Brief September 2017 by The Law Society of Western Australia

VOLUME 44 | NUMBER 8 | SEPTEMBER 2017

CHANGE FOR LAWYERS How to cope mindfully with the change coming our way

Volume 44 | Number 8 | September 2017

CONTENTS

ARTICLES

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

Letter to the Editor

2017 Cluedunnit Kids Competition

Access to Justice in Multicultural Australia

Law Council’s Justice Project: Time to stop people slipping through the cracks of our justice system

Published monthly (except January)

A Judicial Dilemma: Will It Write?

RRP $16.00 incl GST. Printed by Scott Print

An international will or a will in each jurisdiction?

Editor: Jason MacLaurin

A guide to non-party cost orders

Legal Influences – across centuries and borders

Change for Lawyers: How to cope mindfully with the change coming our way

Ellul v Congregation of the Christian Brothers

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Advertising enquiries to Manager Marketing and Communications: Moira McKechnie Tel: (08) 9324 8650 | Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Brett Syme

Deputy Editor: Moira Taylor Editorial Committee: Gregory Boyle, Rebecca Collins, Robert French, Melissa Koo, Jason MacLaurin, Alain Musikanth, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor Proofreaders: Sonia Chee Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact communicationsofficer@lawsocietywa.asn.au

REGULARS

President: Alain Musikanth

02 President's Report

46 Professional Announcements

04 Editor's Opinion

47 Classifieds

42 Family Law Case Notes

47 New Members

44 Law Council Update

48 Events Calendar

45 Pam Sawyer

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

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

Reconciliation Action Plan I am pleased to report that the Law Society’s Innovate Reconciliation Action Plan (RAP) 2017-2019 has received endorsement from Reconciliation Australia. Innovate RAP is the next stage of the RAP process, acknowledging and building upon the work undertaken by the Society over the past two years through its Reflect RAP. The Society’s RAP is an expression of our commitment to promoting respect for Aboriginal and Torres Strait Islander cultures, contributing to increasing Indigenous representation in the legal profession and developing the discourse around legal issues which adversely affect Aboriginal and Torres Strait Islander peoples disproportionately. The Society is proud to have achieved some important goals during its Reflect RAP journey over the past two years. The Society has established a RAP Working Group, started its ‘Closing the Gap’ strategic campaign and developed Welcome to Country and Acknowledgement of Country protocols for Society events. During 2016-2017, as a part of the Society’s ‘Closing the Gap’ strategic campaign, nine policy statements were published relating to issues contributing to the increasing incarceration rates of Aboriginal and Torres Strait Islander peoples in Western Australia, and responses were requested from major political parties. The policy statements are available at lawsocietywa.asn.au/lawreform-and-advocacy/#closing-the-gap. Recruitment and procurement policies have been developed to ensure that it is known that the Society welcomes Aboriginal and Torres Strait Islander applicants and considers Indigenousowned companies when conducting business, while the Society’s induction pack for new employees now includes information regarding our RAP and associated activities. I would like to thank the Society’s RAP Working Group for leading the development of the RAP, and Reconciliation Australia for working with the Society in helping to shape our priorities for the next two years. I encourage all members to familiarise themselves with Innovate RAP, to help implement it proactively and to continue our reconciliation journey together.

02 | BRIEF SEPTEMBER 2017

Innovate RAP may be accessed at lawsocietywa.asn.au/reconciliationaction-plan.

Quality Practice Standard

Proposed Constitutional amendments

At the August meeting of Council, a report was tabled containing conclusions and recommendations arising from a strategic review of the Society’s Quality Practice Standard (QPS).

As members would by now be aware, last year Council established the Law Society of Western Australia Constitution Review Working Group. The Working Group was tasked with reviewing the Society’s Constitution in light of the recently enacted Associations Incorporation Act 2015 WA. As part of the review, the Working Group also considered a variety of other matters, including the composition and size of Council, and prepared a series of proposed amendments.

In consequence of the report, Council considered that the QPS scheme has potential to be a high value education service that will respond to members’ needs in a variety of ways including in the tendering for certain types of work, compliance with certain financial providers’ requirements, providing marketing benefits and compliance with certain risk management requirements for the Society’s Professional Standards Scheme.

The Society encourages members to provide their feedback before a final version of the draft amendments is presented to Council for consideration ahead of the Society’s Annual General Meeting on 7 November 2017.

The QPS committee has accordingly recommenced granting and renewing QPS accreditations.

A note summarising some of the proposed changes was provided recently via Friday Facts. The full suite of proposed amendments may be viewed on the members section of the Society’s website at members.lawsocietywa.asn.au. Members may provide any views or comments regarding the proposed changes by email to constitutionreview@ lawsocietywa.asn.au before 5pm on Monday, 11 September 2017.

An operational review of the QPS scheme will also be undertaken with a view to ensuring that the scheme adequately responds to members’ needs. The operational review will be performed in consultation with the QPS Committee, the Professional Standards Committee and the Professional Indemnity Insurance Committee. It is intended that a report reflecting any conclusions and recommendations arising from the review will be presented to Council for consideration by 30 June 2018.

Nominate for Council Unbundling guidelines In the context of the provision of legal services, the terms 'unbundling' or 'unbundled' concern the performance of legal work relating to discrete events or tasks associated with a legal matter as distinct from the performance of all legal work in respect of the matter. How 'unbundling' occurs in individual cases is a question for the practitioner and the client to agree. I am pleased to advise that as part of the Society’s strategic focus on the Future of the Legal Profession, the Society has recently published a set of guidelines on unbundling. The guidelines may be accessed at lawsocietywa.asn.au/resource-centre/ resources-and-guidelines.

Nominations for election to the Society’s Council for 2018 will open in October. The annual elections for Council provide members with an opportunity to become more deeply involved in the work of the Society. Council sets the strategic direction for the Society, ensures good governance and, with the assistance of the Society's committees, acts as the voice of the legal profession through submissions and regular cooperation with government, the courts and other bodies. Nomination forms will be sent to eligible members electronically in early October. I encourage all members to consider nominating for a position on the Council. Look out for further information on the Council elections in the coming weeks.

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

The feature cover article concerning Change for Lawyers by Petris Lapis provides another reminder of the challenges faced by lawyers in adapting to recent technologies, and to changes in the expectations of consumers and the conduct of service businesses generally. One interesting innovation referred to is a new not-for-profit family law firm. Many lawyers have laid the groundwork for this type of concept, having been personally subject to a “definitely and excruciatingly not-for-profit” divorce. It is an interesting time in the law, particularly given the important matters that are being referred to the High Court for expedited hearing. A lighthearted reference in the last editorial to US President Coolidge deciding in 1927 not to re-run for President the next year, perhaps because he had found out he held dual citizenship, understated what turned out to be an explosive problem currently vexing Canberra.1 The controversy, and the public interest in it, has given rise to renewed and heightened interest in the Constitution. It has also resulted in apparently everyone now being an expert upon section 44 of the Constitution. It is an unusual experience having the pizza delivery person contend for a textualist yet purposive interpretation of the full text of the “delivered in 20 minutes or its free” promotion, asserting, amongst other things, that it should be “read down”. The whole dual citizenship affair is also likely to have an adverse effect upon the grandeur of political public speaking. It is difficult to conceive of an Australian politician now coming up with something akin to JFK’s “Ich bin ein Berliner” for fear of being immediately referred to the High Court. And, while Marcus Aurelius is usually good for all occasions, it seems that a declaration that one is a “citizen of the universe” would be political suicide.

04 | BRIEF SEPTEMBER 2017

There must be something about the number 44, because Article 44 of the 1848 French Constitution is in the following terms: “Le président doit être né Français, âgé de trente ans au moins, et n'avoir jamais perdu la qualité de Français” (“the President must be born French, thirty years old at least, and have never ceased to be French”). This led to some queries (considered to be unfounded) as to whether Napoleon III qualified as President of the Second Republic, given he had been enrolled and had served in the Swiss Army. If it were modern times, there would no doubt have been political pressure exerted upon Napoleon III to admit whether he possessed a red pocket knife with the cork screw that frequently fails to perform the required task, and all those mystery blades that are only good for slashing your fingers when you’re trying to find the bottle opener and losing a fingernail in the process of prising it open. As it turned out, Napoleon III had more problems than potential queries about his citizenship qualifications, and he ultimately followed the family tradition of being exiled twice (escaping from prison in respect to the first exile, before being captured and exiled again). There may also be interesting developments in the law should (as appears to be the case) Australia follows the United States in controversies concerning monuments and memorials. This might lead to the development of a new area of the law being, not the law of statutory construction, but the law of statue deconstruction. Such a development would likely result in the autocorrect function playing havoc with written submissions, and inattentive law students discovering, during reading time, that they are sitting the wrong exam. A review of historical and cultural events in September 1927 came up a little light, so recourse was had, for this Editorial, to some other notable anniversaries being celebrated in 2017.

2017 is the 50th anniversary of The Beatles’ Sgt. Pepper’s Lonely Hearts Club Band. An interesting modern parlour game, which may yet reflect legal action that might be taken, would be to select which historical figures upon the album’s cover ought to be removed from it or pixellated. 2017 is also the 50th anniversary of “Bonnie and Clyde” with Faye Dunaway and Warren Beatty. Perhaps the AFL could honour that anniversary by flying out Dunaway and Beatty to host the Brownlow medal count, where they can perform one of their trademark mess-ups and announce Patrick Dangerfield as the winner. Brief wishes to thank and acknowledge the contribution of Moira McKechnie, who has left the Law Society after several years, during which she was instrumental in the running of the Brief editorial committee meetings and the production of Brief generally. This edition contains several items from the present and former judiciary with the Hon Chief Justice Susan Kiefel AC on Legal Influences – Across Centuries and Borders, the Hon Chief Justice Wayne Martin AC upon Access to Justice in Multicultural Australia, and the Hon Nicholas Hasluck AM QC upon A Judicial Dilemma: Will It Write? There is also Fiona McLeod SC on the Law Council’s Justice Project, and articles by Katerina Peiros and Christine Smyth upon the question of International Wills, Adrian Joel and Oliver Cosgrove upon the Ellul v Christian Brothers case, and Chris Bailey on non-party cost orders. NOTES: 1.

Indeed, in the USA, dual citizenship does not present a legal impediment for politicians. And, for celebrities who, for tax reasons or because a certain President was elected need something to renounce, a must.

KBE Human Capital is Western Australia’s leading Legal Recruitment firm. SALARIED/EQUITY PARTNER OPPORTUNITIES PARTNER – COMMERCIAL LAW – Take over a $1M+ practice from Retiring Partner. This is a rare opportunity for a Commercial Lawyer at the Partner or SA/SC level to join a long established firm and take over the practice of a retiring Equity Partner. The firm is highly regarded and consists of Partners from top-tier backgrounds, with a loyal client base and proud reputation in the Perth market. This Partner, one of the firm’s founders, is now planning to transition their clients to a Senior Lawyer over the next 12-36 months. The incoming lawyer will need a strong background in Commercial/Property Law from a leading firm (either mid-tier or boutique), with a significant level of drive to lead and further build the practice over the next 10+ years. PARTNER – CORPORATE/M&A/ECM – international firm. This international firm continues to grow rapidly and gain market share in the local market. With an established and core group of highly motivated top-tier Partners, the firm has committed to doubling in size in Perth within 24 months. Joining as Head of Corporate/M&A/ECM in WA and playing a lead role in building the practice nationally, you will work with Partners throughout the firm’s Singapore, Hong Kong, China and European offices and advise on corporate transactions across SE Asia, the UK, Europe, Africa, the Middle East, and Australia. Transportable practice of $500k+ required. PARTNER – E&R/CORPORATE/M&A – expanding international firm. KBE Human Capital has been briefed exclusively to secure an experienced Salaried/Equity Partner to join the E&R/Corporate/ M&A practice of an award winning international team. The Partners are considered among the leading E&R/Corporate/M&A Lawyers in Australia. The existing structure is ideal for Senior Partners looking to leverage quality SA’s/SC’s to assist in completing complex work, allowing you to focus on managing and further building the practice. The successful Partner will bring across some form of transportable fee base, and leverage wellestablished networks across E&R, Corporate Law, M&A (both public and private) and equity capital raisings. Experience that is focused within the E&R sector across a range of resources projects/ commodities will be highly regarded. The firm is open to speaking with Senior Lawyers of all levels, including those who are approaching the end of their careers and SA/SC level Lawyers who are experiencing glass ceilings, where they can demonstrate a transportable fee base of $400k+. PARTNER – FAMILY LAW – five minutes from the CBD. A leading suburban firm seeks a senior lawyer to join as the Head of Practice in building and leading the Family Law team. The practice attracts a significant volume of high quality work with a loyal referral base of accountants and financial planners, and no fee base is required to take on this leadership position. Innovative Partnership that continues to experience growth in both revenue and profit. PARTNER – PROPERTY – inherit a $500k+ fee base. KBE Human Capital has been briefed exclusively to secure an experienced and driven Property Law Partner for a mid-tier firm. Our client is a large and well regarded WA firm with a strong and robust reputation across Commercial Law, Property, Litigation and Insolvency. With several of the firm’s

most Senior Partners experiencing surplus work flow and as part of the firm’s strategic plan, the group now seeks an established Senior Property Lawyer to move directly into a Partnership role. You will have a $250k+ transportable fee base to add to the circa $500k in existing fees that will be transferred to you. The culture of this firm is collegiate, transparent and meritocratic, with equity available depending on the size of your transportable practice. The Partners are interested in meeting with experienced Property Law Partners who are interested in joining a leading firm, or SA/SC level candidates who are ready to take on a Partner role and build their personal brands in the WA market. You will have experience advising government, listed and private clients across commercial, industrial and retail property, off the plan developments, acquisitions and disposals, drafting and negotiating real estate JV transactions, with the ability to oversee an efficient leasing practice. PARTNER – WORKPLACE RELATIONS – rapidly growing WA firm. KBE Human Capital has been briefed by a well-known WA law firm to secure a Senior Lawyer and Head of Workplace Relations to build and grow their client base. As Head of Practice, you will work closely with the firm’s Partners and Leadership Team to implement and drive business development activities and rapidly gain market share. Our client is seeking a Lawyer from a national/ international or well-regarded boutique firm as they continue to develop their brand and build into the mid-tier space in the WA market. This position would suit applicants with 5-10+ years’ PAE looking to step up and take on a leadership role within a highly collegiate, driven Partnership that dedicates significant time and resources to strategic planning. You will be willing to mentor junior lawyers with demonstrated aptitude for building and maintaining client relationships. The incoming lawyer will inherit a fee base of circa $300k from an outgoing SC level lawyer. PARTNER – WORKPLACE RELATIONS – international firm. Having transitioned their international client relationships into the Australian market, this leading international firm is seeking a Workplace Relations Partner/Special Counsel to build and lead their practice in WA. The incoming Senior Lawyer will benefit from an extensive internal referral network, with the ability to bring across enough work to cover their own salary costs. The firm has a strong reputation in the international market and a clear plan to expand their service offering in WA. This position would suit an experienced Partner or a Senior Associate/Special Counsel level lawyer from a top or mid-tier firm. We are interested in speaking to lawyers with 8+ years’ PAE, who can bring across a transportable fee base of $300K+.

JUNIOR TO MID-LEVEL OPPORTUNITIES BANKING AND FINANCE LAWYERS for three top-tier firms. KBE Human Capital is working with several leading Banking and Finance teams to secure B&F Lawyers with 3-7 years’ PAE. With opportunities at both national and international firms, the successful candidates will have experience from top-tier/international firms dealing with complex transactions, with an interest in mining and energy project financing across Australia and various emerging markets.

CORPORATE LAWYERS for national/international and boutique firms. If you are a Corporate/M&A Lawyer, then you are in very high demand. 2-4 years’ PAE and 4-9 years’ PAE to join a number of Perth’s leading Corporate/M&A teams. These client facing roles will provide the successful candidates with high levels of responsibility and extensive client contact. You will be comfortable advising senior stakeholders and dealing with boards, company secretaries, in-house counsel, regulatory bodies and managing a significant deal flow. FAMILY LAWYER for preeminent family law team. A preeminent multidisciplinary CBD firm is seeking a Family Lawyer with 2-6 years’ PAE. The firm boasts an enviable client base with market leading Partners and one of the most established and successful Family Law teams in WA. You will advise HNW individuals and manage high profile family law cases, with high value asset pools and complex corporate/trust structures. The successful applicant will have a strong work ethic and the ability to demonstrate broad experience in all aspects of Family Law practice. A keen interest in business development and developing your personal brand in the Family Law space will be essential for this role. FAMILY LAWYERS – opportunities across multiple firms. We are currently advising several highly regarded Family Law practices across Perth and surrounding suburbs, who each have particular and unique requirements for their respective teams. The firms vary in size and scope of work available. We are interested in speaking to lawyers with 2+ years’ PAE through to senior practitioners from multidisciplinary or leading boutique firms. You will be confident dealing with clients directly and managing complex property and children’s matters with a significant level of autonomy. Several of our client firms are seeking senior lawyers as part of their succession plans. INSURANCE LAWYER for one of Australia’s fastest growing firms. KBE Human Capital has been briefed by a high profile, national Insurance team to secure a lawyer with 3-8 years’ PAE. The successful applicant will work across high end professional indemnity and financial lines, public liability and product liability. The firm is gaining significant momentum nationally, with a highly collegiate and driven Partnership team. Following consistent growth in the WA office, an opportunity has arisen for an Insurance Lawyer with 3-8 years’ PAE to work closely with a group of Partners across the country with a focus on PI, product liability and general liability. You will have experience in defendant insurance law (or related litigation) with strong attention to detail and a proven ability to work within in a close knit team. Join an industry recognised Insurance team and a firm that offers clear career progression and a supportive, collaborative culture. WORKPLACE RELATIONS LAWYER to join a high profile mid-tier practice. Opportunity for a Senior Associate to step into a leadership role and manage a team of junior lawyers whilst overseeing the strategic direction of key matters. Joining a highly functional and supportive senior management team, you will represent listed and large private clients across the full spectrum of Workplace Relations matters. Fee base of $50k+ and/or BD skills required. If you are interested in having a confidential discussion about the above positions or looking for more comprehensive market advice, please contact Chris Bates or Maryann McKenna.

Chris Bates

Maryann McKenna

Managing Director

Principal Consultant

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

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

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

2017 Cluedunnit Kids Competition The Cluedunnit Kids Competition is co-ordinated by the Society’s Francis Burt Law Education Programme. The Competition strives to teach students in a non threatening environment about the consequences of breaking the law. Students investigate a fictitious criminal offence using statements, photographs and scientific evidence. This year the scenario was based on an incident at the Redbacks’ Hockey Clubrooms. One of the club’s most prized possessions, their 'lucky' shirt had been stolen from the clubrooms at Tarantula Lakes. There were three possible suspects; all around 15 years of age from a rival hockey team, the Black Widows Hockey Club. Students had to investigate the crime and identify the correct suspect. Each school was permitted to ask up to six questions to help them gain more evidence to identify the perpetrator. Using the evidence they had gained, each team then had to present their findings in a creative way. This year 939 students from 41 schools participated in the competition. Of the 41 schools, 34 final submissions were received for judging. The submissions were very creative and submissions were presented in the form of videos, PowerPoint presentations, a board game and a newspaper article.

