the personality types which the law often attracts, sometimes taking their toll on our health, wellbeing and inter-personal relationships. The cover article notes that it is incumbent on organisational leaders to be ‘champions’ of mental health and to ‘walk the talk’. On Tuesday, 10 October, the Law Society will host a free seminar, ‘Mental health awareness’, to mark World Mental Health Day. The seminar will involve insights by clinical psychologist Dr Marny Lishman who will explore what we can do to look after our mental health, both at and away from work. The seminar is complimentary for members as part of the Society’s LawCare WA wellbeing and resilience programme. A light lunch will be provided. Please visit lawsocietywa.asn. au/event/mental-health-awareness to register. Also included in this issue is the first of what will hopefully be a regular feature: a health and wellbeing case study focused on balancing work and personal life. This month’s insights are kindly provided by the Hon John McKechnie QC, Corruption and Crime Commissioner. A reminder that LawCare WA is available to all members of the Society. Through LawCare WA, members have access to the Society’s member assistance programme; the employee relations advice line provided by the Chamber of Commerce and Industry WA;
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the Society’s Senior Advisors Panel for ethical advice; the WA Bar Association Referral Service, for assistance with complaints to the Legal Profession Complaints Committee; health and wellbeing events and member privileges; career advice; and mentoring. Please visit lawsocietywa.asn.au/lawcarewa to find out more, or call 1300 687 327 to speak with a counsellor or to make an appointment. Practice Direction 10.3 – the appointment of Senior Counsel Members will recall that in September 2014 Women Lawyers of Western Australia Inc. launched the 20th Anniversary Review of the 1994 Report of the Chief Justice’s Taskforce on Gender Bias. One recommendation arising from the Review was for a submission be made by the Society and the WA Bar Association to the effect that a policy be adopted (similar to that of the NSW Bar) explicitly stating in the Senior Counsel Protocol that a flexible or part-time practice is not a barrier to being appointed Senior Counsel. As noted in my electronic update to members last month, a joint submission was made to the Chief Justice of Western Australia to the above effect following a recent resolution by Council. Soon after that submission was made, the Chief Justice advised that the judges of the Court had unanimously resolved to adopt the suggestion that the Practice Direction be amended accordingly. In his response the Chief Justice, among other things, noted that both he and the Committee advising him in relation to appointments have consistently taken the view that applicants who have taken time out of their professional careers to discharge family responsibilities should not be disadvantaged as a consequence of doing so as compared to other practitioners whose careers have not been similarly interrupted. Judicial resourcing The allocation of adequate resources to courts is fundamental to the proper functioning of the judiciary in any jurisdiction. The Society was therefore pleased to note last month’s announcement by State Government that two additional judges would be appointed to the District Court to address both existing and anticipated workload issues. News of the allocation of additional resources to one of our State’s busiest courts was announced in the context of proposed changes to, among other things, the current jurisdictional boundaries between the Supreme Court and the District Court in criminal matters.
The Society looks forward to welcoming the new judges in due course. The planning jurisdiction As will be noted from what appears on the facing page, the Society recently congratulated His Honour Judge David Parry on his re-appointment as a Deputy President of the State Administrative Tribunal. His Honour’s re-appointment followed advocacy by the Society proposing statutory reform, among other things to recognise more clearly the specialist nature of the planning jurisdiction, and requesting the allocation of specialised further resources to the Tribunal The Society’s approach had, in turn, resulted from a request by its Town Planning and Environmental Committee whose contribution played a key part in the Society’s submission to State Government. The outcome achieved is not only courtesy of the recognition by Government of the benefit to the Western Australian community of the important work performed by the Tribunal in the resolution of planning disputes, and of the specialist nature of that jurisdiction, but is also testament the vital role played by the Society’s specialist committees in informing our advocacy on behalf of the legal profession. A pleasing consequence of His Honour’s re-appointment to the Tribunal was the appointment of senior criminal barrister (and former member of Council), Belinda Lonsdale, as a judge of the District Court to fill the resulting vacancy on the Court. I look forward to welcoming Her Honour Judge Lonsdale, on behalf of the Society, on 9 October. Council elections The Council of the Law Society sets the Society’s strategic direction, ensures good governance and, with the assistance of the Society's committees, provides submissions to, and works with, government, the courts and other organisations. It is of course essential that the Society remains representative, and continues to be able to draw upon the skills and knowledge, of a broad cross-section of the legal profession. Nominations for election to Council open on 3 October. Forms will be sent electronically to eligible members, with nominations closing on 19 October. I encourage any member who is considering putting their name forward for Council to do so. Once the nomination process is complete, voting will open in early November, with ballot papers transmitted to eligible members electronically by CorpVote.
Your voice at work A summary of recent media statements and Society initiatives
The Law Society congratulates His Honour Judge David Parry on his re-appointment as a Deputy President of the State Administrative Tribunal The Law Society of Western Australia congratulates His Honour Judge David Parry on his re-appointment as a Deputy President of the State Administrative Tribunal. His Honour was appointed as a Judge of the District Court of Western Australia, and as a Deputy President of the Tribunal, in June 2011, serving in the latter capacity for a period of five years until June 2016. Judge Parry holds the degrees Bachelor of Arts and Bachelor of Laws (with Honours) from the University of Sydney, and Bachelor of Civil Law from the University of Oxford. He practised as a barrister specialising in planning, environmental and local government administrative and judicial review prior to his appointment, in 2005, as an inaugural senior member of the Tribunal heading the Tribunal’s development and resources stream. His Honour’s re-appointment to the Tribunal follows recent advocacy by the Law Society to State Government proposing statutory reform, among other things to recognise more clearly the specialist nature of the planning jurisdiction, and requesting the allocation of specialised further resources to the Tribunal. Law Society President Alain Musikanth said, “His Honour Judge David Parry is highly regarded for his expertise in planning law, and the Law Society warmly congratulates him on his re-appointment as a Deputy President of the Tribunal. “The Law Society also commends the Government of Western Australia on its swift recognition, through His Honour’s re-appointment, of the benefit to the Western Australian community of the important work performed by the Tribunal in facilitating the resolution of planning disputes in this State and the specialist nature of the planning jurisdiction itself”, Mr Musikanth said. His Honour’s appointment is effective from 9 October 2017.
The Law Society congratulates Ms Belinda Lonsdale on appointment as a Judge of the District Court The Law Society of Western Australia congratulates Ms Belinda Lonsdale on her appointment as a Judge of the District Court. Ms Lonsdale holds the degrees Bachelor of Laws and Master of Business Administration from the University of Western Australia. She was admitted to practice in 1993. Ms Lonsdale was elected to the Western Australian Bar Association in 2003, and has practised as a barrister at Albert Wolff Chambers since then predominantly in the area of criminal law. Ms Lonsdale was appointed as a Commissioner for Legal Aid in 2006. She is a past President of the Criminal Lawyers’ Association and a former member of the Council of both the Law Society and the Western Australian Bar Association. Law Society President Alain Musikanth said, “Ms Lonsdale is an experienced and highly regarded senior member of the criminal bar. “On behalf of all members of the Law Society, I warmly congratulate Ms Lonsdale on her appointment and wish her all the best for a successful and rewarding judicial career”, Mr Musikanth said. Ms Lonsdale’s appointment is effective from 9 October 2017.
Legal Practice Board and Legal Profession Complaints Committee appointments The following appointments have been announced: •
Ms Libby Fulham as Executive Director of the Legal Practice Board; and
Ms Philippa Rezos as Law Complaints Officer for the Legal Profession Complaints Committee.
The Law Society warmly congratulates Ms Fulham and Ms Rezos on their respective appointments, and looks forward to a continued healthy and productive working relationship with the Board and the Committee under their leadership.
EDITOR'S OPINION Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal
This Brief features Daniella Luppino and Dimity Smith’s article on 'Winning the Mental Game', which explores ways to build mentally resilient workplaces. The stress involved in the practice of the law, the effect upon practitioners’ health, and the achievement of a work/life balance are topics Brief addresses regularly, in the hope of providing information that is useful and relevant to the local profession. Readers of Brief would also be aware that Brief often addresses the effect of new technology upon the profession. These areas are related, as it seems that, even though modern technology is meant to assist practitioners, it sometimes adds to the stress and pressure of practice. Previous Brief articles have addressed questions such as whether artificial intelligence will make the practice of the law easier for practitioners or whether, as in the classic movie Blade Runner, having AI driven robots perform tasks that humans could perform might instead result in some very undesirable outcomes. Recent publicity about the release of Blade Runner 2049 was noted with some interest, and in anticipation of a criminal law angle to the story. That is, Blade Runner 2049 was initially but mistakenly assumed to be the title of the State/prosecution’s written brief, and likely opening line of oral submissions, in its upcoming appeal against the leniency of Oscar Pistorius’ sentence (as a reference to the earliest appropriate release date). As it turns out, it is a sequel to Blade Runner, which adds to the stress of any moviegoer concerned about modern day sequels. Turning back to the feature article, one interesting piece of information in it is that, while of course avoiding the personal cost of mental health issues is paramount, there is a commercial incentive for employers, as research suggests that “every $1 spent on improving mental health in workplaces results in a $2.30 gain”. This finding can be put into a readily understood context for employers, providing an incentive to invest in their workplace, as follows: this is a significantly better return on investment than betting on Floyd Mayweather to beat Conor McGregor.
Escaping the pressures of legal practice is not easy. It might be attempted by attending the Royal Show. However, especially when attending with children, it soon becomes evident that the Royal Show could well be renamed “the Land that the Australian Consumer Law forgot”. One is tempted to call in the ACCC, except you don’t really want them to take any action that might imperil the abundance of the “13 donuts for the price of 5” offers. October 3, 1927 was the date of the Law Society’s first AGM. The Daily News of 3 October 1927 is stacked with reports upon events that, traditionally, were the important ones and the proper focus of the Royal Show – being those activities that nowadays kids react to like Damien when he was taken to a church for the first time by Gregory Peck and Lee Remick1 in The Omen. That edition of the Daily News also contained an advertisement about the stress-reducing and wellbeing-boosting qualities of “Dr Williams’ Pink Pills for Pale People”. Putting aside the consumer law implications of the benefits that were attributed to Dr Williams’ pills, the phrase “Pink Pills for Pale People” would likely cause offence to any number of people nowadays. Another feature of Dr Williams’ advertisement was the rather harsh admonition that: “Life has little use for the unfortunate weakling who has neither the strength nor the nerve to keep in the ranks of the toilers and seekers of a career”. The Editor seems to recall a similar sort of thing being said to him many years back by a senior partner, 4 hours into a lunch to celebrate the completion of articled clerkship and the admission ceremony earlier that day. On October 3 1776, or thereabouts, Captain James Cook made his not as well known, and less celebrated, landings in Alaska. While the controversy regarding monuments to Captain Cook continues to rage on, there is one feature of Cook’s landings in Alaska that might bear upon who may want to remove Alaskan monuments in his honour.
On October 14, 1776, Captain Cook openly defied orders that he should not meet or have contact with other Europeans, by meeting with Russian fur traders and a Russian navigator, Gerassim Ismailov. It is not known whether there was, because of this clearly suspicious collusion with Russians, any admonition of Cook, or any investigation into Lord North’s Tory administration, Lord North’s handling of the American Revolutionary War, or his unsuccessful attempt to obtain the assistance of Catherine the Great to fight to revolutionaries. However, this factor does make it more likely that if the Captain Cook statue in Alaska is pulled down, it will probably be by Special Counsel Robert Mueller, and the rooms in the Captain James Cook Hotel in Anchorage trashed by former FBI Director James Comey and possibly also Hillary Clinton. October 27, 1776 was also Captain Cook’s birthday. On that occasion, when returning from Alaska, three men were badly hurt, and a Captain’s servant was killed in a fall down the main hatchway. So, one assumes it was one heck of a birthday party. The log attributed this incident to a threeday raging gale, but then, when isn’t that the go-to-excuse when things get out of hand and a party lasts for three days? This Brief features the first of what will be a series of case studies, in this edition that of the Hon John McKechnie QC, the Corruption and Crime Commissioner. This includes some helpful observations on balancing a career in the law with personal life. It also includes the Hon Robert French AC’s 2017 Sir Ronald Wilson Lecture on 'Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence', the Hon Chief Justice Wayne Martin AC upon 'Passing the Buck - Has the diffusion of responsibility for Aboriginal people in our federation impeded closing the gap?', Chris Phillips upon mediation preparation, Professor Gino Dal Pont on 'Charging access to justice' and Dr Lydia Wells on reforms to the regulation of lawyers practising in immigration law. NOTES: 1.
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Or Liev Schreiber and Julia Stiles, if you insist (for the millennials).
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Charging access to justice Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column
Access to justice has increasingly become a catch-cry that the legal profession has been invited to address.
The profession has responded in various ways, against a statutory backdrop directed at regulating costs chargeable.
Professional discipline for overcharging nonetheless remains as a critical vehicle to police illegitimate impediments in this regard.
It is trite to observe that we live in a society where questions over access to justice — specifically persons’ inability to access justice — are accentuating. While far from the only impediment to accessing ‘justice’ (itself a loaded word), the cost of legal services presents as a significant contributor. It is unsurprising, therefore, that the legal profession has been called upon to play a part in improving access to legal services, as a threshold for accessing justice. In 1980, for instance, the (then) Chief Justice of the United States Supreme Court spoke of the profession’s “special obligations to be energetic and imaginative in producing the best quality justice at the lowest possible costs for those who use it”.1 While few would suggest that the profession cannot do more in this regard, its contribution to fostering access to justice cannot be denied. This is not merely by significant pro bono (and discounted ‘low bono’)2 commitments, but also in, amongst other things, undertaking legal aid work, speculative fee retainers and being parties to the ‘unbundling’ of legal services.3 Any notion, moreover, of avoiding fee competition — which was once seen as unprofessional4 — has well and truly fallen by the wayside.
unsatisfactory professional conduct or professional misconduct.5 So what may, in the commercial field, equate to good business is, when the legal profession is involved, distinctly unprofessional. ‘Overcharging’, it has been said, “damages the reputation of the profession and reduces public confidence in the profession”.6 The temptation to charge more than what is ‘fair and reasonable’ can be intense. As can the pressure (including sub-consciously) to rationalise an otherwise illegitimate charge. For instance, the Family Court of Western Australia recently observed that “[a]ny lawyer practising for a significant time in family law will experience the difficult, demanding or ‘high maintenance’ client who by his or her actions and attitudes generates additional work in the lawyer’s office, or who seeks to insist on unnecessary work being performed”.7 In such circumstances, the court responded, the lawyer’s obligation is ‘clear and long established’, namely “a duty to advise and protect a client against unnecessary expense”.8 Two weeks later, the Queensland Civil and Administrative Tribunal found that a lawyer who, inter alia, charged a loading for ‘care and consideration’ outside of express provision in the retainer agreement, as well as for legal work done after the termination of the retainer, engaged in unsatisfactory professional conduct.9 That the lawyer felt justified, in view of the legal services supplied, in charging a loading and for post-termination work was no bar to professional discipline. When it comes to fostering access to justice, therefore, there are compelling reasons for lawyers to approach matters of charging ethically.
And, as lawyers are (sometimes painfully) aware, in any event statute performs an important function in regulating costs legitimately chargeable, including by way of costs disclosure, formalities for bills of costs and the process of costs assessment and review. Client knowledge and empowerment, to this end, are steps directed at precluding lawyers abusing their (usually) stronger position, which in turn foster, it is reasoned, access to justice.
Concerns surrounding remaining potential for abuse of lawyer position in this regard also surface within the disciplinary sphere. Statute makes it explicit that “charging of excessive legal costs in connection with the practice of law” is capable of constituting
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W Burger, ‘The Role of the Law School in the Teaching of Legal Ethics and Professional Responsibility’ (1980) 29 Cleveland State L Rev 377 at 378–9.
‘Low bono’ involves lawyers charging for legal services at lower than the prevailing market rate: see L E Herrera, ‘Encouraging the Development of ‘Low Bono’ Law Practices’ (2014) 14 U Md LJ Race, Religion, Gender & Class 1.
This is not to overlook risks inherent in ‘unbundling’ legal services: see, for example, Sequence Properties Ltd v Patel  EWHC 1434 (Ch).
See, for example, Re Evill  2 TLR 265 at 268 per Lord Goddard CJ (‘There is nothing worse in any profession than that there should be fee cutting’).
Legal Profession Act 2008 (WA) s404(b).
Legal Profession Complaints Committee v Park  WASAT 89 at .
Taronite v Mabra (Costs)  FCWA 72 at  per O’Brien J.
Ibid., , .
Legal Services Commissioner v Jackson  QCAT 207.
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Mediation Preparations and Approaches By Chris Phillips Principal, Mediation South West
The following is a guide to mediation which can be perused by clients who have a dispute that might be amenable to mediation. It can also form a useful checklist for solicitors preparing for mediation. Note that issues around the utility of arbitration as distinct from mediation or hybrid models of conciliation/mediation/arbitration [with a binding decision to resolve the issues] might need to be considered before or in addition to the factors set out in this guide. GUIDE TO MEDIATION The Australian National Mediator Standards explain that the purpose of the mediation process is to maximise participantsâ€™ decision-making and they describe mediation as a process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a 3rd party to assist the participants to reach their decision. We set out the factors and considerations you may need to take into account when deciding your approach to mediation and within the mediation itself.
PREPARING FOR MEDIATION Selection of mediation model and mediator There are various forms of mediation, such as facilitative mediation and evaluative mediation. In facilitative mediation the mediator will provide input on process and exploration of issues but will play no evaluative role. In evaluative mediation the mediator will be called upon to qualitatively assess the case of each party and intervene to express her or his opinion, views, or concerns in order to assist the parties to come to a resolution if the parties are unable to resolve matters themselves. Some of the factors to be taken into account when considering if evaluative
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mediation is apt, will be the complexity of the issues; how far apart the parties are and how significant is that in terms of rights, interests, amount of money; the extent to which the parties are wedded to positions; whether expertise may be likely to shift the parties to settlement; and comparative costs. Very often the only expertise required is the weighing up of factors of fairness but here the presence of a wise 3rd party is just what is required.
the keys to this form of mediation are the space to unlock the past and tell the untold story; coaching; trust; compassion and empathy balanced with authority and transparency in the mediator; and modelling deep listening and respectful interaction, but with the expertise of the science of trauma and psychological injury and its consequences and the healing needed, brought to the mediation process. Family dispute resolution can incorporate the application of therapeutic or restorative justice principles in cases where, for example, separated parents have been engaged in long and tortuous litigation and make multiple counselling efforts over a number of years in severe high conflict, to help bring the parties to a co-operative parental alliance. Mediation can be considered at any stage in the dispute process.
Evaluative mediation should only take place when formally agreed by the parties beforehand including agreement on the circumstances in which intervention will take place. Note that the views of the evaluative mediator are generally given privately in separate session. The mediatorâ€™s views are not binding so that the parties retain the right to proceed with other avenues of dispute resolution, including court, in the event the matter fails to settle.
The subject, emotional content, complexity of the issues and cost may be relevant to determining which mediator might best be suited to the task.
In cases where emotional and personality issues have caused a dysfunctional relationship but there is to be an ongoing relationship between the parties, such as spouses who have separated but who are to remain in a parenting relationship for the rest of their lives; business partners who wish to continue in that partnership; family members who will have to continue to relate to each other; neighbours who wish to continue to communicate positively with each other in time to come; staff members who must continue to work in close liaison, you might choose therapeutic mediation or what might be called restorative mediation. Some of
Who is to be present at mediation?
Mediation is usually face to face but in cases where this is not possible, such as due to factors including power imbalance and overwhelming fear or upset, the mediation can be by shuttle (the parties see the mediator separately in a series of private sessions), or Skype or telephone.
It may be advantageous to represent yourself but you can ask for a support person to be present, nearby or in phone contact. Whatever arrangements are made, they must be suitable for both parties. Where you are in need of support or guidance on complex issues or legal advice in negotiations it can often be best to have a lawyer present. In the case of complex accounting, financial planning, medical or childrenâ€™s issues, an appropriate consultant might need to be present for at least part of the session. Interpreters are needed when the language barrier is too great.
Role of support persons/advisers Consider what role any support person, representative or adviser should play in the joint session. This might vary from silent observer to main speaker in those cases where you are unable to speak for yourself on most issues. Getting the right advice Where complex legal issues are involved it will normally be necessary to obtain comprehensive legal advice before the joint session. Similarly, with complex accounting, financial planning or medical issues, the appropriate advice should be sought. Consider whether this advice should be obtained in writing for your own reference and/or for presentation to the other party and/or for presentation to the mediator for discussion in the joint session. Full disclosure Ensure that all relevant documentation that you possess or that you have the power to obtain is disclosed to the other party and that all relevant documentation that the other party possesses or has the power to obtain is disclosed to you, preferably before the matter is set down for a joint session of mediation. Where in doubt about what documentation is to be disclosed consult a solicitor. A failure to disclose often results in an adjournment
and at worst could result in allegations of fraud. Where party A has given full disclosure but party B has failed to do so, party A may on the other hand decide to proceed in any event to a joint session on the basis that the known facts advantage party A and the absence of full disclosure only disadvantages party B.
partyâ€™s case. Remember that the truth has extraordinary inherent power and conversely exaggeration, embellishment, and baseless statements are counterproductive as they may lead the other party to despise or discount your view to nought. Settlements based on false assertions can in any event be overturned.
