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EMBRACING DIVERSITY IN THE LAW SOLUTIONS AND OUTCOMES A paper presented by the Hon Wayne Martin AC Chief Justice of Western Australia

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Contents Volume 43 | Number 8 | September 2016




International law collection comes to UWA thanks to the Law Society Public Purposes Trust


Curtin Law School team wins Manfred Lachs Space Law Moot Court Competition


A quality management system helps you meet your regulatory obligations



Commercial Common Sense in Interpreting Contracts


The Pitfalls of Performance Management

Embracing Diversity in the Law: solutions and outcomes


Embracing Diversity in the Law: solutions and outcomes


Replacing appointors and guardians of discretionary trusts


The Myth of Magna Carta


2016 Sir Ronald Wilson Lecture


Book Review: Tom Hughes QC: A Cab on the Rank, by Ian Hancock


YLC Inter-Profession Networking Event


YLC Assembly

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

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

REGULARS 02 President's Report 03 Your voice at work 04 Editor's Opinion 45 Young Lawyers Case Notes 46 Family Law Case Notes 48 Law Council Update 49 Pam Sawyer 50 Professional Announcements 51 New Members 51 Classifieds 52 Events Calendar

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

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

Vice President Hayley Cormann

Proofreaders Sonia Chee

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

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


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

COUNCIL ELECTIONS Nominations for the Law Society's 2017 Council elections will open on 4 October 2016. The Council elections give members the opportunity to become more deeply involved in the work of the Law Society. The Council sets the strategic direction for the Law Society, ensures good governance and, with the assistance of the Law Society's committees, acts as the voice of the legal profession through submissions and regular dialogue with government and the courts. Nomination forms will be sent electronically with nominations closing on 20 October. I encourage all members to consider nominating for a position on the Council. Further information on the 2017 Council elections will be available in the coming weeks. MAJOR MILESTONES FOR OUR COURTS Some important events for Western Australian courts have taken place in the past few weeks. On Friday, 15 July, I was delighted to attend the 40th anniversary celebrations of the Family Court of Western Australia at the Government House Ballroom. Readers will recall the May edition of Brief was devoted to family law, in recognition of this milestone. In an address to guests, the Hon Chief Judge, Justice Stephen Thackray noted that the Family Court of Western Australia had been founded with the unique capacity to administer both State and Federal law, setting us apart from the rest of the country. His Honour said that our State can lay claim to having the most coherent family law system in Australia; one which continues to maximise the limited resources afforded to it. His Honour also drew attention to the Family Court's pioneering role in the area of gender equality, having been the first court in Australia to have a majority of female Judges. I also had the privilege of addressing


a ceremonial sitting to open the David Malcolm Justice Centre on Wednesday, 27 July. The new building is a splendid new home for civil matters at the Supreme Court of Western Australia. The advantages of the new David Malcolm Justice Centre are numerous, the building being fitted with technology and facilities that will enable the Supreme Court to work much more efficiently. For more information on the new Supreme Court building, please refer to the July and August issues of Brief, which contained articles authored by the Hon Chief Justice Wayne Martin AC and the Attorney General, the Hon Michael Mischin MLC. RENEWED RECONCILIATION ACTION PLAN The Law Society launched its inaugural Reconciliation Action Plan (RAP) in July 2015. The RAP programme is an initiative of Reconciliation Australia, an independent not-for-profit organisation which promotes and facilitates reconciliation by building relationships, respect and trust between the wider Australian community and Aboriginal and Torres Strait Islander peoples. Hundreds of other organisations have also developed RAPs with the assistance of Reconciliation Australia, including the Law Council of Australia, the Law Society of New South Wales, the Law Institute of Victoria, the Law Society of South Australia and Law Society Northern Territory. The Law Society has now reached the end of the initial Reflect RAP, which covered the period from June 2015 to June 2016. A refreshed RAP document has been developed by the Law Society's RAP Working Group, in consultation with our Indigenous Legal Issues Committee. The new RAP is just one aspect of the Law Society's 'Closing the Gap' strategic campaign for 2016-17, which will focus on legal issues affecting Aboriginal and Torres Strait Islander peoples in Western