The judging panel was comprised of Chief Magistrate Steven Heath, Magistrates Court of Western Australia; Magistrate Andrée Horrigan, Children’s Court of Western Australia; Claire Rossi, Legal Aid WA; Senior Sergeant Garry Corker, WA Police; and Christina Do, Curtin University. The judging was based on three main criteria – the correct identification of the suspect, supporting evidence used and the creativity of the presentation. The Judges were very impressed by the high standard of submissions received and the creativity demonstrated by the students. Almost all of the submissions correctly identified the suspect who had committed the crime. It was unanimously agreed that the Case Busters team from St Brigid’s School, Collie were the winners of this year’s competition. Their submission was in a video format and was based on a news programme, the Chin News. The Case Busters team demonstrated a very thorough analysis of the evidence in eliminating the suspects and identifying the correct suspect.

about the crime scenario. The Trinity Detectives also demonstrated a very thorough analysis of all of the evidence. The Ambassador School Award, determined by the manner in which the teams conduct themselves throughout the competition, was awarded to the Donnybrook District High School. On Friday, 23 June 2017 an awards presentation took place at St Brigid’s School, Collie at a school assembly attended by many family and friends of the students. Senior Sergeant Garry Corker spoke to the students about the crime that had been committed in the scenario and the students were then given an opportunity to ask questions. The Society thanks Senior Sergeant Garry Corker and Claire Rossi for their ongoing support and particularly for their assistance in creating the scenario for this year’s competition. The Society also thanks Curtin University for its sponsorship of the Competition which allows the Society to offer this very worthwhile competition.

The Trinity Detectives team from Trinity College were the runner-up school and also presented their submission in a video format which included a board game, a news programme and a song

Proudly sponsored by Photos: 1.

Winning team Case Busters from St Brigid’s School, Collie.

Recipients of the Ambassador School Award, Donnybrook District High School.

06 | BRIEF SEPTEMBER 2017

YOUR EXCLUSIVE MEMBER BENEFITS FOR A MORE REWARDING JOURNEY AT AUTO CLASSIC.

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

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0450 525 025. autoclassic.com.au

LMCT 2271

Beneﬁts apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply. Consult Auto Classic for further details.

A guide to non-party cost orders

By Chris Bailey Principal, Williams + Hughes

Non-party cost orders continue to take on increased importance and prevalence in litigation. It hardly needs to be said how common the impecunious or ‘man of straw’ plaintiff is, particularly given the pervasiveness of complex corporate and trust structures. Security for costs is not always a panacea. Non-party cost orders most frequently arise where a successful defendant seeks costs from a non-party who funds a plaintiff’s case. But they are not limited to cases of funding, nor are they solely available to defendants. The cases dealing with commercial litigation funders have been the subject of considerable literature, and it is not the intention of this article to revisit that particular category. This article is an attempt to draw some of the threads of case law together in relation to other more ad-hoc relationships between the unsuccessful party and the non-party.

The court’s power to make nonparty cost orders The Supreme Court’s discretionary power to order a non-party to pay costs is found in s37 of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme Court.1 Those interested in the historical evolution of the power are referred to Knight v FP Special Assets Ltd (1992) 174 CLR 178. A more recent addition to the legislative framework is O 9A r 1 of the Rules, which requires a party to notify the Principal Registrar and each other 08 | BRIEF SEPTEMBER 2017

party of the presence of an “interested non-party” in the case. The mere presence of an “interested non-party” will not of itself render that person liable for costs. Rather, if an O 9A notice is served, it gives the opposing party the opportunity to put that non-party on notice as to costs. The court is unlikely to grant a non-party cost order unless the applicant has notified the non-party of its intention at a sufficiently early stage in the proceedings. Conversely, if there is a failure to comply with O 9A, so that the presence of the interested nonparty is concealed, the court is likely to be more sympathetic to the successful party later seeking a non-party cost order without prior notice. It is important to note that non-party cost orders can be applied for, and made, subsequent to the making of initial inter partes costs orders. This enables the successful party to come back before the court if the unsuccessful party’s impecuniosity only emerges post-judgment. This is because non-party cost orders are normally made in addition to, and without derogating from, the original inter partes cost orders.2 The court has the power to make supplementary orders after judgment if it is appropriate in the circumstances and where the initial orders are not altered or varied. Interestingly, there has also been an attempt to seek a pre-emptive declaratory order that a non-party be liable for any future costs which may be payable by the plaintiff. In Juniper Property Holdings No 15 Pty Ltd v Caltabiano,3 it was held that the

application was premature and the orders could not be made until the court was called upon to exercise its discretion in relation to costs.

Factors in favour of award of costs against non-party Although non-party cost orders should only be made in “exceptional” circumstances,4 there are certain categories of cases where it may be appropriate to make such orders. The category most commonly relied on is described by Mason CJ and Deane J in Knight (Gaudron J agreeing): For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.5 Knight was of course a case where

a cost order was made against the receiver of the litigant company. Insolvent practitioners, funders and insurers are classes of persons with a particular susceptibility to non-party cost orders given their high degree of interest and control in the litigation.6 The successful party must usually show, as a minimum, that the non-party funded, controlled or stood to benefit from the proceedings. In such cases, the non-party is not deemed to be merely facilitating access to justice for the named party, but rather gaining access to justice for its own purposes. The nonparty is then seen as the “real party” to the litigation and is no longer insulated from adverse cost orders.7 The factors referred to in Knight are not rigid, nor are they closed. In FPM Constructions v Council of the City of Blue Mountains, Basten JA said that the cases in which non-party cost orders have been made “tend to satisfy at least some, if not a majority, of the following criteria: a. the unsuccessful party to the proceedings was the moving party and not the defendant;

b. the source of funds for the litigation was the non-party or its principal; c. the conduct of the litigation was unreasonable or improper; d. the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest, and e. the unsuccessful party was insolvent or could otherwise be described as a person of straw.”8 Since that decision, some further common factors have been identified9 including: •

the level of control the non-party exercised over the litigation;

•

whether the non-party attended the mediation;

•

whether security for costs was sought;

•

whether a timely warning was given by the ultimately successful party to the non-party that costs would

be sought from them; and •

whether the non-party agreed to provide an indemnity for any adverse costs order.

Dealing with the first of Basten JA’s criteria that the unsuccessful party should usually be the “moving party”, I have only come across one instance of a non-party cost order being obtained by a successful plaintiff, at least in the absence of a cross-claim by the defendant.10 The decision to which I refer is that of Master Sanderson in JLLJ Nominees Pty Ltd v Conspect Construction Pty Ltd (No 2).11 In fact, in that case two of the key indicia were missing – the non-party had not funded the defence either. The facts did however satisfy at least (c), (d) and (e) of Basten JA’s criteria: •

it was an oppression claim by a shareholder in Conspect Construction, and the non-party had been personally involved in the oppressive acts as the directing mind and will of one of the other shareholders of Conspect;

•

although the non-party was not personally a shareholder or director

Latest Opportunities – September 2017 With a new season upon us, now is the perfect time to reassess your strategic business needs or long term career goals! To find out how we can assist with your legal staffing requirements or next career move, please contact us for a confidential discussion on our services and full range of available opportunities. Please find below a selection of our latest job opportunities for September, or visit profilelegal.com.au for a full list of current roles.

Senior Associate

Property Lawyer

Corporate M&A

2-4 years PAE

One of many Corporate roles at Associate/SA level. Acting for leading Australian companies, this premier Corporate practice is regularly involved in transactions of national and international significance. The team is looking to strengthen its capabilities at Senior Associate level.

This top tier practice offers true international work, with Perth being the hub for all the firm’s key projects and transactions happening within the region. A brilliant career progression opportunity exists for an exceptional junior lawyer.

You’ll work with a high degree of autonomy to serve the firms existing client base and will develop your own practice over time. Acting on every aspect of major deals, your scope of work will cover M&A, ECM and corporate advisory matters. As part of a leading team which frequently tops the Australian corporate deal lists, you’ll work with recognised industry partners and will mentor juniors in your group. Circa 5 years PAE will ensure your success.

As part of a small team based locally, you’ll have the opportunity to work across every aspect of major real estate transactions, developments and property financings. You’ll work under the direct guidance of awarded partners who are genuinely committed to the development of their team and extremely personable in approach. 2 years + PAE and specialist property or finance law experience is preferred. However, candidates with top-tier firm experience, outstanding academics, a demonstrated history of strong performance and genuine desire to specialise in front-end project work will also be considered.

Stacey Back Director p

www.

.au

of Conspect, he controlled shares through a trust structure of which he was a potential discretionary beneficiary;12 •

he had personally guaranteed Conspect’s bank debts and stood to lose if the court ordered that the plaintiff’s shares be compulsorily purchased;

•

the non-party had sworn affidavits in the oppression proceedings despite not being a director of Conspect;

•

the Master found that the non-party had, in several material respects, not acted bona fide in the defence of the application.

It was also relevant that Conspect had been put into administration during the course of the proceedings. A cynical act of tipping a prospective judgment debtor into administration or liquidation has been held to be a factor relevant to the making of a non-party cost order13, although the doctrinal basis of this is not entirely clear. The case of Emapta Group v Woodville Diagnostics and Imaging (No 2)14 is another instance of a non-party cost order being sought by a successful plaintiff. On this occasion the application against the sole director and shareholder of an insolvent defendant was not granted, although it would appear the director Ms Kew only narrowly avoided liability. Ms Kew had not personally funded the defence, but had caused a related entity to provide funding. She had assumed personal conduct of the defence, despite the fact that a defacto director Mr Davies was the only person who could have given relevant evidence for the defence. The judge was critical of the fact that Mr Davies was not called. Ultimately, the application was refused for three main reasons: a. the plaintiff would have been required to go into evidence to prove its loss and damage even if the defendant consented to judgment, and this occupied the majority of the time at trial; b. Ms Kew did not stand to benefit from the defence, as the defendant was destined to go into liquidation irrespective of the outcome; and c. the plaintiff had the knowledge and opportunity to put Ms Kew on notice as to costs but failed to do so until the first day of trial.

10 | BRIEF SEPTEMBER 2017

Factors militating against nonparty cost order Courts have been mindful not to poke too many holes in the corporate veil given the multitude of claims which are quite properly brought by a corporate plaintiff at the instruction of a director/ shareholder with a pecuniary interest in the company. That same director/ shareholder will often need to give evidence and instruct the company’s solicitors. Accordingly, in these cases a non-party cost order will not ordinarily be imposed without something more, such as the presence of an interest that goes beyond their interest as a mere shareholder15 or some impropriety in the way the non-party conducts itself in the litigation. Non-party cost orders are unlikely to be made if the successful party ought to have joined the non-party to the litigation. It is usually not necessary or appropriate to join the person merely in order to seek costs but the position is different if the non-party was an actual wrongdoer. For example, in Yu v Cao16, a wife was sued for publishing a defamatory email which was in fact written by her husband. The NSW Court of Appeal overturned the cost orders made against the husband on the basis that there was sufficient evidence available before trial of the husband’s wrongdoing and therefore the husband should have been joined (and in fact the plaintiff had been urging his solicitor to do so). Similarly, a non-party cost order is unlikely to be made if the successful party had the opportunity and grounds to seek security for costs and failed to do so.17 Courts are reluctant to make cost orders against pure funders such as relatives or friends of the plaintiff who, without more, provide funding but have no interest or involvement in the claim.18 In relation to actions funded by immediate family members, the general principle is that family ties will ordinarily justify the provision of financial support for the purpose of litigation.19 Interesting questions may arise if the family member takes security over the plaintiff’s assets with the result that they obtain priority in bankruptcy over the defendant.

Conclusions If dealing with a matter where a non-party cost order is a possibility, it is important to tackle the issue early rather than as a post-judgment

afterthought. This is for several reasons. Firstly, as mentioned, a major factor in the courts’ discretion is whether the non-party was given a “timely warning” as to the prospect of being liable for costs. It may also be necessary to write to the opposing solicitors if there is a suspicion that O 9A has not been complied with. Secondly, solicitors may in some instances have an implied retainer with, and owe duties to, a friendly non-party, who may have a reasonable expectation that the solicitor will advise them if they face any potential personal cost exposure. NOTES: 1.

HPM Pty Ltd v Fear [2002] WASCA 249 at [3].

Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 2345; Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [17]; Cameron v Renouf [2008] WASC 60 at [32]; HM&O Investments Pty Ltd (in liq) v Ingram [2013] NSWSC 1778 at [10]; Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 7) [2011] FCA 715 at [19].

[2015] QSC 95.

Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34.

Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192.

See Selig v Wealthsure Pty Ltd [2015] HCA 18 in relation to insurers.

Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39; 1 WLR 2807.

FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 at [210].

Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2015] VSC 644 at [16] (appeal dismissed in Carter v Caason Investments Pty Ltd [2016] VSCA 236).

10.

Note in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 a non-party costs order was made against a director who caused the defendant to run a hopeless defence and counterclaim.

11.

[2016] WASC 21.

12.

An interest of this nature was also sufficient in Ipex Itg Pty Ltd v State of Victoria [2011] VSCA 134 at [19][20].

13.

Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd (2015) 106 ACSR 127 at [78]; Paramount Lawyers Pty Ltd v Haffar (No 2) [2016] NSWSC 906.

14.

[2017] SADC 10.

15.

FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340.

16.

[2015] NSWCA 276.

17.

Juniper Property Holdings No 15 Pty Ltd v Caltabiano [2015] QSC 95 at [35]; Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2015] VSC 644 at [16].

18.

Hamilton v Al Fayed (No 2) [2002] All ER (D) 266; [2003] QB 1175, though note the UK courts are arguably less disposed to ordering costs against a non-party than Australian courts.

19.

Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498.

Legal Influences â&#x20AC;&#x201C; across centuries and borders Freeleagus Oration, Brisbane, Friday 26 August 2016

By The Hon Chief Justice Susan Kiefel AC High Court of Australia

Alex Freeleagus was a prominent lawyer and businessman when I commenced practice as a barrister in the mid 1970s. He had a number of important roles in the community through which he sought to foster cross-cultural links. There can be little doubt that he would have appreciated that an exposure to other cultures can be of mutual benefit. It is the importance of our willingness to be open to other approaches and ideas that I wish to discuss today. It is not uncommon for historians and philosophers to consider that some periods in history were of special importance to the progress of mankind. For the modern philosopher Professor A C Grayling, it is the 17th century1. This may seem an odd choice because we know that it was a period of great turmoil in Europe. It was a century of endless wars including, but not limited to, the Thirty Years' War. It was barely punctuated by peace. Yet despite all of this so much was achieved, particularly in the sciences and in the development of theories of governance and of the law. Professor Grayling begins by observing some major changes which occurred in the first half of the 17th century. Macbeth was first staged in 1606. Shakespeare was writing for an audience which could be assumed to regard the killing of a king to be against the natural order of things, so when it takes place in Macbeth Shakespeare creates calamitous events â&#x20AC;&#x201C; owls falling upon falcons in mid-air and killing them; horses eating each other. In 1649, the King in England was publicly executed. The sacred nature of the King had been

rejected in England in the space of 50 years (France would take somewhat longer). At the beginning of the 17th century astronomers were burned at the stake for advocating the views of Copernicus. Galileo was arrested and put on trial. Fifty years later, numerous publications about the nature of the universe were in circulation. How were fundamental shifts in thinking achieved in such a short space of time? We may not often have a reason to think about how people communicated four centuries ago. Judged by the standards of the internet it may not have been fast, but it is probably not as slow or as inefficient as we might think. A letter from Paris to London took between seven to ten days to arrive by postal service (not much longer than Australia Post sometimes takes to deliver a parcel to my sister in northern New South Wales). By the end of the 16th century a number of developments had made regular, and reasonably efficient, communication possible. Inexpensive paper was available and letter writing was flourishing once again. Printed books were widely available. Europe and England were criss-crossed by a network of fully functional postal services ranging from the imperial and royal to local and private. There were people like Mersenne, a friar and polymath, who served as a kind of one man human internet server. His nickname was the mailbox of Europe2. He was the recipient of letters from almost all the great intellects of the day, which he copied and disseminated. He made the reputation

of many by these means, including Descartes. We can therefore comprehend that scholars in France, Germany, Italy and England were in communication at this time. We may infer that legal scholars and jurists in England were aware of the writings of their colleagues in Europe and vice versa. On the Continent, scholars such as Hugo Grotius and Samuel Pufendorf were working on a new version of natural law theory, which would prove to be influential not only on modern law but also on notions of the governance of nations. Pufendorf published his treatise in Latin, French, German and English. Lord Mansfield, the Lord Chief Justice of England, who understood and was influenced by natural law theories, probably did not need the English translation. This is not to say that principles which were being developed in one place about law and governance directly affected the development of the law in another place, in the sense that they were picked up and applied. But it may reasonably be assumed that a knowledge and understanding of these ideas in one country or region would, unless rejected outright, in some way affect the thinking of people in another. The importation of ideas in the 17th century was hardly a new thing. In the first half of the 5th century BC, a commission in Rome was tasked with drafting a legal code which would clarify Roman law. Ultimately they produced the Ten Tables and later the Twelve Tables. Tradition has it that, in undertaking their task, they 11

sent emissaries to Athens and other Greek cities to study their laws and in particular the Code of Solon. It does not really matter whether the tale is true or not. In the opinion of one scholar3, the influence of Greek thought and practice on early Roman law cannot be dismissed as negligible. It may be that it was Greek legal practices rather than legal philosophy or principle that were adopted by the Romans, for they considered themselves to be the master of their own laws4. Nevertheless it may reasonably be inferred that, in its early ages of development, Roman law was naturally influenced in some way by its contact with Athens and with the Hellenic cultures of southern Italy and Sicily5. The choice of Greek and Roman law as the starting point of a discussion about legal systems and how they may look to one another may also be contestable. There is a theory, albeit somewhat controversial6, that there existed in the Ancient Near East, from as early as the third millennium BC to the first, a common legal tradition. The Mesopotamian legal codes comprised a body of jurisprudence which is said to have influenced the early laws of Greece and Rome. The theory is not so much that there was a direct borrowing of these laws but rather of the legal and intellectual skills necessary to create law. Of course Roman law, after its rediscovery many centuries after the disintegration of the Roman Empire, had a profound influence on the laws of European countries. It was bound together with customary law and canon law of the time and proved to be a unifying force on the Continent. It was not unknown to English law either. It is generally accepted that Roman law doctrine influenced the intellectual organisation of the early English common law. This is unsurprising since many of its scholars were trained in medieval Roman law. By way of example, the principle of Roman law that no right of action arising out of a bare promise is considered to have been established in English law almost three centuries before the action in assumpsit was developed with its theory of consideration7. In the sphere of commercial law, the law merchant existed for some time in parallel with the legal systems of the continent and of England. It developed by reference to customs and best

12 | BRIEF SEPTEMBER 2017

practices in medieval times and was used by merchants throughout England and Europe, at least until these countries developed their own commercial laws. There can be little doubt about its influence on the English common law as much as on civilian law. Lord Mansfield was one of a number of jurists who sought to integrate it into the English common law to achieve a modern commercial law and, to an extent, he succeeded in doing so. Early notions of consideration in English law were not as we know them today. In the action on assumpsit, the consideration which made a promise enforceable by the courts was the subjective motive or reason that a person made the promise. Consideration meant any good reason for making the promise. A promise made for a good reason was legally enforceable because breach of it was morally reprehensible. This reflected the philosophies of the natural law and the canon law. Natural law theory is ancient in origin. It involves a belief that there are universal moral and ethical principles which inform legal norms. There was a resurgence of interest in it in the 17th and 18th centuries but greater attention was now given to reason. In the Doctor and Student, St German identified four kinds of laws. He placed "the law of reason" as second, ahead of "the law of man". This would make legal positivists shudder. Natural law scholars included Hugo Grotius, whose theories are now regarded as providing the foundations for public international law. Its influences were felt in English law. In 1610 Sir Edward Coke, in Dr Bonham's Case8, expressed the view that the common law would strike down legislation which was beyond reason. Although this view was regarded as too radical a step, the influences of natural law theory are evident. Its influences are also apparent in statements made by John Locke â&#x20AC;&#x201C; that there can be no arbitrary power exercised over the life, liberty or possessions of a person. They can be seen in principles such as freedom of religion and expression and in the principle of legality, by which the common law assumes that the legislature does not intend to overthrow fundamental common law principles or infringe rights unless it expresses itself with irresistible clarity.