Topics Choose the topics that you wish to discuss, write them down and prioritise them. Analysis List those matters which you feel are essential in order to settle the matter, those matters that can be sacrificed, and those concessions which might assist the mediation and which you may be able to manage if they are made, even though they may be somewhat distasteful. Identify any short term objectives and then long term objectives. Case summary Where the issues to be resolved are complex it is helpful to prepare a comprehensive brief, which may require the skills of a lawyer. The brief might incorporate a case summary; the facts that are agreed; the facts that are disputed; the law; the remedies available; timelines; and the other
Option generation Devise as many options as you can which would be ideal for you to meet your needs, then focus on what might be the best options for the other partyâ€™s needs and then look to being as creative and flexible as you can in broadening out or adding to those options. Emotional health Especially in those cases involving personal angst, as is often the case in family breakdown, take care of your emotional state. Try to make the lead up to the mediation as relaxing as possible for you. If you are feeling emotions of overwhelming anger, grief, fear or sadness about issues that will arise in the mediation, take the opportunity to get counselling or psychotherapy before attending the mediation to help ground you.
Strategy Generally the preferable starting focus in the mediation is to present your interests and needs rather than to put forth a categoric position. Once a categoric position is put forth, the other party may feel they will have â€˜lostâ€™ if they accept. An adversarial instead of co-operative atmosphere is often then created. Early categoric positions can block creative option generation. Where the parties have clarified interests/needs, the path to resolution is often simpler and easier and might hopefully result in a winwin situation. In complex situations a lawyer will often be needed to guide you on the best approach. It is usually helpful to develop a strategy before going into the mediation joint session as to the best means of approach to your case. On the other hand, spontaneity and heartfulness works at times. There are no absolute rules and each case is different. Most lawyers skilled in difficult negotiation (but not all) would advise you to begin by claiming the ideal (within reason, having regard to the rights and needs of the other party) and work back from that point giving the other party the satisfaction of progressing her/his claims and whittling yours down somewhat. Remember that negotiation to settlement is a two-way process and the emphasis here is on the process. It can be quite healthy and responsible to start claiming that ideal if the other party will do likewise. It is neither dishonest nor immoral to ask for what you would like, provided that you make no false assertions. However, on some occasions the preferable course is to cut to the chase with a view to shortening the mediation and hopefully expediting a harmonious settlement without either party feeling the other is being overly demanding or time wasting. At times a blend of approaches is best. Best case/worst case - risk analysis Consider, and if need be find out from your lawyer or other expert, what your best case outcome is, and what your worst case outcome is in the event there is no settlement. This will include some advice (if the matter would likely proceed to court upon failure to settle) from your lawyer of what costs; delay; lost time and income; emotional input and chances of success or failure are for trial. These are
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only some of the factors to be taken into account. In parenting issues, the decision to go on and litigate must be balanced against the damage the children may well suffer if mum and dad entrench their conflict in a litigation battle. Safety Discuss with the mediator in the premediation session any concerns you have over safety issues and ensure strategies are in place to achieve safety. Multiple joint sessions Sometimes more than one joint session is required, such as where preliminary agreement is required on sale of property or valuations before steps are taken and then the parties reconvene, or where the parties need time to experiment, adjust, reflect, recoup, obtain further advice or therapy before reconvening. Understand the process Mediation is about self-empowerment and self-determination so it helps if you understand the process and your role and you can discuss this with the mediator in pre-mediation and/or your lawyer in a lawyer assisted mediation.
IN THE MEDIATION Win-win Keep uppermost in your mind that the goal is to achieve a win-win situation. Hostility on your part will likely lead to defensiveness and the destruction of a co-operative attitude on the part of the other party or parties. Try to strike a balance between an empathic and cooperative stance or an assertive stance. The experience of mediators generally is that aggressive, adversarial and vitriolic approaches are counterproductive. However a cooperative stance can be exploited and thus the balance of assertion and cooperation is recommended. Pace Take it slowly. Emotional issues Some reflection may be helpful as to whether or not emotional issues need to be dealt with in the mediation. At times the emotions are best left unmentioned. Where great emotional hurt has been suffered the victim will often need to express that emotion. Often the acknowledgement by party A that party B has suffered such hurt and especially,
if it be so, if party A admits that her/his behaviour may have contributed to that hurt, this can allow the sufferer, party B, to move on in the mediation. Sometimes parties have been locked into negative intimacy and until they can leave behind their intimate relationship they cannot focus positively on the future. Only when they have been heard, acknowledged and validated can they let go and move forward. Where there is to be an ongoing relationship, such as parents who have separated but who are to remain in a parenting relationship for the rest of their lives, or business partners who wish to continue in that partnership, it is often essential for the two parties to explore their emotional issues. In this context if you can take an attitude that honours and respects the other party while being assertive on any behaviour which you believe is dysfunctional this can be most productive. It is usually possible to critically review past behaviour and its consequences yet respect the innate quality of the other party whose passions, beliefs, behaviours, and intentions have been forged in life by dint of experience, just as yours have. Note, however, that there are occasions where the telling of your story is too painful for you, or when mediation will be either inappropriate [at present at least] or limited in scope. Open mind It is surprising how often parties reach a win-win situation in the mediation because they were both able to keep an open mind and to reach creative solutions which neither had thought of before the mediation commenced. Own bias Some parties to mediation are so oneeyed about their own case that they form beliefs which restrict their capacity to see, understand and weigh the facts from the point of view of the other party or an independent adjudicator. In such cases where litigation results, the blinkered party may end up with a very serious loss situation that could have been avoided. Emotion around offers To react angrily, derisively or sarcastically, for example to an offer which you believe is unfair or unreasonable, is counter-productive. It is better to respond to the offer using objective and rational criteria, or simply to ask respectfully for an explanation as to the basis of the proposal.
Integrity As pointed out earlier, truth and honesty are your greatest strength. To assert a fact or a proposition of law that is untrue is generally counter-productive. However, you might say that you wish for a certain outcome and state your reasons without putting your case on the basis of a proposition of law even though you know the law may not support that outcome. You then need to be conscious of the fact that the law is generally designed to work fairly and thus it is likely such a proposal will result in unfairness in some aspect to the other party.
experienced than you and may therefore be better able to meet your objectives. Sometimes, near the end of the mediation when an impasse remains, [or at times before or earlier in the mediation] it is useful for both parties' lawyers to meet together without the parties present. On rare occasions it can help to have the parties meet at an apt time in the mediation without their lawyers present. The common experience of mediators is that the presence of competent lawyers in mediation in complex and weighty matters, is of great assistance in achieving the best possible resolution of the issues.
the other party to similarly calm down, recoup, reflect and plan. •
Verbal following skills which show that you are following what the other party is saying such as: “I see” “Mmm” “Ok”.
Empathic comments such as: “I can understand you feel that way because…”.
Summarising: for example… “So your perspective is…”.
Speak slowly and clearly.
Avoid interrupting the other party unless the other party has begun to hog the debate.
Try to get dialogue going directly with the other party if that is possible rather than addressing all your comments to the mediator.
Attack the problem rather than the person. For example if the other party says: “You swore at me, pushed me and walked away” and you believe that this is incorrect you can attack the party: “You are a liar!” or you can attack the problem: “My recollection is……….. I feel upset when you say that happened when
Representatives If you are to have someone representing you in the mediation such as a lawyer, be aware that the representative may have different objectives from your own. Considerations in this context include that she/he has had different experiences from you in your life leading to she/he having different priorities. The representative perhaps has reputational issues, costs issues or perhaps emotional issues which may leave them not entirely in sync with your own objectives. On the other hand, more often than not a lawyer representative is far more skilled and
Negotiating skills •
Use polite and attentive body language.
Ask clarifying and open-ended questions such as: “Can you explain that again?” or “So what you’re saying is…? “ or “What led you to think that?”
Silence and careful listening. Silence is a vital communication skill.
Call time-out to recharge your energy levels, reflect, plan, and/or to allow
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I believe it is not true. An attack on the person is likely to force the other party to get defensive and possibly attack back, or close down. A frank but respectful assertion of the problem on the other hand leaves the other party more comfortable reconsidering and at least hearing your view. It can be helpful to begin: “When you………. I feel……….”. Note that recollections are often distorted by overloaded emotions, filtered through powerful belief systems, blurred by substance abuse or other memory inadequacy and understood through widely differing perspectives. Recollections can often differ markedly yet nevertheless be genuine. •
Start with “I”. Use personalised phrases such as “I believe” or “I think” to convey your understanding. It gives more space to allow the other party to take a different point of view or to agree with you without loosing face, as you are not stating your belief or opinion as a fact or an absolute. No fixed rules. The above guidelines are not cast in stone. There are occasions in the spontaneity of relationships where for example instantaneous anger can be a circuit breaker. At times it can be important to describe the anger you feel and why.
Call in the mediator Let the mediator know either in joint session or call for a break and tell the mediator in private session if you are experiencing difficulties.
Have regard to the mediator’s role The mediator will endeavour to assist the parties achieve an outcome that meets the needs of stakeholders and appears just and fair. Consequently it is helpful to reflect this in your submissions in mediation. So, for example, when attempting to resolve parenting issues, the mediator will endeavour to keep the parties focussed on the best interests of the children. Thus it will help to address the best interests of the children in each of your submissions as distinct, for example, from beginning: “It is my right…” On the other hand, in negotiating parenting issues you should be assertive as to your own critical needs because for children to thrive they require positive role models in their parents who are getting on with their lives and able to interpret their lives positively. Future focus Often parties will need to have regard to the past because unless we understand our past we are likely to repeat it. However the sooner the parties can focus on what needs to happen, change or be put in place to resolve the current situation and secure a lasting settlement, the more productive the discussion can be. Many a mediation has floundered because the parties were unable to move beyond allocation of blame for water which has now flowed under the bridge. Variation and review
from time to time, you will probably need flexibility. In cases where flexibility is required, often parties agree to a clause such as “This agreement may be varied by mutual agreement [in writing?] at any time”. On the other hand, in cases where the relationship is likely to remain tempestuous, special arrangements will be needed to resolve any ongoing impasses and informal flexibility may be counter-productive, as it may lead to chaos and even abuse. It is important in ongoing relationships to consider whether the arrangements are to be formally reviewed in further mediation [or otherwise] after a set period. When to settle The advantages of settlement by the end of the mediation include that there is finality and certainty for you. However it is important where doubt remains in your mind on a rational basis, to adjourn the matter for further reflection and/or advice, although this must be weighed against the possibility that in adjourning without final agreement the other party may change her/his mind and resile from proposals made or tentatively agreed. NOTES: I acknowledge the expertise of Dr Rachael Field, Professor of Law at Bond University Law School, who presented in 2017 on “Using Dispute Resolution processes in matters where there is a history of domestic and family violence”; and Krista L Viar, of Hello Humankindness.org, who published a paper called “Debate with Kindness: How to disagree and still keep it Civil“ on September 29, 2016.
Consider whether you need rigid arrangements which finalise the issues. In the case of ongoing relationships where circumstances will inevitably change demanding new arrangements
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not a life”
The Hon John McKechnie QC Admitted: December 1974 Areas of Law: Criminal, administrative and constitutional Current position: Corruption and Crime Commissioner
The Hon John McKechnie QC has had a distinguished career. Educated at Dalkeith Primary School and Scotch College, the Commissioner participated in an exchange year in New York. It was there that he decided to study Law. Graduating with a Bachelor of Laws from University of Western Australia in 1972, the Commissioner began his legal career with articles at Jackson McDonald and was admitted in 1974. In 1976, he joined the Crown Law Department (now State’s Solicitor’s Office) where he worked his way up the ladder. In 1989 he was made a Queens’s Counsel and in 1991 he was appointed the State’s inaugural Director of Public Prosecutions. In 1999 John McKechnie was appointed as a judge of Supreme Court. After 16 years on the bench, he retired in 2015 to take up a five year appointment as Corruption and Crime Commissioner. Aside from his distinguished legal career the Commissioner has been active in voluntary work, most recently with the Uniting Church, Presbyterian Ladies’ College, Patron of The Samaritans and teaching the next generation of legal minds trial practice. He is also an author of a text on criminal law.
The Commissioner on... Managing flexibility in your day-today work Flexibility can be difficult, especially for legal professionals whose work is largely governed by court schedules (for example: judges, barristers, instructing solicitors). Urgent work has to be
attended to immediately, even if that means a late night. However, you take a more flexible approach in times of low ebb. Work doesn’t always have to be at a manic pace. When work is less urgent, take time to keep up to date with journals and leave the office on time. It is even more difficult for primary carers as there is enormous pressure to constantly manage competing timetables and priorities between family and clients.
Balancing family with a career It is vital to have undivided time with your children. For me it was doing the school run in the morning – even if my children didn’t say anything! I shared my passion of sailing with my children by having them crew for me at different times of their childhoods. I believe in taking regular holidays with my wife and children. I enjoy spending time with my adult children and grandchildren. Also, sing often.
Having the career and the personal life I couldn’t have done it without my wife taking on the primary carer role. We have a partnership and it works because we both actively contribute to the household chores i.e. laundry, children’s sports commitments, school runs. At least, I think it is equal – she would probably beg to differ.
Tug boat owne r, traveller, sa national race ilor, of ficer, family man, and Corruption an d Crime Com missioner
six weeks on circuit or business which has left her with a household full of children to manage on her own. Behind every successful man is an exhausted woman.
Biggest challenges facing women in the profession Despite great efforts over the past 10 years there is still sexism and a glass ceiling in the profession. You only have to look at the number of female judges, silks and senior partners to see this. During my time as Director of Public Prosecutions we had full equality from top to bottom. Equality is not just about quotas – you need equality throughout the support, junior, mid and top levels of an organisation. It is difficult for many women as they tend to be the primary carers and have to balance the demands of children and the home while being expected to be always available and in top form for their clients or the courts. My other observation is that some women tend to underestimate their abilities and work much harder than necessary because of this. (Conversely, some men overestimate their abilities and are over confident and underprepared.)
Advice for lawyers Law is a career not a life. Balance your career with a life. Enjoy hobbies, give your time and expertise to charitable causes, and travel with your loved ones.
My wife made compromises so that I could have the career. There have been times when I have had to travel for up to
Mental health has fallen into the spotlight in recent years, yet the pressures faced by legal practitioners have been recognised for some time. By Daniella Luppino M. Psych (Org) (Hons) B. Ec. Soc. Sci. (Psych) (Hons) JLT Insurance & Risk Management Dimity Smith B.A. (Psych) P.G. Dip (Psych) The Recovre Group, a JLT Company Confronting figures have prompted the call for law firms, schools, and professional bodies to face mental health issues head on, challenging the profession to build mental resilience in their workplace or risk its viability and losing its best people. Of course, that’s easier said than done. At the heart of this shift are organisational leaders, who must be the champions of mental health and “walk the talk”. Alarmingly, just over half of students, solicitors and barristers have experienced depression and 63% of solicitors reported experiencing ‘moderate’ to ‘very high’ levels of psychological distress, according to recent research1. For employers, the costs of mental health are staggering. Ignoring the issue hits Australian businesses $10.9 billion every single year2. There’s a lot at stake: expensive compensation claims, increased absenteeism, reduced productivity, fines for breaching legislation, reduced employee engagement and increased staff turnover. Not to mention the impact on employees' lives and families. The sustainability of the profession and reducing the commercial and social costs of mental health issues is tied to ensuring legal practices are conducive to work life balance and overall mental wellbeing. This begins with aligning workplace practices with values, identifying when someone is struggling psychologically, and taking active, visible steps to support and work with individuals to alleviate mental health risk factors in the workplace. Like any muscle, mentally resilient workplaces can be built. And research tells us that every dollar spent on improving mental health in workplaces results in a $2.30 gain3.
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“ ... research tells us that every dollar spent on improving mental health in workplaces results in a $2.30 gain.” What does a mentally healthy workplace look like? As is always the case, actions speak louder than words. Yet we often have a hard time talking about mental illness and sharing our stories of adversity with others. Wanting to speak openly with people when you’re at rock-bottom is difficult, and often left stuck in the vulnerability of one’s mind at the fear of repercussion and judgement. Half of solicitors and barristers who have suffered depression said they would be discriminated against by their employer for their condition, according to a recent study4. Removing the stigma associated with mental health is the first step recommended by beyondblue and the Mental Health Workplace Alliance in their ‘Heads Up’ support campaign5. They also outline the following as characteristics of mentally healthy workplaces:
What to look out for Mental illness exists primarily in three forms: anxiety disorders including post-traumatic stress, mood disorders such as bipolar disorder and psychotic disorders such as schizophrenia. Whilst diagnostic and treatment decisions should be left in the hands of medical practitioners and mental health professionals, we should all be responsible for keeping an eye on changes in an employee’s behaviour. Here are some tell-tale signs: •
Appearing tired and fatigued
Unusually teary or emotional
Avoiding workplace activities and colleagues i.e. staff meetings or social events
Difficulty meeting reasonable deadlines
Identifies and reduces, where practicable, risks to employee mental health
Appearing apprehensive, restless, or tense
Easily angered or frustrated with tasks or people
Supports all employees, including those with mental health conditions
Loss of confidence
Views diversity as an organisational advantage
Increased vulnerability to workplace stressors
Has low staff turnover and sick/ stress leave
Difficulty taking on constructive feedback
Enjoys high staff loyalty
Drinking and/or substance use to cope with symptoms
Encourages career and personal development
Has employees that are productive members of a team
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Work-related stress can escalate quickly The billable hours system remains the primary method of payment for legal services in Australia, and remains a leading contributor of work-related stress6. In the words of Western Australia Chief Justice Wayne Martin: “This is not to say that time billing has no place in legal service charging, but rather that other methods which encourage efficiency and better allocate risk should be developed.7” The World Health Organisation defines work-related stress as: “The response people have when presented with work demands and pressures that are not matched to their knowledge and abilities and which challenge their ability to cope.8” Working excessive hours, subsequent lack of time for family and personal life, highly competitive environments, lack of reward and recognition, and bullying are further work-related stresses, currently in the minds of legal practitioners9. When prolonged and/or excessive, diagnosable conditions like anxiety or depression arise, only advancing the much publicised, increasing costs of mental health.
Building mentally resilient workplaces Time away from work has been rated the most effective initiative for dealing with stress by legal professionals, followed by sport and exercise classes, redistribution of work to colleagues, having more time to complete work and mentor programs. On the opposite end of the scale, Employee Assistance Programs, health check-ups, and stress management training were rated least effective10. Firstly, organisations should review their current initiatives in place to support employee wellbeing and seek employee feedback on their perceived effectiveness. Only then should employers invest in initiatives: •
To cultivate a culture of mental health champions, leaders should advocate the provision of flexible policies around annual, sick and parental leave, and ensure employees are taking entitled breaks like lunch. Placing work and life on an equal scale boosts staff job satisfaction and in turn reduces work-related anxiety, depression and stress. Employees, where practical, should be allowed time off work for a mental health break or have their work reallocated. On return from injury or illness, a ‘recover at work’ plan can help aid a distressed employee’s transition back to full work-load. To drive conversation and nonjudgemental interaction around mental health, organisations should introduce and live by a supportive communications strategy that actively praises employees for raising their mental health concerns, intertwined with a collaborative solutions focused approach to addressing these issues. Employees should also be educated around the right language to use to support colleagues in need, from asking simple questions like: “how can I help?” to avoiding saying comments like “you’ll be right” and “just get over it, keep going”.
Appealing to the hearts and minds of your people Cultural changes set the foundations for addressing mental health and wellbeing. In the words of Deborah L. Rhode, Ernest W. McFarland Professor of Law at Stanford University: “the most well-crafted [flexibility and family] policy
cannot succeed without the full support of an organisation’s leadership.11” Structural changes around workload, billing practices, client demands, and deadlines can only succeed when underpinned by the cultural values of a psychologically safe and supportive work environment, where people and organisational sustainability are prioritised over profit. One organisation helping the legal profession progress is the Tristan Jepson Memorial Foundation (TJMF), an independent, charitable organisation striving to increase awareness of depression and anxiety. With more than 180 signatories representing all corners of the profession, including prominent and small firms; sole practitioners; educational intuitions and student societies; Australian courts; bar associations; and law societies, they’re helping to facilitate a cultural shift across the legal community12. The Foundation has developed The Guidelines, a comprehensive set of tools and resources that enable managers to assess the psychological health of a workplace according to 13 factors, followed by the implementation of best practice initiatives.