Australia, including overrepresentation in our prison system. It outlines how the Law Society plans to build on the work done in the last year to promote a Western Australian legal profession where Aboriginal and Torres Strait Islander law students, graduates and practitioners feel valued and respected. The new RAP document will be available to view online after it has been endorsed by, and registered with, Reconciliation Australia. LAW COUNCIL OF AUSTRALIA Imprisonment for Fine Default The Law Society recently wrote to the Law Council of Australia, setting out its policy position on the subject of fine default imprisonment. The issue is a costly one to the Western Australian community, with its effects falling disproportionately on our Aboriginal and Torres Strait Islander people, as well as other underprivileged and vulnerable members of our society. A May 2016 report by the Office of the Inspector of Custodial Services found that Aboriginal women in particular have suffered under the current legislation in Western Australia. The report established that Aboriginal women accounted for two thirds of all female fine defaulters. Younger Aboriginal women were most affected, constituting 78% of female fine defaulters who are younger than 25. The focus of government should be shifted away from imprisonment and on to practical measures to recover outstanding fines. A suggested alternative is to enable the garnishing of Commonwealth Centrelink payments and salaries of nonpayers by employers. Directors Meetings in Perth The Law Society is pleased to host the Law Council of Australia quarterly Directors meetings in Perth over Friday, 9 September and Saturday, 10 September.

Your voice at work A snapshot of recent Society initiatives

LAW SOCIETY WELCOMES NEW JUDICIAL APPOINTMENTS The Law Society congratulated the Hon Justice Michael Buss, the Hon Justice Robert Mitchell, Raelene Johnston and Adam Hills-Wright on their recent judicial appointments. The Hon Justice Buss has become President of the Court of Appeal, having been a Judge of the Supreme Court and Court of Appeal since 2006. The Hon Justice Mitchell has been appointed as a Judge of the Court of Appeal. The Hon Justice Mitchell was appointed as a Supreme Court Judge in 2014. The Hon Justice Buss and the Hon Justice Mitchell commenced their appointments on 18 July 2016. Raelene Johnston and Adam Hills-Wright have been appointed as Magistrates of the Magistrates Court of Western Australia and Children's Court of Western Australia. Law Society President Elizabeth Needham said, "The Law Society welcomes the new judicial appointments. Each of the appointees is highly respected within the legal profession. The people of Western Australia will be well served by their high level of expertise and integrity." LAW SOCIETY CONGRATULATES THE HON JUSTICE KATRINA BANKSSMITH ON SUPREME COURT APPOINTMENT The Law Society congratulated The Hon Justice Banks-Smith on her appointment as a Judge of the Supreme Court of Western Australia. Law Society President Elizabeth Needham said, "The Hon Justice BanksSmith is an excellent choice for Judge of the Supreme Court. She has enjoyed a long and distinguished career within the profession and will no doubt make a very significant contribution to the Judiciary. "The Hon Justice Banks-Smith enjoys an

outstanding reputation within the legal profession and is very deserving of the appointment." The Hon Justice Banks-Smith has been a member of the Law Society since 1991, contributing as a speaker to its Continuing Professional Development programme and serving on its Ethics Committee. QUALITY PRACTICE STANDARD (QPS) The Law Society would like to congratulate Jarman McKenna who recently celebrated their Quality Practice Standard (QPS) 10th anniversary and WHL Legal Pty Ltd who recently celebrated their QPS 15th anniversary. QPS is an important Law Society initiative which recognises firms that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction by enhancing competitiveness, deepening client relationships, mitigating risk and ensuring accountability in service excellence.

The Law Society has prepared a submission to the Australian Consumer Law review, identifying key topics of importance to the legal profession. SUITORS FUND ACT 1964 The Suitors Fund Act 1964 (WA) provides for a fund that can be drawn upon to assist in the payment of costs incurred by litigants where decisions are upset on appeal or proceedings are rendered abortive through no fault of their own, such as by the death or long illness of a judicial officer. For over a decade, the Law Society has been advocating for amendments to the Suitors Fund Act 1964 (WA) for the following reasons: •

the Act is 52 years old and apart from a few minor amendments has substantially remained the same;

the Act is written in a complex and unclear manner and does not use simple language;

the procedure of obtaining money from the Board is convoluted; and

the maximum or prescribed amount is considerably lower compared to other States and needs to be increased.