Lord Mansfield was a proponent of aspects of natural law. He attempted, unsuccessfully, to retain morality as the basis for the enforcement of promises9 as was the case in continental law. In the 19th century legal positivism would turn its face against natural law theories such as these. As a result, they are not as familiar to us because the influence of positivism remains the stronger force. However some interest in natural law theories was revived amongst scholars in both civilian and common law countries after World War II. And every now and again it is accepted that common law doctrines have their source in writings about natural law. The doctrine in our contract law which requires, for a contract to be valid and enforceable, that a party intend to create legal relations falls into this category10. Both Frederick the Great and Napoleon are said to have been interested in natural law theory, although it has been doubted11 that Napoleon was interested in its moral and ethical underpinnings. Nevertheless the French Code Civil of 1804, which Napoleon caused to be drafted, is regarded as one of the great natural law codes. The influences of Roman law remain in the Code Civil and the later German Civil Code of 1900. These codes did not break entirely with the Roman law tradition and remained informed by it. The influence of Roman law therefore extended over many centuries and continues today. Sir Francis Bacon tried, unsuccessfully, in the 17th century to interest others in the codification of English law. It was never to be achieved, despite the efforts, later, of others. Both the civilian codes and the common law have influenced the laws of other countries. The late Bruce McPherson traced the reception of the common law in countries around the world. So too were the civilian codes exported from their countries of origin. It must be acknowledged that their influence, and that of the common law, was not always a matter of choice for other countries. But the fact is that their influence can be seen in South America, where the Code Civil shaped the laws of Bolivia, Chile, Uruguay and Argentina, at least until interest in the German Civil Code halted its influence. The French influence was also felt in Turkey, Egypt, Lebanon and Syria. And, as an oddity of history, because

Louisiana was a French possession purchased by the US government from Napoleon, its laws remain based on the Code Civil. The German Civil Code helped shape the Japanese Civil Code. It played an important role in the laws adopted in South Korea and has influenced the interpretation of legal sources in Thailand, Brazil and Peru. The Japanese experience furnishes a good example of "codification by request". In the latter half of the 19th century, when the leaders of Japan decided to trade with the West, they adopted western knowledge and institutions. The common law was taught at the Imperial University in Tokyo from 1874 and Japanese students studied law in France and in Germany. But it was the German Civil Code which proved most influential in Japan. This is not to say that it was applied as it was in Germany. It was adapted to the needs of Japanese society. However, it is said that a continental lawyer would nevertheless recognise many of the legal rules in Japanese law12.

A code has the virtue that it is, in form and nature, capable of adaptation in the sense mentioned. This is not the case with respect to the body of jurisprudence which makes up the common law. Its virtue, if it be right to call it that, is otherwise. It is internally adaptable, which codes are not. The common law is able to modify itself over time. But it is more difficult for another country to adopt it and adapt it to its social and historical settings. Where the common law has been received in other countries it has been as a part of the transposition of British culture.

the courts of the United Kingdom on occasion showed their willingness to align the common law with European Community law principles, even though they were not obliged to do so. Over these years continental and EC influences have shaped some areas of the English common law and have in significant part contributed to a divergence between the English and the Australian common law. And of course if it shapes the law it must be shaping judicial thinking. It will be interesting to see what direction the courts of the United Kingdom take post-Brexit.

The influence of the Continent has more recently been felt by the English common law from European Community laws and the judgments of the European Court of Justice and the European Court of Human Rights. Even before the Human Rights Act13 came into force in England in 1998, the English courts had already shown a preparedness to adopt some European administrative law principles, such as legitimate expectations and proportionality. Even without rulings from European Community courts with respect to the English domestic law,

There have been other continental influences on English law in recent times. Like the scholars of the seventeenth century, English academics are aware of civilian laws in their area of speciality. Theories of unjust (or as some continental systems would say, "unjustified") enrichment furnish good examples. Here academic writings have achieved a level of acceptance by the courts of the United Kingdom of these theories and a rejection of those propounded long ago by Lord Mansfield. Some of this academic thinking has been influenced

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

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

– N AT H A N A E L K I T I N G A N

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

N E X T S E M E S T E R C O M M E N C E S 1 9 F E B R U A RY 2 0 1 8 ENROL ONLINE: collaw.edu.au/alp / 1300 506 402 / alp@collaw.edu.au

by civilian law. It is well known that the late Professor Peter Birks was familiar with German law and was a convert to the theory expressed in the German Civil Code, which holds that an absence of a legal ground for the retention of property suffices on its own as a basis for liability to make restitution. It is not just judgments of domestic courts and academic papers which shape legal thinking. Jurists from many countries and different legal systems are now brought together to make up international courts. It is commonplace for lawyers to attend conferences in other countries where topics ranging beyond their own domestic law are discussed and approaches of other systems compared. We have perhaps been rather slow to engage more deeply in an understanding of the legal systems of countries in our region. That is changing. Dialogues with a number of the courts of countries such as India, Singapore, Hong Kong, Indonesia and Malaysia are developing. Next month a delegation from the High Court will for the first time meet with the President of the Supreme Court of the People's Republic of China and other judges at the invitation of the President. That is not to say that there are no barriers to the attainment of knowledge and the sharing of ideas. It needs to be acknowledged that some of the fundamental principles of our laws are not shared by other systems. This does not mean that we cannot talk. And an understanding of the influences that other legal systems have had upon the development of laws in a country might assist. Language is perhaps the greatest barrier of all. Australian citizens have poor language skills by comparison with their English, European and Asian counterparts and by comparison with educated people long ago. Fortunately English is becoming more common and translations of decisions of some civilian courts are becoming more accessible. The focus of legal education in Australia also limits our knowledge of and our interest in legal thinking elsewhere. Not every university teaches legal history, so law students cannot easily reach back to the past for an explanation of why the law is as it is. Although comparative law had

14 | BRIEF SEPTEMBER 2017

a promising start in Australia â&#x20AC;&#x201C; the first comprehensive comparative law courses were offered by the University of Melbourne in 1948 â&#x20AC;&#x201C; it has not generally been regarded as a valuable discipline. The difficulty for most judges, beyond a lack of exposure to other legal systems, arises largely from language. They must necessarily rely only on comparative law texts which are written in English. Instinctively they want to know not just what a foreign law is said to be, but how it is actually applied and this requires access to the decisions of the courts. Common law judges may find it difficult to accept that all that can be involved in judging in countries whose laws are codified is a rigid application of the Code requirements to a case, that civilian judges have no choices to make, make no law at all and have no interpretive or inventive function when dealing with the shortcomings of Codes or other statutory rules14. They may be right. In 1992 Sir Anthony Mason15 said that the High Court looked to what other systems of law might say about a problem because legal problems are human problems and not unique to one legal system. The statement is perhaps best understood as expressing an idea: of a Court the members of which are receptive to other ideas. I do not think it can be suggested that the Court's level of interest in the jurisprudence of other, non-common law, courts has ever been high. And on occasions, it must be said, the Court has spoken against even the consideration of foreign ideas. The fact that an approach to legal reasoning has a non-common law source has been erected as a barrier to an understanding of whether that approach may furnish, if not a solution to our legal problems, at least a better understanding of why we approach them in the way that we do. Nevertheless the Court has on occasions looked to civilian law in areas such as torts, competition law and choice of law. More recently it has adopted proportionality analysis for constitutional law purposes. The idea of testing for proportionality developed in Europe under the influence of the aforesaid natural law school and the origins of proportionality theory are also thought to be ancient. It involves an appeal to reason and has achieved wide influence in many legal systems.

Proportionality analysis was adopted as a non-exclusive tool for determining the limits of legislative power where a statute restricts a constitutional freedom. In general terms, it requires that a legislative restriction, on say freedom of speech about political matters, go no further than is necessary to achieve a constitutionally legitimate object and that the degree of restriction be in proportion to the importance, from a public interest perspective, of the statutory objective. Other constitutional legal systems do not use proportionality quite in this way. It has been applied in the Australian context in much the same way as foreign laws and ideas have always been adopted and adapted. The greatest barrier to an understanding of other approaches to legal questions and to ideas about how the law might be improved is ourselves. Of course this assumes that an openness to other ideas is a virtue and that is not a view universally held. Some members of the Supreme Court of the United States, the late Justice Scalia in particular, have considered an isolationist perspective to be something of a badge of honour. That approach may be contrasted with institutions like the American Law Institute which functions on a comparative law model and invites discussion from jurists and academics from other countries. Professor Grayling's theory of what facilitated the major changes of the 17th century is that change was possible despite the tumults of the times because of the failure of authority. The breakdown of control over ideas allowed change to happen. More importantly, for present purposes, he identifies the key to these changes and advances as lying in the minds of the 17th century intellects (who, he points out, included women)16. The point to be made is that some of these advances could not have been made if these people's minds were not open to new ideas and they were not prepared to critically and rationally analyse entrenched views. One may accept that Roman law has been influenced by other thinking and that it, in turn, has influenced the law in many countries over many centuries. Natural law theories have helped shape the way in which law and society is organised and it has helped develop laws to be applied

internationally. Whole legal codes have found their way into and been adapted by other legal systems. These influences are only possible because decision makers, scholars and advocates were receptive to other ideas and approaches. This is not possible if we seek solutions only in the law that we have been taught or if we limit our exposure to ideas to the judgments of our own courts.

be looking elsewhere. Nonetheless, a consideration of other approaches promotes a better understanding of our own system of law. It does so largely through the process of comparison. More subtly, that understanding may affect our legal thinking and by that means influence the future shape of the law.

In the age of the internet we are able to transmit a legal idea across the world in an instant, but it might not enter one legal mind. None of our technologies matter unless we are open to different ideas and approaches. This does not mean that they must be adopted and it does not imply that it is only us who should

Law, 1st ed (2015) in L Dodd, Brin Mawr Classical Review, (2015). 7.

Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition, 2nd ed (1996) at 555.

(1610) 8 Co Rep 113b; 77 ER 646.

Simpson, "Innovation in Nineteenth Century Contract Law", (1975) 91 Law Quarterly Review 247 at 262.

10.

Simpson, "Innovation in Nineteenth Century Contract Law", (1975) 91 Law Quarterly Review 247 at 263-264.

11.

A C Grayling, "The Age of Genius: the 17th Century and the Birth of the Modern Mind" (2016).

LĂźcke, "The European Natural Law Codes: The Age of Reason and the Powers of Government", (2012) 31(1) University of Queensland Law Journal 7 at 30-31.

12.

A C Grayling, "The Age of Genius: the 17th Century and the Birth of the Modern Mind" (2016) at 132.

von Mehren, "Some Reflections on Japanese Law", (1957) 71 Harvard Law Review 1486 at 1487-1488.

13.

Human Rights Act 1998 (UK).

Calhoun, "Greek Law and Modern Jurisprudence" (1923) 11 California Law Review 295 at 302.

14.

Barry Nicholas, "An Introduction to Roman Law", 2nd ed (1975) at 1.

A point made by Kahn-Freund, "Comparative Law as an Academic Subject", (1966) 82 Law Quarterly Review 40 at 50-51.

15.

Calhoun, "Greek Law and Modern Jurisprudence" (1923) 11 California Law Review 295 at 302.

A Mason, "The Relationship Between International Law and National Law, and its Application in National Courts" (1992) 18 Commonwealth Law Bulletin 750 at 753.

See review of Westbrook, Ex Oriente Lex: Near Eastern Influences on Ancient Greek and Roman

16.

A C Grayling, "The Age of Genius: the 17th Century and the Birth of the Modern Mind" (2016) at 17.

NOTES:

Unconscious Bias Fundamentals for Legal Practitioners 1 hour online CPD Module Lawyers typically make a multitude of decisions daily that affect themselves and others, and when unconscious biases are in play, the outcomes may be less than optimum and often contrary to oneâ&#x20AC;&#x2122;s intentions. In this interactive course, practitioners will learn about the concept of unconscious bias, how it affects their business and industry, and will equip themselves with tools to increase their effectiveness in decision making situations.

This online seminar is hosted by Symmetra on behalf of Law Council Australia

Supported by the Law Society of Western Australia For more information and to book visit lawsocietywa.asn.au

16 | BRIEF SEPTEMBER 2017

Change for Lawyers How to cope mindfully with the change coming our way By Petris Lapis Director, Petris Lapis Pty Ltd

The legal profession is on the same roller coaster of unprecedented levels of change as the rest of the world. We think we are used to change because that is the nature of law thanks to the changing landscapes of courts, the business environment, technology and government. Now we are also experiencing a world where books, DVDs, taxis and hotels are being replaced by other alternatives. Banks are experiencing pressures from peer to peer lending and accountants from software which can rapidly provide the same advice that previously only they could.

What is changing for lawyers? The following five trends are impacting the legal profession1: 1. Outsourcing: This trend has already impacted other professions and is now impacting the legal profession. Some paralegal and litigation support tasks such as coding and document review are being outsourced saving time, money and the need to have some skills. 2. Artificial Intelligence: Legal research has been done online for some time, but artificial intelligence will become only cleverer at predicting rulings, conducting research and making recommendations. Although it will make our roles much more efficient, artificial intelligence will also come with a whole new set of challenges in how we charge for time and how we ensure the advice we are giving is correct. 3. Social Media: It has now become part of how we market our legal services, how we recruit, how we conduct research into the people we are recruiting and how we gather evidence to support our clientâ&#x20AC;&#x2122;s position. It is so ingrained in some of our lives, that one lawyer I know touches her smartphone in the morning to check social media before she says good morning to her partner. 4. A Multi-Generational Workforce: For the first time in history we now have four generations working side by side in the legal workspace. We have traditionalists,

baby boomers, generation X and generation Y working together. People are now working longer and this means that, in some places, there is a generation gap of over 50 years between the youngest and the oldest employees. 5. Alternative Billing Models: The traditional billable hours model was not popular with our clients and was seen as rewarding inefficiency. New models for billing have arrived and will continue to evolve as the use of artificial intelligence becomes more common in our roles. We will be faced with difficult choices about how much to bill a client when what would previously have taken you 30 hours of detailed research can now be done in minutes thanks to intelligent software. Clients are also seeking certainty in relation to their legal fees for the year and in some cases would prefer to be paying a monthly retainer, rather than paying for piecemeal legal advice. Global research by Deloitte has found other issues from a worldwide survey of legal clients. Nearly half of all legal service providers interviewed indicated that regulatory compliance, mediation and arbitration and litigation were growing areas in their businesses. However, the same researchers also found that loyalty to a law firm was not guaranteed. More than half (55%) of those interviewed said they had recently reviewed their arrangement with their legal supplier or would be doing so within 12 months. 17

Deloitte also found that what people wanted from their law firm was now changing. Instead of pure legal advice, clients also wanted their lawyers to have more industry, commercial or non-legal expertise. They thought it would be helpful if they had digital, data, privacy and cyber security skills and if they were more proactive with their knowledge sharing. This may eventually result in law firms having partnering arrangements with other professions so that clients' needs can be more fully serviced.

Interesting changes that have already happened Here are some changes I have already seen professionals undertake: •

a not-for-profit family law firm;

•

the use of emoticons in all emails by one law firm because putting a happy face at the end of an email makes sure the other party knows you aren’t looking to escalate a dispute;

•

networking with other professionals such as accountants, bankers, financial planners, insurance brokers, health professionals or anyone else who may potentially make referrals to you (and vice versa). This networking is being done not only face to face over coffee, but also via monthly seminars where clients and a range of professionals are invited. In one case, each month three people are invited to make a ten-minute pitch on what they are doing to see if there are avenues for working together with anyone else in the room;

18 | BRIEF SEPTEMBER 2017

•

one firm has a ‘digital festival’ every six months to keep clients up to date on some of the latest technology they could be using in their business and any legal issues associated with it; apps which help people track what stage their file is at (e.g. text alert when search sent off to a government department or when lease sent to tenant), when their next meeting is, the government bodies they will need for different issues etc.; and strategic positioning of law offices into non-traditional physical locations such as health or innovation hubs.

How to embrace the change mindfully As lawyers, we are traditional and conservative and now we are being asked to embrace some of the biggest changes our profession has seen in years in order to stay relevant. Change requires energy, motivation and some level of discomfort as we are heading into uncharted waters. Change can be a good thing. If you are old enough to remember cassette tapes you had to wind with a pencil when they broke, you will know what I am talking about. Have you ever been in a home that was for sale? There was a frenzy of cleaning, moving and fixing things you had tolerated for years. The day before the first open home, you step back and look at this sparkling house and wonder why you ever wanted to leave such a lovely place. Your legal practice could probably benefit from the same treatment. Take this disruption as an

opportunity to practise innovation and see new ways of operating to which you had not previously paid attention. Mindfulness asks that you acknowledge and accept the need for change. It is neither good nor bad, it is what it is. The coming changes are inevitable and we can embrace and prepare for them or we can practise denial and play catch up at a later time. Acceptance requires us to look honestly at where we are and then start gently taking the steps we need to get to where we want to be. Tackling change in one huge leap is overwhelming, but if you can find one small thing at a time to change, you will slowly but surely absorb the changes that are coming. Start with something easy such as meeting or ringing one new contact a week who could be part of your referral network. Each time you take a step, however small, towards changing the way your business is done, your brain gives you a squirt of its internal reward drug, dopamine. Each time you take a step towards a goal or cross something off your ‘to do’ list, dopamine is also the reason you get that nice little ‘feel good’. Open a Twitter account and get the feel good. Set up a Facebook page for your business and feel good. Look at ways of expanding your network of referrals and feel good. Start small. Start anywhere and begin embracing the journey of change which is coming our way. Remember it is neither good nor bad, it is merely an opportunity. NOTES: 1.

www.legalscoops.com/7-trends-changinglegal-industry/, Deloitte Future Trends For Legal Services Global research study, June 2016, https:// www.thebalance.com/trends-reshaping-legalindustry-2164337.

W LE NO LAB AI AV

LEVERAGE THE POWER OF THE LAW SOCIETY’S CPD PROGRAMME

The Law Society’s CPD Programme is your complete CPD solution delivering • 30+ seminars across all four competency areas • 40+ eLearning seminars • 90+ seminar papers • 80+ thought leaders • A diversity of seminars, workshops, interactive forums and webinars to suit your preferred learning style

P: (08) 9324 8640 E: cpd@lawsocietywa.asn.au W: lawsocietywa.asn.au 19

Ellul v Congregation of the Christian Brothers Redress and reform of civil litigation with reference to the stolen generations

By Adrian Joel and Oliver Cosgrove*

Ellul & Others v Congregation of the Christian Brothers & Others1 was commenced as a Class Action in the Southern Circuit of the New York District Court on behalf of members of the Australian Stolen and Forgotten Generation. The lead Plaintiffs were Australian Child Migrants – children transported from the United Kingdom and Malta and placed in Australian institutions operated by Religious Orders. The events described in the Pleadings2 presented in part a commonality with events that occurred to other groups, namely wards, orphans and Aboriginals.