Useful information and resources •
Tristan Jepson Memorial Fund www.tjmf.org.au
Heads Up www.headsup.org.au
Medlow, S., Kelk, N., & Hickie, I. (2011). Depression and the Law: Experiences of Australian barristers and solicitors. Sydney Law Review, 33(4), 771 – 799.
PricewaterhouseCoopers (2014). Creating a mentally health workplace - Return on investment analysis. Final Report, March 2014. Retrieved from https:// www.headsup.org.au/docs/default-source/resources/ beyondblue_workplaceroi_finalreport_may-2014.pdf.
PricewaterhouseCoopers (2014). Creating a mentally health workplace - Return on investment analysis. Final Report, March 2014. Retrieved from https:// www.headsup.org.au/docs/default-source/resources/ beyondblue_workplaceroi_finalreport_may-2014.pdf.
Medlow, S., Kelk, N., & Hickie, I. (2011). Depression and the Law: Experiences of Australian barristers and solicitors. Sydney Law Review, 33(4), 771 – 799.
Heads Up (2014). Encouraging leaders to take action in the workplace. Retrieved from https://www.headsup. org.au/docs/default-source/resources/bl1246-flyer--encouraging-leaders-to-take-action.pdf?sfvrsn=8.
Bergin, A. J., & Jimmieson, N. L. (2014). Australian Lawyer Well-being: Workplace Demands, Resources and the Impact of Time-billing Targets. Psychiatry, Psychology and Law, 21(3), 427-441.
Kendall, C. (2011). Report on psychological distress and depression in the legal profession. The Council of the Law Society of Western Australia. March 2011.
WHO (2017). Occupational Health – Stress at the Workplace. Retrieved from http://www.who.int/ occupational_health/topics/stressatwp/en/.
Bergin, A. J., & Jimmieson, N. L. (2014). Australian Lawyer Well-being: Workplace Demands, Resources and the Impact of Time-billing Targets. Psychiatry, Psychology and Law, 21(3), 427-441.
Chan, J., Poynton, S., & Bruce, J. (2014). Lawyering stress and work culture – An Australia study. UNSW Law Journal, 37(3), 1062 – 1102.
Rhode, D. L. (2001). Balanced Lives – Changing the culture of legal practice. American Bar Association, Commission on Women in the Profession.
TMJF (2017). Tristan Jepson Memorial Foundation – Supporting a Safe and Healthy Legal Workplace. Retrieved from http://www.tjmf.org.au/.
Walsh, K. (2017, May 25). How US law firm Squire Patton Boggs increases profit by putting people first. Australian Financial Review. Retrieved from http:// www.afr.com/business/legal/how-us-law-firm-squirepatton-boggs-increases-profit-by-putting-people-first20170203-gu4s5l#ixzz4pad21qTH.
John Poulsen: Walking the talk John Poulsen is reaping the benefits of shifting control down the ranks and empowering staff, deriving firm values and key accountabilities from staff rather than management, which are then imbedded in the annual salary review process. Managing Partner of the Australian arm of Squire Patton Boggs and signatory to the TJMF Guidelines, the firm’s profit has doubled in two years and boosted productivity after introducing a people-focused strategy in the firm13. Acknowledging that cultural change, particular for large, established firms is “very, very hard”, Poulsen’s firm is now sitting above growth targets for the year, on the back of a 30% profit increase last year. Now more than ever, law firms and leaders like John Poulsen are paying mental health and wellbeing the respect it deserves. Supporting discourse with action needs to be the continued focus. In doing so, the legal profession can look forward to improved staff engagement, autonomy, and trust. The legacy will be a healthy, happy and productive profession, that’s engaging, attracting and retaining the very best people.
2017 Sir Ronald Wilson Lecture Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence Tuesday, 1 August 2017 Central Park Building Theatrette, Perth WA Above: Students from Prendiville Catholic College, John Curtin College of the Arts, Woodvale Secondary College, Alain Musikanth, The Hon Robert French AC and Emeritus Professor Peter Handford.
On 1 August 2017, the Society’s Francis Burt Law Education Programme hosted the annual Sir Ronald Wilson Lecture. The Lecture targets Year 11-12 Politics and Law students and teachers and aims to address syllabus items in that learning area. Established in 1989, the Sir Ronald Wilson Lecture provides an opportunity for a person learned in the law and familiar with the public face of law to address issues of relevance to the Year 11-12 Politics and Law curriculum in a public forum. The 2017 Lecture was presented by the Hon Robert French AC and was entitled Judicial Review: Populism, the rule of law, natural justice and judicial independence. In the Lecture, the Hon Robert French AC noted:
There will always be debates about what the courts do, whether they are doing it well and whether they have kept to their proper constitutional function. Informed debate about such matters is a sign of a healthy democracy. That health is not enhanced by the use of populist rhetoric. The courts and our democracy are too important for that. There were more than 90 attendees at the Lecture, including 69 Year 11-12 Politics and Law ATAR course students and teachers. Distinguished guests included the Hon Chief Justice Wayne Martin AC, the Hon Judge Christopher Stevenson, Principal Registrar Shane Melville and the Hon Robert Nicholson AO.
Other attendees included law students and practitioners from a wide range of firms. The 2017 Lecture paper is reproduced in this issue of Brief. The paper can also be found, along with a video recording of the Lecture, on the education resources section of the Society’s website. The Society thanks Murdoch University School of Law for sponsoring the 2017 Lecture and DLA Piper for facilitating the use of the Central Park Building Theatrette. Sponsored by
Sydney 15-18 April 2018
he ICCA Congress is the world's premier biennial conference on international arbitration, and will attract over 1000 delegates from every major jurisdiction worldwide. It is an accredited CPD event for WA practitioners. The theme for ICCA 2018 Sydney is 'Evolution and Adaptation: the Future of International Arbitration', with key events including: • A "TED Talk" style luncheon, where leading arbitrators will offer their personal reflections on the past, present and future of their careers and of arbitration itself. Questions and observations from the floor will be encouraged.
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www.icca2018sydney.com • A "hot topics" panel discussing the latest controversies, newest decisions, and boldest proposals of 2018. Congress delegates will be invited in advance to suggest "breaking news" topics for the panel's consideration. • A panel discussion on reforming substantive obligations in investment treaties and conditions of access to investment arbitration.
Early bird special ends November 1. Register online at www.icca2018sydney.com
Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence 2017 Sir Ronald Wilson Lecture
Paper presented at the Law Society's 2017 Sir Ronald Wilson Lecture by The Hon Robert French AC
Introduction Chief Justice Martin; the President of the Law Society, Mr Alain Musikanth; your Honours, ladies and gentlemen: This is the second occasion on which I have had the privilege of delivering the ‘Sir Ronald Wilson Lecture’. I knew Sir Ronald, or ‘Ron’ as he insisted on being called by everyone. I knew him when he was Solicitor-General of Western Australia and after he became the first Western Australian to be appointed to the High Court. He was a strong Federalist, protective of the position of the States in the Federation and conservative in his approach to the interpretation of the Constitution. He had a commitment to social justice. In the early 1970s, he gave strong personal support to the formation of the Aboriginal Legal Service. And many years later, after he had retired from the High Court, he served as President of the Human Rights Commission and, in that capacity, as co-author of The Stolen Generation Report. He also had a long-standing commitment to higher education, serving as Chancellor of Murdoch University for many years and being instrumental in the foundation of Perth’s second law school at that University. It is fitting that Murdoch University is a sponsor of this evening’s event and that the Dean of the Murdoch University Law School is present. Sir Ronald would, I think, be pleased to be remembered by the continuation of this Lecture Series. He would also be pleased to know that a substantial part of the audience consists of Year 12 students – part of the rising generation whose understanding of the working of our representative democracy is essential to its continuing good health. Tonight I want to say something about the function of the courts in maintaining the rule of law and legal limits on official power, which are essential elements of
our representative democracy. In that context I will offer some observations about a phenomenon loosely called ‘populism’ which allegedly, in the name of ‘the people’, or some section of them, sometimes calls into question the legitimacy of the courts and other societal institutions.
Populism in a Shrinking World Planet Earth is shrinking. Its physical smallness is more apparent every time we look out into our solar, extra-solar and extra-galactic surrounds. A single, centuries old cyclonic storm, the Great Red Spot on Jupiter, recently observed close up by the NASA probe Juno, is 1.3 times as wide as the Earth. Jupiter, which after all is just another planet in our solar system, could fit 1,300 Earths into its interior. Our planet is shrinking in another sense. Electronic connectivity, convergent and conflicting political, social and economic interactions, international and domestic economic inequalities, the unprecedented impacts of the human species on the environment, large scale movements of people displaced across national borders by war, civil conflict, drought and famine, transnational crime and terrorism — have humans rubbing up against each other and their world to an extent never before experienced in world history. This metaphorical shrinkage is stressing nations and institutions in the democratic world and elsewhere. Sometimes it leads to acute discontent with governments and institutions and political systems which are not seen to be dealing effectively with the stressors. There is a class of social and political expression of that discontent described by the word ‘populism’, which has been in the news in the last few years. Broadly speaking it refers to approaches
which seek to denigrate and bypass allegedly underperforming societal institutions and associated ‘elites’. It is an international phenomenon. A report by the Secretary General of the Council of Europe published in May this year entitled ‘State of Democracy, Human Rights and the Rule of Law’ focussed on the topic ‘Populism — how strong are Europe’s checks and balances?’ In that report the Secretary General noted that after the Second World War, Europe’s nations had worked to build constitutional parliamentary systems protecting individuals and minorities from arbitrary power. They had come to understand that democracy was, by definition, pluralist and that giving citizens the right to be different and to criticise authority made their countries more stable, not less. He went on to express concern about European societies seeming to be less protective of their pluralism and more accepting of populism. He explained: By populist I mean those political forces which appeal to widespread public grievances while seeking to exclude other voices. We should be precise: populism is not a catch-all label for every person or movement which rocks the establishment ... Rather, it describes those who invoke the proclaimed will of ‘the people’ in order to stifle opposition and dismantle checks and balances which stand in their way.1 He expressed most concern about governments openly challenging constitutional constraints and disregarding international obligations to human rights. As indicated in the Secretary General’s report and in much other literature on populism, its practitioners typically claim to represent or speak for ‘the people’ or ‘the real people’. An example was seen in the language of the British politician Nigel
Farage who campaigned for the United Kingdom to leave the European Union and claimed the Brexit vote as a ‘victory for real people’. That class of person did not apparently include the 48% who voted the other way. A similar theme ran through President Trump’s campaign and was reflected in his inauguration speech when he said:
that he was going to meet some ‘Real Aussies’. That leads to the rhetorical question — if the real Aussies live in Darwin, who are the other 24 million or so people living in the rest of the country? If we extend the class and say that the ‘real Aussies’ live in rural areas, who are the more than 80% of the population who live in the cities?
today we are not merely transferring power from one Administration to another … we are transferring power from Washington, DC and giving it back to you, the American people.2
The use of this type of language by some politicians and some public commentators, paradoxically themselves well within a working definition of ‘elites’, is classic wedge rhetoric. There is economic and social inequality in this country and there are layers of disadvantage. There are respectable and competing arguments about how best to respond to that inequality and disadvantage. There are significant economic challenges facing Australia and respectable but competing arguments about how to respond to them. The same is true of the great environmental challenges of our time so far as they affect Australia. There is also a diversity of attitudes on social and cultural questions. It adds no credibility to the competing arguments about any of those things to try to shore them up by dividing Australia into ‘real’ Australians and ‘elites’ or any other sub-classes such as the ‘rich’ or ‘ordinary Australians’, ‘leaners’ or ‘lifters’. Nor is it helpful, as demonstrated by recent examples in the United States, to refer to the supporters of a political opponent as ‘deplorables’, an expression used by Hilary Clinton, nor to refer to Conservative Southerners as ‘clinging to their guns and their religion’, a term used by former President Obama.
The term ‘populism’ has been used to describe approaches taken by political leaders and commentators across the spectrum of political beliefs and ideologies. Speaking of Bernie Sanders, the so-called left wing candidate for the Democratic Presidential nomination in 2016, former President Bill Clinton spoke of ‘negative populism’ and ‘positive populism’ and called Sanders a ‘much more positive populist’ than Donald Trump. An essay in the New Yorker magazine last year expressed it in ideologically neutral terms when it said: This new populism … connotes a deep suspicion of political, corporate, and media élites; an eagerness to mobilize people who are new to politics; and a willingness to embrace policies that have long seemed verboten.3 In a recent book entitled What is Populism, Jan-Werner Müller, a Professor of Politics at Princeton University, described it as: a way of perceiving the political world that sets a morally pure and fully unified — but ultimately fictional — people against elites, who are corrupt or in some other way morally inferior.4 He also pointed to the invocation by populists of ‘the real people of the country in which they live’. Müller characterised as the core claim of populism the proposition that ‘only some of the people are really the people’.5 Of course it is not unusual for politicians to invoke what they call ‘the real people’ from time to time. While this may be ‘populist’ language it does not necessarily reflect a thoroughgoing populism. In Australia from time to time we hear references to ‘real Australians’ who are contrasted with ‘elites’ who sip lattés or Chardonnay (depending on the time of day, I suppose) and live in leafy, expensive, inner city suburbs. When President Obama visited Australia in 2011 he came to Canberra and then flew to Darwin saying, no doubt upon advice, 20 | BRIEF OCTOBER 2017
Populism in the sense I have described it is a phenomenon of our time which is not quickly going to go away. It feeds readily into a hyper-adversarial political process. It is, nevertheless, appropriate to point it out for what it offers — rhetoric and words identifying false social diseases, false remedies and false hope — snake oil from the desert fringes of our civil and political discourse.
Populism and the Courts Populism and populist language is directed, from time to time, at courts. It may be used to reflect impatience or anger with courts, particularly in two settings. The first is in connection with the sentencing of criminal offenders. The second, which is the focus of this lecture, is relevant to the judicial review functions of the courts in determining the limits of legislative and executive power, particularly where decisions of the courts hinder elected governments from
doing what they want to do, even to the extent, in some cases, of holding that a law passed by a democratically elected parliament is invalid. The Secretary General of the Council of Europe in his report earlier this year made the point that impartial and independent judiciaries are the means by which powerful interests are restrained according to the laws of the land. They guarantee that all individuals, irrespective of their backgrounds, are treated equally before those laws. Such judiciaries he described as ‘an obstruction to populism’ because of their refusal to bow to political whims as well as their willingness to assert the rule of law against political agendas which would otherwise trample it. It was therefore no surprise that undermining the judiciary was on the first page of the populist playbook. While politicians, frustrated by judicial decisions, will often blame the law in question and seek legislative reform, the populist response to decisions hindering their political agenda is to blame the courts themselves: Either the system is declared defunct or individual judges are portrayed as out-of-touch, self-serving or even corrupt. Such criticisms pave the way for political acts which circumvent the established legal order and for reforms which weaken judicial authority and enable greater political influence.6 It is not unusual for Australian critics of court decisions in judicial review of executive or legislative action to refer to judges as ‘unelected’ thereby suggesting that they lack a democratic legitimacy enjoyed by members of parliament and Ministers of the Crown who are responsible to the parliament. In some cases ‘unelected judges’ are said to be frustrating the will of the people. A recent high profile example occurred in the United Kingdom when the High Court of Judicature ruled that the United Kingdom Government could not simply rely upon the referendum decision to leave the European Union. It had to get the authority of the United Kingdom Parliament. The Daily Mail newspaper on Friday, 4 November 2016, ran a story on its front page saying that the Court’s decision was in defiance of the 17.4 million people who had voted for Brexit at the referendum. The headline, under photographs of the three judges who had made the decision, read ‘Enemies of the People’. It reflected the degree of debasement of popular newspaper culture in the United Kingdom. It was also profoundly silly. The judges had
not decided the Brexit question for themselves. They had said that the law required that, even though there had been a referendum, Parliament must make the final decision. Their judgment was upheld on appeal in the Supreme Court, which is the highest court in the United Kingdom. The newspaper headline reflected what might be called a ‘populist approach’ with its use of the word ‘the people’ even though ‘the people’ it referred to were 17.4 million out of a total UK population of 55 million. They were nevertheless a majority of those who voted. The courts in Australia, as in the United Kingdom and other representative democracies, give effect to the rule of law which is indispensable to the proper functioning of those democracies. Like all human institutions they have weaknesses, they make mistakes and they may be criticised for their decisions and processes. However, criticism is one thing. Populist abuse is another. The ordinary meaning of the word ‘criticism’ includes expressions of disapproval of someone or something which may or may not be supported by argument. A decision of a court may be criticised because it is said to have been reached by faulty reasoning which
may have involved misapplying the law or drawing wrong conclusions from the evidence, or failing to consider some important aspect of the evidence. It may be criticised for the choices which the court has made in interpreting a provision of the Constitution or drawing an implication from the Constitution, interpreting an Act of Parliament or developing a principle of the common law.
it. In that sense, it undermines respect for a fundamental part of our societal infrastructure. Our judges are not ‘daffodils’ to quote a term recently used by a Western Australian Senator. But the courts as institutions are relatively fragile. They do not have the power of the executive at their disposal. They depend upon public confidence and the support of both the legislature and the executive for their effectiveness.
Some criticism doesn’t rise much above an expletive laden expression of disapproval. There are colourful examples in Australian legal history including the use of the word ‘pissants’ by a Member of Parliament to describe the Justices of the High Court who decided the Wik Peoples’ Case in 1996 and the term ‘blockheads’, by another Member of Parliament, to describe the Justices after an extradition decision. That kind of language can be dismissed as part of the colour and movement of Australian civil and political discourse. It does not cause the courts or anyone else to lose much sleep worrying about the future of democracy.
The most effective protection against the pernicious effects of populist rhetoric is the work of the courts themselves, expressing in that work their independence, impartiality, competence and efficiency and affirming in every decision that they make, the rule of law. Protection is not to be found in laws which punish populist rhetoric. Indeed, in Australia, some such laws could fall foul of that freedom of political communication which the High Court has found to be implied in our Constitution. That implication first saw the light of day in 1992 following the publication by The Australian Newspaper of an article very critical of the Industrial Relations Commission of Australia. It said:
Nevertheless, it can be seen as calculated to undermine public respect for the rule of law by calling into question the legitimacy of the institutions that support
The right to work has been taken away from ordinary Australian
Master Y O U R P R A C T I C E W I T H T H E L L M ( A P P L I E D L AW )
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workers. Their work is regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant ‘judiciary’ in the official Soviet-style Arbitration Commission. The newspaper was prosecuted for a breach of s 299 of the Industrial Relations Act 1988 (Cth) which provided that: (1) A person shall not: … (d) by writing or speech use words calculated: … (ii) to bring a member of the [Industrial Relations] Commission or the Commission into disrepute. The High Court held the section to be invalid. Three members of the Court held that it infringed an implied freedom of political communication derived from the text and structure of the Constitution relating to representative democracy and the election of parliamentary representatives by the people. The content and application of that implied freedom was developed in a number of cases which have followed over the years. An important long-term strategy against populist attacks calculated to undermine the courts is to promote the widest possible understanding in the Australian community of the important features of our representative democracy, and particularly the idea of government responsible to the parliament, of independent courts and the rule of law which governs private action and public power. Against that background it is helpful to say something about the rule of law.
The Rule of Law The meaning of the term ‘rule of law’ is much debated. A core element of it is that nobody, private citizen, public official, judge or government is above the law. A famous English Judge, the late Lord Thomas Bingham, wrote a celebrated book on the subject in 2010 in which he explained the rule of law as follows: All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.7 That formulation fits into the Australian
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legal order. In relation to the exercise of official power in Australia: 1. All official power, legislative, executive and judicial, derives from the Commonwealth and State Constitutions or laws made under those Constitutions. 2. There is no such thing as unlimited official power. 3. T he powers conferred on public officials by law must be exercised lawfully, rationally, fairly and in good faith. Failure to comply with those requirements can constitute jurisdictional error and make the purported exercise of the power invalid. 4. The courts have the ultimate responsibility of resolving disputes about the limits of official power and in so doing they, like those whose decisions they review, must act lawfully, rationally, consistently, fairly and in good faith and within the proper limits of their constitutional function. The rule of law provides a kind of societal infrastructure for our representative democracy. It creates and maintains the space within which we can enjoy our freedoms, exercise our rights, develop our capacities, find opportunities, take risks and generally pursue life goals. It gives shape and definition to Australia as a particular kind of society in the global community of nations.