For more information about QPS, please visit the Law Society's website. REVIEW OF AUSTRALIAN CONSUMER LAW A statutory review of the Australian Consumer Law is underway and an issues paper has been released for comment from consumers, business and stakeholders. The review will cover issues including: •

the relevance of the national consumer policy framework;

the effectiveness of the Australian Consumer Law's existing rights and protections;

whether new rights and protections should be introduced;

the adequacy of the remedy and offence provisions in the Australian Consumer Law, scope for taking private action, access to justice and the international reach of the legislation; and

emerging consumer policy issues, such as evolving business models, online shopping and consumer empowerment through access to consumer data and disclosure requirements.

In April 2016, the Department of the Attorney General advised that legislative amendments to the Act were currently under consideration and scheduled to be introduced into Parliament in the current session. The Law Society has written to the Attorney General, the Hon Michael Mischin MLC, requesting the opportunity to consider any Bills before they are presented to Cabinet and Parliament.


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

This edition's feature article is the Hon Chief Justice Wayne Martin's paper "Embracing Diversity in the Law: solutions and outcomes", addressing the significance of culture in the law, and the work and objectives of the Judicial Council on Cultural Diversity1. The article also identifies, as drawn from research and consultation, a range of factors that, as a practical matter, present serious barriers to full participation in the legal system by culturally and linguistically diverse and indigenous women (many of these factors susceptible to being overlooked or underappreciated by practitioners) and proposals for addressing these issues. The work of the Judicial Council, and the research and consultation involved, is clearly an invaluable part of seeking to ensure equal justice in a culturally diverse community. The question of diversity is a serious and pressing issue in the law, as well as in society generally. In the law, it has different aspects and applications – including the question of diversity in the judiciary, the profession at large, legal education, and legal processes and facilities. It also concerns consideration of actual effects and outcomes, as well as matters of impression and public confidence in the system. The concept of diversity in society as a whole is of course an even more complex, multi-faceted and at times controversial matter. Indeed, modern society being what it is, just a week or so ago, the general use of the term itself was thrown into doubt by the tectonic announcement, currently trending on the internet, that the term would no longer be used by…Oprah Winfrey.2 If anyone doubts the power of Oprah Winfrey to shape societal attitudes, just ask Tom Cruise (that incident sadly putting an end to the respectable practice of grown men celebrating enthusiasm for clearly


doomed relationships by jumping up and down on a couch in front of others).3 In looking for historically non-diverse judiciaries it is hard to go past the judges for the 1692 Salem witch trials. Six of the nine judges were related by marriage. A wedding that took place during the trial required a pause in the hearing as, in addition to the six judges related (or then related) by marriage in attendance, the wedding was presided over by the seventh judge and the eighth judge recorded his attendance. The ninth judge, who was not related to other judges, had by then resigned in protest over the conviction and execution of Bridget Bishop, the first of the accused tried.4 It is interesting that, if the powers of witchcraft were believed to be real, no one seemed to consider that it might not be the best idea to hold a wedding, with these participants and attendees, in the middle of the trial, given the prospect of a (supernatural) curse on the nuptials. If the modern experience of proceeding with weddings, come what may, is a guide, it could be because the caterer and DJ had already been paid. The judges also customarily asked an accused during the trial questions such as "what evil spirit have you familiarity with" and "why do you hurt these children"5 which makes the infamous "when did you stop […]" form of questioning seem like subtle forensic genius. In fairness, in 1692, there were no actual lawyers in Massachusetts – a lack of diversity that some members of the public might now claim would not be something to be bemoaned. By way of comparison, in 2015, there were 43,974 lawyers in Massachusetts6 that, again, some might say establishes at least some of the alleged witches fired off one blockbuster of a curse in 1692.7 A remarkable trial in the London Crown Courts in 2014 involved a number of diversity issues, one being that a witness gave evidence for almost an hour without anyone realising that she was