1. The ubiquitous “Ellis Defence”. The defence is based upon the Trustees of the Roman Catholic Church v Ellis & Anor (2007) NSWCA 117. Most religious orders, including the Defendants, have operated as unincorporated voluntary associations. The nature of such entity in the religious context was and is too amorphous to be able to ascribe any liability, regardless of merit of the Plaintiffs’ claim. Effectively, there is no legal entity than can be sued in the Australian context. This position also extinguishes equitable relief.

The primary Defendants were the Congregation of the Christian Brothers (the Congregation) and the Sisters of Mercy (the Sisters).

2. The position is exacerbated (if possible) in that the alleged events occurred in Western Australia, thus invoking Sections 27 and 28 of the draconian Limitations Act (1935). These provisions in effect extinguish accrual as a determinative factor as to commencement of a limitation period. Cross vesting legislation means any attempt to commence action in another state will fail and the matter would be returned to Western Australia.

The issue of forum Forum refers to the jurisdiction where proceedings can and should be commenced. It may be viewed as both sad and a matter of concern that the “natural forum” for members of these Australian groups is the United States. It is profoundly difficult to enter the U.S. jurisdiction. The Plaintiffs answered the allegation of “forum shopping” by virtue of establishing there was and is no forum for the most vulnerable people in Australia. Purported goodwill is no substitute for the fundamental entitlement to access to justice.

Claims

No remedy in Australia

The central allegation asserted was child trafficking; the alleged improper removal and transportation for the purpose of forced labour. Each of the Plaintiffs was allegedly a permanent working boy or girl. The boys were “trained” in labouring and the girls in various aspects of “domestic service”.

Currently there is a plethora of legal impediments that extinguish remedy in Australia, which include:

The Plaintiffs asserted that as at the time of the conduct of the institutions (the relevant period) the Congregation

20 | BRIEF SEPTEMBER 2017

of the Christian Brothers was: •

An international religious Order based in Dublin (now based in Rome).

•

Governed in a hierarchical structure by their Superior General and by chapters of elected delegates.

•

Operated institutions in Australia where child labour and abuse allegedly occurred.

Similarly, it was claimed that the Sisters of Mercy operated institutions throughout the world as part of an international religious Order.

Defence The Congregation asserted that at the relevant time it was known as the Rome Congregation3, an entity unrelated to whatever entity operated the institutions in Australia. Thus the self-titled Rome Congregation never operated orphanages, work farms or even offices in Australia and had been improperly named as a Defendant as they have been and remain the Rome Congregation.4 They were an independent unincorporated association of men, always based in Rome without any agency relationship with any other entity who may have operated schools, orphanages, farms anywhere.5 The Plaintiffs asserted that the term “Rome Congregation” is merely a term used to describe the Congregational Leadership Team, now based in Rome and it is not and never has been a separate religious entity. The Sisters of Mercy similarly adopted a defence also asserting they have never been an international religious

Order. Rather, the name of the Order is simply a generic term employed by autonomous regional associations. As with the Congregation, there is not and never has been any international Order and thus no agency relationship with any entity in Australia.6

The Judgement7 The Court accepted the claims of the Defendants in their entirety. The Congregation/Rome Brothers were never present or operated institutions in Australia and there was no evidence that whatever entities did operate the institutions were under the control of the Rome Congregation. The Rome Congregation was and remains an entirely distinct and independent legal entity. It was also accepted that the Sisters of Mercy was a generic name simply used to describe religious women who were members of autonomous, independent local organisations. Thus on the jurisdictional question the Defendants succeeded. It may be a matter of concern that the historical factual pattern asserted by the Plaintiffs in New York constitutes the identical factual pattern presented as evidence by the Congregation before the Royal Commission into Institutional Responses to Child Sexual Abuse.8

Appeal The Court of Appeal upheld the Decision9 without challenging the jurisdictional issue. The Court relied

upon application of the limitation period. The Appeal was heard contemporaneously with the conduct of the Royal Commission.

The significance of Ellul with respect to redress and amendments to facilitate civil litigation Ellul establishes a new “layer” of defence, strengthening the extinguishment of remedy within Australia, and indeed throughout the world. It is a jurisdictional defence based upon the claim that the international Orders who conducted the institutions were never present in Australia (or other relevant countries). Thus the victims are obliged to litigate against distinct, allegedly independent entities who may not even have existed at the relevant time (for example, the Province of Oceania did not commence until 2007).10 Redress refers to the voluntary, nonlitigious response of the religious Orders who operated the institutions. The foundation of such process must be premised upon genuine recognition of culpability. The Ellul defence may serve to challenge the process of reconciliation. The Plaintiffs remain angry and deeply upset at the successful claim that the Orders were never present in Australia. The issue arises as how, in the above context, the Religious Orders may provide monetary payments, counseling and psychological care concurrent to the denial of culpability.

Similarly, it is imperative that a domestic response to Ellul be formulated in the process of reform to civil litigation. If such action is not taken the defence will only emerge as at the commencement of litigation in Australia. ABOUT THE AUTHORS: Adrian Joel is an immigration and administrative lawyer who prepared the brief with Oliver Cosgrove for the US Attorneys, Sharma De Young who conducted the litigation in New York.

NOTES: 1.

Ellul District Court Case Citation Ellul et al v. The Congregation of Christian Brothers et al, No. 1:2009cv10590 - Document 35 (S.D.N.Y. 2011)

The original pleadings entitled “Nature of the Case”.

Memorandum of Law in Support of the Congregation of Christian Brothers motion to dismiss the class action complaint paragraph 1, page 2.

Ibid., paragraph 2, page 3.

Ibid., paragraphs 3, page 3 and paragraph 1, page 4.

Declaration of Patricia McDermott Case 1:09-cv10590-PAC Document 13 Filed 05/10/10.

Judgment of United States District Court. (http://cases.justia.com/federal/district-courts/ new-york/nysdce/1:2009cv10590/356756/35/0. pdf?ts=1411557419).

Royal Commission into Institutional Responses to Child Sexual Abuse. Refer Royal Commission Case Study 11, paragraphs 6-38 as affirmed at paragraphs 11-13 of “Submissions in Response to Submissions of Senior Counsel Assisting Case Study 11 from the Truth Justice and Healing Council”. See also transcript of evidence presented to Royal Commission 6/5/2014 at pages 2228 – 2294 http://www.tjhcouncil.org.au/royal-commission/ case-study-11-christian-brothers,-perth/casestudy-11-transcripts.aspx.

U.S. Court of Appeal 8/12/2014 Ellul v. Christian Brothers, No. 11-1682 (2d Cir. 2014) (http://caselaw.findlaw.com/us-2ndcircuit/1685873.html).

10.

Ibid., paragraph 12, Case Study 11.

Shearn HR Legal - Human Resource + Recruitment is one of the leading, longest standing, legal recruitment agencies in Perth. With Julianna Shearn at the helm, holding more than 20 years’ pure, legal recruitment experience and just under 5 years’ as a lawyer, it is your best resource for career advice and guidance, salary and performance appraisal advice, recruitment solutions and assistance, partner and team movement advice and assistance and overall legal recruitment expertise. Call now for a confidential discussion about your most important asset, you or your firm!

Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

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

Access to Justice in Multicultural Australia Council of Australasian Tribunals National and New South Wales Joint Conference Edited version of paper presented in Sydney, 8 June 2017 By The Hon Wayne Martin AC Chief Justice of Western Australia

The formation of COAT Amongst the reasons I am particularly honoured to address this conference is the fact that I was present at the conception and birth of COAT, 15 years ago, in my capacity as a member and then President of the Administrative Review Council. It was that Council which hatched the idea of forming a body which could represent the interests of the burgeoning administrative tribunals around Australia and provide a forum for the exchange of skills and experience gained in the increasingly important work performed by administrative tribunals. I was engaged in the communications to and between the heads of the major tribunals at that time and was very pleased to see the enthusiasm with which they embraced and enhanced the idea, creating an international peak body representing administrative tribunals throughout Australia and New Zealand in 2002. I have taken a degree of modest paternal pride in the many achievements of COAT over the last 15 years. The importance of administrative tribunals in the justice system A chronicle of the many developments in the field of administrative tribunals over the 15 years since this organisation was created would be a distraction from this paper. However, it is relevant both to the theme of this conference "Tribunals: enablers of justice", and to the theme of my paper, to note that administrative tribunals in Australia and New Zealand are a vital component of the structures for the administration of justice in each of those countries. The issues presented to and resolved by administrative tribunals include issues of the utmost importance to the very lives and existence of the

22 | BRIEF SEPTEMBER 2017

people whose cases are determined by those tribunals - including, for example, in the immigration jurisdiction, the capacity to remain in the country in which a person wishes to live, or in the residential tenancies jurisdiction, the capacity to retain suitable accommodation. The exponential growth in the jurisdiction of administrative tribunals has meant that administrative tribunals are, for many people, their most frequent point of contact with the justice system. For many people, an administrative tribunal is their pathway to justice, which is why the theme of this conference is so apt. The Judicial Council on Cultural Diversity This is also why the Council of Chief Justices has recognised that administrative tribunals should be represented on the Judicial Council on Cultural Diversity, which I presently have the honour of chairing. COAT has a nominee on that council, currently Ms Anne Britton, and each of the Australian umbrella tribunals has been invited to nominate a member to act as a "champion" for cultural diversity within that tribunal, and to act as a conduit for information passing between their tribunal and the Judicial Council. I will return to the work of the Judicial Council a little later in this paper, after some general observations with respect to the significance of multiculturalism and the nature of equality.

The significance of multiculturalism Unless you have been living in a cave for the last 50 years or more, the increasingly multicultural character of the population on both sides of the Tasman

will have been obvious. There are various ways in which the increasing extent of multiculturalism can be expressed demographically or statistically. Because the growth of multiculturalism is so apparent, I will not descend to the data, but I will express some words of caution in relation to the data most frequently cited, which draws upon the percentage of residents born overseas. Some words of caution on demographic data First, the fact that a person was born overseas does not necessarily mean that he or she has different cultural characteristics to what might loosely be called mainstream Australia. The two largest proportions of Australian residents born overseas were from the United Kingdom and New Zealand (just over one quarter of all Australians born overseas).1 When account is taken of migrants from other English speaking countries, it is likely that one-third or more Australian residents who were born overseas speak English as their first language and come from a culture which is not markedly different to the dominant culture of Australia. The second important note of caution relating to reliance upon statistics of persons born overseas is that, of course, those numbers do not include indigenous people. For those of us not of indigenous descent, statistical distinctions between those who were born overseas and those who were born in Australia, only serve to distinguish between those who were born overseas and those whose parents or earlier ancestors were born overseas. The third note of caution I would provide in relation to reliance upon demographic data expressed numerically is that

numbers do not necessarily provide a reliable guide to the significance or magnitude of the issues pertaining to a particular cultural group. So, for example, in my State of Western Australia, although Aboriginal people comprise only approximately 3.75% of the population, they make up about 40% of the adult prison population and between 70% and 80% of those in juvenile detention. To take another obvious example from the field of administrative tribunals, whatever the proportion of persons born overseas within the community as a whole, they will generally comprise 100% of the people exercising the immigration jurisdiction of an administrative tribunal.

over-representation in prisons on both sides of the Tasman. The major projects undertaken to date by the Judicial Council, and to which I will shortly refer, also show that there is significant room for improvement in the ways in which Australian courts and tribunals use interpreters to provide linguistic access to justice for those who do not speak English. Our work has also shown significant room for improvement in the accessibility of Australian courts and tribunals to Aboriginal and Torres Strait Islander women and migrant and refugee women.

The nature of equality How well does the justice system respond to increasing multiculturalism? The rapid growth in the multicultural character of our communities raises the question of the extent to which our justice systems respond appropriately to the increasingly multicultural components of the communities served by that system. It is very difficult to provide a general or single answer to that question for a number of reasons, including the significant lack of data and research in the area, and the multifaceted character of the various components which together comprise the justice system, and the many and diverse characteristics of those who together comprise the group generically described as Cultural and Linguistically Diverse (CALD). However, to the extent that there is research data available, and the work undertaken by the Judicial Council to which I will refer shortly, both suggest that there is significant room for improvement in the relationships between the various components of the justice system and the CALD community.2 Social surveys have consistently shown that those who have migrated to Australia tend to have greater confidence in police than in the courts.3 Surveys also show that migrants who arrived in Australia more than 10 years ago have less confidence in the courts of the country than those who arrived more recently.4 As far as I am aware, there is no equivalent survey data reporting the confidence of indigenous people in police and courts. However, for obvious reasons I think it would be naively optimistic in the extreme to believe that indigenous people have any greater confidence in the courts than migrants. To the contrary, there is every reason to think that indigenous people are likely to have very limited confidence in a justice system which has resulted in their significant

24 | BRIEF SEPTEMBER 2017

Understandably, discourse on the manner in which the law and the courts respond to a particular class or group within our society is often replete with reference to equality of treatment. Both the courts and community regard equality before the law as a principle of paramount importance. As French CJ, Crennan and Kiefel JJ observed: "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, or lawfulness, which is immanent in every legal order". It has been called "the starting point of all other liberties".5 However, equality can be an elusive notion. It can lie, like beauty, in the eye of the beholder. It can and often does mean different things to different people and it seems likely that lawyers and judges apply a meaning to the term which is rather different to that applied by sociologists. Formal equality When lawyers and judges refer to equality, they apply the notion of formal equality attributed to Aristotle - that "things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness".6 In legal terms, this requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: Equal justice requires identity of outcome in cases that are relevantly

identical. It requires different outcomes in cases that are different in some relevant respect. [emphasis in original]7 So, application of the legal principle of equality depends critically and fundamentally upon the identification of all the characteristics that are relevant to the legal outcome. In Bugmy v The Queen8 the High Court confirmed that Aboriginality was irrelevant to the sentencing process, although circumstances of social deprivation often associated with Aboriginality were relevant to that process. So, applying Aristotle's notion of formal equality does not require Aboriginal offenders to be sentenced differently to non-Aboriginal offenders, but it does require offenders who have suffered extreme social deprivation to be sentenced differently to those who have not experienced such circumstances, and it requires all those who have suffered such experiences to be treated alike, irrespective of whether or not they are Aboriginal. Substantive equality On the other hand, sociologists are more inclined to assess the outcomes of any process for the purpose of ascertaining whether the process provides substantive equality to all who are subjected to it. As Professor Catharine MacKinnon has pointed out in the field of gender equality, even though most western democracies have had laws prohibiting discrimination on the ground of gender (in the legal sense) for many decades now, women in those societies remain significantly underrepresented in most areas of leadership. This suggests that the structures and processes which allocate leadership roles within those societies disadvantage women and to that extent do not provide substantive equality to women. A sociologist might take the same view of a justice system in which 40% of the prison population come from 3.75% of the general population. A lawyer and a sociologist might well arrive at different conclusions as to whether the justice system is treating that group equally. When is culture legally relevant? Because the legal notion of equality turns upon the identification of characteristics that are "relevant" to the legal outcome, there have been cases in which attention has been given to the question of whether a person's cultural background is "relevant" in this sense. One of those cases is Bugmy to which I have already referred. There are two decisions of the High Court relating to the defence

of provocation to a charge of murder which, if not excluded by the prosecution, means that the accused is not guilty of murder but guilty of manslaughter. Given the Judicial Council's work in the area of access to justice for CALD women, and which significantly involved domestic violence, these cases provide a convenient means of analysing the law's approach to the relevance of the cultural characteristics of an alleged violent offender or his or her victim. Provocation has two components - the first relating to the nature of the conduct which is said to have provoked the accused, and the second relating to the loss of self-control by the accused. It is well established in Australia that the second limb requires an objective test to be applied by reference to the likely reaction of an "ordinary person" and that the only personal characteristic which can be attributed to that hypothetical person is age. In Masciantonio v The Queen,9 McHugh J considered that in addition to the characteristic of age, the characteristics of race, culture and background should be attributed to the hypothetical "ordinary person". In his view: Without incorporating those characteristics, the law of provocation is likely to result in discrimination and injustice. In a multicultural society such as Australia, the notion of an ordinary person is pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo-SaxonCeltic origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo- Saxon-Celtic heritage, that being the stereotype of the ordinary person with which the jurors are most familiar. â&#x20AC;Ś unless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in inequality before the law. Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of those minorities. If it is objected that this will result in one law of provocation for one class of persons and another law for a different class, I would answer that that must be the natural consequence of true equality before the law in a multicultural society when the

criterion of criminal liability is made to depend upon objective standards of personhood.10 This approach raises interesting and difficult questions. If cultural background is relevant to the legal outcomes, is the law condoning cultural characteristics which might be regarded as improper, such as the subordination of females? Do laws of that character discriminate against victims from that cultural background, by providing them with unequal protection against offences? The difficulties inherent in these issues are neatly illustrated by differing views expressed with respect to the decision of the High Court in Moffa v The Queen,11 which was also a case concerning provocation, in which the High Court recognised that the ethnic and cultural background of the accused could be taken into account in assessing the first limb of the defence - namely, the limb concerned with the character of the provoking conduct. Justice Michael Kirby commented favourably on the decision extracurially.12 However, others were less laudatory: In Moffa's case, an Italian male was partly excused for the killing of his wife because of his ethnically linked hot bloodedness.13 Associate Professor Bird condemns the decision because it embeds "stereotypes in the law which are profoundly racist" and also because the "inclusion of male versions of ethnic characteristics and belief systems into a structure that is already male further disadvantages women".14

Is the legal system monocultural? The interesting issue which we have just considered in the context of provocation raises a broader issue with respect to the extent to which the substantive law administered by a legal system must be monocultural, or whether the law can and should apply legal standards drawn from the culture of the participants in the legal process. Taking that issue one step further raises the question of whether more than one legal order can inhabit the same physical territory. In Australia that further question has been considered in the context of the recognition of Aboriginal customary law,15 and on each such occasion the notion of pluralistic legal systems existing alongside each other has been rejected. However, there are other jurisdictions in which pluralistic legal systems are well established, such as those countries in which a system of religious courts operates alongside

a system of secular courts, often with co-extensive or at least overlapping jurisdiction, and it is to be remembered that a system of ecclesiastical courts operating alongside secular courts was well established in medieval England. Associate Professor Luke McNamara has suggested that Australia's embrace of multiculturalism as official government policy has not been associated with any significant impact upon Australia's laws or legal institutions. He refers to the gap between a polyethnic population and a monocultural legal system.16 He cites Alastair Davidson, who observed: It is not flippant to say that a multicultural Australia incorporated souvlaki and dragon dances, but not the legal, political and ethical voices of its myriad NESB [non English speaking background] newcomers â&#x20AC;Ś [I]n the realm of legal and political arrangements â&#x20AC;Ś the monocultural Anglo-Celtic past did not disappear when multiculturalism became state policy in Australia. 17 These are difficult questions. The point made by McHugh J in his cri de couer in Masciantonio and by those who propose that multiculturalism should bring about change in substance, not just in form, are well made. On the other hand, Associate Professor Bird's observations with respect to the risk of cultural stereotyping and the entrenchment of gender disadvantage, and the risk that a law which takes account of cultural background might discriminate against victims from that cultural background are also powerful considerations. These are important issues of public policy which I respectfully suggest might attract the attention of the legislature. However, unless and until there is legislative change, legal recognition of cultural diversity can only be accommodated through the common law. The common law of Australia has and will continue to change over time, in response to changing social conditions including the impact on Australian society of different cultures and ethnic groups.18 While the evolution of the common law is iterative, it is also limited: legal pluralism the substantive recognition of other legal systems as law in Australia - is simply a "bridge too far" and must appropriately remain a matter for the legislatures and not the courts.