Procedural Fairness The rule of law in Australia, as just described, involves independent courts which have certain essential characteristics, including open hearings, procedural fairness and publicly available and reasoned decisions. Procedural fairness is a particularly important aspect of the work of the courts. It is a requirement which also extends to official decision-making. The common law or judge-made law generally requires that officials, including Ministers of the Crown, when making decisions which are likely to affect the rights, interests, livelihoods or liberties of persons should accord them procedural fairness, a term which use to be covered by the words ‘natural justice’. Procedural fairness has two important components. One is called ‘the hearing rule’, that is that a person likely to be affected by a decision should have an opportunity to be heard before that decision is made. If one person sues another a court will not hear the case
if the person being sued has not been notified of it or had an opportunity to file a defence to challenge the plaintiff’s case and witnesses, to give evidence himself or herself and to call his or her own witnesses and to put arguments to the court by way of defence. The same principle applies, even more strongly, to persons accused of criminal offences. Similarly, by way of example in the field of administrative law, if a public official or authority were to decide to cancel a person’s licence to carry on a particular profession or business because of alleged misconduct that person would have to be given the opportunity to show that he or she had not committed the misconduct or that it was not serious enough to warrant suspension of the professional or business licence. Examples of this kind can be multiplied indefinitely. The second component of procedural fairness is the rule against bias. It requires that a decision-maker not be biased against the person to be affected by the decision nor that there be the appearance of bias from the perspective of a reasonable observer. So if a public official had to make a decision about who would get a licence to operate a business it would not be right for him or her to make that decision if a spouse or partner was an applicant. Even if the official were able to be completely neutral, the appearance of bias from the perspective of a reasonable person could be such that the official could be prevented from proceeding to make the decision. And if the decision were made and the licence granted to the spouse or partner, then it could be set aside in a court. The rules of procedural fairness are common law rules which have been developed by judicial decisions over many years. They are subject to parliamentary control and parliament can make laws which narrow the scope of procedural fairness in some classes of decision. Attempts to make such laws in relation to court processes would be at risk of being held unconstitutional. There are many justifications for procedural fairness in the way the courts conduct their proceedings and in the standards of procedural fairness which they require from administrative decisionmakers. Those justifications include the following: 1. That procedural fairness is an aid to good decision-making – if a decisionmaker does not hear from an affected party he or she may not have all information relevant to making the best decision. If he or she is biased then the decision may be made for
the wrong reasons. 2. Procedural fairness supports the rule of law by promoting public confidence in official decisionmaking. 3. It gives due respect to the dignity of individuals. 4. It is democracy’s guarantee of the opportunity for all to play their part in the decision-making process. There is a tendency sometimes to regard procedural fairness as a kind of ethical ornamentation, invented by lawyers which act as a drag on efficient decisionmaking. As one leading English textbook on administrative law observed ‘it is natural that administrators should be tempted to regard procedural restrictions, invented by lawyers, as an obstacle to efficiency.’8 That approach is reflected in some Acts of Parliament which expressly exclude procedural fairness from certain kinds of decision-making. There are many examples of these kinds of provisions which typically provide that the relevant decision-making authority ‘is not bound by the rules of natural justice’ or ‘is not required to observe the rules of natural justice’. Provisions like that and other provisions which limit the scope of procedural fairness raise the question – did parliament contemplate some tolerable level of bias or apparent bias or unfair refusal to hear from a person affected by a decision? That raises the related question – is procedural fairness necessary to justice? In decision-making by the courts the answer to that question is plainly ‘yes’. When one goes to decisions by administrators as distinct from courts there will be those who say it depends on what you mean by justice. The most powerful arguments for its application are that it is likely to lead to better informed decisions and to maintain public confidence in the decision-making process. It is perhaps important to add that the common law rules of procedural fairness are not one size fits all rules. They are adapted to the kind and volume of decision-making involved. For example, they do not require a personal conversation between the decision-maker and somebody affected by a decision. They do not require decision-makers to act like courts.
Separation of Power and Judicial Independence It is an important feature of the Commonwealth Constitution that the courts do not exercise executive or
Alain Musikanth, The Hon Robert French AC and Emeritus Professor Peter Handford.
legislative power and that the Executive and the Parliament do not exercise judicial power. The courts must apply the law but they can’t be directed by the Executive how to decide particular cases. If that were possible, the Executive would end up indirectly exercising judicial power. The idea of a division of governmental functions in society is an old one. It can be traced back to Greek philosophers, including Plato and Aristotle. Aristotle identified deliberative, magisterial and judicative elements in State power.9 While he did not propose that those powers be separated, their identification laid the foundation for our contemporary understanding of separation of powers. In the United Kingdom from which we take much of our constitutional and institutional heritage, the courts of law found their independence in terms of their relationship with the King. In the 15th century, the Chancellor to King Henry VI, John Fortescue wrote that the King’s subjects could only be sued at law before a judge where they would be treated with mercy and justice according to the laws of the land. They could not be arraigned for any capital crime however heinous except before the King’s judges and according to the laws of the land.10 The notion of separation of judicial and executive power was still developing in the 17th century. King James I believed in the divine right of Kings to govern. On 10 November 1612, Sir Edward Coke, Chief Justice of the Court of Common Pleas and the other judges of that Court were summoned to the King. The Court had made an order preventing a purported expansion of jurisdiction by a ‘court of
high commission’ created by the King. The judges were told by the Archbishop of Canterbury that they were the King’s delegates and the King could decide any case for himself. Coke told the King that all cases concerning the life or property of his subjects were to be decided ‘by the artificial reason and judgment of the law, which law is an art which requires long study and experience before that a man can attain to the cognisance of it’. He was later removed from office. Under the Act of Settlement 1701 judges were given security of tenure during good behaviour and the King’s power to remove a judge could be exercised only on an address of both Houses of Parliament. The protection for the judges affected by the Act of Settlement is reflected in s 72 of the Constitution of the Commonwealth of Australia and like provisions in State Constitutions. The judges are also protected from reductions in their remuneration during their term of office. That is to say, they can’t be punished for decisions of which government disapproves by reducing their pay. That protection underpins judicial independence from the Executive. A separation of the Commonwealth judicial power from legislative and executive powers is established under the Constitution and was explained by the High Court in 1956 in the ‘Boilermaker’s Case’.11 There is no written expression of the separation of judicial from executive and legislative powers in the State Constitutions. There are, however, conventions which underpin a degree of political respect for that principle and the independence of the judiciary. As a former Chief Justice of South Australia, the
Honourable Len King said in a paper on separation of powers given in 1994: The constitutional arrangements which existed in England in the 18th century, being the separation of powers resulting from the post-1688 Settlement upon which responsible government was engrafted, flowed into the constitutions of the Australian colonies and, hence, into the constitutions of the present Australian states.12 The Commonwealth Constitution, as I have already mentioned, has also been held by the High Court to protect the essential judicial character of State courts. I have spoken to this point about limits on the power of law-makers and public officials and the role of the courts in enforcing those limits. The courts themselves, of course, are confined by constitutional and conventional boundaries on the exercise of their functions.
Judicial Activism Although there is a separation of powers under the Commonwealth Constitution and, by convention, in the States, courts do have a limited law making function. The ‘common law’ is a term which refers in part to the principles of law developed by English courts over centuries and inherited by the Australian colonies and developed by Australian courts. The process of development is incremental decision by decision. Canada, New Zealand and the States of the United States have also inherited that common law tradition. The common law covers areas of the law such as contract, civil wrongs including negligence and deceit, aspects of the law of property and the rules of equity and trusts. Parliament can abrogate or alter common law rules. They are after all merely made by the judges. Where judges consider a change or development of the common law they generally take a conservative approach. Too great a change from an established principle may unsettle existing arrangements that people have made on the strength of their understanding of the settled law. The courts may decide that a change involves such important consequences and a variety of conflicting policy considerations that it is better left to Parliament. Sometimes a significant change to the common law by the courts may lead to the judges being accused of going too far – of doing something which should have been left to the Parliament. Then
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the judges may be accused of ‘judicial activism’. The High Court’s decision in the Mabo Case, that the common law could recognise Aboriginal native title namely, interests in land and waters derived from traditional law and custom, generated great controversy. That was because of the effect it was said to have on preexisting understandings of the law of property in Australia. When judges interpret the Constitution or statutes they often have to make choices between competing meanings which are open on the words of the provision which they are interpreting. In the case of the Constitution, which is expressed in very general terms, the High Court has from time to time drawn implications which do not appear expressly in the text. The making of interpretive choices involves a kind of interstitial law-making function. When the court chooses one available meaning over another, it determines what the law is and in that limited sense may be said to make law. So too, when it draws an implication. There are debates from time to time about whether courts have gone too far in their interpretive choices or in the implications they have drawn. Sometimes judges are accused of making an interpretive choice which is designed to get a result which they favour for social justice or ideological reasons. In such cases the term ‘activists’ is generally deployed. Much discussion of ‘judicial activism’ is really a discussion about separation of legislative, executive and judicial power and the reciprocal restraints that accompany that separation. In the Australian context, the separation of judicial power from the other branches of governments has constitutional underpinning, but is not always defined by bright lines. The restraint by the judges and by the other branches of government is, in part, a matter of convention and mutual respect which cannot be written down. ‘Activism’ is a term which is sometimes applied as an element of what could be called ‘populist’ rhetoric to label decisions with which someone disagrees. It is not a particularly useful word. It is, however, always meaningful to ask whether a judge has exceeded his or her proper function by creating rules beyond the permitted interstitial law-making which is necessary to dispose of the matter before the court. The question may properly be asked in the context of judicial review of executive action, whether a judge or a court has entered upon the rather ill-defined territory of ‘merits review’ and sat in the seat of the executive to substitute its own
view of the correct or preferable decision rather than stay within the boundaries of review of process and lawfulness. The question may also be asked whether the judge or a court has applied to the task of constitutional or statutory interpretation the principles generally regarded as accepted or legitimate and, if not, why they have been departed from. Each of these questions raises a different kind of legitimate concern. Their sharpness is lost and the seriousness of the debate about the judicial function which they raise is compromised if they are swept up under the almost meaningless term ‘judicial activism’.
Conclusion The courts are indispensible to the rule of law in our society. The rule of law is indispensible to the enjoyment of our rights and freedoms and to respect for the democratic process under which elected parliaments make the law, an executive government responsible to the parliament carries it out, and the courts determine its meaning and application in disputed cases. There will always be debates about what the courts do, whether they are doing it well and whether they have kept to their proper constitutional function. Informed debate about such matters is a sign of a healthy democracy. That health is not enhanced by the use of populist rhetoric. The courts and our democracy are too important for that. NOTES: 1.
Thorbjørn Jagland, Secretary General of the Council of Europe, ‘State of Democracy, Human Rights and the Rule of Law: Populism — How strong are Europe’s checks and balances?’, Report by the Secretary General of the Council of Europe, May 2017, 4.
President Donald J Trump, ‘Inauguration Address (As Prepared for Delivery)’ (Speech, Washington, DC, 20 January 2017).
John Cassidy, ‘Bernie Sanders and the New Populism’. The New Yorker, 3 February 2016.
Jan-Werner Müller, What is Populism? (University of Pennsylvania Press, 2017).
Jagland, above n 1, 15.
Tom Bingham, The Rule of Law (Allen Lane, 2010) 8.
Wade and Forsyth, Administrative Law (Oxford University Press, 8th ed, 2000) 435-6.
Aristotle Politics, Book 4.
Fortescue, De Laudibus Legum Angliae (trans: F Gregor) (c 1470) (reprinted by Legal Classics Library, 1984) 139146.
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
King L, ‘The Separation of Powers’ in Courts in a Representative Democracy: A Collection of the papers from the National Conference Courts in a Representative Democracy presented by the Australian Institute of Judicial Administration, the Law Council of Australia and the Constitutional Centenary Foundation, Canberra, 11-13 November 1994, (AIJA Incorp, 1995) 5.
No longer a ‘migration agent’ Reforms to the regulation of lawyers practising in immigration law By Dr Lydia Wells Migration Law, Murdoch University
The immigration legal advice industry in Australia is tightly regulated. Currently, an Australian lawyer who wishes to practice immigration law must hold a current legal practising certificate, and must be concurrently registered as a migration agent with the Office of the Migration Agents Regulatory Authority (the OMARA).1 The OMARA is part of the Department of Immigration and Border Protection (DIBP). This regime is informally known within the immigration legal community as ‘dual regulation’. It is a practice-regulation system that has been in place since 1992.2 This article discusses the history of the dual regulation regime; the arguments for and against dual regulation; and the imminent removal of lawyers from the requirement to be registered as migration agents with the OMARA. Current situation Under s280(1) of the Migration Act 1958 (Cth) (the Act), a person who wishes to provide ‘immigration assistance’ in a professional3 capacity must be registered with the OMARA as a Migration Agent. ‘Immigration assistance’ is defined in s276 of the Act. Section 276(1) provides that a person offers ‘immigration assistance’ if the person “uses, or purports to use, knowledge of, or experience in, migration procedure” to assist or advise a person about a visa application or a cancellation merits review application; to assist or advise a person regarding a judicial review application; or appear for a person before a court or review body in relation to a visa application or cancellation decision. Immigration assistance also includes advice or assistance in relation to sponsorship of a visa applicant or holder, including compliance with sponsorship obligations (s276(2)) and advice or assistance in relation to a ‘Ministerial intervention’ application (s276(2A)). The provision of immigration assistance if not currently registered is an offence of strict liability (s280). ‘Immigration legal assistance’ is slightly
different to immigration assistance. Immigration legal assistance is defined in s277 of the Act. It is generally restricted to assistance of a legal nature that relates to representation in immigration-related judicial review applications (s277(1)). Most of the dayto-day client services work undertaken by immigration lawyers falls under the definition of immigration assistance and not immigration legal assistance. Hence there is a need for lawyers to also register as migration agents with the OMARA. However, the distinction between the two types of immigration assistance has long been considered problematic in terms of practice, as well as simply confusing.4 The difficulties raised by the lack of clarity between the two definitions is just one of the issues that has faced lawyers who wish to enter immigration law as an area of legal practice. The financial costs borne by lawyers under the dual regulation regime may be considered a disincentive to practice in the area. Registration with the OMARA on a fee-earning basis costs between approximately $1,500 and $1,800 per annum in registration fees.5 Registration also requires access to or purchase of an approved ‘professional
library’6 and compliance with a continuing professional development regime: lawyers are required to obtain a minimum of 6 CPD points in each year of registration, all of which must be obtained from registered providers of immigration-law-focussed CPD. It should be noted that these CPD points are in addition to any CPD requirements of the various State legal regulating bodies. This means that in Western Australia, for example, a lawyer practising in immigration law would need to obtain a minimum of 16 points of CPD each year i.e. 6 points for OMARA registration and 10 points to maintain a legal practising certificate. The requirement is further complicated by the fact that there are few registered providers of immigration-focussed CPD in WA, and the CPD periods under each regulatory regime normally do not coincide.7 There are also various ‘integrity’ requirements for lawyers under the OMARA registration regime.8 These largely mimic those required of lawyers under the various legal practice regulatory regimes.
Arguments for removal of dual regulation Since the issue of dual regulation first arose in an early report into the regulation of migration agents – known as the ‘Hodges Review’9 – arguments have raged for and against the regime. The Law Council of Australia has consistently and strongly opposed dual regulation and has lobbied the Minister for Immigration for the removal of regulation by the OMARA or, failing that, a softening of that regulation. Its two submissions to a 2014 review of the OMARA10 (the Kendall Review) argued that the legal profession is already one of the most regulated professions in Australia. It noted the
increase in “complexities, uncertainties, duplications, costs and undesirable outcomes for lawyers and consumers [of immigration legal services]” of the dual regulation regime. The Law Council also noted the arbitrary nature of the statutory prohibition on unregistered lawyers from offering immigration assistance, regardless of the circumstances involved or the lawyers’ professional competence to offer that assistance.11 It was argued that the dual regulation regime substantially increases the compliance burden facing lawyers, and thereby provides a strong disincentive for them to practice in immigration law. The Law Council is not alone in its concern about the effect of dual regulation on consumers. In 2010, the Productivity Commission presented a Research Report on the regulatory burdens facing business, with a specific focus on consumer services. The Commission received many submissions on dual regulation, including submissions from individual lawyers and immigration law firms, the Law Society of NSW, the Law Institute of Victoria, and various community legal centres who provide pro bono assistance to migrants.12 The submissions generally supported the view held by a prominent barrister that dual regulation is ‘otiose’ and ‘inherently inconsistent’. It not only fails to enhance consumer protection, it may detract from it.13
Arguments in favour of dual regulation On the other side of the fence, the arguments in favour of dual regulation focus on that issue of consumer protection. The peak professional body for registered migration agents, the Migration Institute of Australia (MIA), has consistently opposed moves to modify or remove dual regulation. Their submissions to both the Hodges and Kendall Reviews argued that lawyers are over-represented in client complaints to the OMARA, a situation that would only become worse if dual regulation were abolished.14 The MIA noted the lack of immigration law specialists, and the number of complaints against immigration lawyers, in fact support the need for increased regulation of lawyers. For example, it was suggested that lawyers should be required to undertake various specialist training courses like the entry level qualification for nonlawyer agents, the Graduate Certificate in Australian Migration Law and Practice (GCAMLP).15
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In a submission to the Hodges Review, the Northern Territory government noted the need for lawyers to maintain knowledge of this very specific and dynamic area of law. In a similar vein, a migrant resource centre argued that immigration law is quite specialised and is rarely studied by undergraduate law students. It extrapolated that this lack of undergraduate study of the area would lead to many unregistered legal practitioners lacking competence to offer immigration assistance – unless they are obliged to comply with the CPD requirements in the registration regime.16
contained in four large volumes of materials) are extremely important in all areas of practice. In addition to the Act and Regulations, there exists a capacious and frequently updated group of documents known informally as ‘policy’. The DIBP produced Procedures Advice Manual documents (or the PAMs) outline the way that case officers in the Department of Immigration will approach different areas of practice. It also guides other decision-makers, such as the Administrative Appeals Tribunal, who may have regard to a particular policy document when making a review decision.
Proposed changes and implications for lawyers
To give an example: one of the PAMs is a lengthy document that discusses general issues that arise with visa applications.17 It contains specific and important practical guidance on the visa application and decision-making process. The policy documents direct decision-makers how to behave in accordance with the law, but of course they do not have the weight of law and cannot legally bind decisionmakers. They exist in an odd legal space that many lawyers find difficult to comprehend. Unlike any other area of law, Australian immigration law is interpreted through this ‘lens’ of policy. Although those who are legallytrained may find this whole setup quite unprincipled, lawyers must learn to work within it. Similar to family law, immigration law may be viewed as a ‘blunt instrument’, which must respond appropriately and sensitively to the myriad individual circumstances that it controls. Policy, it is argued, is one of the main instruments to achieve consistency of decision-making within this difficult framework. But this focus on policy does not mean that case
The Kendall Review has tipped the balance in favour of the abolition of dual regulation. As noted, one of the main advantages of the removal of dual regulation will be the enhanced ease with which lawyers may enter the dynamic and interesting area of immigration. The removal of the costs and other burdens associated with dual regulation means that there will be more opportunity to ‘try out’ the area before committing wholeheartedly to practising in it. It would enable firms to employ immigration lawyers without having to bear significant cost burdens related to those lawyers’ practising requirements. On the other hand, lawyers would be advised not to enter immigration practice lightly. The Migration Act is 500-plus sections in length and is extremely complex. It operates in tandem with a number of other sources of law and practice guidance: the frequently updated Migration Regulations (themselves currently
law is insignificant, rather, a very large proportion of administrative law cases before the AAT and the courts are now immigration-related. And this figure is only increasing. So it can be seen that there are many ‘layers’ to the immigration law cake, each of which must be understood by practitioners.
The Migration Amendment (Regulation of Migration Agents) Bill 2017 (Cth) The Bill that will remove dual regulation was introduced and had its first reading on 21 June 2017. If passed, the resulting legislation will effectively ban lawyers from registering as migration agents. Lawyers whose registration applications are outstanding as at 1 July 2018, will have their applications cancelled. Additionally, all registered migration agents as at that date who also hold a legal practising certificate will be removed from the register. The preclusion of lawyers from the registration regime is one of the recommendations of the Kendall Review. The rationale for precluding lawyers from registering as agents is contained in the Explanatory Memorandum to the Bill. It is considered that, because lawyers must meet several requirements to practice (of which the educational qualifications are but one), they are fully qualified to practice in immigration law.18 There are differing views on the exclusion from registration. Some migration lawyers of long standing experience do not wish to be entirely omitted from registration requirements. They argue that they should be permitted to continue with dual registration, if they so wish, or at least to be allowed to keep their Migration Agents Registration Number (MARN). It should be optional. They have a point. The MARN is allocated according to the year of first registration with OMARA. The first two numbers indicate that year. So, my MARN began with 11 (2011 was my first year of registration). Some highly experienced and outstanding practitioners have MARNs beginning with 92 or 93. They do not wish to lose their MARNs as the numbers show the relative experience levels of lawyers: as such they may be a marketing device as well as another layer of protection for consumers. Despite the government repeatedly assuring stakeholders that they will consult with them on this issue, it appears that the Bill has been presented without this being done.