not speaking English – but rather was speaking a Creole dialect from Sierra Leone. This was after barristers had repeatedly asked the witness to speak more slowly and stand back from the microphone8 (ultimately, the acoustics of the Courtroom were blamed). On the upside on the diversity front, the court clerk was coincidentally also from Sierra Lione, raised the alarm, and was sworn in as an intermediary for the witness. However, on the downside as far as diversity is concerned, the jury was comprised of 11 men and one woman who sent a note to the judge asking if this was 'unusual'. The judge responded: "this is the first time I have ever seen 11 men or 11 women on a jury". This edition contains articles on commercial common sense in interpreting contracts by Joshua Thomson SC and Peter Lochore, the Sir Ronald Wilson Lecture given by Greg McIntyre SC, and articles on replacing appointors and guardians of discretionary trusts by Grahame Young and the myth of Magna Carta by Simon Chesterman, as well as a host of other items of interest to the profession. NOTES 1.

Of which the Chief Justice is Chair.


Replacing it with the term 'inclusiveness': see "Here's Why Oprah Winfrey Eliminated the Term 'Diversity' From Her Vocabulary" – by C Lang - time.com (Aug. 17, 2016).


If anyone is interested in purchasing at a discount some slightly damaged but otherwise functional couches, please contact the Editor.


This is sourced from E W Baker "The Salem Witch Trial judges: "persons of the best prudence"?; Oxford University Press blog (26/5/15); blog.oup.com.


E W Baker "The Salem Witch Trial judges: "persons of the best prudence"?


Representing 64.7 out of every 10,000 residents – third highest in the USA (total population 6,794,422).


In 2014 it was estimated that there were about 66,000odd lawyers in the whole of Australia.


This is based upon a report in the UK Telegraph, 10 December 2014 (available online) "Witness gave evidence for an hour before anyone in court realised she wasn't speaking proper English".

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

Latest Opportunities – September 2016 With a new season upon us, now is the perfect time to reassess your career goals, or strategic business needs! To find out how we can assist you with your next career move or legal staffing requirements, 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.

Workers Compensation Lawyer

Real Estate Lawyer

3-5 years

4-6 years

This successful national firm has a growth opportunity for a talented and ambitious mid-level practitioner looking to progress their career within a thriving Insurance practice.

This progressive and supportive firm has a strategic requirement for a senior Property specialist to support the continued development of their small and growing Real Estate practice.

Acting for premier national and global insurers on varied, interesting State workers compensation matters, the firms many panel appointments and national relationships will ensure a steady workflow.

Working alongside a welcoming and highly experienced partner and supported by junior team members, you will directly advise national and WA based developers, financiers, corporate and government clients on an array of property transactions, financing and development matters.

As part of a small, cohesive local team, you will collaborate directly with a relaxed, approachable and respected senior lawyer and supervising partner, ensuring you have full support to develop professionally. This will be balanced with regular client contact, autonomy and responsibility for running your own files.

Strong interpersonal skills will be key, as you support the lead partner with mentoring juniors, building client relationships and developing the practice. Exceptional career move for a practitioner seeking a greater level of autonomy, client contact and opportunity to directly manage and lead negotiations.

You’ll require 3 years + PAE working on defendant compensation matters. With a social team environment, competitive package and investment in your training and progression on offer, if your talents are not currently being utilised, now is the time to move.

Offering a high level of support and flexibility, achievable targets and a competitive package and bonus system, immediate Senior Associate appointment or short term promotion prospects are available to the right person.

Construction Litigator

Safety & Insurance Lawyer

2-4 years

5 years

This leading Construction group is highly sought after by their clients, due to their ability to provide highly commercial legal advice and support on major projects.

This is a unique opportunity for a talented and ambitious Associate or Senior Associate with expertise in safety, personal injuries and/or employment law to progress their career with a rapidly growing firm.