The Judicial Council on Cultural Diversity No doubt the reason I have been asked to address this topic despite my monocultural background is that I have

the honour to represent the Council of Chief Justices as the inaugural Chair of the Judicial Council on Cultural Diversity (the Council). The Council was formed under the auspices of the Council of Chief Justices at the suggestion of the Migration Council of Australia (MCA), which generously provides secretariat resources and support to the Council, although the Council remains independent of the MCA and reports to the Council of Chief Justices.

an issue arises with respect to clothing worn by a witness or party to proceedings which obscures or partly obscures their face. However, the two items of work completed by the Council which I think are likely to be of greatest interest to those attending this conference are the Council's work with respect to the use of interpreters, and the Council's work on access to justice for women from CALD backgrounds.

Essentially the Council is an independent body established to provide advice and recommendations for the assistance of Australian courts and tribunals, judicial officers and tribunal members, administrators, and judicial educators to enable us all to respond positively to evolving community needs arising from Australia's increasing cultural diversity.

Interpreters

The Council comprises representatives from all Australian geographical jurisdictions and all levels of court. Unlike me, many of the judicial officers serving on the Council come from diverse cultural backgrounds. Those resources are augmented by additional members with particular expertise and experience in issues associated with cultural diversity, and who are not judicial officers or tribunal members. It is important to emphasise that the Council's area of interest is not restricted to cultural diversity arising from recent migration, but extends to and includes the issues associated with the cultural diversity of Aboriginal and Torres Strait Islander communities, being issues which have a profound effect upon the justice systems of this country. To that end, the Council also has an Aboriginal member, and has amongst its membership a number of judicial officers who, like me, have a particular interest in this area.

The work of the Council The Council has completed a number of projects, including a detailed submission to the Productivity Commission's inquiry into access to justice arrangements, and a scoping study of all Australian jurisdictions identifying the systems, resources and information available to assist court users from culturally diverse backgrounds which has been published on the Council's website. An online training program on cultural diversity for judicial officers, developed under the auspices of the Council, is about to be launched. The Council is also well advanced on the publication of a practice note for the assistance of courts and tribunals dealing with the matters appropriately considered when 26 | BRIEF SEPTEMBER 2017

The outcome of the Council's work on the use of interpreters in courts is to be the subject of a detailed session later in this conference. I will not pre-empt or duplicate the matters to be addressed in that session by reporting in detail on the outcomes of the Council's project, but it is nevertheless appropriate to describe the general nature of the project and its objectives. The primary objective of the project was to identify and encourage the implementation of best practice standards relating to the use of interpreters in and in connection with court hearings and court processes. Although the project was conducted with particular reference to the use of interpreters in courts, as you will see tomorrow, many of the best practice standards identified in the course of the project are equally applicable to the use of interpreters in tribunal hearings, or in connection with tribunal hearings. The project was overseen by a subcommittee of the Council chaired by Justice Melissa Perry of the Federal Court of Australia, who was ably assisted by judicial officers from other jurisdictions. At the risk of invidiously singling out particular contributors, I would make particular mention of the very substantial contribution made by Justice Francois Kunc of the Supreme Court of New South Wales. The subcommittee's work was very substantially assisted by two consultants with special expertise in the field, including Professor Sandra Hales, who will be addressing the conference tomorrow, and the Honourable Dean Mildren AM RFD QC, former justice of the Supreme Court of the Northern Territory. The project involved extensive consultation with stakeholders, including various groups and organisations involved in the provision of interpreter services and a member of the National Accreditation Authority for Translating and Interpretation (NAATI) served as a member of the subcommittee. Through our consultations we soon learned that current practices in Australia with respect to the area of interpreters in courts and tribunals fall

well short of best practice in a number of respects. It quickly became clear to the subcommittee, and to the Judicial Council, that there were so many variables relating to the use of interpreters that it would be impossible to promulgate prescriptive standards to be applied in all situations and circumstances. The number and availability of trained interpreters differs widely from language to language, as do the resources available for the engagement of interpreters, as do the facilities available for the accommodation and placement of interpreters in hearing rooms. As a consequence, the practice standards developed in the course of the project have, of necessity, a degree of flexibility, and have been specifically designed to encourage the use of the best practices that can be attained in the relevant circumstances. So, for example, the standards expressly recognise that the same standard of qualifications and experience cannot be expected of an interpreter of an Aboriginal language spoken by a relatively small group of people as might be expected of an interpreter of Mandarin or Cantonese. The standards also expressly recognise that in the case of languages spoken by a small group, the same characteristics of impartiality and disinterest might not be achievable as in the case of the interpretation of a language widely spoken. Publication of the standards, with annotations explaining how they are intended to operate and some practical guidance, together with model rules and a model practice direction has been authorised by the Council of Chief Justices and will occur both in hard copy and on the website of the Judicial Council in the near future. There will also be a formal launch of the project within the next month or so.

Access to justice for women from CALD backgrounds The Judicial Council has recently completed a project relating to access to justice for women from CALD backgrounds, including both indigenous women and migrant and refugee women. As with the interpreter project, the project was undertaken primarily by reference to courts, although many of the issues identified in the course of the project, and the framework for the improvement of access to justice developed as the product of the project are equally applicable to tribunals.

Although the issues arising in relation to access to justice for indigenous women are in many respects similar to the issues which arise in connection with access to justice for migrant and refugee women, there are also significant differences. In light of those differences, separate processes of consultation, and separate discussion papers were prepared in relation to indigenous women on the one hand, and migrant and refugee women on the other. Those consultations established that all women from CALD backgrounds encounter very substantial barriers in the path of access to justice in Australia. The papers published by the Judicial Council summarising the outcomes of those consultations19 record the multifaceted nature of those barriers in areas such as: •

arriving at court - including the need for better signage

•

waiting times

•

safety at court - including the need for safe waiting areas

•

difficulties understanding forms, orders and decisions

•

the need for improved case coordination dynamics within the hearing room

•

judicial attitudes and actions

•

the need for cultural competency training

•

the risk of abuse of processes

•

limited opportunities for referrals to men's behavioural change programmes

•

improving engagement with CALD communities

•

the need for more information about CALD court users and their experiences

•

the recruitment of CALD personnel to work in courts

A National Framework The commonality of many of the issues identified in the course of the project allowed for a single (national) framework to be developed, applicable to both indigenous and migrant and refugee women.20 I would make the point however that this single framework is also to a degree the result of constraints on courts and tribunals with reference to the kinds of measures they can implement. For example, indigenous women might prefer indigenous sentencing courts aimed at integration of indigenous

community members in the court process, rehabilitation of the offender and restoration of the family rather than a purely punitive criminal justice response.21 But without government resourcing and support of those facets of the justice system beyond the courts such measures are difficult to sustain over time.22

Excellence.23 Those seven areas are:

The framework which reflects the outcomes of the project has just been finalised and will shortly be distributed to heads of Australian courts and tribunals, and to the cultural diversity "champions" on each court and tribunal. What follows is a necessarily incomplete summary of the framework, intended to identify its key features and whet appetites for a more detailed consideration of the framework. The framework starts from the proposition that the provision of equal justice is a core value and principle underpinning any justice system worthy of that description. At the most general level, the achievement of equal justice for women from CALD backgrounds requires, as a minimum: •

that women must be able to understand and be understood, which in turn requires access to appropriately trained interpreters supported by policies and practices which appropriately reflect and value the role of an interpreter and which are implemented by appropriately trained personnel, including judicial officers;

•

that women must have sufficient understanding and awareness of the justice system, how it works, and the protections which the law offers;

•

that the justice system must be free from unconscious bias and discrimination, proceedings must be conducted fairly and impartially by personnel and staff who possess a level of cultural awareness with respect to the challenges and barriers faced by women from CALD backgrounds, including the intergenerational trauma and institutional discrimination suffered by many indigenous women and the potentially adverse impact of pre-arrival experiences of migrant and refugee women, together with contemporary pressures on women which may be applied within indigenous, migrant and refugee communities, together with an understanding of gendered inequality and gendered violence.

The framework aligns with the seven areas for court excellence outlined in the International Framework for Court

•

leadership and management;

•

planning and policies;

•

resources (human, material and financial);

•

proceedings and processes;

•

client needs and satisfaction;

•

affordable and accessible services; and

•

public trust and confidence.

Leadership and management The framework recognises that leadership from judicial officers and court administrators is essential to demonstrate a commitment to providing equal justice and equal access to justice for women from CALD backgrounds. The framework proposes that those leaders should consider the impact of demographic shifts upon users of their services and reflect upon the changes which may be necessary to respond to those shifts. The leaders must also develop a systemic approach to the resolution of cultural and linguistic issues, complemented by meaningful engagement with local communities and facilitated by the establishment of cultural diversity committees and partnerships with other organisations involved in the provision of services to CALD women. Consideration should be given to regular meetings with key stakeholders, including legal practitioners regularly representing CALD women, community visits, the celebration of diversity on occasions such as NAIDOC Week and Harmony Day, and the provision of open days and tours to improve public understanding of the court and its processes. Planning and policies The framework proposes that courts should develop clear plans to implement the framework and develop strategies for working with women from CALD backgrounds. Resources The framework proposes that resources, human as well as material and financial, must be efficiently and proactively managed so as to meet the particular demands of CALD users of those resources. Judicial education and professional development programmes should specifically address the skills required for the provision of equal justice to all users, irrespective of their cultural

or linguistic characteristics. Similar training should be provided to staff, and employment strategies should be directed to increasing the representation of indigenous staff and staff from migrant and refugee backgrounds. If resources permit, cultural liaison officers should be appointed, charged with the responsibility of assisting women from CALD backgrounds to complete paperwork, understand where to go and when, providing information about processes and procedures, familiarising women with the physical facilities at the place of hearing, assessing the need for an interpreter and coordinating interpreting arrangements, together with coordinating access to support services and legal advice.

approach which should be taken with respect to the use of interpreters; •

includes recommendations with respect to the steps that should be taken to ensure that CALD women feel physically safe when participating in court processes, including by the provision of separate waiting areas for cases involving family violence;

•

proposes that other steps should be taken to reduce the stress upon women participating in proceedings, including the provision of an opportunity to visit the hearing room prior to the case being heard, sitting women in the hearing room in a place at which they cannot see an alleged offender, allowing women to be accompanied by support workers, and, where necessary, closing the hearing to the public to minimise the potential pressure exerted by the presence of community members; and

Proceedings and processes The framework recognises that if any hearing process is to be fair, it is essential that all involved understand the process and are able to contribute fully to the proceedings. The framework proposes that Magistrates Courts should consider introducing education sessions for women applying for intervention orders, and all courts should consider developing video resources and written materials that explain the court process to women, specifically targeted to particular cultures and language groups that are significantly represented amongst the users of the particular court. Client needs and satisfaction The framework proposes that data should be collected with respect to the cultural, linguistic and gender diversity of users, because lack of demographic information might adversely impact upon the ability to respond to the particular needs of those users. The framework identifies the particular topics that should be addressed in the data collected, including court-user satisfaction levels and experiences. Affordable and accessible services The framework proposes that brochures should be prepared and distributed explaining services in plain English and in key community languages. The framework also proposes that a resource list should be given to women from CALD backgrounds and identifies the topics that should be addressed in that resource list. The framework also: •

draws attention to the issues and principles identified in the course of the interpreters' project;

•

provides general guidance as to the

28 | BRIEF SEPTEMBER 2017

•

recommends the improvement of signage, which in many court areas is inadequate, to provide court users with information about where they should go, and where they might go for assistance.

Public trust and confidence The framework proposes that public trust and confidence will be enhanced if courts demonstrate an awareness of the barriers faced by court users from CALD backgrounds, and demonstrate their willingness to address those barriers, and their responsiveness to honest and genuine feedback. Meaningful engagement with diverse communities in the development and implementation of the various steps outlined in the framework is also likely to improve public trust and confidence amongst the migrant and refugee communities, and indigenous communities. The framework also proposes systems for monitoring and evaluation, and includes a helpful checklist of actions that might be taken in the implementation of the various measures proposed in the framework.

comprehend and respond to the complex issues which often arise. Administrative tribunals are a vital component of the justice system and will often be, in effect, the face of the justice system to many from linguistically and culturally diverse backgrounds. In this paper I have endeavoured to identify some of the issues which arise when courts and tribunals face up to the obligation to provide equal justice to all, and to identify the way in which some of those issues can be addressed utilising the work undertaken by the Judicial Council on Cultural Diversity. An active, diligent and informed response to these issues is essential if courts and tribunals are to achieve their fundamental objective of providing equal justice to all. NOTES: 1. 2.

Including, of course, indigenous people.

For example, the 2013 Scanlon Foundation survey found immigrants' level of trust in police was between 10% and 15% higher than their level of trust in the legal system (Prof Andrew Markus, Mapping Social Cohesion: The Scanlon Foundation Surveys 2013 (2013) 50).

Ibid.

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 [28].

Aristotle, Ethica Nichomachea (Trans W D Ross) (1925) Book 3 at 1131a-1131b, as summarised by Prof Peter Weston, "The Empty Idea of Equality" (1982) 95(3) Harvard Law Review 537, 543.

Per French CJ, Crennan and Kiefel JJ in Green v The Queen, n 5 above.

[2013] HCA 37; 249 CLR 571.

[1995] HCA 67; 183 CLR 58.

10.

Ibid, 73, 74.

11.

[1977] HCA 14; 138 CLR 601.

12.

The Hon Justice M D Kirby "The 'Reasonable Man' in Multicultural Australia" (Ethnic Communities Council of Tasmania, Cultural Awareness Seminar, Hobart, 28 July 1982) 7, 8.

13.

Associate Professor Greta Bird "Power politics and the location of 'the other' in multicultural Australia" (1995) 5.

14.

Ibid.

15.

See, for example, Australian Law Reform Commission, Recognition of Aboriginal Customary Law (Report No 31, 1986); Law Reform Commission of Western Australia, Aboriginal Customary Laws (2006).

16.

L McNamara, "'Equality before the law' in polyethnic societies: the construction of normative criminal law standards" (2004) 11(2) Murdoch University Electronic Journal of Law 18.

17.

Ibid, citing A Davidson, "Multiculturalism and citizenship: silencing the migrant voice" (1997) 18(2) Journal of Intercultural Studies 77, 77, 82.

18.

See Australian Law Reform Commission, Multiculturalism and the Law (Report No 57, 1992) 187.

19.

The papers are available at jccd.org.au.

20.

Judicial Council on Cultural Diversity, National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women (2016).

21.

Olsen A & Lovett R, Existing knowledge, practice and responses to violence against women in Australian Indigenous communities: State of knowledge paper (2016) 2.

22.

Wayne Martin AC, "Reflecting on the Practice of Nonadversarial Justice" (Second International Conference on Non-Adversarial Justice: integrating theory and practice, Sydney, 6 April 2017) 17.

23.

International Consortium for Court Excellence, The International Framework for Court Excellence (2nd Edition) (2013).

Summary and conclusion If the justice system is to provide equal justice to all, irrespective of cultural and linguistic differences, all the components of the justice system must be aware of, and responsive to, the particular needs of those who come from diverse cultural backgrounds and who do not have sufficient facility with English to

See, for example, Australian Bureau of Statistics, Migration, Australia, 2015-16 (Cat No 3412.0) (2017).

Become a member of

The Western Australian Club The Western Australian Club is a leading business and social Club in WA. A modern facility with great respect for itâ&#x20AC;&#x2122;s proud history and tradition, becoming a member of our Club means becoming a part of our tight knit community. Celebrate an authentic part of WA culture, build valuable business relationships, and enjoy a premium venue all while soaking in the sights of our beautiful Swan River. To enquire about membership please contact us on membership@waclub.com.au or call us on (08) 9481 7000.

The Western Australian Club Address: The Penthouse, Level 11, 12 St Georges Terrace, Perth Contact: (08) 9481 7000 | Email: membership@waclub.com.au

Law Council’s Justice Project Time to stop people slipping through the cracks of our justice system

By Fiona McLeod SC President, Law Council of Australia

All Australians have the right, under the law, to seek justice. Yet this right means little when you cannot exercise it because you can’t get the help you need. That’s the problem now facing countless Australians, and it’s getting worse. Tens of thousands of those who need help most are slipping through the cracks of our justice system every year. Australians facing complex social and economic challenges encounter more serious legal issues, typically including dealings with government agencies, the health system, consumer issues, and spiralling debt. Yet without the means to afford legal advice most of these issues are left to slide. Twenty years of steady cuts to the legal assistance sector mean that free advice is harder and harder to access. Community legal centres are turning away 160,000 people a year due to lack of capacity, while an additional 10,000 people a year are facing the courts alone due to cutbacks. More than 13 percent of the population lives under the poverty line, yet legal aid is only available for eight percent of Australians. Resources in the Family Court and Federal Circuit Court are so scarce that wait times for final hearings are pushing three years in some registries. A case related to the permanent living arrangements of a child may take years to reach final resolution, compounding the pressure on families already under the strain of separation.

30 | BRIEF SEPTEMBER 2017

Many of the legal issues encountered by people who experience significant disadvantage are tremendously important. They involve, for example, people’s access to a secure income, to secure housing, to safety and protection, to the fair resolution of claims and to a fair trial when accused of a crime. Over time, even minor unresolved complaints can mutate into more complex matters, clogging up the courts and creating enormous personal stress and serious social and economic consequences. Accumulation of fines, for example, can reinforce poverty, increasing the risk of homelessness or contact with the criminal justice system. A major driver of the catastrophic imprisonment rates of Indigenous Australians, particularly Aboriginal women, is unpaid fines. Julieka Dhu, an Aboriginal woman who died in custody in 2014, was arrested for owing $3,000. Over recent decades, new policies, including those that aim to be ‘tough on crime’, have driven up legal need and exacerbated access to justice problems for people who are already having difficulty negotiating a complex system.

These policies and laws have typically been developed without consideration of the ripple-on effects, putting untold pressure on legal assistance services and the court system, and heaping pressure on healthcare, housing, and child protection services. As a society we accept that equality before the law and access to justice are fundamental to the rule of law, which in turn underpins the quality of our economy and society. Yet we have watched as a person’s formal right to seek justice has been rendered useless as that person’s effective access to legal remedy has eroded. The Australian legal profession has labored for years to mitigate this crisis by working for free. Each Australian lawyer contributes an average of one week of pro bono each year. Yet this year the legal profession decided it needed to do more, and that is why the Law Council of Australia is undertaking The Justice Project. Under the guidance of a steering committee led by former Chief Justice of the High Court, the Hon Robert French AC, a comprehensive national investigation into access to justice for people who experience significant disadvantage is currently underway. Following months of research overseen by eminent lawyers, academics, and jurists, the Justice Project has released a range of new consultation papers relating to groups identified to be at a significant social or economic

disadvantage: older Australians, young Australians, LGBTI people, homeless persons, recent arrivals, those in regional, rural and remote areas, and many others. This research will be distributed widely for public comment and, over the coming months, the Law Council will take the Justice Project on the road, through dozens of discussions Australia-wide. The aim is not to tell disadvantaged groups what they need, but to allow those affected to share their personal perspective of the justice system. To make it easier for individuals to tell their stories, the Law Council has also developed plain English and audio materials which are available online. The overarching aim is to take our access to justice crisis out of the realm of numbers and into the realm of lived experience. The Justice Project will examine the system using a people-centred perspective, based on everyday legal problems and the system’s response. We are also identifying what is working well and demonstrating the considerable innovation that exists within the justice sector, despite the pressures it is under. At the end of this year, the Justice Project will draw together its findings in an interim report. The recommendations will provide evidence-based approaches for achieving access to justice – approaches that both reduce costs to the community and overcome the barriers that vulnerable people face.