So, why migration law? The upcoming changes to the registration regime will bring opportunities for lawyers to enter this practice area. But why should lawyers consider it? My initial attraction to the area was instigated by discussions with an experienced immigration lawyer. I soon learned that migration law generally – and Australian immigration law in particular – is a dynamic and technically interesting area in which to practice. It is akin to family law or taxation law in its technical complexity and, like those areas of law, is procedurally complicated. Lawyers in the area are constantly challenged by complex new client matters and by case law and policy developments – which, admittedly, can come as a nasty shock from time to time (think of the recent subclass 457 visa changes, which were a surprise to everyone who practices in the area). Other reasons? Immigration law dovetails with other areas of legal practice, most particularly family law and employment law. Increasingly, with character and ‘integrity’ issues being a focus, there is an opportunity for good criminal lawyers to work on characterrelated immigration cases. In addition, lawyers may work with individuals and corporates, giving a variety of clients and types of work. Compliance work with corporate clients is a possible line of work that is by all accounts somewhat currently underexploited. There is the opportunity to specialise in advocacy – both written and oral – at the Tribunal or Federal Court levels. There are great pro bono opportunities, especially with refugee and asylum seeker legal centres. And, probably most importantly, the area needs good practitioners, who are dedicated to it, and who wish to work in it for the long term. Most non-lawyer agents leave practice within five years. Yet most of the longest serving and best practitioners in the area are lawyers. The former chair of the Law Council of Australia’s Migration Law Committee, Maria Jonkel, was adamant that lawyers make the best immigration advisors and that more lawyers should enter this area of practice to improve client protection and to raise the perceptions of this area of legal practice. I would encourage all lawyers to seriously consider it.
COURSE OF INTEREST: •
Graduate Diploma in Australian Migration Law and Practice at Murdoch University. For more information please visit, www.murdoch.edu.au/School-of-Law/OurCourses/Post-Graduate-Courses/Graduate-Diploma-inAustralian-Migration-Law-and-Practice/
The OMARA is a statutory body under the auspices of the Department of Immigration and Border Protection. It must maintain a register of migration agents (s287 Migration Act 1958 (Cth)). It is also charged with regulating the conduct of registered migration agents under Part 3 of the Act.
A High Court challenge to the regime’s regulation of lawyers on constitutional grounds was instigated in 1994. It was unsuccessful. See: Productivity Commission 2010, Annual Review of Regulatory Burdens on Business: Business and Consumer Services, Research Report, Canberra, 146.
This must be distinguished from persons who give general immigration advice or assistance to their ‘close family members’ (defined in reg. 3H of the Migration Agents Regulations 1998 (Cth) to mean a person’s spouse, child, adopted child, parent, brother or sister). Clerical work in relation to visa applications, review applications and so on is also excluded from the definition of immigration assistance: s276(3) and s280(5A). The other exception to the requirement to be registered with the OMARA is for Members of Parliament (State or Federal), who may also assist migrants in particular situations (s280(2)).
Christopher Kendall, Final Report, 2014 Independent Review of the Office of the Migration Agents Registration Authority, September 2014, 39.
Migration Agents Registration Application Charge Act 1997 (Cth), s7.
Clause 2.5(b)(i) Code of Conduct for Registered Migration Agents (April 2017 edition). Section 314 Migration Act 1958 (Cth) requires compliance with the Code. Regulation 8 Migration Agents Regulations 1998 (Cth) enables the Code, and the Code itself is contained in Schedule 2 of that instrument. The licensed providers of the ‘professional library’ are the Department of Immigration and Border Protection (they provide a database called Legendcom) and LexisNexis (Immigration Law database). The ‘professional library’ contains the voluminous materials required for immigration law practice, including the Migration Act and Regulations; the Department’s ‘policy’ documents (the Policy and Advice Manual, otherwise known as ‘PAM3’); citizenship materials and the legislative instruments relevant to the regulation of migration agents.
The CPD period for the OMARA runs from each practitioner’s date of registration.
The integrity requirements are broad and are contained in various sections of the Migration Act and the Migration Agents Regulations 1998 (Cth). They mirror many of the requirements of the various legal practising authorities, such as the requirement not be bankrupt. A person is prohibited from registering as a migration agent if they do not meet the ‘fit and proper person’ and integrity requirements: s290.
Commonwealth of Australia, 2007-08 Review of the Statutory Self-Regulation of the Migration Advice Profession, Final Report May 2008, John Hodges, Chair, External Reference Group, Department of Immigration and Citizenship, Canberra: 2008.
Kendall Review, 44.
Productivity Commission Report, 144.
Dr Gavan Griffith, QC, submission quoted in the Productivity Report at 144-145. See also various submissions quoted at 151-152.
Hodges Review, 75; Kendall Review, 60-64.
Kendall Review, 61. The GCAMLP will become a Graduate Diploma level course in 2018. The GCAMLP is currently offered by four universities (approved providers): Murdoch University, the Australian National University, Griffith University and Victoria University. The Graduate Diploma course will be offered from semester 1 2018 by each of the four current providers, as well as by the University of Technology, Sydney.
Pp. 74-75 Hodges.
Department of Immigration and Border Protection, Procedures Advice Manual: GenGuideA: visa application procedures.
Explanatory Memorandum, Migration Amendment (Regulation of Migration Agents) Bill 2017 (Cth). See especially paras 19-20; 48-50; 57.
Passing the Buck - Has the diffusion of responsibility for Aboriginal people in our federation impeded closing the gap? Edited version of paper presented at the Samuel Griffith Society 2017 Conference, Perth, 26 August 2017. By The Hon Wayne Martin AC1 Chief Justice of Western Australia
2017 - A Significant Year Recently, the Treasurer of Western Australia, the Honourable Ben Wyatt MLA, the first Aboriginal treasurer in Australia, noted that 2017 marks the anniversary of a number of significant milestones in the history of relations between Aboriginal and non-Aboriginal Australians. This year is the 50th anniversary of the 1967 referendum,2 of which I will say more; the 25th anniversary of the decision of the High Court in Mabo which recognised native title;3 and the 20th anniversary of the publication of "Bringing Them Home" dealing with the tragic consequences of the Stolen Generations.4 Less auspiciously perhaps, this year also marks the 10th anniversary of the Commonwealth intervention in Aboriginal affairs in the Northern Territory.5 Different views might be held with respect to the desirability of that intervention, but on any view, it was an extremely significant development in intergovernmental relationships relating to Aboriginal people in Australia.
Temporal Context I do not mean to undermine the significance of these recent milestones by suggesting that they should be placed in the temporal context of Aboriginal occupation of the land now known as Australia. The 100 years or so since federation, and the 200 years or so since colonisation need to be viewed in the context of the recent discovery that Aboriginal rock art in the Northern Territory is at least 65,000 years old. By contrast, the rock art in the caves of Lascaux, France, is a mere 17,000 years old, and the oldest known French rock 28 | BRIEF OCTOBER 2017
art, at Chauvet-Pont d'Arc cave is around 35,000 years old. The oldest known Chinese pottery is around 20,000 years old. It was only about 16,000 years ago that humans are believed to have arrived in the Americas, only 11,700 years ago that the last Ice Age ended, and 5,000 years since the first known existence of the wheel. The responsibilities which this temporal context placed upon the colonists who disrupted one of the longest unbroken cultures on the planet have not been discharged well in the 200 years or so since colonisation.
Fanny Balbuk Yooreel 2017 is also the 110th anniversary of a less well-known event - namely, the death of Noongar woman, Fanny Balbuk Yooreel.6 With the indecent haste to declare Aboriginal people a dying race evidenced in other parts of Australia,7 Daisy Bates described Balbuk as the "last Perth woman".8 She might more accurately have been described as an early Aboriginal land rights activist because, as Bates describes, throughout her life she raged and stormed at the usurpation of her traditional grounds. She was known for standing at the gates of Government House in Perth, reviling all who dwelt within, because the stone gates guarded by a sentry enclosed the burial ground of her grandmother. Balbuk was born on Heirisson Island, where a causeway now connects the land on either side of Derbarl Yerrigan, and grew up in that area. A straight track had led from that area to a swamp where Perth railway station now stands, and where Aboriginal women gathered jilgies (small freshwater crayfish) and vegetable
food. The track passed very close to the land on which we are meeting. When fences were built obstructing this traditional path (which is depicted on the map below), Balbuk would go through or over them. When a house was built on the path, she broke its fence palings with her digging stick and charged up the steps and through the rooms.10 Balbuk was viewed by the colonists as an annoying nuisance, although viewed in retrospect, her determination to maintain her traditional ways of life is truly inspirational. Her actions have been described by Aboriginal Elder and Professor Noel Nannup as a claim to her lawful and rightful inheritance as a Whadjuk boordiya yorga owner: "That was her songline, her dreaming. She just kept going and didn't take any notice of the new city going up. That's a story of defiance and determination."12
Aboriginal People and the Constitution As Professor George Williams has observed: The Australian Constitution was not written as a people's constitution. Instead, it was a compact between the Australian colonies designed to meet, amongst other things, the needs of trade and commerce. Consequently, the Constitution says more about the marriage of the colonies and the powers of their progeny, the Commonwealth, than it does about the relationship between Australians and their government.13
Fanny Balbuk Yooreel is sitting in the front row, second from right, in this image of her from before 1907.9
Legal Discrimination Against Aboriginal People
Determination of Fanny Balbukâ€™s Journey between Yoonderup (Heirisson Island) and Lake Kingsford, traversing what is now the central business district of Perth on the Swan River.11
Lowitja O'Donohue, inaugural chair of the Aboriginal and Torres Strait Islander Commission wrote of our Constitution: It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here - save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians.14 While the preamble to the Constitution describes it as a compact between the people of five colonies,15 the preamble makes no mention of the people who we now know occupied Australia for at least 65,000 years prior to the arrival of the colonists.
Aboriginal people are only mentioned twice in the Constitution as originally enacted, and since the 1967 referendum, are not mentioned at all. Section 51(xxvi) provided that the Commonwealth Parliament could legislate with respect to "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws" (the races power). Section 127 provided: In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
As we will see, the framers of the Constitution had in mind that the races power would be used by the Commonwealth Parliament to discriminate adversely against people of a particular race. Members of the Aboriginal race were not excluded from that power for the purpose of protecting them from adverse Commonwealth discrimination, but to ensure that the States were empowered to continue to legislate adversely against Aboriginal people without interference by the Commonwealth. Consistently with that approach, s 25 of the Constitution continues to provide that if the law of any State disqualifies persons of any race from voting, members of that race resident in that State are not to be counted for the purpose of "reckoning the number of the people of the State or of the Commonwealth". These provisions were, and s 25 remains, indubitably racist.16 As Professor Williams has pointed out, Edmund Barton, who was later to become Australia's first Prime Minister and also a member of the High Court, stated at the 1898 convention that the races power was necessary to enable the Commonwealth to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth".17 In the first edition of Quick and Garran, the races power was described as enabling:
the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.18 In that context it is hardly surprising that the Australian Constitution contains no provision ensuring equal protection of the law to people of differing races (unlike other comparable constitutions, including the Constitution of the United States) or that the proposal by Andrew Inglis Clark MHA, Attorney General of Tasmania, to incorporate such a provision was roundly rejected.19 As Professor Williams has pointed out, the discriminatory treatment of Aboriginal people in the Constitution may be related to the fact that there were no representatives of the Indigenous people of Australia, nor of any non-British ethnic communities at the conventions responsible for the formulation of the Constitution,20 and in most colonies, Aboriginal people were not qualified to vote for the delegates to the convention. Professor Geoffrey Sawer has expressed surprise that the position of Aboriginal people was scarcely mentioned in the constitutional conventions. As he observed, writing in 1966: Today … it may seem shocking that the Federal Conferences and Conventions of 1890, 1891 and 18978 should have paid so little attention to [Aboriginal people's] position. It is not merely that the Founders treated aboriginal questions as a matter for the States. What is surprising is that the position of the aborigines was never even mentioned. The Conventions contained many men who were in general sensitive, humane, and conscious of religious and social duties to the less fortunate sections of the community, and Alfred Deakin in particular had an agonising sensitivity to such matters… Yet so far as I can ascertain neither Deakin nor any other delegate ever suggested even in passing that there might be some national obligation to Australia's earliest inhabitants, nor does Deakin appear in any other context to have taken an interest in this question. As we shall see, the references in the Convention Debates to the abovementioned sections are of the scantiest. In those concerning section 51 (xxvi) the exclusion of the
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aborigines was never mentioned at all – it was simply taken for granted that they should be excluded; in those concerning section 127, the aborigines were mentioned, barely.21
A Purported Justification for a Racist Constitution Professor Sawer goes on to cite evidence given to the Royal Commission on the Constitution (1927-1929) by the infamous AO Neville, Chief Protector of Aborigines in Western Australia, in which he attributed the indifference of the framers to: a. the lack of any reliable count of the Aboriginal population; and b. the widespread view that Aborigines were a dying race whose future was unimportant.22 Neville's views draw a benign shroud over what was an unmistakeable assertion by the colonists of their racial superiority over the peoples whose lands they had usurped and a guarantee of their continuing power to pass laws which discriminated against those people, and the people of any other race considered inferior.
Sir Samuel Griffith's role in the Aboriginal provisions in the Constitution Sir Samuel Griffith's role in the formulation of the Australian Constitution has been essayed by previous speakers at this conference,23 and so I will limit my observations to his role in relation to placitum (xxvi) of s 51 and s 127. Griffith was responsible for both. During the 1897 debates, the provision that came to be known as the races power was referred to as "Sir Samuel Griffith's clause. He had a special knowledge of the matter,"24 and it was Griffith who proposed the inclusion of the provision which became s 127.25
Preserving the Powers of the States to Enact Racist Laws Sir Samuel Griffith had proposed to the 1891 convention that the power to make special laws applicable to people of a particular race should be exclusive to the Commonwealth, but proposed that laws with respect to Aboriginal (and Maori26) people should be excluded from that power.27 Others, including Deakin, expressed concern that exclusivity would deprive the States of power to legislate with respect to people of different races,28 in a context in which it is clear that he was speaking of legislation which
discriminated adversely against such people. Sir John Forrest, then Premier of Western Australia, was unabashed in the expression of that view at the 1898 federation conference, where he argued:29 In my opinion the control of the people, of what ever colour they are, of whatever nationality they are, living in a state, should be in the control of the state, and for that reason I should like to see this sub-section [proposing that the race power be exclusive to the Commonwealth] omitted… I do not see myself that this subsection is necessary, because I hold that if it is passed the control of every one living in the state should be within the province of that state. Take the colony which I represent. We have made laws controlling a certain class of people. We have made a law that no Asiatic or African alien can get a miner's right or do any gold mining. Does the Convention wish to take away from us, or, at any rate, not to give us, the power to continue to legislate in that direction? … I think I have some right to speak on this subject; and, no one, at any rate, will be able to say of me, or of the colony I represent, that we desire to encourage the introduction of coloured races, because ours is the only colony in Australia with a law at the present time which excludes from its territory coloured people. Other colonies have talked about it a great deal… we can exclude them… unless they can read and write English they certainly can be excluded. I think that there is no desire on our part to do anything to encourage either in Western Australia, or any other part of Australia, undesirable immigrants. I take it that under clause 52 immigration is a subject within the [non-exclusive] power of the Federal Parliament to deal with. I would not mind if it were one of its exclusive powers. There may be difficulties in regard to the introduction of persons who are not altogether desirable. But I cannot for the life of me see why we should desire to give to the Federal Parliament the control of any person, whatever may be his nationality or his colour who is living in a state. Surely the state can look after its own affairs... I would like not to give this subject [to control residents according to race] a place in either clause 52 or clause 53, but to leave it as a matter to be dealt with by the local Parliaments in their wisdom and discretion.
Some Racist Laws of Western Australia The previous year, the Parliament of Western Australia had passed the Immigration Restriction Act 1897 (WA) (1897 Act) for the purpose of excluding immigrants from certain races, on grounds which were not explicitly racial, modelled on legislation which had been passed in Natal the same year. That course was adopted because legislation which was overtly racist, such as the Chinese Immigration Restriction Act 1889 (WA), was at risk of being disallowed by the Parliament at Westminster. The colony of Natal had faced a similar problem when endeavouring to pass laws which would exclude migrants from India. In order to avoid imperial disallowance, the legislature of Natal passed a law providing that any person "who, when asked to do so by an officer appointed under this Act, shall fail to himself write out and sign, in the characters of any language of Europe, an application to the Colonial Secretary" was prohibited from entering the colony. This was the source of the "dictation test" embodied in the Western Australia legislation of 1897, and which became the cornerstone of Australia's racist immigration policies for decades, under the Immigration Restriction Act 1901 (Cth).30 However, s 2(b) of the 1897 Act provided that it did not apply to any person of a class for whose immigration into Western Australia specific provision had been made by another law or by a scheme approved by the Governor. The Chinese Immigration Restriction Act 1889 (WA) was such a law, as it was still in force and it provided that ships could lawfully bring into Western Australia one Chinese passenger for each 500 tonnes of its registered tonnage. So, in 1899, when two Chinese men who had sailed to Cossack31 from Singapore on the SS Karrakatta failed the dictation test, the charges of illegal entry brought against them were dismissed because they were exempt from the operation of the 1897 Act. A Perth newspaper, the Sunday Times, asserted that this case demonstrated that the laws of the colony were: merely farcical pretences designed to hoodwink the public into the belief that a system of exclusion prevails, while in reality every facility is afforded for Asiatic immigration.32 The Supreme Court of Western Australia applied the same laws the following year in the case of Choong Man Kit, who was found to be covered by the Chinese Immigration Restriction Act 1889 (WA),
rather than the 1897 Act, and who was therefore permitted to enter and remain.33
A Commonwealth Racist Law Later the dictation test was used by the Commonwealth to exclude from Australia not only people of colour but anybody who was regarded as undesirable. The last person to pass the dictation test was Lorenco De Garra in 1909.34 If a prospective entrant appeared proficient in English, but undesirable for some reason, the dictation test would be administered in another European language not known to the prospective entrant. The most infamous case of misuse of the dictation test occurred in 1934, when Egon Kisch, a socialist activist with a valid visa for entry to Australia, was administered a dictation test in Scottish Gaelic, because he spoke English and a number of other European languages fluently. By a majority35 the High Court held that as Scottish Gaelic was "an ancient form of speech spoken by a remnant of people inhabiting the remoter portion of the British Isles"36 it was not a European language within the meaning of the Immigration Restriction Act 1901 (Cth).37
Section 51(xxvi) After reviewing the convention debates and a number of secondary sources, Professor Sawer concluded that it was clear that the races power: â€Ś was intended to enable the Commonwealth to pass the sort of laws which before 1900 had been passed by many states concerning "the Indian, Afghan and Syrian hawkers; the Chinese miners, laundrymen, market gardeners and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries for Queensland and Western Australia".38 Given that context, and the history of state legislation to which I have referred, it is clear that the exemption of Aboriginal people from the non-exclusive legislative power to be conferred upon the Commonwealth under the Constitution was not for the purpose of protecting Aboriginal people from discriminatory laws to be passed by the Commonwealth, but rather for the purpose of ensuring that laws passed by the States discriminating against Aboriginal people were not jeopardised by inconsistent Commonwealth legislation and s 109 of the Constitution. So, the
Parliament of Western Australia remained free to introduce a system of apartheid by the passage of the Aborigines Act 1905 (WA).39
Section 127 Although it is clear that s 127 was proposed by Sir Samuel Griffith, its purpose is somewhat obscure. It seems that it was intended to exclude Aboriginal people from calculations made for the purpose of distributing funds and apportioning parliamentary seats,40 although as Sawer points out, it was soon regarded as a qualification on the census and statistics power contained in s 51(xi). No definition of "Aboriginal natives" was provided for the purposes of s 127, and the Bureau of Census construed the expression as being limited to "full blood" Aboriginal people, and as not including Torres Strait Islanders.41
Sir Samuel Griffith There is every reason to suppose the promotion by Sir Samuel Griffith of the only two provisions in the Australian Constitution which refer to Aboriginal people which, in one case, ensured that the states were able to pass laws discriminating against them, and in another case, expressly discriminated against Aboriginal people in the Constitution, were entirely consistent with the prevailing values and standards of the colonists at the time of the pre-federation debates. However, Griffith's advancement of these clauses does not lead to the conclusion that he was sympathetic to the more extreme anti-Aboriginal sentiments of the day. To the contrary, Griffith was seen as a supporter of the advancement of Aboriginal people. As a politician in Queensland, he had actively promoted moves to ensure that the evidence of Aboriginal witnesses was admitted in legal proceedings and later, as Chief Justice of Queensland, directed a jury to treat the evidence of an Aboriginal witness with equal weight and respect as the evidence of any other.42 A biographer notes that a press report of the day included him with "the black sympathisers".43
1901-1967 The constitutional provisions to which I have referred deprived the Commonwealth of specific legislative power with respect to Aboriginal people. The legislative power which remained exclusively with the States was utilised by a number of States, including most notably Western Australia, to pass
appalling and egregious laws which discriminated against Aboriginal people. Those laws had many disastrous consequences, including the separation of Aboriginal children from their parents - a phenomenon which has become known as the Stolen Generations.44
Public Sentiment Changes (at last) However, there developed a growing realisation that the constitutional provisions to which I have referred were an affront to contemporary Australian standards and values, accompanied by a perception that the strength and resources of the Commonwealth were needed to address the plight of many Aboriginal Australians. In 1961 the federal conference of the Australian Labor Party, at the instigation of Mr K E Beazley MHR, resolved that s 127 of the Constitution and the exclusion of Aboriginal people from the races power should be deleted from the Constitution, and a Bill to that effect was introduced into the Commonwealth Parliament by Mr Arthur Calwell, the leader of the opposition, in 1964. However, that Bill lapsed when the Parliament was dissolved.45 Other Bills proposing changes to the relevant provisions were introduced by Prime Minister Menzies in 1965, and by the Minister, Mr W C Wentworth, in 1966, and while they passed both Houses of Parliament neither went to a referendum.46 There had been significant developments on other fronts around this time. In 1962, the Commonwealth Electoral Act 1918 (Cth) was amended to extend universal adult suffrage to Aboriginal people.47 In 1963, Aboriginal people at Yirrkala presented a famous bark petition to the Commonwealth Parliament, and in April 1996, the Gurindji people famously went on strike and walked off Wave Hill cattle
station in protest of their treatment.48 In 1967, Prime Minister Harold Holt introduced a Bill which proposed the removal of the words "other than the Aboriginal race in any State" from s 51(xxvi) and the deletion of s 127. The Bill was supported by the opposition, and passed through the Parliament without controversy. Because of that parliamentary consensus, at the referendum that followed the only information supplied to voters on those proposed changes to the Constitution supported a "yes" vote, and 91.8% of voters supported the change. This is the largest majority in favour of any referendum ever put to the Australian people.49
The Hindmarsh Island Bridge (Kartinyeri) Case The amendment to placitum (xxvi) of s 51 of the Constitution empowered the Commonwealth to legislate with respect to Aboriginal people. Nothing in the placitum expressly restricts the exercise of that power to legislation which is for the advantage or promotion of Aboriginal people. The question of whether such a restriction should be implied was considered by the High Court in the Hindmarsh Island Bridge (Kartinyeri) case.50 The case concerned the validity of an amendment to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to exclude the Hindmarsh Island Bridge area from its operation and protection, thereby precluding any claim for heritage protection of the area by Aboriginal women, who asserted that the area had traditionally been used for secret women's business. Only four members of the Court directly addressed the question of whether the races power extended to legislation which
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was detrimental to or discriminatory against the people of any race. Justices Gummow and Hayne concluded that it did, whereas Justice Kirby dissented, on the ground that the power should not be construed as extending to laws detrimental to, or discriminatory against, the people of any race. Justice Gaudron considered that in order to come within the power, legislation must be reasonably capable of being viewed as appropriate and adapted to a relevant difference between the people of the race to whom the law is directed and the people of other races, and found it difficult to conceive circumstances in which adverse discrimination might satisfy that test. So, the question of whether the races power authorises legislation which is adverse to and discriminates against people of any race must continue to be regarded as something of an open question.