Joining a busy, close knit team, you’ll be engaged on a variety of complex construction litigation and arbitration matters for key engineering & construction companies, resources clients and government entities. Responsibilities will include research, advice and court document preparation, briefing counsel and lower level advocacy work. There will be regular interaction with a highly commercial and well networked supervising partner, your direct colleagues, clients, other practice groups and the national team. A clear gap between graduate and SA level will ensure progression in the team. You’ll require 2 years + PAE in construction litigation with a top tier firm and quality academics. Working with this global firm, you’ll develop your technical expertise on some of the best work currently on offer in the Perth market.

Your role will focus on strategic commercial advice to both corporate and government clients on health & safety issues, the management of safety incidents, fatalities, workplace investigations and prosecutions. You will also undertake all advocacy and lead negotiations in relation to workplace injury and broader insurance disputes. Working with an impressive and highly approachable partner, with recognised expertise in the area, you will autonomously run your matters and will assist with managing clients and supervising juniors. You will also build strong client relationships via business development, networking and regular client education activities. You’ll be at or on the cusp of promotion to SA level. This role is marked for growth, ensuring ample opportunities to progress upwards in the current team structure.

Stacey Back Director p





International law collection comes to UWA thanks to the Law Society Public Purposes Trust In 2015 the UWA Law Library was awarded a $20,000 Law Society Public Purposes Trust grant to develop its international law collection. This collection is unique in Western Australia and supports a high level of research within universities, the legal profession and by Western Australians who have an interest in international legal issues. UWA Professor Camilla Andersen contributed to the selection of texts and says: The new collection represents a much needed significant research resource for the growing body of scholars and practitioners who need to research issues which transcends borders. Important for comparative legal research, international commercial law and public law issues alike, it is one of the most extensive collections of books on international law in Western Australia. We are grateful to the Public Purposes Trust for enabling this collection to be established here, and will treasure it and share it.

Holly Cullen, Erika Techera, Camilla Andersen, Denis McLeod, and Alison Aldrich.

This curated collection of leading texts will support those who require materials for in-depth research, beyond what is available in firm libraries. This collection will also support efforts to develop dispute resolution activities in Perth, and work in the field of international relations, human rights and social justice. A selection of these highly regarded texts can be viewed in the Foyer of the Law

YOUR MEMBERSHIP GIVING BACK TO THE COMMUNITY Education and Community Services These services promote the basic principle that all people must understand the law and the legal system which affect their daily lives. The Law Society provides the: • • • • •

Francis Burt Law Education Programme; Old Court House Law Museum; Mock Trial Competition for Year 10-12 students; Clued Up Kids Competition for Year 5-6 students; and Lawyer Visits to Schools Network.

Discover the services now by visiting lawsocietywa.asn.au/community


Library during orientation week and the first week of semester 2.

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Curtin Law School team wins Manfred Lachs Space Law Moot Court Competition

A team of three Curtin University law students has won the Asia-Pacific Regional Round of the 2016 Manfred Lachs Space Law Moot Court Competition in India, the first time in 10 years that an Australian team has triumphed. Named after Judge Manfred Lachs of the International Court of Justice, the Competition involves students in researching and analysing a very complex space based scenario. They were required to research, analyse and write two memorials of legal arguments, one for the Applicant State and one for the Respondent State. These memorials are around 12,000 words each. Subsequently oral preparation occurs prior to the teams meeting in the moot hearing itself. Preparation of teams takes up to nine months. Since its introduction by the International Institute of Space Law (IISL) in 1992, the Competition has grown to cover four world regions: North America, Europe, Asia Pacific and Africa. More than 60 teams participate yearly in this competition. The IISL's Lachs Competition is particularly distinguished by the tradition of judges of the International Court of Justice presiding over and judging the World Finals. The World Finals competition takes place within the framework of the IISL's annual Colloquium, which is a contained event in the International Astronautical Congress held on a different continent each year. This year, the regional event was hosted by the National Law School of Bangalore, India's premier Law School. A total of 26 teams from universities in China, Indonesia, India, Iran, Singapore, Nepal and Australia competed. The teams from India and Singapore have dominated the moot for the last 10 years. It has been this long since an Australian team won the moot. During the competition, students were required to present their case in a set time period and answer questions