Australia can and should be a nation that prides itself on the fact that we are all equal before the law. We have a long way to go from here, but, through the individual contributions of many, the Justice Project can show us how to get there. To read the consultation papers, and get involved, visit justiceproject.com.au The Consultation Paper topics are: a. Introduction and Consultation Questions; b. Aboriginal and Torres Strait Islander peoples; c. People with disabilities; d. Older persons; e. People experiencing economic disadvantaged; f.

Homeless persons;

g. Children and young people; h. Prisoners and detainees; i.

People who are trafficked or exploited;

LGBTI People;

k. Recent arrivals to Australia; l.

Asylum seekers;

m. People who experience family violence; and n. People residing or working in regional and remote areas of Australia.

2017 John Toohey Oration

The UWA Law School and John Toohey Chambers invite you to join us for the 2017 John Toohey Oration The John Toohey Oration honours the career and contribution to public life of a distinguished graduate of The University of Western Australia, Justice John Leslie Toohey. After graduating in Arts and Law, the Honourable John Leslie Toohey AC QC went on to become an outstanding legal practitioner and one of the country’s most eminent jurists.

Further information on the event can be found online: law.uwa.edu.au/the-school/news/2017-john-toohey-oration

The 2017 John Toohey Oration will be delivered by Greg McIntyre SC and will address the articulation by the Honourable John Leslie Toohey AC QC, in the course of his legal and judicial career, of the fundamental rights and freedoms which form part of the universal norms of a democratic society and are protected by the Rule of Law.

RSVP: The lecture is free and open to the public, no RSVP is required.

32 | BRIEF SEPTEMBER 2017

Date: Wednesday, 27th September 2017 Time: 6:00pm - 7:30pm Venue: University Club Auditorium, UWA

For any questions about the event, please contact Tash Terbeeke natasha.terbeeke@uwa.edu.au or 6488 2961.

The Law Society’s wellbeing and resilience programme LawCare WA has a holistic approach to wellbeing and resilience. Membership of the Law Society provides complimentary access to LawCare WA to help you manage your career, life, health and wellbeing.

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

A Judicial Dilemma: Will It Write? By The Hon Nicholas Hasluck AM, QC

The act of writing A judge’s obligation to provide reasons for judgment can be accompanied by a twinge of apprehension: will it write? Will a preliminary conclusion succumb to second thoughts in the act of writing? This judicial dilemma, the need for self-examination, reflects the close relationship between preparing reasons and the judge’s final decision. The act of writing may take the jurist to another level, a solitary realm with room enough for ingenuity and nuance, a place infused with insights drawn from personal experience and legal history.

Chimes at midnight

conducting a dubious recruiting drive, even Falstaff is repelled by the avidity with which Shallow seeks to relive their sleazy adventures of yesteryear. ‘We have heard the chimes at midnight, Master Shallow,’ Falstaff agrees, but without enthusiasm, conscious that Shallow’s boastful ramblings as a self-anointed man of the world will lead only to a reminder of their age and approaching mortality. Upon Shallow’s departure, Falstaff mutters to himself: ‘How subject we old men are to this vice of lying! This same starved justice hath done nothing but prate to me of the wildness of his youth. And the feats he hath done about Turnbull Street, and every third word a lie.’

The plays of Shakespeare have much to say about various legal dilemmas, and certain scenes in his two great history plays, Henry IV Parts I and II, cast light upon the exercise of judicial power. They are remembered also for the way in which Prince Hal shakes off the fat and disreputable friend of his youth, Sir John Falstaff, and adopts the remote demeanour of a king. Along the way we are presented with two denizens of the legal system – the Lord Chief Justice of the King’s Bench and an egregious country justice, Master Shallow. These two lawyers not only come from different levels of the judicial hierarchy but are so unlike each other that they could be seen as a personification of the difference between order and disorder: a familiar preoccupation of the legal system.

The two judicial officers are fictional characters, and not to be taken too seriously. Even so, within a brew of fact and fiction, and validated to a certain extent by the wisdom of the bard, they are worthy of further consideration. They remind us in a roundabout way that judicial strengths are always at risk of being undermined by human flaws. They remind us also, as indicated by Prince Hal’s transition from wayward youth to commanding monarch, that a broad experience of life can be turned to account. Falstaff’s shrewd appraisal of Master Shallow suggests that power plays in the king’s court and shenanigans in the world below are but mirror images of each other, and the threat of disorder will always be with us.

The Chief Justice speaks to the courtiers around him in this manner: ‘Sweet princes, what I did, I did in honour, led by the impartial conduct of my soul’. When Prince Hal, now Henry the Fifth, arrives to review the prospects of his new regime he commends the Chief Justice for ‘his bold, just, and impartial spirit.’ The Chief Justice is, in effect, being complimented for his courage and judicial independence.

The hearing and deciding of cases

On the other hand, in an earlier scene, where Falstaff is forced to converse with Master Shallow in the course of 34 | BRIEF SEPTEMBER 2017

These reflections bear upon the central feature of a judge’s life: the hearing and deciding of cases, the resolution of disputes. So let me return to the credo mentioned in the Chief Justice’s scene: impartiality and judicial independence. These requirements, and the notion that cases are to be decided not by reference to the judge’s personal views, but strictly in accordance with existing law, are central to the handing down of judicial rulings. They bring with them an obligation to provide reasons for

judgment as a normal incident of the judicial process. Because the courts must conduct their proceedings in public, and justice must be seen to be done, the parties and those with an interest in the matter are as much entitled to know the reasons for a decision as they are to see the witnesses. Moreover, if the case be taken further, the appeal court will be impeded in its function if no reasons have been given. It is of critical importance for a judge of first instance to assess the evidence and make findings of fact. If the appropriate ruling is obvious the judge’s reasons may well be provided immediately in an oral form. In other cases, and especially as to cases taken on appeal, the matter may be difficult to decide because it is new, or the relevant legal principles are unclear, or the materials before the court are substantial. In an extra-curial essay written in retirement, a former judge of the High Court of Australia, Sir Frank Kitto observed that the only worthy question, where circumstances do not positively require an immediate judgment, must surely be: will an oral judgment serve the proper purpose of a judgment as well as a written one would do? By reserving judgment the judge knows from experience that the very exercise of thinking and rethinking gives greater opportunity for detecting hidden fallacies, and reduces the chance that some relevant point has been missed or glossed over in the argument.

The process of rethinking

custom make it their perch and not their terror.’ I take him to mean that the law must not only be certain but sufficiently flexible to remain relevant. It has to be respected, otherwise it will be treated with indifference. The same applies to written judgments. They should aim to bring the dispute to a just conclusion. The reasons should be clear, persuasive and presented to the world as a vital, upto-date force. Hence, the importance of the question: will it write? To find a path through the precedents and statutory provisions may not be enough. In some cases the best outcome may emerge from what oft was thought but never persuasively expressed, a fresh look at certain assumptions, a departure from the straight and narrow path.

Kitto’s paper was written over 40 years ago. Since then there have been many changes in the complexity of cases presented to the courts and in the style of contemporary thought, from a heightened awareness of human rights and discriminatory practices to the critiques of postmodernism. To what extent do changes of this kind affect the process of ‘rethinking’ (the term used by Kitto) and the preparation of reasons? A judgment must strive for the correct result but it must also be convincing to the parties involved and ultimately to the entire community. The way in which rulings are expressed, the judge’s style, is a critical feature of the judicial process. Inevitably, the more one strives to perfect a sentence or find the exact phrase, the more likely it is that the act of writing will take the jurist to a level where doubts or difficulties are revisited, a place where palpable alternatives can be examined and tentative views rejected, if they simply won’t fit. In contemporary times a judge must not only be clear and persuasive but alert to the possibility of being misunderstood or causing offence. There could well be consequences if a word is used too loosely or a sentence is cast adrift by a clumsy adjective or some facetious or provocative aside. Even with the benefit of hindsight, a judge may find it hard to identify the exact moment when he or she reached a final decision. For many judges the critical moment seems to be closely related to finalisation of the reasons for judgment. This suggests that in difficult cases the moment of decision and the act of writing are as one – they come together, they merge, as if by instinct.

I will say more about these matters shortly. For the time being, in speaking of style and the moment of decision, I trust that I have said enough to show that a judicial officer’s cautionary feeling at the end of a hearing includes the posing of the delicate question mentioned earlier: will it write? To what extent will a preliminary view have to be refined or even abandoned in the act of writing as one draft follows another? Like any writer, the judge knows from experience that the act of writing will bring into play a process of rigorous critique. What is the best style? What is to be done about certain underlying assumptions that have been troubling the judge?

Underlying assumptions In Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 196, while discussing the implied constitutional freedom of communication about government and political matters, Justice McHugh of the High Court noted that underlying what is written will be ideas and values which the judge has been affected by in legal practice and in private life, including many ideas and values which are taken for granted by the legal system itself. He said: ‘The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language and culture’. ‘We must not make a scarecrow of the law,’ Shakespeare said in Measure for Measure. ‘Setting it up to fear the birds of prey, and let it keep one shape, till

Judicial independence is a vital feature of the rule of law in a modern democracy, true, but the choice of a new route is conditioned by the credo that judges will decide cases impartially, by the application of existing law to established facts, and without regard to personal whims or the vagaries of public opinion. The judicial process on the whole favours linear stories, a neat chronology, familiar categories, words chosen not with a view to heightening drama but as a means of avoiding ambiguity. Thus, the first draft of a judgment is generally driven by evidentiary rules that insist upon relevance, and by legal principles that shape the logic of the situation. For this reason, as Kitto intimates, the judicial mind, in its search for clarity, will favour a crisp, grammatical style, seldom enriched by epigrams or metaphors or other literary flourishes that could be open to various interpretations. In the end, however, if the aim is to be convincing, to leave more than an empty gesture in the cornfield, a Shakespearean scarecrow casting a tired shadow on the surrounding earth, a figure bereft of any real threat to the skylarking birds perched upon its sagging, strawdepleted shoulders, it may sometimes be necessary to enliven the scene by drawing upon the resources of literature. But one has to be careful.

Literary style In response to a householder’s application for an injunction to restrain the playing of cricket on a field by a newly-created housing estate Lord Denning commenced his well-known (or notorious) judgment as follows: ‘In summertime village cricket is the delight of everyone.’ Not surprisingly, after such a start, he refused the injunction, but his storytelling tone, with its echo 35

of a timeless fable, a pre-destined end, has left us with the question of whether the reasons for judgment were truly convincing. The literary style added a certain force to his conclusion, and rendered the judgment memorable, but did it really work? Did it fulfil the purpose of a judgment? Did the tone and selection of details - ‘the young men play and the old men watch; the wicket area is well-rolled and mown’ – clarify or confuse the issue to be determined by the court?

fore since Sir Frank Kitto explored the practice of reserving judgments and the need for rethinking. It has taken place mostly in academic circles, but the theorists involved in the various exchanges have certainly been active in conveying their views to the wider world. Indeed, as to various current orthodoxies concerning human rights and discrimination, elements of postmodern theory have found their way into reformative legislation and decisions of the courts.

In another glorious (or possibly vainglorious) moment in the annals of judicial folklore Lord Denning paved the way to a new remedy in damages for nervous shock with a judgment that began: ‘It was blue-bell time in Kent.’ Was this the best way to introduce the disastrous scenario that followed; that is, while picking blue-bells in the field opposite the lay-by where her husband was at the back of his Bedford Dormobile making tea, Mrs Hinz turned to see a Jaguar car rushing into the lay-by with fatal consequences? Did the wistful preface to the melodrama waiting in the wings – humble Dormobile versus flashy Jaguar – affect the flow of legal reasoning?

Some years ago, in a paper presented to the Australian Bar Association, Justice Susan Crennan, observed that values established in the era of the enlightenment were under attack by postmodern European theorists. They saw law’s emphasis upon truth and rationality as simply some kind of power play designed to shore up property rights and other facets of bourgeois life. But this sceptical approach, she argued, failed to give sufficient weight to judicial independence and those traditions of the common law which encourage decisionmakers to examine disputes from all sides. Moreover, judges are obliged to carry out their work in courts open to the public, to hear all parties impartially and to give reasons for judgment which can be criticised. There are rights of appeal. The common law process demonstrates that reasoned argument can arrive at truth in the sense of a correct result. A well-written judgment can persuade the interested parties of that correctness.

In his autobiography The Family Story Lord Denning said that ‘the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule.’ A robust view of this kind will probably find favour with certain sections of the public, but if the style is the man, to use a well-worn phrase, there are various indications in Denning’s style, from bluebells to neatly-rolled cricket pitches, that such a credo may lead to arbitrariness, and range beyond the conventional view that judges should strive to apply settled law to carefully established facts.

Policy and contested values There is a continuing debate in legal circles as to the extent to which judges and judicial methods can or should accommodate policy considerations or contested values. Postmodern thinkers are inclined to question basic assumptions, coherent narratives, supposedly established values and the possibility of objective truth. Moving well beyond Lord Denning’s contentious credo these contrarians oppose elitism and whatever they consider to be authoritarian. They favour relativism and pluralism. Much of this critique has come to the 36 | BRIEF SEPTEMBER 2017

In the higher courts, lawyers for the parties spend a good deal of time on written submissions partly devoted to camouflaging the points that weigh against their case. But their handiwork doesn’t always survive a quick inspection. An array of weighty submissions may simply remind the judge of some humorous moments in the lower courts. A young lawyer lurching into Petty Sessions with an armload of books is invariably greeted with the jocular riposte: ‘I take it the facts are against you.’ Yes, a glance may reveal what a gaze fixed upon carefully contrived submissions may fail to notice. If a judgment be reserved there is usually enough in most submissions to compel another reading. The judge will strive to be objective, but the likelihood is that a little of the judge’s own experience, be it blue-bell time or the cricket season, will probably be brought to bear upon the matter in hand. What allowance should be made for factors of this kind in posing the question: will it write? The reality is

that although the initial enthusiasm for postmodernism may have subsided it has left a question mark over the notion of truth and objectivity. In some circles magisterial utterances of any kind will be greeted with suspicion. So care must be taken in voicing what a judge in former times might simply have characterised as common sense or lessons drawn from personal experience. But the reality is that facile rhetoric or mere cleverness will never be enough. Members of the public expect judges to be people of character, and this will probably be reflected in how they respond to the cases before them and in what they write.

Freedom of communication Let me test this line of thought by returning to a matter I touched on in earlier discussion: the implied freedom of communication about government or political matters – a comparatively recent addition to the field of constitutional law in Australia. The reconfigured scarecrow behind this discovery can be traced back to the High Court’s decision in the Nationwide News case in 1992. It emerges from this seminal decision that, in the absence of any express provision in the Australian Constitution concerning free speech, the implied freedom was based principally upon provisions requiring that members of the Commonwealth Parliament be directly chosen by the people in a manner compatible with what is known as the Westminster system of government. It was held by a majority of the High Court that if the people are to make an informed choice of their parliamentary representatives, the Constitution implicitly requires that they are free to discuss whatever issue might be relevant to that decision. The rule operates as a restriction on Commonwealth, State and Territory power. It emerged from debate in Theophanous that the implied freedom also expands the common law defence of privilege in defamation with respect to public figures. Not surprisingly, the scope of ‘communication about government or political matters’ was examined in later cases. These decisions suggest that without compromising their commitment to objectivity judges bring to the preparation of reasons something of their own outlook and experience. For example, in Coleman v Power (2004) 209 ALR 182, the High Court was urged to set aside the conviction of the appellant Coleman for an offence under Queensland’s Vagrants, Gaming

and Other Offences Act 1931 for publicly insulting Constable Power in the Toowoomba Mall by calling him a ‘corrupt cop’. A minority of the Court, consisting of Chief Justice Gleeson and Justices Heydon and Callinan, were of the view that the provision was compatible with the maintenance of constitutional government, but they expressed different views as to whether the language in question could be said to facilitate reasoned debate. Justice Heydon was of the view that ‘insulting words do very little to further the benefits that political debate brings. Indeed, by stimulating anger or embarrassment or fear they create obstacles to the exchange of useful communication.’ In the end, the conviction was set aside. One member of the majority, Justice Kirby said this: ‘Reading the description of civilised interchange about governmental and political matters in the reasons of Heydon J, I had difficulty in recognising the Australian political system, as I know it. His Honour’s chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action. One might wish for rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective in its armoury of persuasion.’ It emerges, then, that what may seem insulting to one mind may seem less than that to another. There may be different views as to the nature of political discourse. There will be room for conscientious disagreement as to what acts or utterances or gestures are compatible with communication about political matters, or as to what is a typical form of debate. The judgements in Coleman v Power show how lines of reasoning and the final orders were probably affected by outlook and personal experience.

Twitter feed and gadgetry What will happen next in this recentlydiscovered field of constitutional law? There have been significant technological developments since the first few cases concerning the implied freedom were decided. The civilities of the salon scorned by Justice Kirby have been subjected to even greater

indignities by various gadgets. These days panel discussions on TV are often accompanied by scatterings of twitter feed on the bottom of the screen. Most of these are probably well-meant, but some look as though they come from the weird granary that Premier Joh Bjelke-Petersen used to dip into on his way to a press conference: handfuls of stuff known to him, and eventually to the journalists clamouring for his attention, as ‘something to feed the chooks.’ The same sort of thing is happening in the private domain as people rattle out their responses to an issue in mangled, quasi-techno shorthand, spiked with exclamation marks and other brutal assaults upon the English language. Gadgets have brought with them a compulsion to know more and more about less and less. The echo chamber known as the news cycle pulsates with confected outrage and political clichés. Half-baked ideas are flung into cyberspace before the facts of a matter are fully known. In talking about the writing of judgments, or the scope of the implied freedom of communication, most observers of the legal scene still point to the qualities of independence and impartiality personified by Shakespeare’s Chief Justice. These qualities are thought to reflect the essential nature of judicial work in the common law system. Unfortunately, in a postmodern era in which the notion of objectivity is under attack, and logic is blurred by slovenly habits of speech and a lack of familiarity with values that once were taken for granted, the old ways are at risk. Gadgetry – apps and ‘mishapps’ – may soon be accompanied by a widespread impatience with detailed analysis and protracted reasoning, an impatience reflected initially in the jargon of mediasavvy law reformers and eventually in amendments to the rules of court. Will judges in some new, paperless Land of Oz be expected to worship Facebook or follow hash tags on the way to a ruling, before high-fiving colleagues on the bench and keying in what is now the most dangerous word in the English language – SEND? Will rights and freedoms be fully effective, especially implied rights unsupported by the text of the Constitution, if they are reduced to vacuous rhetoric by the idiosyncrasies of cyberspace, or the daydreams of the man on the Clapham keyboard?