Closing the Gap What is, however, clear is that the Commonwealth has used that power to legislate extensively in relation to Aboriginal people and has applied very significant resources, both financial and administrative, to the task of improving the living conditions of Aboriginal people. That general objective is often described by the catchphrase "closing the gap" referring to the significant gap between the health, living conditions and circumstances of Aboriginal people and non-Aboriginal people. Statistics identifying the gap in a number of specified areas are published annually by the Commonwealth government, consistently with a formal commitment made by all Australian governments to achieve health equality within 25 years.51 The latest report card shows that we are failing to close the gap in six out of the seven key indicators measured.
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Closing the gap? Life expectancy:52 •
Target: To close the gap in life expectancy between Indigenous and non-Indigenous Australians within a generation (by 2031).
rogress: Indigenous Australians die about 10 years younger than P non-Indigenous Australians, and that hasn't changed significantly.
Child mortality:53 •
Target: To halve the gap in mortality rates for Indigenous children under five within a decade (by 2018).
Progress: There has been no significant decline in child mortality rates since 2008, and child mortality rates actually increased slightly from 2014 to 2015.
Target: Halve the gap in employment by 2018.
Progress: The Indigenous employment rate has fallen since 2008, as has the non-Indigenous employment rate. The gap in 2014-15 was 24.2 percentage points, up from 21.2 percentage points in 2008.
Reading & numeracy:55 •
Target: Halve the gap in reading and numeracy for Indigenous students by 2018.
Progress: While some improvements are being made, of the eight areas measured (reading and numeracy for Years 3, 5, 7 and 9), only year 9 numeracy is on track.
School attendance:56 •
Target: Close the gap in school attendance by the end of 2018.
rogress: There has been no meaningful change in the Indigenous P school attendance rate between 2014 and 2016.
Early education:57 • •
Target: 95% of all Indigenous four-year-olds enrolled in early childhood education by 2025. rogress: In 2015, 87 percent of Indigenous children were enrolled P in early childhood education in the year before starting school, compared with 98 percent of non-Indigenous children. The original target to ensure access for all Indigenous four-year-olds in remote communities to early childhood education expired unmet in 2013.
The gross over-representation of Aboriginal people in the courts and prisons of Australia is not measured in the annual statement presented to the Commonwealth Parliament. Its omission has been controversial. Because that over-representation has increased very significantly since the report of the Royal Commission into Aboriginal Deaths in Custody in 1991, inclusion of that indicator would make a gloomy picture even gloomier.
Why are we failing? The complexity of the issues associated with Aboriginal disadvantage defies any ready or simple explanation for our continuing failure to reduce the extent of that disadvantage in almost all of the key areas measured. Because this conference in general, and this paper in particular, is focused upon issues connected with the structure of government in Australia, my comments will be restricted to the impact of those structures upon our continuing failure to reduce Aboriginal disadvantage. More specifically, I will endeavour to address the question of whether the diffusion of responsibility for Aboriginal people between State and Territory governments on the one hand, and the Commonwealth government on the other, since 1967, has impeded progress in this area.
Commonwealth Machinery of Government The machinery of government utilised by the Commonwealth in the 50 years since the 1967 referendum has been analysed in a paper recently published by the Indigenous Affairs Group (IAG) within the Department of the Prime Minister and Cabinet.59 The paper identifies and addresses two recurrent underlying problems which are said to have characterised Commonwealth public policy in administration with respect to Aboriginal people over the last 50 years. Those problems are: a. whether and, if so, how to achieve the representation of Aboriginal and Torres Strait Islander people in the decisionmaking process; and b. how best to organise the machinery of government to maximise positive results.
Year 12 attainment:58 •
Goal: Halve the gap in Year 12 attainment by 2020.
Progress: 61.5% of Indigenous students finished year 12 or equivalent in 2014-15, compared to 86.4% of non-Indigenous Australians. All states have seen increases in the percentage of Indigenous students finishing year 12, and the report says this goal is on track for 2020.
The first issue was recently addressed by the statement which followed the recent Uluru conference, and is currently the subject of public discussion and debate. As such, it is a topic best avoided by a serving judge. The second issue, relating to the machinery of government, is more prosaic, and provides safer ground over which to venture.
Machinery of Government Following the successful passage of the referendum, on 2 November 1967, Prime Minister Holt announced the membership of the fledgling Council for Aboriginal Affairs, which would be supported by a new administrative unit to be known as the Office of Aboriginal Affairs. Two of Australia's most senior and well respected public servants - Dr H C (Nuggett) Coombs and Mr Barrie Dexter, then ambassador to Laos, were to serve on the Council, along with Professor William Stanner, a renowned anthropologist. During November and December 1967, work commenced in earnest on the new administrative regime, with the full and active support of the Prime Minister. However, on 17 December 1967, Prime Minister Holt went for a swim at Cheviot Beach in Victoria and was never seen again.60 It has been reported that the incoming Prime Minister, John Gorton, lacked Holt's commitment to the cause of Aboriginal advancement. Previous levels of co-operation enjoyed by the fledgling Council and Office are said to have evaporated, the Office was removed from the Prime Minister's Department, was reduced in status and staff, and the new Prime Minister would not meet with the Council which the previous Prime Minister had created.61 Responsibility moved from the Prime Minister to the then Minister for Aboriginal Affairs, WC Wentworth, who met the Council only occasionally.62
Volatility of Policies and Personnel This inauspicious start to Commonwealth administration of Aboriginal affairs was followed by quite exceptional volatility and structural change over the next 50 years. The IAG reports that over that period there have been ten different organisational structures for the development and implementation of Commonwealth policy relating to Aboriginal issues, and 21 different ministers.63 Nine of the ten organisational structural changes occurred within the past 30 years.64 By contrast, in the USA, the Federal Bureau of Indian Affairs has been in existence since 1849.65 Structural volatility in the machinery of government in this area does not appear to have been limited to the Commonwealth. Looking, perhaps parochially, at Western Australia, since 1967 there have been 14 Ministers for Aboriginal Affairs,66 even though there was no minister with responsibility for such matters for 12 of those years.67
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Since 1967 in Western Australia there have been six different administrative agencies relating to Aboriginal affairs, with four over the last 30 years.68
The Consequences of Volatility The consequences of these frequent changes in the machinery of government have been well described by the IAG: Changes in administrative orders and the machinery of government create complex problems in Indigenous affairs. Relationships of trust and good faith can take many years to build across cultures and are often centered on the commitment of a particular community and particular public servants. Such relationships are considered essential to "working with" Aboriginal and Torres Strait Islander Australians. When these relationships suffer during machinery of government overhauls, not only do problematic gaps open in service delivery, but also widespread scepticism often emerges. Yet, the creative solutions that are needed for any policy in this arena can only be forged through strong trusting relationships that enable give and take on both sides. Where machinery changes introduce uncertainty, effectiveness suffers in the short term and potentially into the longer term as well. Overcoming scepticism becomes a critical first task of the "new administration"…and so it goes. New policy requires a long trail of internal alignment from the government through the bureaucracy and on to staff engaged with Aboriginal and Torres Strait Islander communities. Explaining constant changes in ways that maintain confidence takes great skill. It takes time for officials to reconfigure narratives and to develop an approach that will keep faith with community while also delivering for government. Such work needs to be both deft and savvy, and such work is usually hidden from any calculation of the transaction costs. It is plain from Barrie Dexter’s account of the first 20 years of Aboriginal and Torres Strait Islander Affairs that he viewed the greatest impediments to designing programs and policies to aid the advancement of Aboriginal and Torres Strait Islander Australian’s were those that came from within government and the bureaucracy…
Changes in the machinery and arrangements can lead to extensive loss of corporate memory, resulting in old ideas being circulated again and again without the knowledge or evaluation of their previous incarnation. This recycling has led to a deep sense of "here we go again"’ and cynicism among many Aboriginal and Torres Strait Islander Australians and public servants who have stayed engaged for more than a few cycles. It is not good enough that we are unable to provide government with a longitudinal and well- evaluated map and view of the history of institutions, thought and policies in this important field. Such a commitment to knowing where we have come from and keeping this knowledge is critically important to improving our practice in Indigenous Affairs, and yet, our commitment to knowledge development, and debate is widely lacking.69
Shifting the Burden The author of the paper has also drawn attention to the burden which such frequent changes in the machinery of government impose upon Aboriginal communities and leaders: Indigenous affairs knowledge and capability have not transferred well from one generation of public servants to the next, and public service generations within Indigenous affairs can be short. In the 50th year of the Commonwealth’s administration of Indigenous affairs, it is time this knowledge and practice gap was addressed by the public service. The burden of knowledge transfer should not rest with Aboriginal and Torres Strait Islander communities and leaders, as it has often done in the past.70 The same observations can be made with respect to frequent structural change in the machinery utilised by State and Territory governments for the implementation of policy in this area. It seems to me to follow, inevitably, that the duplication of responsibility for Aboriginal affairs in State and Territory governments on the one hand, and the Commonwealth government on the other, has multiplied the adverse consequences of these frequent structural changes and knowledge gaps. If, as the IAG observes, frequent changes in governmental structure induce cynicism and lack of confidence by Aboriginal communities and their leaders, and impede the
development of personal relationships which are so important to successful outcomes, the duplication of responsibility for those outcomes across two levels of government must surely exacerbate these adverse consequences exponentially. Over the last 11 years, I, in common with most of Australia's judiciary, have spent a disproportionate amount of time administering what mainstream society considers to be justice to Aboriginal Australians. As I have no personal experience of the development and administration of public policy relating to Aboriginal people in other areas, I consulted somebody who has extensive experience in that field - the Hon Fred Chaney AO, who was one of the 21 Commonwealth Ministers for Aboriginal Affairs to which I referred earlier, and who has spent his post-parliamentary career working with Aboriginal people. Fred Chaney was good enough to meet with me,71 and to provide me with a wide range of materials relating to public administration in this problematic field.
Indigenous Policy Since 1960 Some years ago he described Indigenous policy between 1960 and 2012 in these terms:
â€Ś until 1972, programme delivery was a responsibility of the normal agencies of governments. Starting in 1972, responsibility was shifted to funded Aboriginal-controlled organisations, incorporated in the main under Aboriginal-specific legislation. This involved the funding of thousands of organisations annually across communities in remote, regional and urban communities. Line agencies retained (or over time regained) responsibility in some areas (health in particular) but also delivered services by funding Aboriginal-controlled organisations. Post ATSIC, line agencies resumed responsibility but, in line with current public service procedures, often used purchaser-provider models with Aboriginal organisations (with departments acting as contract administrators rather than service deliverers).
Aboriginal programs over that whole period. This is a problem in its own right - the failures of the few drowning out the efforts of the rest. If even 10 per cent of funded organisations were defective (and given the statistics for small business failure in the general community, 10 per cent failure would be a very good outcome), that would result in a "scandal" per working day for the media to report and for ATSIC, the minister and the Government to respond to.72
The System is Broken In Fred Chaney's view, the system is broken, whatever its policy intentions may have been.73 He cites Dillon and Westbury:74 What has not been recognised (at least within government) has been the extent to which government funding arrangements have reinforced community and organisational dysfunction. â€Ś
Unsurprisingly, there have been regular concerns about failures in Aboriginal-controlled service delivery organisations, including complaints of maladministration, nepotism, and sometimes corruption. Such wellpublicised problems became the public and political face of ATSIC and
How is it that governments at all levels, and of all political persuasions, have allowed this level of systemic failure for so long? Why is it that governments have found it easier
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alumni volunteers that also assist in the legal practice. This commitment from our students both past and present has allowed us to do some incredible work over the years. In addition to the generalist practice offered through SCALES, we have also developed specialised practices in the area of family law; family violence and residential tenancy with assistance provided to many who are facing homelessness. Most recently, we have developed a human rights practice, which now has extensive expertise in a range of areas including refugee law, child rights and deaths in custody. Our work has taken us to the High Court and the United Nations, but it is grounded in the real needs of the community we serve.
The Clinic provides Murdoch students with insight, into the practice of law and, perhaps more importantly, insight into the role of law and lawyers in the broader context. For twenty years, the Clinic has provided legal services to those most in need and at the same time, it has assisted law students to see how they can be the kind of lawyer they want to be. To celebrate this fantastic achievement, we will be having an Alumni and Friends Reunion on the 11th of November at Murdoch. For more information, contact our Alumni committee SCALES Connect at firstname.lastname@example.org or follow https://www.facebook.com/ SCALESconnect/ on Facebook.
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to ignore systemic failure, while promoting worn out policy approaches that have proved unworkable?
Some Preconditions to Success As Fred Chaney points out, the Steering Committee for the Review of Government Service Provision (SCRGSP), a body supported by the Productivity Commission, has identified a number of key preconditions for success of government policy - the lack of any one of which can and often does contribute to programme failure:75 •
Cooperative approaches between indigenous people and government - often with the non-profit and private sectors as well.
Community involvement in programme design and decision making - a "bottom up" rather than "top down" approach.
Good governance - at organisation, community and government levels.
Ongoing government support including human, financial and physical resources.
I see no reason to doubt the criticality of these preconditions for success. What I do doubt is the capacity to meet those preconditions in a governance structure which involves three levels of government - local, State or Territory and Federal - in policy development and programme delivery. Unless all levels of government act consistently and coherently, and speak with one voice in the short, medium and long term, the satisfaction of these preconditions for success will remain a distant chimera.
Regional and Local Policies and Programmes During our meeting, Fred Chaney augmented the preconditions for success identified by SCRGSP with three additional preconditions for success. The first was that programmes must be conceived, developed and delivered at a regional and local level. A similar proposition was advanced ten years ago by then Special Adviser on Indigenous Affairs, Lieutenant General (Retd) John Sanderson AC, former Governor of Western Australia, who went on to try to implement change through his role as Chairperson of the Indigenous Implementation Board;76 and again last year, by the taskforce appointed by the WA government to review the delivery
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of State government programmes relating to Aboriginal people in remote communities.77 Perhaps the reason none of these recommendations have ever been implemented is that the development and delivery of policy at a regional level - say, for example, in respect of the Kimberley, the Pilbara, or north Queensland, cannot be readily translated into existing governance structures in Australia. Although regional development commissions are not an uncommon feature of government, such commissions tend to be focused on economic development, and it is rare for responsibility for programme delivery to Aboriginal communities to be devolved to regional bodies. The legal powers and financial resources required to "close the gap" in relation to housing, education, health and justice are well beyond the reach of local governments. So, when critical decisions with respect to Aboriginal people in, say, the Kimberley continue to be made many thousands of kilometres away in both Perth and Canberra by people who may have very limited, if any, experience of conditions in the Kimberley, they are unlikely to respond effectively to the particular needs and interests of the people in that region.
Iterative Programme Development Another of Fred Chaney's preconditions for success is the capacity for programmes to be delivered iteratively, in a way which enables them to be developed and improved over time. Ideally, after a programme has been delivered or a policy implemented, its outcomes are measured, conclusions drawn with respect to aspects of the policy or programme which were working and those which were not, and improvements made. A governance structure which allocates to various tiers of government concurrent responsibility for policy and programme development and for delivery, at the same time these tiers are subject to volatile changes in policy and in personnel of the kind experienced in Aboriginal affairs in Australia, is not conducive to the achievement of this objective.
Proper Legal Frameworks Fred Chaney is also firmly of the view that programmes and policies must be developed in a proper legal framework. In his view, many policy initiatives have floundered in the past because of the lack of a proper legislative structure within which they can be implemented,
with the consequence that government administrators were able to point to their statutory responsibilities as a justification for failing to act appropriately and effectively in the implementation of the relevant policy. This is another area in which the bifurcation of legislative responsibility for laws and policies relating to Aboriginal people is likely to impede rather than enhance achievement of this condition of success.
Silo-Based Policies The programmes and policies required to address the multifaceted disadvantage experienced by too many Aboriginal Australians must address areas commonly administered by separate agencies of each of State or Territory and Commonwealth government in fields such as housing, health, education and justice. Dissatisfaction with the "silo- based" approach to policy and programme delivery to Aboriginal people in these areas has been at a level of crescendo for many years. Both State and Commonwealth levels of government acknowledge the need for a whole of government approach but, in my respectful view, have generally failed to deliver. Fred Chaney has drawn attention to five basic imperatives identified by management advisory committees advising the Commonwealth as essential pre-requisites for successful whole of government service delivery in this area, namely: a. substantial initial cross-agency stakeholder agreement about the broad purposes to be pursued; b. use of the outcomes budget framework to pool resources and to create appropriate accountability frameworks; c. lead-agency staff empowered with sufficient authority to manage whole-of-government settings and to lead the engagement of local stakeholders; d. empowering these same managers to engage with relevant individuals and interests; and e. ensure the individuals engaged in these latter roles have the appropriate networking, collaboration and entrepreneurial skills.78 Achievement of these imperatives is difficult enough in any one level of government, let alone achieving them simultaneously in each of two levels of
government, supposed to be working side by side, co-operatively and collaboratively, on the same issues, in the same places.