The need for clarity I have allowed myself this moment of dystopian fantasy for the sake of an

enjoyable discussion, but various facets of the emerging social scene suggest that it is not entirely far-fetched. To some extent at least it bears upon my theme – the need for clear language. Bad habits can be spread by imitation at every level. Clumsy language can lead to unclear thinking, soon to insults, and eventually, as Justice Heydon shrewdly observed, it becomes an obstacle to effective communication. And all of this at a time in western democracies when there is an increasing suspicion in the political arena of what is said and done by professional elites; there are doubts about the notion of objectivity; there is a belief as to racial issues that only a victim can be heard because only a victim has real knowledge of the matters complained of; the notion of sovereignty is being questioned, and there are those who say that the legal system with its load of tradition is crushing the human values the law is meant to represent. There have been various responses to critiques of this kind ranging from an increased emphasis upon human rights to statutory reforms, particularly with respect to the workings of administrative tribunals. Thus, to take but one example, a statute with an apparently sympathetic face is now inclined to say that ‘the Tribunal is not bound by the rules of evidence and is to act according to equity, good conscience and the substantive merits of the case without regard to technicalities and legal forms. The Tribunal may inform itself on any matter as it sees fit’. Face or mask? Justice or palm-tree justice? The problem is that in an increasingly diverse society such as Australia, beset by critiques of the kind mentioned earlier, it becomes difficult to identify the background of common cultural values described by Justice McHugh, social mores that are taken for granted and generally thought to underpin matters of equity and ‘good conscience’, and to give a real meaning to most human rights. Paradoxically, provisions concerning human rights tend to reflect various abstractions, with one right often qualifying another, which may seem daunting or confusing to the people they were supposed to assist. In the end, clarity can only be provided by the courts, but this will be difficult to achieve if the criteria they are to apply become increasingly uncertain. These days unexamined assumptions can include not only traditions reviled by postmodern theorists but also palmtree justice provisions and any virus slipped into the system by the theorists themselves: current orthodoxies, usually 37

of a puritanical kind, that begin as critiques of the established order but then insist upon being characterised as self-evident truths.

Some final observations In times to come, perhaps, Australian courts and legislators will reconsider what Justice McHugh called the ‘background’ to the legal system and accept that not every problem can be solved by the law, nor every claim be reinvented as a right. The Australian Constitution, unlike the Constitution of the United States, does not spell out those basic rights which are taken for granted in a free and democratic society. They exist, not because they are provided for, but in the absence of restraints upon them. Freedom of speech exists in this country essentially because there is nothing to prevent its exercise, save in accepted areas such as defamation or sedition, or more recently where someone complains of being offended under s18C of the Racial Discrimination Act 1975 (Cth). In the meantime there will be a continuing need for well-written judgments in the traditional form, clear and coherent, but responsive to

changing social habits. A judge has to balance old and new; discern when to adjust and when to stand firm. Also, without succumbing to political correctness or the taste of twitterfeed, a judge should aim to strike a contemporary note so that what is said doesn’t stand in a barren field like Shakespeare’s scarecrow, stuffed with archaic precepts, viewed with indifference. Persuasive rulings have a crucial part to play in demonstrating that judicial power is not to be exercised capriciously. Well-written judgments at the very least may help to slow the spread of computer waffle and the sending forth of vacuous texts. The need for a clear ruling is bound to bring with it a tone of certitude, as a means of allaying any doubts about the correctness of the verdict. But this, of course, is partly window-dressing. For behind that tone stands a process of weighing up the pros and cons and looking at the matter from all sides, as shown by the drafts left in the secretarial bin. The scene behind the judicial façade may look untidy, but it is actually reassuring. The pages abandoned in the bin underscore the integrity of the reasoning that survived. The final text is like a

ACCESS CPD ON YOUR TERMS The Law Society’s eLearning provides a complete solution for CPD, offering 24/7 access and flexible delivery on your smartphone, tablet or computer. Over 40 seminars across all competencies: • Practice Management • Professional Skills • Ethics and Professional Responsibility • Substantive Law

P: (08) 9324 8600 W: elearning.lawsocietywa.asn.au

38 | BRIEF SEPTEMBER 2017

double-sided tapestry: on the outward side, a formal court and a solemn king; on the other side (the hidden side) a forest of tangled thread. The doublesided nature of the reasoning process, the way in which a forest of tangled thread becomes a formal court, disorder is woven into order, will serve to remind us that well-written judgments are a crucial stage in the exercise of judicial power and the quest for a just result. The tapestry and the solemn king will take us back to where I began. To Prince Hal, destined to become King Henry V, and to those around him, from the impartial Chief Justice to the friends of Hal’s youth. It seems that Master Shallow harkened not to the sober advice of those learned in the law, the voice of reason, but only to the chimes at midnight: a distant bell that once signalled the lateness of the hour and the liberty of youth, then all too soon, as foreshadowed by Falstaff’s intimations of mortality, a bell to remind us that individual lives will come to an end but the ways of the law will endure. ** ** ** Nicholas Hasluck is a former Judge. His latest novel The Bradshaw Case concerns a native title claim affected by ancient Aboriginal rock art.

An international will or a will in each jurisdiction? By Katerina Peiros, Incapacity, Wills and Estates Lawyer, Hartwell Legal and Christine Smyth, Partner, Robbins Watson Solicitors

The regime of international wills appears new and exciting, but upon closer examination it can raise more issues than it resolves. Careful consideration should be given to advising willmakers to continuing to have a local will in each foreign jurisdiction where there are assets. Once upon a time international travel and assets were the purview of the wealthy. Modern life however, is very different and increasingly, the average person lives a peripatetic life, with careers and families taking us all over the world. This results in people and their assets being in constant shift, raising challenges for the estate planner in determining how best to address the needs of modern day willmakers. Testamentary succession law varies significantly from country to country. Until very recently the options were limited, typically to multiple wills in multiple jurisdictions. However, willmakers now have the option of an international will. With that option, succession planners must now consider whether an international will is a viable alternative for the willmaker. The international will is a creature of multiple statutes. Uniform Law on the Form of an international will contained in the UNIDROIT Convention was ratified by the Commonwealth Government on 10 September 2014 and the Convention entered into force in Australia on 10 March 2015. Each Australian state and territory has enacted its own enabling legislation1 giving force and effect to the legislation which has now commenced.2 The key benefit of being an enforceable

signatory to the UNIDROIT Convention is that it provides greater legal certainty for willmakers. It provides for a uniform set of requirements for an international will. When the time comes for the estate to be administered, the probate process in each of the member states who are a party to the convention, will become considerably easier, faster and cost effective. It is important to note that the UNIDROIT Convention only deals with the form of the will.

Purpose of introducing international wills ‘The primary objective of the convention is to eliminate problems that arise when cross-border issues affect a will…the convention provides for an additional form of a will – an international will – that sits alongside other forms of a will. An international will that complies with uniform law will be recognised as a valid form of will by courts in other states party to the convention, irrespective of where the willmaker lives, and without the court having to examine the internal laws operating foreign countries to determine whether the will has been properly executed…the uniform law sets out the requirements for the form of the will and the process for its execution, it does not deal with issues such as capacity required of the willmaker or the construction of the terms of the will’.3 The general proposition is that a will made anywhere in the world is presumed to have been properly executed if its execution complied with the laws of any of the following: •

the jurisdiction where it was executed; or

•

the jurisdiction which was the willmaker’s domicile or residence at the time of execution; or

•

the jurisdiction which was the willmaker’s domicile or residence at the time of death; or

•

the jurisdiction of which the willmaker was a citizen.4

The effect is that whenever the court was faced with a will executed outside Australia, the court had to ascertain the applicable law in the jurisdiction where the will was executed or where the willmaker was domiciled,5 resided or died and determine whether the formalities have been complied with. The court also had to distinguish between the formal validity of the will with respect to movables (or chattels) (which is determined by the law of the domicile of the willmaker at the date of death)6 and the formal validity of a will with respect to immovable (land, etc.) (which is determined by the law where the land is (irrespective of where the willmaker resided or died)).7 The courts were often faced with having to determine the very complex issue of the domicile of the willmaker.8 To assist the court to determine these issues usually involved the propounder of the will having to file affidavits from solicitors practising in foreign jurisdictions setting out the relevant local law, as well as affidavits from family and friends about facts of domicile. This examination is expensive, time consuming for the courts and causes estate administration to be delayed. The international will regime is intended to harmonise and simplify the proof of formalities of wills executed in signatory countries. This results in an international will made in Australia being easier to prove in

a jurisdiction that has adopted the convention.

The form of an international will An international will is a will that complies with the formalities set out in the convention. If a will complies with the formalities of the convention, then it is accepted by the courts of the member states as validly executed enabling a grant of probate to issue. This saves the propounder of the will the added expense of the court examining where it was executed, considering the internal law of that jurisdiction and whether it corresponds with the jurisdiction where the Grant is sought, or where the willmaker resided, was domiciled, died or had citizenship or where the willmaker’s assets are situated. The primary formal requirements of an international will are:9 1. it must be in writing;

declaration where the will should be held and this should be recorded in the certificate; and 7. the will must contain a certificate in the prescribed form that the will is an international will and the certificate must be attached to the will. The certificate of the authorised witness is conclusive evidence of the will’s validity, but its absence does not invalidate the will. On seeking to probate of an international will, the court would only need to be satisfied that the will conforms with the convention, not with the relevant foreign law, the certificate being prima facie proof of that. This presumption of validity is rebuttable. The will may be in any language, and the usual process about translation of wills applies, if probate is being sought in a jurisdiction with another language.

2. the willmaker must declare in front of three people that the document is his or her will and he or she knows the contents;

Being quite a new concept, the authors are not aware of any case law on international wills as yet.

3. one of the three witnesses must be a person authorised to act with respect to the international will preparation in the state where it is being executed, in Australia this is a registered legal practitioner or a notary public;

What is not covered by the convention

4. the three witnesses must watch the willmaker sign and must also sign; 5. every page must be signed and numbered; 6. the willmaker may make a

40 | BRIEF SEPTEMBER 2017

The convention (and the legislation enacted in Australia) only provides uniform law on the formal requirements for a will in the strictest sense and compliance with the requirements for an international will does not preclude arguments about the will’s essential validity, such as: 1. testamentary capacity of the willmaker10;

2. whether the willmaker was subject to undue influence11; 3. whether the willmaker knew and approved the contents of the will;12 and 4. the construction or interpretation of a will is also not addressed by the international wills legislation. This remains in the realm of the law of the domicile at the date of death of the willmaker. The international will regime also does not address the laws which apply to: 1. presumption of death; 2. probate (where can probate be granted (usually an asset must be found within that jurisdiction), does it need to be taken there and should it be taken there); 3. Inheritance rules – about who can inherit and what they can inherit; 4. Intestacy rules; 5. who can apply for a grant;13 6. family provision applications – who can make a claim and in which jurisdiction; 7. revocation of wills; 8. tax; and 9. estate administration. These matters continue to be governed by the jurisdiction where the willmaker makes the will, where the willmaker dies or was domiciled, where probate is granted and where the immovable assets are situated.14 Accordingly, the international will does

not simplify nor circumvent the conflicts of laws which follow the death of a willmaker who had assets in various jurisdictions. The commonly seen issues surrounding forced heirship, death duties, acceptable legal representative to obtain a grant, etc. remain alive for the willmaker.

Acceptance of international wills Although, the convention does simplify one aspect of succession law for practitioners, it has one significant limitation which may or may not be cured with time. The concept of international wills is only recognised by the member states who have ratified the convention and enacted it internally. Apart from Australia, there are 62 member states15, not all of whom have enacted the convention internally. This means the scope and operation of the international will is limited to these jurisdictions.

Consequences for practitioners The practitioner taking instructions from clients for an International will still needs to obtain detailed information about the willmaker’s assets and their location, willmaker’s family’s needs and responsibilities. The practitioner should not lose sight of giving comprehensive and appropriate advice about the local law on wills, probate, tax and family provision. The practitioner should keenly turn their mind to whether, even if an international will is possible, whether it is, in fact, the preferred route. By preparing an international will rather than preparing a local will and advising the client to obtain another will in the other jurisdiction where the assets are located, the practitioner may be depriving the unknowing client of an opportunity to obtain comprehensive advice in the other jurisdiction about making a will and its effect. This is particularly the case with respect to the impact of taxation laws applying to inheritances.

Advantages of local wills In the authors’ experience, more often than not, the willmaker benefits from having a will in each jurisdiction where the willmaker holds assets, as the willmaker can be educated about the differences between the legal systems and take advantage of the particular laws of the jurisdiction, including

probate, inheritance, tax, insolvency, family law and administration laws, and can give proper consideration in each jurisdiction to issues relating to the appointment of executors and practical aspects of administration. Receiving this advice early would allow the willmaker to plan ahead, if they needed to do so. This may involve shifting assets to another jurisdiction to avoid triggering death duties on their assets in that jurisdiction or on their assets worldwide16 or by avoiding or invoking forced heirship rules.17 In the probate stage, local wills can significantly simplify the administrative process for the family and executors, not just because the will does not need to be translated, additional affidavits filed and judicial interpretation of a foreign document applied for, but also because the executors have a local legal advisor who is able to guide them through the process and the cultural differences. Executors in different jurisdictions may also apply for probate at the same time and independently of each other. If there is only one will, probate must be obtained in one jurisdiction and then re-sealed or reapplied for in the next, which can cause delay. Another advantage of a local will and local executors and/or local beneficiaries, the willmaker may reduce the tax liability for their estate in that jurisdiction. For example, in Australia, a gift of a CGT asset to a non-resident beneficiary may result in the estate having to pay CGT. Conversely, CGT may be payable if a resident beneficiary inherits a foreign asset. If considered planning is undertaken this may be avoided if the assets are sold early on or gifted to a local beneficiary. Another Australian tax that a foreign lawyer advising a client about an international will may not know about is the tax on superannuation death benefits. This illustrates that planning opportunities may be missed if local advice is not obtained. Australian advisors would be in treacherous territory if they attempted to advise about foreign jurisdiction laws, let alone offshore structures, silent partnerships, French Societe en nom Collectif, Islamic trusts, stiftung and anstal, and so on. If a client is having wills prepared in more than one jurisdiction, practitioners would be wise to liaise with each other to ensure the wills (and any ancillary paperwork) are not inconsistent and in

fact complement each other. Care must be taken that the will/s executed later do/es not inadvertently revoke the will signed earlier in a different jurisdiction. An international will may still be in order where a client has the majority of their assets in Australia but has a bank account or some other modest asset in a signatory jurisdiction, where their will is likely to require probate.

Conclusion The regime of international wills appears new and exciting, but upon closer examination it can raise more issues than it resolves. NOTES: 1.

Wills Act 1968 (ACT) ss 16J – 16M, Succession Act 2006 (NSW) ss 50A-50E, Wills Act 2000 (NT) ss 48B-48F, Succession Act 1981 (Qld) ss 33YA – 33YE, Wills Act 1936 (SA) ss 25F – 25J, Wills Act 2008 (Tas) ss 62A – 62E, Wills Act 1997 (Vic) ss19A-19E, Wills Act 1970 (WA) ss 32A-32E.

For the legislative history of enactment in Queensland see Queensland Law Society Proctor “A new world of international wills’ by Christine Smyth published February, 2015.

Wills Amendment (international wills) Bill 2011 (Vic).

Wills Act 1997 (Vic) s 17; Succession Act 2006 (NSW) s 48, Succession Act 1981 (Qld) s 33T, Wills Act 2008 (Tas) s 60, Wills Act 1936 (SA) s 25B, Wills Act (NT) s 46, Wills Act 1968 (ACT) s 15C, Wills Act 1970 (WA) s 20

Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159.

In the Will of Lambe [1972] 2 NSWLR 273.

Pepin v Bruyere [1902] 1 Ch 24.

The common law has now been codified in all Australian jurisdictions, see Domicile Act 1978 (Vic), Domicile Act 1982 (Cth), Domicile Act 1979 (NSW), Domicile Act 1981 (Qld), Domicile Act 1980 (SA), Domicile Act 1981 (WA), Domicile Act 1979 (NT), Domicile Act 1980 (Tas).

s 7 of Wills Act 1997 (Vic), s 6 of Succession Act 2006 (NSW), s 10 of Succession Act 1981 (Qld), s 8 of Wills Act 1936 (SA), s 8 of Wills Act 1970 (WA), s 8 of Wills Act 2000 (NT), s 8 of Wills Act 2008 (Tas), ss 9 and 10 of Wills Act 1968 (ACT); Richard Phillips, international wills (LIV Succession Law Conference, 2014).

10.

Richard Phillips, international wills (LIV Succession Law Conference, 2014).

11.

Richard Phillips, international wills (LIV Succession Law Conference, 2014).

12.

Richard Phillips, international wills (LIV Succession Law Conference, 2014).

13.

Generally, a court will grant probate of the will to foreign executors where the court of the willmaker’s domicile grants probate to those executors, provided that these executors are able to receive a grant in the secondary jurisdiction Lewis v Balshaw (1935) 54 CLR 188.

14.

Richard Phillips, international wills (LIV Succession Law Conference, 2014).

15.

UNIDROIT, Membership ETATS MEMBRES (2015) <http://www.unidroit.org/about-unidroit/membership>.

16.

For example, the worldwide assets of a non UK domicile who resides in the UK for 17 out of 20 years, before their death, would be subject to the inheritance tax in the UK. Those who reside in the UK for less than 17 out of 20 years, would be subject to the inheritance tax on their UK assets only. The inheritance tax is applied at a flat rate of 40% over the threshold amount. International Wealth Structuring & Estate Planning by Robert Gordon delivered to the STEP conference May 2014 in Sydney.

17.

Forced heirship means that a portion of the estate is by law reserved for a member of the family, there is no testamentary freedom over that portion. The willmaker is only free to dispose of the remaining portion by will. Forced heirship is common in Islamic countries. It also exists in France and Italy.

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

Hague Child Abduction Convention – Mother ordered to return child to NZ – Conditions imposed on father set aside In Arthur & Secretary, Department of Family & Community Services and Anor [2017] FamCAFC 111 (29 June 2017) the mother, who retained the parties’ child in Australia after a visit, was ordered by the Family Court of Australia to return the child to New Zealand under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Full Court (Bryant CJ, Thackray & Austin JJ) dismissed the mother’s appeal against that order but allowed the father’s cross-appeal against conditions imposed in a subsequent order. The conditions were ([60]) that the father (who in 2013 was granted supervised contact in NZ) pay for the mother’s rental accommodation in NZ for two months (and bond); undertake to pay her NZ$535 per week until she began receiving welfare payments; pay all child support obligations in Australia and NZ; and undertake to provide his employer with a copy of an existing protection order and not use any firearm until further order of the NZ Family Court. The husband argued that the conditions were ultra vires or made without considering his meagre financial position, frustrating the return order. The Full Court said ([69]) that reg 15(1) confers the power to impose a condition the court considers “appropriate to give effect to the Convention”, citing ([76]) an English case Re M (Abduction: Undertakings) [1995] 1 FLR 1021 at 1025 in which Butler-Sloss LJ said that “conditions or undertakings should operate only until the courts of the country of habitual residence can become seized of the proceedings brought in that jurisdiction”; “must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations”; and “courts must be careful not … to usurp … the functions of the court of habitual residence”. The Full Court concluded ([94]): “ … [H]is Honour erred in failing to recognise that the conditions would result in the child not being returned to the country from which she was wrongfully removed, and that they therefore did not satisfy the requirement that they be ‘appropriate to give effect to the Convention’”.