Commonwealth Programme Delivery Fred Chaney has contrasted the imperatives identified by the management committees advising the Commonwealth with his experience of Commonwealth programme delivery in these terms: In contrast, how does government seem to me? One year funding with no continuity guaranteed, onerous and hence costly reporting requirements, frequent policy changes, lengthy negotiations about working to shared objectives that are dropped without apology or explanation because priorities or policies have changed. Agreements are made and then not honoured. Two and a half years ago I attended a high-level meeting in a remote community, with officials from a number of departments, to discuss (since failed) policy changes being imposed against the will of the communities involved. The communities expressly agreed with the broad policy objectives of promoting training leading to employment, but argued that the changes the Commonwealth was implementing would not work. The most senior person present, a deputy secretary, contributed nothing and seemed to think that whatever the problem was, it was not his. Bad policy decisions had to be made to work by people living in some of the most difficult circumstances in Australia. The negative outcomes over the next two years were as predicted by the community and, over the course of that time, it became clear that the external agencies contracted by the Commonwealth had not understood and hence not implemented important elements of the program. Now there are high-level meetings trying to find an approach that will work in a practical way, although the legislative framework inhibits practical implementation.79 Put bluntly, if it is difficult for the Commonwealth departments with some responsibility for the health, housing and education of Aboriginal people to work consultatively, co-operatively and collaboratively with Aboriginal people
in regional and remote communities around Australia in order to address the particular needs and interests of the people in those communities, how much more difficult must it be for those agencies to work in conjunction with the corresponding agencies of the relevant State or Territory government to achieve the same objective?
Summary and Conclusion Regrettably, I do not pretend to have a simple or ready answer to the conundrum presented by this analysis. Indeed, if there was a simple and ready answer, I expect we would have found it some time over the last 50 years since the Commonwealth was given legislative power in this field as a result of the 1967 referendum. The last decades of that period have been characterised by the express adoption of policies intended to address and ameliorate Aboriginal disadvantage by almost all political parties at State or Territory and Federal level, and by very substantial expenditure of public funds in support of those policies. Regrettably, recent decades have also been characterised by a failure to "close the gap" in almost all of the key indicators measured, and by everincreasing Indigenous incarceration. I respectfully agree with the Hon Fred Chaney AO that our systems are broken and have clearly failed to achieve their objectives, whatever they may have been.
The States and Territories Under current constitutional arrangements, the States and Territories have primary responsibility for the delivery of health, housing, education and justice services. If Aboriginal disadvantage is to be addressed successfully, it must be addressed in these key areas. Any attempt by the Commonwealth to duplicate the delivery of primary services in these areas would be inefficient and wasteful. It follows that the States and Territories must remain key players in developing the legal structures, policies and programmes required. Ideally, the States and Territories will create structures which will enable devolution of responsibility for such matters to regional and locally based decision-makers working in close cooperation and collaboration with the Aboriginal people in the communities to be affected by the policies and programmes ideally delivered by Aboriginal organisations and entities.
The Commonwealth Nor should the Commonwealth contemplate withdrawal from this field. Fifty years ago more than 90% of those voting in a referendum supported amendment of our Constitution to provide the Commonwealth with legislative power relating to Aboriginal people. Under current fiscal arrangements, the provision of financial resources by the Commonwealth will be an essential component of the programmes required to address the level of disadvantage currently experienced by too many Aboriginal Australians.
Where now? So, if all levels of government must remain involved in the development of policies and programmes in this area, how do we avoid the pitfalls of the past? At the risk of sounding like an ageing male Pollyanna, the level of public support for success in this area - a level of support which crosses political boundaries - should provide fertile ground for State and Territory cooperation and collaboration at a level which has been unprecedented in our federation, outside times of war. I do not believe, nor would I accept the proposition that it is beyond human wit and ingenuity to devise an intergovernmental structure which would facilitate the achievement of the various preconditions and imperatives for policy success which have been identified by those with expertise in this area, and which I have endeavoured to set out in this paper. I do not under-estimate the difficulty of designing and implementing effective systems of intergovernmental action in this area, given the volatility of changes in personnel and policy which have bedevilled this area of public administration. But those problems must be overcome if contemporary Australia is to provide meaningful redress for the disastrous consequences which colonisation has had upon one of the longest unbroken cultures on our planet.
I am indebted to Dr Jeannine Purdy for her assistance in the preparation of this paper. However, responsibility for the opinions expressed and for any errors is mine.
The Constitution Alteration (Aboriginals) 1967 (Cth) made the constitutional changes in relation to Indigenous Australians that were supported by the 1967 referendum.
Mabo & Ors v Queensland (No 2)  HCA 23; 175 CLR 1.
Human Rights and Equal Opportunity Commission, Bringing them home: report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families (1997).
"The intervention" is the colloquial name for the Northern Territory Emergency Response which was enacted through Commonwealth legislation in 2007, with bipartisan support (Northern Territory Emergency Response 2007 (Cth)).
Aboriginal History Research Unit, Department of Aboriginal Affairs WA, Right Wrongs: '67 Referendum – WA 50 years on (2017) 78.
For example, Truganini of the Nuenonne group in Tasmania has often and erroneously been described as "The last Tasmanian". Griffith also seems to have subscribed to the view that the Australian Aboriginal race would eventually disappear.
Daisy Bates, The Passing of the Aborigines: A Lifetime spent among the Natives of Australia (originally published 1938) Chapter 7 – Last of the Bibbulmun Race (web edition as published by the University of Adelaide, last updated 17 December 2014, accessed 14 July 2017).
Supplied by State Library of Western Australia, as published ABC news website, Emma Wynne, "Fanny Balbuk Yooreel, the Aboriginal land rights activist you've probably never heard of" (19 May 2017) (accessed 14 July 2017).
Daisy Bates, The Passing of the Aborigines: A Lifetime spent among the Natives of Australia (originally published 1938) Chapter 7 – Last of the Bibbulmun Race (web edition as published by the University of Adelaide, last updated 17 December 2014, accessed 14 July 2017). Image background prepared by Dimitri Fotev; track interpolation by Jeff Murray as published in John C Ryan, Danielle Brady & Christopher Kueh, "Where Fanny Balbuk Walked: Reimagining Perth's Wetlands" (March 2016) 18(6) M/C Journal (accessed 14 July 2017).
Perth City Council, Karla Yarning map – Fighting for families, country, rights and recognition (2014).
George Williams, "Race and the Australian Constitution", (2013) 28(1) Australasian Parliamentary Review 4, 5.
Quoted in Frank Brennan, Securing a bountiful place for Aborigines and Torres Strait Islanders in a modern, free and tolerant Australia (1994) 18; cited in Williams, note 13 above, 6.
Western Australia is not mentioned because at the time the Constitution was passed as an Act of the imperial Parliament, the referendum to determine whether Western Australia would join the federation had not been held.
Although the races power could also be used to advance the interests of a racial group: see for example the comments of Sir Samuel Griffith, 1891 Australasian Federation Conference (8 April 1891) 703. (The records of the 1890s Federal Conventions are available from the Parliament of Australia website at: parlinfo.aph.gov.au/parlInfo/search/search. w3p;adv=yes (accessed 7 August 2017)).
1898 Australasian Federation Conference (27 January 1898) 228-229, cited in Williams, note 13 above, 7. John Quick & Robert Garran, The Annotated Constitution of the Australian Commonwealth, (1901), cited in Williams, note 13 above, at 7. It is of note however that the races power is not restricted to aliens, and applies to any race in Australia whether immigrant or alien or not ( Robert French, "The Race Power: A Constitutional Chimera", HP Lee & George Winterton (eds) Australian Constitutional Landmarks (2003) 180, 180). See 1891 Australasian Federation Conference, Commonwealth of Australia Bill as adopted by the National Australasian Convention (9 April 1891) clause 17; 1898 Australasian Federation Conference (8 February 1898) 665-666; and Williams, note 13 above, at 7.
Nor any women: Williams, note 13 above, at 6.
Geoffrey Sawer, "The Australian Constitution and the Australian Aborigine" (1966) 2 Federal Law Review 17, 17-18.
Royal Commission on the Constitution (1927-1929), Minutes of Evidence, 488, cited in Sawer, note 21 above, 18.
The Hon Richard Edward O'Connor MLC, QC, 1897 Australasian Federation Conference (19 April 1897) 832.
The Hon Sir Samuel Walker Griffith KCMG, QC, MP, 1891 Australasian Federation Conference (8 April 1891) 898-899. The clause had been in the bill as prepared by the drafting committee, but was struck out. Sir Samuel proposed to reinsert it.
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1891 Australasian Federation Conference (31 March 1891) 525 and see Bain Attwood & Andrew Markus, The 1967 Referendum: Race, Power and the Australian Constitution (2007) 1-2.
Department of Prime Minister and Cabinet, note 52 above, 38, 39.
Department of Prime Minister and Cabinet, note 52 above, 36.
Department of Prime Minister and Cabinet, note 52 above, 26.
Department of Prime Minister and Cabinet, note 52 above, 43.
Michelle Patterson, 50 years of Commonwealth Public Administration in Aboriginal and Torres Strait Islander Affairs: IAG Working Paper Series No. 1 - Machinery of Government in Aboriginal and Torres Strait Islander Affairs (2017).
1891 Australasian Federation Conference (8 April 1891) 703 and see French, note 18 above, 182.
1898 Australasian Federation Conference (27 January 1898) 240-241.
Jeremy C Martens, "Pioneering the Dictation Test? The creation and administration of Western Australia’s Immigration Restriction Act, 1897-1901" (2013) 28 Studies in Western Australian History 47.
Gary Foley, "Harold Holt's death and why the 1967 referendum failed Indigenous people" The Guardian (Australian edition) (27 May 2017) (accessed 7 August 2017).
Cossack is a port on the north coast of Western Australia near Roebourne.
Gary Foley, note 60 above.
"The Yellow Curse. Chinese Admitted Free. Restriction Act a Farce" West Australian Sunday Times (21 January 1900) and see Martens, note 30 above, 63.
Gary Foley, note 60 above.
Patterson, note 59 above, 4.
Patterson, note 59 above, 15.
Patterson, note 59 above, 15.
Parliamentary Library Western Australia, "Aboriginal/ Indigenous Affairs Minister of Western Australia" (as at 17 March 2017). The Parliamentary Library notes that there have been 23 Ministers in 11 different governments responsible for Indigenous Affairs since the introduction of a Native Affairs portfolio in the McLarty Liberal Government in 1947.
Education and Health Standing Committee, Ways Forward – Beyond the Blame Game: Some Successful Initiatives in Remote Indigenous Communities in WA (2008) 16-18. For 10 of the 12 years, there was a unique arrangement in WA with the Commonwealth Department of Aboriginal Affairs (DAA) in Western Australia being responsible for the administration of the State’s Aboriginal Affairs Planning Authority Act 1972, with the exception of the Aboriginal Lands Trust, and the same officer, Mr Frank Gare, being the head of both the State’s Aboriginal Affairs Planning Authority and the Commonwealth’s DAA in Western Australia. Tensions over Aboriginal land rights saw this arrangement come to an end (at 22).
Going further back, since the administration of Aboriginal affairs was removed from the Colonial Secretary and entrusted to the Aborigines Protection Board in 1886 until the present there have been 12 different agencies involved in administering this area, including, between 1920 and 1926, the Fisheries Department, which was responsible for Aboriginal affairs in the area below latitude 25 degrees south (State Records Office, Organisations & People – AU WA A1200 – Aborigines Protection Board (accessed 13 July 2017). More recently the Department of Aboriginal Affairs has been incorporated into Department of Planning, Lands and Heritage.
Patterson, note 59 above, 16.
Patterson, note 59 above, 3.
On 4 May 2017.
Fred Chaney, "The Indigenous policy experience 1960 to 2012" in Productivity Commission, Better Indigenous Policies: The Role of Evaluation, Roundtable Proceedings (2013) at 51, 57.
Man Kit v Sampson  WALawRp 12; 3 WALR 71 (21 May 1901) and see Martens, note 30 above, 63.
See Martens, note 30 above, 47-48.
Starke J dissenting.
R v Wilson  HCA 63; (1934) 52 CLR 234, per Dixon J at 245.
R v Wilson  HCA 63; (1934) 52 CLR 234.
Sawer, note 21 above, 20, citing Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 462.
If there was an award for the most appalling piece of legislation ever passed in Australia, the Aborigines Act 1905 (WA) would be a strong contender. It deprived Aboriginal people of the freedom to choose where they would live and work, authorised the forced separation of Aboriginal children from their families, and systematically excluded Aboriginal people from white society.
See 1897 Australasian Federation Conference (20 April 1897) 1020.
Sawer, note 21 above, 26. This restriction on counting "full blood" Aboriginal people continued to apply to official census data until the Constitution was changed – see Commonwealth Bureau of Census and Statistics, Census of the Commonwealth, 30th June, 1961: Census Bulletin No 36 - Race of the Population Australia, States And Territories (undated) 2-3.
Anthony JH Morris QC, "The Trial of the Kenniff Brothers" (2002) 2(2) Memoirs of the Queensland Museum: Cultural Heritage Series 259, 261.
RB Joyce, "Griffith, Sir Samuel Walker (1845-1920)" Australian Dictionary of Bibliography (1983) (accessed 12 April 2017).
For a moving description of the consequences of these laws, see "The effect of early Australian laws on Aboriginal people: A personal perspective" by Sue Gordon AM, originally published in (2005) 8 Flinders Journal of Law Reform 173 and republished in Hossein Esmaeili, Gus Worby & Simon Ulalka Tur (eds), Indigenous Australians, Social Justice and Legal Reform: Honouring Elliott Johnston (2016) 121.
French, note 18 above, 188.
Chaney, note 72 above, 62.
French, note 18 above, 188. French notes that Menzies’ bill was limited to only the removal of s127; while he was not prepared to take the exclusionary term out of s 51(xxvi) he was sympathetic to repealing the provision altogether.
Michael C Dillon & Neil Westbury, Beyond Humbug: Transforming Government Engagement With Indigenous Australia (2007) 191-192 cited in Chaney, note 72 above, 58, 65.
Sawer, note 21 above, 24.
French, note 18 above, 188.
Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011 (2011) 10, 11 cited in Chaney, note 72 above, 58.
French, note 18 above, 188-189.
Kartinyeri v The Commonwealth  HCA 22; (1998) 195 CLR 337.
Australian Indigenous Health Info Net, "What is Closing the Gap?" (15 November 2016) (accessed 17 July 2017).
See, for example, Lt General Sanderson's 2007 address "Federal Renewal and Unity in Reconciliation: A Return to Government by the People" (Order of Australia Association Annual Oration, 2007) and "The Indigenous Implementation Board" (John Curtin Institute of Public Policy Forum, Perth, 15 May 2009).
Department of Prime Minister and Cabinet, Closing the Gap: Prime Minister's Report 2017 (2017) 83. The most recent Indigenous life expectancy figures were published in late 2013 and showed a gap of 10.6 years for males and 9.5 years for females; between 2005-07 and 2010-12, there was a small reduction in the gap of 0.8 years for males and 0.1 years for females.
Regional Services Reform Unit, Resilient Families, Strong Communities: A roadmap for regional and remote Aboriginal communities (2016).
Chaney, note 72 above, 59.
Chaney, note 72 above, 61-62.
See, for example, JD Heydon, "Sir Samuel Griffith and the Making of the Australian Constitution", Upholding the Australian Constitution (2012) 24 17.
Originally delegates from New Zealand were included in plans for a federal constitution with politicians from six Australian colonies: Parliament of Australia, Records of the Australasian Federal Conventions of the 1890s (accessed 8 August 2017).
Department of Prime Minister and Cabinet, note 52 above, 23. The report notes that the relatively small numbers involved result in fluctuations in the Indigenous child mortality rate each year.
Department of Prime Minister and Cabinet, note 52 above, 53.
2017 PRACTICAL ADVOCACY WEEKEND Reaching out for knowledge , expertise and engagement
Saturday, 5 August – Sunday, 6 August 2017 Children’s Court of Western Australia 160 Pier Street, Perth
Saturday, 5 Augu st – Sunday, 6 August 2017 Children’s Court of Western Austr alia 160 Pier Street, Perth
The 2017 Practical Advocacy Weekend presented by the Law Society provided attendees with an invaluable opportunity to learn the theory behind effective advocacy and to put this theory into effect. lawsocietyw Weekend a.asn.
We would like to thank Head Coach His Honour Judge O’Neal of the District Court of Western Australia for working with the Society during the year to revise and consider improvements to the content and delivery of the advocacy course for 2017. The Head Coach plays a vital role in curating all the elements of the course as well as providing leadership for all involved. This year we acknowledge and thank our venerable coaches: the Honourable Justice Chaney; Her Honour Judge Petrusa SC; Her Honour Judge Wager; His Honour Judge Levy SC; Carmel Barbagallo SC; John Vaughan SC; Mara Barone; and Bill Keane. Held at the Children’s Court of Western Australia, attendees both new to advocacy and those wishing to hone their existing skills saw marked improvement to the way in which they presented their respective cases. Attendees argued mock injunction applications, presented closing
addresses in criminal proceedings and conducted both an examination in chief and cross-examination, with our coaches providing both immediate feedback from the bench and via a subsequent review of the attendees’ recorded performance. The feedback provided to each attendee allowed them to fine tune their respective performances, and when the attendees put that feedback into practice on their attempts at either a second closing submission or injunction application the coaches noted significant improvement. In addition to practising advocacy in their own right, attendees were treated to an expert delivery of closing submissions in a mock criminal proceeding by Carmel Barbagallo SC and Mara Barone. That example of fine advocacy was not only entertaining, but gave the attendees an example to aspire to in any future closing address.
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In sum, the weekend was a great opportunity for attendees to learn from the collective wealth of courtroom experience of the esteemed coaches in attendance and to practice advocacy in a collegiate courtroom environment. That sense of collegiality can sometimes be pushed aside in our adversarial court system, and the weekend served as a welcome reminder of that shared comradery. The Law Society’s Young Lawyers Committee thanks each of the coaches for generously assisting junior members of the profession to improve their advocacy skills, and each of the Committee members who volunteered their time to assist with running the event. Author: Hague Skinner, Solicitor, Bennett + Co; YLC Member
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A Practical Guide to Investment Treaties – Asia Pacific By Baxter Roberts, Michael Feutrill and Kanaga Dharmananda, 2015 LexisNexis Review by John Southalan Barrister, WA Bar Association Adjunct Professor, The University of Western Australia
This book is indispensable for anyone advising parties on matters with international commercial aspects. “The future of trade agreements: have they been ‘Trumped’?” is the mischievous title of a panel session at the forthcoming annual conference of the International Bar Association (October 2017). On closer examination, it seems the panellists think not, as they describe: ‘The rise of bilateral and regional agreements and the role they play in our trade and investment policies...’. That rise will likely continue as the nation state and its public legal institutions struggle to regulate the amount and range of international transactions, parties look for additional or other mechanisms to provide certainty and resolve disputes. Investment treaties, and their implementation, have this increasing role in addressing the activities of much industrial development in the world. Australia has joined over 35 treaties addressing trade,1 and many of its trading partners are far more interconnected. As at 2017, Australia has bilateral or multilateral agreements with each of its top 10 trading partners, and only two of these are outside the Asia-Pacific region (the UK and Germany).2
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Though this book is focussed on the AsiaPacific - and it certainly is an excellent reference for that (covering all the relevant treaties) - the work provides a far broader explication of the essential concepts and issues in investment treaties and their use. The authors do not explain their conception of ‘Asia-Pacific’. The book’s cover (noting caveats on what we should judge from that!) and the bulk of its content is investment law involving East Asia plus Australia and New Zealand and minus the Philippines. Such an unwieldly title might explain ‘Asia Pacific’, but readers should not come here expecting detail regarding countries in South Asia or on the Pacific’s eastern shores. Given the proposed Trans Pacific Partnership may be one trade agreement that actually was ‘trumped’, the non-coverage here was perhaps prescient. The book has a useful introductory chapter, with an overview and history of investment agreements, and then sets out its analysis and explanation in the following 13 chapters:
Treaty provisions defining Scope and Application of their Treaty
Fair and Equitable Treatment
Full Protection and Security
Most-Favoured Nation Treatment
Arbitrary, Discriminatory or Unreasonable Impairment
Free Transfer of Funds
Disputes between the Contracting States to an Investment Treaty
Disputes between a Foreign Investor and the Host State
Compensation, Damages and other Remedies in Investor-State Disputes
Annulment, Set-Aside and Enforcement of Investor-State Arbitral Awards
Each chapter contains a pithy introduction giving the essence of the particular topic, followed by a more detailed summary of the relevant issues or principles. These are meticulously cross-referenced to treaty clauses and arbitral decisions, enabling the reader to not only understand the basics but also quickly source the original material when authorities or further research is needed. The essentials are set out in clear statements of principle, followed by more detailed examples and case summaries indicating how that principle is understood and applied. Many of the arbitration decisions are cases beyond the Asia-Pacific, but they appropriately inform how the relevant concepts will be understood in this region, as well as providing useful examples of investment law’s reach and application. Most chapters also finish with a diagram or checklist, reinforcing the basic principles
not shied away from this, summarising areas where there is considerable commentary or critique of the existing ‘law’, alerting readers to potential areas for future change. The explanation of various issues also draws in relevant policy context which assist in understanding the marked differences in national approaches or particular treaties. For instance:
in helping the reader understand how these interact, and what questions to ask in analysing and advising on this area. The research and referencing is thorough, including academic work as well as decisions of arbitral panels, tribunals, and courts. The authors have drawn from all these sources to give a good analysis of the issues and, where areas of uncertainty still exist, what potential direction might be expected. There is persistent debate about the role of investment agreements and investor-state dispute settlement, and their interaction with legal development and governance.3 The authors have
in the discussion of ‘national treatment’ clauses, explaining why these are sometimes absent from treaties with countries having large public sector or significant state-owned industries, because of the domestic policies and laws favouring domestic enterprises;
the prevalence of significant ‘exceptions’ or ‘carve-outs’ to protect certain sectors from the investment competition that most investment treaties seek to impose; or
the rarity of inter-state disputes under investment treaties, with ‘home’ states leaving their registered companies to litigate themselves.