42 | BRIEF SEPTEMBER 2017

Property – Long separation under same roof – Wife bought land 5 years after parties separated finances – Judge erred in finding contributions by husband In Zaruba [2017] FamCAFC 91 (12 May 2017) the Full Court (Bryant CJ, Thackray & Murphy JJ) heard the wife’s appeal against a property order made by Moncrieff J of the FCWA. The parties separated their finances in 1988, divorced in 1996 but lived separately under the one roof until 2005. The wife gave birth to twins in 1996 to another man, moving out with her children in 2005. In 1993 she bought land at Mindarie (a Perth suburb) for $74,000 paid by a friend Mr S. A home was built in 2004 using $125,500 from her mother and another $146,000 from Mr S, the wife and children moved there in 2005. The Mindarie property was at trial worth $1m. Moncrieff J adopted an asset by asset approach, assessing the husband’s contributions as 10 per cent ($100,000). The Full Court said ([12]) that the husband made no financial contribution to the property and ([15]) that an asset by asset approach was proper but considered ([27]) that “it was not open … to conclude that it was just and equitable to make any order altering the wife’s interests in Mindarie”. The Court added ([28]-[29]): “ … [W]e … are unable to see any evidentiary basis for his Honour’s finding that the husband had made ‘non-financial and indirect’ contributions to Mindarie in the period between its purchase … and the wife’s departure … … [D]espite finding that … [he] had performed ‘some parental responsibilities’ for the [wife’s] children … we are unable to see how that should translate into the husband acquiring an interest in a property to which the wife herself made virtually no financial contribution.” Allowing the wife’s appeal, the Court declared that she held her interest in Mindarie to the exclusion of the husband. International commercial surrogacy – Order for twins to live with sperm donor and his former male partner In Adair & Anor and Bachchan [2017] FCWA 78 (22 June 2017) Duncanson J of the FCWA heard an undefended application under Part 5 of the Family Court Act 1997 (WA) in respect of twin

children aged 4 by Mr Adair and his former de facto partner, Mr Bonfils. While their relationship ended before the children were born they remained close friends who lived together as “housemates”. The twins were born pursuant to an international commercial surrogacy arrangement entered into by Mr Adair and the birth mother in India. The Court found ([10]-[19]) that the surrogacy was documented; the children were conceived with sperm from Mr Adair and an egg from an anonymous donor; both applicants were in India for the birth, spending 3 weeks there before bringing the children to Perth; the children were issued with birth certificates in Delhi naming Mr Adair as father and the mother as ‘NIL’. The children obtained citizenship by descent from Mr Adair and became Australian citizens in 2013 (prior to which DNA testing found him to be the genetic father of the children). An opinion was adduced from an advocate in New Delhi that Mr Adair and the surrogate were legally competent to make the contract and that she would have no enforceable right after giving birth. The agreement recorded ([27]-[30]) that the surrogate gave informed consent and was to be paid in rupees the equivalent of $3,858 for a normal birth or $4,458 for caesarean birth. The Court said ([36]-[39]) that while Mr Adair was primary carer of the children he had been diagnosed with a terminal illness so “wishes to ensure that the children are cared for and loved by someone as he had hoped to do”, Mr Bonfils being that person and the children having a close relationship with both applicants. Neither was a parent ([58]) but they were held ([59]) to have standing as “persons concerned with their care, welfare or development” (ss 88 and 185 FCA). The Court ([62]-[64]) took into account the considerations of s 66C (FCA’s equivalent of s 60CC FLA) and was satisfied ([71]) that the orders sought were in the children’s best interests. It was ordered that the applicants share parental responsibility and that the children live with them, the birth mother to be served with the order.

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.

Is your professional development CPD Active? for only $20* Complete your CPD points online with unlimited access to over 40 eLearning seminars for just $20 per seminar. Access CPD on your terms.

Unlimited faceto-face seminars Practice Man a

Ethics and

Pro

sio na

ibility

ills l Sk

END NDLLESS SS POTTENTTIAL

ons

ONE DECISION

sta

fes

Sub

gem

CPD Active members can attend over 80 faceto-face seminars for no further cost with no limit on the number you can attend.*

10 Seminar Papers Download 10 seminar papers from a collection of 90 and build a library of knowledge, to read for free, in your own time.

Endless potential for only $800* One flat price for access to an extensive range of seminars from over 200 well respected speakers.

Event Discounts Take advantage of a further 10% discount on registration to Law Society events*

Visit lawsocietywa.asn.au/cpd-active for full details. Call (08) 9324 8692 or email membership@lawsocietywa.asn.au to add CPD Active to your membership. *Terms, conditions and exclusions apply. Inc GST. Figures based on the 2016/17 CPD Programme.

Law Council Update

Law Council welcomes Parliamentary Committee's recommendation for a Modern Slavery Act The Law Council of Australia has strongly welcomed recommendations included in an interim report of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which has called for the development of a Modern Slavery Act. The Committee has recommended that a Modern Slavery Act should include the creation of an Independent Anti-Slavery Commissioner. Law Council of Australia President, Fiona McLeod SC, who has long played a prominent role in advocating for a more robust Australian approach to antislavery, welcomed the Committee's core recommendations. "Today's report is a vital step on the path to an Australian Modern Slavery Act," Ms McLeod said. "Slavery is not just a scourge of the past. It is a crushing present reality for thousands living in Australia, and millions across the globe. "Nations like Australia have a responsibility to take a robust approach to fighting slavery and casting a light on this dark and terrible corner of our economy and society. "The Law Council has called on Australia to follow the UK’s lead and introduce an Anti-Slavery Commissioner as soon as possible to independently oversee our national response. It is satisfying to see that the Committee shares our view and we look forward to working with the Federal Government to help make this a reality." Ms McLeod also noted that the Committee had given its in-principle support to introduce penalties to companies that do not report in compliance with the Modern Slavery Act reporting requirements. Yesterday, the Federal Government announced it would be moving to introduce a legal requirement for large Australian companies to report on measures they are taking to combat slavery. However, it stopped short of specifying a penalty regime. 44 | BRIEF SEPTEMBER 2017

"The Law Council believes that for a reporting regime to be effective there must be robust penalties for non-compliance to ensure rigour and accountability," Ms McLeod said. "We are pleased the Committee shares this view and we strongly urge the Government to consider developing defined penalties along with its new reporting legislation."

Time to rethink ASIO’s compulsory questioning and detention powers The Law Council today told a Parliamentary Committee that ASIO’s current questioning and detention powers appear unnecessary to prevent or disrupt a terrorist act, given other powers already in operation. These existing powers include: ASIO’s other powers, powers of federal, state and territory police, and those of the Australian Criminal Intelligence Commission (ACIC). The Law Council was represented at the hearing by Tim Game SC, Co-Chair of the Law Council’s National Criminal Law Committee and Dr Natasha Molt, Senior Legal Advisor, Policy Division. The President of the Law Council, Fiona McLeod SC, said that the current ASIO questioning and detention powers fail to strike the right balance between protecting the community while upholding the rule of law. “It’s crucial our security and law enforcement agencies have appropriate powers to detect, prevent, and prosecute terrorist activities," Ms McLeod said. “But the appropriate balance must be struck between ensuring national security and safeguarding the fundamental legal rights central to our democracy. ASIO’s Questioning and Detention Warrants have not been used since they were introduced, which should raise questions around their efficacy as an intelligence tool.” Ms McLeod said it was time to rethink ASIO’s compulsory questioning and detention powers. She said a better approach would be to use the ACIC powers as a starting point. Under the ACIC model, a person giving

evidence may be represented by a legal practitioner and the appointment of examiners is more transparent and formal. “There is significant benefit in adopting an ACIC Model for ASIO’s questioning powers, instead of going down the current path,” Ms McLeod said. “There would be the potential for judicial oversight of the exercise of the coercive powers, greater consistency in the powers given to intelligence agencies and greater certainty as to their operation. “That said, there should be some modifications to the ACIC Model should it be used as a basis for ASIO’s compulsory questioning powers to ensure appropriately robust safeguards are in place. Any new model for ASIO’s questioning and detention powers should be first released as an exposure draft bill with an adequate consultation period.” Ms McLeod said the Law Council also had concerns over ASIO’s proposal to extend questioning and detention powers to children as young as 14. “While we are not convinced that this step is necessary, if children as young as 14 are to be questioned and detained then there must be a special regime for minors,” Ms McLeod said. “Such a regime, for example, would ensure the best interests of the child were protected and that the child was provided with an independent government-funded lawyer.” The Law Council also called for a review of the blanket ban of ASIO’s decisions from judicial review under the ADJR Act. “Examination of an accused person by ASIO and the ACIC should be deferred until after the disposition of any charges. If this is not accepted, authorisation should be required from the Federal Court before a summons is issued to a person who is subject to criminal proceedings, and for that judge to prescribe limitations on the matters which may be covered by the examination,” Ms McLeod said.

Professional Announcements Career moves and changes in the profession

Avon Legal Avon Legal is delighted to announce the appointment of Chenara Holford as an Associate of our Commercial Team.

Corrs Chambers Westgarth

Chenara Holford

Chenara has experience across a broad range of Commercial Law matters and is committed to delivering the best outcomes for her clients. We extend our congratulations on her promotion.

IRDI Legal Tim Mason, previously a longserving Partner of Jackson McDonald, has joined IRDI Legal as a Senior Litigation Lawyer to act on Catholic Church matters. Sarah Ninkov has joined IRDI Legal as a Senior Precedents Lawyer bringing with her many years of experience gained in legal and knowledge roles at Freehills, Minter Ellison and Ashurst.

Australia’s leading independent law firm, Corrs Chambers Westgarth, is delighted to Rachael King announce that it has admitted Rachael King to the Corrs partnership. Rachael has a highly diversified skill set covering alternative dispute resolution, complex contractual disputes, regulatory prosecutions, insolvency and restructuring as well as administrative tribunal and judicial review proceedings. Rachael’s exceptional breadth of experience, strong problemsolving capabilities and focus on achievement make her an effective strategist and a highly valued member of Corrs’ Perth litigation group.

HLS Legal The Directors at HLS Legal, Tony Smetana and Alisanne Ride, welcome our new Associate, Davina Hunter. Her addition Davina Hunter to the Employment Law Practice responds to the continued demand for advice in this area from our clients.

Tim Mason

Sarah Ninkov

We congratulate Davina on her new position, she is a welcome addition to the team.

Opening Celebration of Quayside Chambers and its New Members The opening celebration of Quayside Chambers was held on the evening of Wednesday, 21 June 2017 in the splendid and historic Perth Town Hall, at which the Law Society had held its 90th year celebrations. The Hon Chief Justice Wayne Martin AC spoke at the event, and officially opened the new chambers to the 270 guests that attended, while observing that Quayside Chambers had been in operation for some time. The Chief Justice remarked on the value of diversity in the profession and the bar, and welcomed the addition of Quayside Chambers to the legal landscape in Western Australia. He said that Quayside Chambers had a good balance between senior and junior counsel, enabling the bar to grow.

46 | BRIEF SEPTEMBER 2017

Clairs Keeley Lawyers Ms Debbie Clinch & Ms Sharni Mwenda (nee Redfearn) Clairs Keeley Lawyers are pleased to announce the appointment of Ms Debbie Clinch as Partner of the firm effective from 1 July 2017 and Ms Sharni Mwenda (nee Redfearn) as employed Solicitor effective from 14 July 2017.

Klimek & Wijay Family Lawyers Klimek & Wijay Family Lawyers are pleased to announce the following appointments: Tamara Arapovic Associate Director Tamara joined the firm in 2011 and has practised exclusively in family law for the duration of her legal career. She Tamara Arapovic has a wealth of experience in all areas of family law with an emphasis on complex financial matters and binding financial agreements. Devin Sanghavi Associate Director Devin joined the firm in 2014 as a Senior Associate. He is considerably experienced in family law, as Devin Sanghavi well as other practice areas with which family law commonly intersects such as conveyancing, wills and probate, estate litigation, restraining orders and criminal law.

Michael Klimek Senior Associate Michael joined the firm in 2005, since which he has accumulated 12 years of family law experience initially as a Michael Klimek practice manager and paralegal, then as a legal practitioner. Michael is well known for his unwavering dedication to his clients and his commitment to securing the right outcome for them. He is a board member of the Northern Suburbs Community Legal Centre and provides pro bono family law advice there on a weekly basis.

Kott Gunning Lawyers Kott Gunning is delighted to welcome Danielle Hadida to our family law team. Danielle graduated from Murdoch University with a Bachelor of Laws and Bachelor of Arts Danielle Hadida (Sociology), and gained experience as a family law paralegal before being admitted as a legal practitioner to the Supreme Court of WA in October 2016.

At the opening, it was announced that three talented women have recently joined Quayside Chambers. The new members are: Clara Wren, Jenny Thornton, and Kate Pedersen. Clara Wren is a commercial barrister with a focus on resources, infrastructure and insurance matters. Before joining the bar this year, Clara was a senior associate at Allens. While there, she completed a secondment to a major resource company where she managed strategic disputes for the iron ore group. Jenny Thornton has been a Partner in the commercial litigation departments of Parker & Parker, Freehills (now Herbert Smith Freehills) and Allens Arthur Robinson (now Allens Linklaters). In September 2012 Jenny established Clyde & Co's office in Perth and was the Managing Partner there before joining Quayside

Clara Wren

Jenny Thornton

Kate Pedersen

Chambers in July 2017. Kate Pedersen graduated from the University of Western Australia (LLB (Hons)) and a Bachelor of Science, and completed a LLM at the University of Melbourne. Kate was admitted in 2007, and since that time has engaged in a wide range of counsel work for a broad range of government entities.

Classifieds

FOR SALE

FOR SALE OR LEASE

Level 2, 524 Hay St, Perth

Equus Building - Suite 184 / 580 Hay St, Perth

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

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

Greg Radin 0411 883 995 | Eric Rogers 0412 228 555

FULLY FITTED OFFICE 213 sqm TOP FLOOR WITH EQUUS CHAMBERS & MPH LAWYERS, FACES DAVID MALCOLM JUSTICE CENTRE, RIVER VIEWS IN THE LEGAL PRECINCT OF PERTH

♦

2 x partitioned offices + boardroom

♦

Plus open plan (10 workstations, up to 35)

♦

2 x secure undercover car bays

Victor Aloi 0404 808 012

valoi@vicusgroup.com

MISSING WILL Gabbedy Milson Lee of Rowland House, 4/10 Thesiger Court, Deakin in the Australian Capital Territory are seeking details of any Will, or other testamentary intention, of the late Peter Mian aged 88 years; late of Brightwater, The Oaks, 2-10 Oakwood Crescent, Waikiki and formerly of 14 Britannia Place, Port Kennedy, WA. If any solicitor has details of any Will or other testamentary intention made by the late Peter Mian could they please contact Nigel Gabbedy on: PH: (02) 6261 6500 Email: ngabbedy@gmllegal.com.au

BRIEF

Become a member of

The Western Australian Club

For advertising opportunities in Brief please contact:

Members and their guests get to enjoy a world-class dining experience at The Western Australian Club. A modern-day establishment with a rich history, Membership at The Club offers access to one of Perth’s best kept secrets. To enquire about membership please contact us on membership@waclub.com.au or call us on (08) 9481 7000.

Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

New Members New members joining the Law Society (July 2017)

Ordinary Membership Mr Owen Alcorn Herbert Smith Freehills

Mr Andrew Foster Andrew Foster Barrister & Solicitor

Mr Axyl Ong Vanguard Legal Pty Ltd

Miss Dominique Le Miere Bennett & Co

Mr Ben Pisano Jackson McDonald

Ms Jennifer Morris Edith Cowan University Mr Simon Ringrose Jackson McDonald

Ms Rhonda Spano Murdoch University

Ms Therese Austin Office of the Director of Public Prosecutions - State

Ms Georgina Stevens Herbert Smith Freehills

Ms Lydia Brisbout DLA Piper Australia

Restricted Practitioner

Miss Georgina Sullivan ETDK Pty Ltd Trading as DCH Legal Group

Mrs Bronwyn Capell Frichot & Frichot

Associate Membership

Ms Preet Dhillon Jackson McDonald

Mr Ronan Boothman Corrs Chambers Westgarth

Ms Kiri George Andrew Lynn Lawyers

Miss Monica Choi

Ms Sinead Burke Herbert Smith Freehills Ms Charlotte Cameron Herbert Smith Freehills Ms Alana Delcanho Herbert Smith Freehills

Mr Tom Mathews Corrs Chambers Westgarth

Mr Keahn Sardinha University of Western Australia

Mr Daniel Sutherland Jackson McDonald

Ms Stephanie Di Virgilio Hotchkin Hanly

Events Calendar

With thanks to our CPD partner

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

September 2017 Membership Events Monday, 4 September High Tea with Keynote Speaker Fiona McLeod SC – Mind the Gap: It’s the journey as well as the destination The Western Australian Club Wednesday, 6 September and Wednesday, 13 September Pilates Classes supported by HBF The Law Society of Western Australia Thursday, 14 September Social Justice Opportunities Evening Central Park Theatrette Thursday, 21 September Society Club Halford Bar, Perth CPD Seminars Tuesday, 5 September Civil Liability update The Law Society of Western Australia

Tuesday, 12 September Policy as a mandatory relevant consideration: A reflection on Jacob v Save Beeliar Wetlands The Law Society of Western Australia Thursday, 14 September Fraud in accounting The Law Society of Western Australia Monday, 18 September The nexus of national security and Migration Law (Webinar) Online at your desk Tuesday, 19 September Community Legal Centres: Innovating and partnering behind the scenes The Law Society of Western Australia Wednesday, 20 September Office of State Revenue service delivery model The Law Society of Western Australia Friday, 22 September Ethics on Friday: Misleading conduct The Law Society of Western Australia

October 2017 Membership Event Tuesday, 10 October Mental health awareness The Law Society of Western Australia

Friday, 20 October Ethics on Friday: Practical conflicts – real life studies The Law Society of Western Australia

CPD Seminars Thursday, 5 October Appearing in SAT 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

Monday, 16 October Crowdfunding The Law Society of Western Australia

Tuesday, 24 October Adjudication of Construction Disputes and Construction Contracts Act 2004 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 Parliamentary drafting and legislative update 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

For all upcoming events and further information please visit lawsocietywa.asn.au

48 | BRIEF SEPTEMBER 2017

TOO MUCH TO DO? LET US HELP.

Your legal solution partner – 24/7, 365 days a year. Ǿ Guaranteed quality assured work Ǿ Secure and confidential practice to protect you and your clients Ǿ Complimentary collection and delivery of jobs within CBD

Production

Discovery

Court

— — — —

— — — — — —

Print Copy Scan Coding

Consulting Data Collection Early Case Assessment Secure Document Hosting Technology Assisted Review Managed Discovery

1300 096 216 sales@lawinorder.com www.lawinorder.com

Sydney – Brisbane – Melbourne – Perth – Singapore

Join over 5,000 lawyers globally supported by Law In Order.

Court Copying Mediation Arbitration eTrial eCourt Appeal Book Preparation

Save Time Creating Legal Documents LEAP includes:

Access to:

Automated precedents and letters

6,000 legally drafted By Lawyers precedents

6,000 pre-configured automated forms

130 end-to-end integrated Legal Guides

Up-to-date legal rates and charges

Import your own precedents and letters

$190* per user per month *Plus GST

THE Legal Practice Management Platform Contact us for an obligation free demonstration sales@leap.com.au | 1300 886 243 | leap.com.au/content By Lawyers is a companion product which seamlessly integrates with LEAP. Additional charges apply.