In addition to its own content, the book will provide an excellent source for further research or work in international investment law. The book has extensive appendices of treaties and arbitration decisions. Most useful is a matrix tabulating all the main aspects of treaty law (e.g. expropriation compensation, fair and equal treatment,
full protection etc) against each of the main investment treaties in the AsiaPacific, enabling readers to quickly identify the relevant clauses in each treaty. The authors have also included the full text of various claim documents and responses which can provide useful guidance for lawyers needing to draft the relevant documents. The book’s index is perhaps the only aspect which is not thorough. Although it reasonably captures many subjects/topics which the reader may want to research, it is not well indexed in relation to countries. However, given the book is also available in e-format, the ability to textsearch for a word is probably obsoleting indexes anyway. This book is a useful tool not only for practitioners, but also for those involved in the policy space, wanting to gain a realistic and practical sense of the current role and extent of international investment law. NOTES: 1.
17 bilateral investment treaties and 19 treaties with investment provisions: http://investmentpolicyhub. unctad.org/IIA (accessed 22 Aug 2017).
Data from http://dfat.gov.au/trade/resources/trade-ata-glance/Pages/default.aspx (accessed 21 Aug 2017).
Eg. The Settlement of Investment Disputes: A Discussion of Democratic Accountability and the Public Interest (IISD, 2017) www.iisd.org/itn/2017/03/13/thesettlement-of-investment-disputes-a-discussion-ofdemocratic-accountability-and-the-public-interest-lisejohnson-and-brooke-skartvedt-guven/; Investor-State Dispute Settlement: Controversial, but Constitutionally Valid? (ILA, 2017) http://ilareporter.org.au/2017/06/ isds-controversial-but-constitutionally-valid/; Trans Pacific Partnership (Report 165 of Commonwealth Joint Standing Committee on Treaties, 2016), chs 4 & 6; Bilateral and Regional Trade Agreements (Australian Productivity Commission Research report, 2010), chs 11 & 14.
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FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist
Property – Treatment of property acquired after separation is discretionary In Calvin & McTier  FamCAFC 125 (12 July 2017) the Full Court (Bryant CJ, Ryan & Aldridge JJ) dismissed with costs the husband’s appeal against a property order of the Magistrates Court of WA. Magistrate Calverley included among the parties’ divisible property an inheritance received by the husband 4 years after separation (of which $430,686 was unspent). He had also made initial contributions to the $1.3m pool, being real estate to the value $580,000 and a car, shares and superannuation of unstated value (-). The parties were married for 8 years and had one child who spent equal time with them. Contributions (which were found to have been otherwise equal) were assessed as 75:25 in favour of the husband, a 10 percent adjustment being made for the wife under s 75(2). The Full Court said () that “both the relevant definition of ‘matrimonial cause’ and s 79 refer to all of the property held by the parties at the time of the hearing before the court” and that “[a]ll of the property then held by both of the parties or either of them can therefore be the subject of orders under s 79, regardless of when particular assets were acquired”. The husband’s counsel () argued that “where there is after-acquired property and the owner of that property objects to its inclusion … there must be a separate … consideration as to whether there is a principled reason for its inclusion and division”. The Court rejected that submission as being () “contrary to the extensive weight of authority”, saying (at -): “In short … the court retains a discretion as to how to approach the treatment of after-acquired property. The trial magistrate could have included the inheritance amongst the property to be divided or dealt with it separately. The trial magistrate was not obliged to follow one course or the other. ( … ) It is worth repeating that it was not submitted that any error said to have arisen from the inclusion of the inheritance for division led to a result which, after consideration of the contributions and the s 75(2) factors, was inappropriate. Rather, the submissions were directed to the process.”
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Children – Father withheld children – Court’s refusal to make recovery order set aside – Refusal of urgent listing unjustified In Renald (No. 2)  FamCAFC 133 (14 July 2017) a consent interim order provided that the parties’ seven children live with the mother and spend long weekends and some holidays with the father (who lived in Town H, a two hour drive away). While not pursuant to the order, the mother agreed to the father having the children B, V and A from 8 to 29 January 2017. At the end of that time the father returned A but withheld B and V, saying that they did not wish to return to the mother. The Magistrates Court of WA did not dismiss her application but refused the mother both an urgent listing “notwithstanding [that] the school year was about to commence” () and a recovery order (inter alia) as the Court did not wish to “chop and change” arrangements prior to the hearing (). On appeal Thackray J observed  that the mother would have been entitled to seek a review of the refusal to grant an urgent listing, saying (-) that there was substance in her argument that in not dismissing the mother’s application the magistrate failed to determine it and that that error was compounded by the delay in listing (which, it was argued, was “not justified in view of the nature of the application and the evidence … including that of the single expert”). Thackray J said (at ) that “there was ample evidence in the reports to have persuaded his Honour that the exercise of some appropriate … encouragement by the father would have ensured the children’s return to the mother” and () that “his failure to consider the effect on the other children of seeing the father flouting an order with impunity, constituted error” (at  citing Bondelmonte  HCA 8 at ). While allowing the child B due to his age (born 2002) to stay if he wished to do so, Thackray J said () that “an order requiring V to be returned, even with a trial looming, may send a message to the legal profession and their clients that the court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk”.
Children – Mother wins appeal against dismissal of her application to vary parenting order to allow her to relocate In Searson  FamCAFC 119 (5 July 2017) the parties consented during proceedings to a final order in 2015 that the children live with the mother and spend five nights a fortnight and holidays with the father. In 2016 the mother applied for variation of the order so as to allow her to relocate from Melbourne to Queensland and an order for another family report. The father opposed both applications. At a preliminary hearing Judge Harland dismissed the applications, holding that the mother had not satisfied the rule in Rice & Asplund, “raising something now which she ought to have raised previously” (). The mother appealed. Murphy J (with whom Kent and Loughnan JJ agreed) referred (at ) to Warnick J’s statement in SPS & PLS  FamCAFC 16 that “[w]here an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing”. The Court said  that it was “abundantly plain from the mother’s affidavit material that no part of the … matters to which she deposed prior to the making of the consent orders involved living permanently with her now partner or postulated a significant future role for her now partner in the children’s lives or involved her moving to south east Queensland” and () that “[n]owhere in … [the earlier] family report [was] any factual foundation offered which might provide the reason for providing any opinion about relocation”. The mother’s appeal was upheld and the case referred to another judge for orders and directions to prepare the case for trial.
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
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3)  FCAFC 102 This case was an appeal brought by Ms Romero (appellant) against the primary judge's award of nominal damages of $100 in her favour against Farstad Shipping (Indian Pacific) Pty Ltd (respondent) in Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3)  FCA 1453. The appellant sought damages in excess of $1.6 million instead. The appellant contended the following, which were rejected by the primary judge and formed the grounds of appeal: •
there was an essential term in her employment contract (Contract) which required strict compliance with a Workplace Harassment and Discrimination Policy (Policy);
the respondent had repudiated the Contract by failing to investigate her complaint in accordance with the Policy;
the respondent’s breach was serious enough to justify her termination of the Contract; and
the loss of her career in the maritime industry was a
loss reasonably within the contemplation of the parties at the time of contract. All grounds of appeal were rejected by the Full Court of the Federal Court of Australia (FCAFC). Firstly, the FCAFC held that compliance with the Policy was not an essential term of the Contract. The FCAFC restated the law, noting that the test for essentiality was whether the parties considered a term to be essential at the inception of the contract. This will be supported by considering whether the parties would have entered into the contract without that term. In this case, the appellant did not see the Policy until after she signed the Contract. The second ground of appeal was brought by the appellant to support her contention that she had a right to terminate the Contract. On this ground, the FCAFC found that the primary judge correctly found that the appellant did not have a right to repudiate or terminate the Contract. Critically, they accepted the respondent’s evidence that it had tried to retain the appellant’s services after her complaint, which showed that it did not intend to renounce the Contract.
Thirdly, the FCAFC considered the Policy to be a “quintessential intermediate term” which may be departed from in a major or a minor way and found that the appellant had anticipated an investigation into her complaint. Thus, even if the ensuing investigation did not strictly comply with the Policy, that did not constitute a major breach. Lastly, the FCAFC upheld the primary judge’s finding that the damages claimed by the appellant – for incapacity for employment, wasted training and retraining costs – were essentially costs of embarking on an entirely new career which would not reasonably be in the parties’ contemplation as a probable result of breaching the Policy at the time of contracting. Author details: Fiona Poh, Solicitor, Tottle Partners and YLC member
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Law Council Update
For respectful debate, vital to get legislative protections right The Law Council of Australia has reiterated the need to move quickly to enact legislation protecting Australians from vilification, misleading and deceptive conduct during the marriage equality postal survey. President of the Law Council, Fiona McLeod SC, said that the peak legal body supports all efforts to facilitate a fair and respectful debate on marriage equality. “Vilifying, misleading and deceptive materials and statements should never be part of any campaign,” Ms McLeod said. “There are many tough questions that will need to be dealt with, including deciding who will have oversight of the types of publications and statements being made. “Because people are not seeking approval to make electoral statements, as they would in an election campaign, it is necessary to roll out laws specific to this postal survey. “The legislation also needs to ensure the appropriate balance with other important freedoms, including: freedom of speech, freedom of expression and freedom of political communication. “In short, these laws shouldn't impact overly on free speech, but protect people's sense of being safe and not having hateful remarks made about them,” Ms McLeod said. Ms McLeod said that reports of bipartisanship in the preparation of these laws is reassuring. “We share concerns raised in the community about the potential for hateful, misleading and damaging material to increase during the postal survey period. “While there are some safeguards in place under national, state and territory laws, additional measures are needed to protect individuals and ensure a respectful debate,” Ms McLeod said. The Law Council is a long-standing supporter of marriage equality, announcing its original support shortly after the Marriage Act was amended in 2004. Law Council welcomes appointment of Dr James Renwick SC as Independent National Security Legislation Monitor The Law Council of Australia has today warmly welcomed the Governor-General's
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appointment of Dr James Renwick SC as Independent National Security Legislation Monitor (INSLM). Dr Renwick has been acting Independent National Security Legislation Monitor since February. Law Council of Australia President, Fiona McLeod SC, said Dr Renwick was an excellent choice for the vital role. "Dr Renwick has a strong professional background in national security issues and is well respected among the legal profession. "The role of the INSLM is critical to ensuring that national security legislation remains necessary and proportionate to the threats faced. "It is also vital in ensuring that national security legislation contains appropriate safeguards to protect the rights of individuals. "As governments move to alter and strengthen security and counter-terrorism legislation, it is critical that the INSLM is able to assess whether new measures accord with the rule of law and Australia's human rights obligations. "Dr Renwick SC and his office have already engaged in appropriately robust consultations as part of INSLM review of stop, search and seizure powers, declared areas, control orders and preventive detention orders. "The Law Council looks forward to continuing to work with Dr Renwick, who was a member of the Law Council’s Military Justice Committee for three years,” Ms McLeod said. Ms McLeod also called on the Federal Government to make public the declassified report which was delivered to the Prime Minister today by the INSLM as soon as possible, to inform the current statutory reviews by the Parliamentary Joint Committee on Intelligence and Security. Vote ‘yes’ for marriage equality, ‘yes’ for human rights Following the decision of the High Court clearing the way for the postal survey, the Law Council of Australia has today strongly advocated a ‘yes’ vote. “The Law Council has long held that our marriage laws should not discriminate on the grounds of gender or sexual orientation,” said Ms Fiona McLeod SC,
President of the Law Council of Australia. “Freedom from discrimination is a fundamental human right. “Discrimination on arbitrary grounds, including sexual orientation is contrary to Australia’s international human rights obligations. “Article 26 of the International Covenant on Civil and Political Rights (ICCPR) provides that: ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.’ “Article 26 is a ‘stand-alone’ right which forbids discrimination in any law and in any field regulated by public authorities. “The UN Human Rights Committee has found that discrimination on the basis of sexual orientation is prohibited. While the decisions to date do not oblige Australia to legislate for marriage equality, there are no legal impediments for Australia to do so,” Ms McLeod said. Ms McLeod also pointed to the international norms set out in the Yogyakarta Principles, which make clear that sexual orientation and gender identity are integral to each person’s dignity and humanity and must not be the basis for discrimination or abuse. “There is no sound basis on which a person’s gender or sexual orientation should continue to affect their rights and responsibilities under Australian marriage law,” Ms McLeod said. “Extending the right to marry to samesex couples will not impact upon another fundamental right, freedom of religion. Ministers of religion are already permitted to conduct religious marriage ceremonies in accordance with the tenets and doctrines of their religion under s47 of the Marriage Act. “This will not change as a result of extending equality to same-sex couples. “Given that the Government has decided to conduct a postal survey, and that there are now no legal impediments to this occurring, we urge a respectful and sensitive debate focused on the issue and the ultimate return of a ‘yes’ vote,” Ms McLeod said. The Law Council announced its original support for marriage equality shortly after the Marriage Act was amended in 2004. It will continue to advocate for marriage equality until it is achieved.
Professional Announcements Career moves and changes in the profession
Leach Legal Leach Legal is delighted to announce the appointment of Kylie Truscott as a Senior Associate as of 1 July 2017.
Sharni Mwenda (nee Redfearn)
Clairs Keeley Clairs Keeley is pleased to announce the appointment of Debbie Clinch as a partner of the firm as of 1 July 2017. Debbie brings over 21 years of experience in Family Law. She is an accredited family law specialist with experience in all areas of family law related matters. We are also pleased to announce the appointment of Sharni Mwenda (nee Redfearn) as a Family Lawyer within the firm. Sharni has over 10 years of experience in family law, having practiced exclusively in the area since her admission as a lawyer.
Murfett Legal Marcus Procopio commenced practice with Murfett Legal as Special Counsel – Property & Commercial Law as of Monday, 28 August 2017.
Kylie joined the firm in October 2015 and has practiced exclusively Kylie Truscott in family law. She has extensive experience in divorce, property and children’s matters with various degrees of complexity, including care arrangements, relocation, spousal maintenance and property settlements.
Lantegy Legal Lantegy Legal is pleased to announce the appointment of Robyn Glindemann as a Director of the firm from 1 September. Robyn joins the firm after 5 years as counsel with Clifford Chance and Robyn Glindemann brings over 20 years’ experience in project approvals, environmental law and native title matters. She has been recognised by Best Lawyers Australia in the areas of environment and planning, natural resources, climate change and native title.
ACCESS CPD ON YOUR TERMS The Law Society’s eLearning provides a complete solution for CPD, offering 24/7 access and flexible delivery.
46 | BRIEF OCTOBER 2017
Dr Hannes Schoombee Move to Terrace Chambers From 1 October Dr Hannes Schoombee is continuing his practice as a barrister from his own chambers. He is now in his 23rd year of full-time practice at the Bar and his new contact details are:
Dr Hannes Schoombee
Dr Hannes Schoombee Terrace Chambers Suite 7, 15th Floor, 140 St George’s Terrace [the AMP Building] Perth WA 6000 Tel: 9278 2420 | Mob: 0417 900 552 Tel: Personal Assistant: 9278 2427 Email: email@example.com Email: Personal Assistant: firstname.lastname@example.org
New members joining the Law Society (August 2017) Ordinary Membership
8/09/2017, 10:33 AM
Mr Denning Chong James Chong Lawyers
MARGARET ANN MCIVER late of Melville Aged Care, 1 French Road, Melville Western Australia (formerly of Hillcrest Nursing Home, 24 Harvest Road, North Fremantle, Western Australia and 31/15 Harvest Road, North Fremantle, Western Australia) died on 7 May 2014 at Melville Western Australia. Would any person holding a Will and Testament of MARGARET ANN MCIVER or knowing the whereabouts of such Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6525 within one (1) month of the date of publication of this advertisement quoting reference DE33083148. adcorp WG22148
CBD parking solution Car bay available in secured undercover car park at 160 St Georges Terrace and is available 24 x 7. Please call Vernon Thompson on (08) 9324 8645 for more information.
Wills & Estate Lawyer Petherick Cottrell based in Mandurah seek to employ an experienced Wills and Estate lawyer with strong interpersonal skills. The position may suit someone seeking a lifestyle change to the Peel region or semi-retirement. We offer a modern working environment and full support. Remuneration based on performance and above market for the successful candidate. Applications close 27 October 2017. Contact Trent Petherick to discuss on 08 9535 4604 or send applications to email@example.com
Miss Lauren Gore Norton Rose Fulbright Australia
Restricted Practitioner Mr Alexei Chijoff-Evans Clifford Chance (Sydney) Ms Naz Hassan George Papamihail Barristers & Solicitors Miss Alana Main Turner Freeman Lawyers Ms Ashlee Taylor Hammond Legal Miss Fiona Ung Avon Legal (Bunbury)
Associate Membership Miss Isabella Boladeras Edith Cowan University Miss Michelle Harries The College of Law Miss Georgina Heath Clifford Chance (Sydney) Mr Jonathan O'Connor Kott Gunning Mr Jason Oliver Clifford Chance (Sydney)
PERTH’S BUSINESS VALUATION EXPERTS Family Law Disputes Partnership Dissolutions
and Admissions Licensing Applications Bank Opinions Purchaser and Vendor Opinions
MISSING WILL Any person or firm having any knowledge of any Will made by MARKO BANJAC born 11/5/1990 died 22/7/2017 late of 98 Renou Street, East Cannington please contact Paul D’Angelo of D’Angelo Legal, PO Box 1953, West Perth 6872. Telephone: 9381 1147
Ms Clare Saunders University of WA Mr Leon Sher Clifford Chance (Sydney) Mr Joshua Slattery Murdoch University Ms Annabel Sweetnam-Groom Murdoch University Mr Han Tan Murdoch University Ms Anneka Thomson University of WA
Graham O’Hehir MBA
Managing Director (08) 9481 4422 or firstname.lastname@example.org
Ms Kiseon Park Murdoch University
MISSING WILL Any person or firm having knowledge of any Will made by BARTOLOMEO (AKA TONY) LA GRASSA born 14 June 1932 late of 22 Favell Way, Balga please contact Paul D’Angelo of D’Angelo Legal, PO Box 1953, West Perth 6872. Telephone: 9381 1147
Ms Meaghan Tucker Edith Cowan University Miss Katherine Wilkes University of Notre Dame Australia
Part-time Membership Mrs Sharni Mwenda Clairs Keeley Ms Fiona Reading Office of the Director of Public Prosecutions - Commonwealth
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Stay up-to-date with the latest Law Society member events and CPD seminars
October 2017 Membership Event Tuesday, 10 October Mental health awareness The Law Society of Western Australia Friday, 27 October Mixed netball competition The University of Western Australia Recreation and Fitness Centre CPD Seminars Friday, 13 October The Great Legal Negotiator The Law Society of Western Australia Monday, 16 October Crowdfunding The Law Society of Western Australia Tuesday, 17 October Caveats The Law Society of Western Australia Tuesday, 17 October Legal aspects of insider trading The Law Society of Western Australia
Friday, 20 October Ethics on Friday: Practical conflicts – real life studies The Law Society of Western Australia Monday, 23 October Getting to the point: A guide to evidence in Family Court proceedings The Law Society of Western Australia Tuesday, 24 October Adjudication of Construction Disputes and Construction Contracts Act 2004 The Law Society of Western Australia Thursday, 26 October Strata Reform: Dispute resolution changes and reforms to protection of purchasers The Law Society of Western Australia Thursday, 26 October Freedom of information and its applicability to litigators The Law Society of Western Australia
Friday, 20 October Parliamentary drafting and legislative update The Law Society of Western Australia
November 2017 Membership Events Saturday, 11 November Young Professionals on the Bay Cocktail Party Royal Freshwater Bay Yacht Club Thursday, 23 November Welcome to the Profession Breakfast Parmelia Hilton Hotel CPD Seminar Wednesday, 1 November Family Law Forum The Law Society of Western Australia
Thursday, 2 November Law firms must manage cyber risk The Law Society of Western Australia Friday, 3 November Elder Law forum – addressing elder abuse The Law Society of Western Australia Wednesday, 8 November Competition law – the next big things – where are we going? The Law Society of Western Australia
For all CPD-related enquiries please contact email@example.com or (08) 9324 8614. For all membership-related enquiries please contact firstname.lastname@example.org or (08) 9324 8692. For all upcoming events and further information please visit lawsocietywa.asn.au
48 | BRIEF OCTOBER 2017
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