Winning team: Ricardo Napper, Jocelyn Watts, and Rachel O’Meara.

from the judges while making their submissions to the court. The Curtin team of law students included Ricardo Napper, Rachel O'Meara, and Jocelyn Watts, with Rowan Stotesbury as Assistant Coach. Together they argued the Competition scenario problem for 2016 which was between two fictitious countries, Banche and Rastalia. The scenario concerned issues of supervision and control over the manufacture of a spacecraft; damage to a satellite in orbit due to a rare solar windstorm (a potential "force majeure" event); a failed attempt to remove the satellite by grappling; damage to a spacecraft from space debris; the use of a laser device in an unsuccessful attempt to change the trajectory of a satellite; damage and death from the emergency landing of a spacecraft in distress here on Earth; and a claim for asylum made by an astronaut. Mooting to a Bench that included Joanne Gabrynowicz, Professor Emerita, National Center for Remote Sensing, Air and Space Law, University of Mississippi School of Law and Advisor to NASA, the Curtin team prevailed to become the Asia-Pacific Champions of the Lachs Competition. This is a major achievement

in excellence on the part of a Law School that is only 3.5 years old. Associate Professor Dr Vernon Nase was the team's head coach. The students will now go on to compete in the World Finals in Guadalajara, Mexico, in September. They will compete there in semi-final against one of the other three regional winners (from the Americas, Europe and Africa). The semifinal winners will then moot in the World Final before a current bench of the International Court of Justice. This is the only moot accorded this honour. The win was based on work the students produced over an eight to nine month period, during which they researched and dissected a complicated area of law involving a number of space-related conventions and public international law principles, including the development of customary international law. After preparing written submissions, the team then practised presenting their cases to the team's coach, assistant coach, academics and practitioners.

September’s available legal positions PARKES LEGAL

Contact Ross Wheatley on 6316 4661

Corporate & Commercial Lawyer 2 Years+

Insurance & Workers Compensation Lawyer 2-5 Years

Dispute Resolution Lawyer 2-6 Years

This long established mid-tier practice has a strong corporate and commercial team with 4 Partners. The team adopt a solutions driven approach and work closely with their loyal clients. You will be involved in a broad range of corporate and commercial matters including: corporate and commercial agreements, equity capital markets, mergers and acquisitions, resources, finance, real estate and intellectual property.

Join this full service firm in their busy Insurance and Workers Compensation practice servicing large insurance groups and multinational clients. The team enjoy an outstanding reputation and have a consistent and increasing flow of work due to recent panel appointments.

This first class specialist firm has a dispute resolution focus and a powerful client base. Working alongside a leading Partner you will play a key role in a range of dispute resolution matters including: corporate and commercial disputes, construction disputes, resources disputes and competition law.

As the ideal candidate you will have a minimum of 2 years of experience in these areas and have a personable and client focussed approach.

They are targeting a mid-level lawyer with previous insurance law experience to support a talented Senior Associate and junior lawyer. This is an ideal time to join this team and play a key role in its development with strong growth expected in the coming years. Make the move and thrive!

Ref: RCW3467

Ref: RCW3484

Ref: RCW3485

Commercial & Real Estate Lawyer 4 Years +

Family Lawyers Specialist CBD Firm

Senior Dispute Resolution Lawyer Commercial, Construction & Energy

Join a dynamic national practice working directly alongside a leading real estate, commercial and finance Partner. As 2IC to an easy going and engaging Partner you will be encouraged to deal directly with key clients. The Perth Office has an outstanding and down to earth feel; they have attracted some outstanding lawyers.

This specialist Perth CBD Family Law Firm is headed by 2 experienced Directors, they are now looking for a junior to mid level lawyer and a senior lawyer after moving to larger premises. They are an attractive destination with lower targets and a consistent flow of high level work matters.

This leading international practice is looking for a senior construction and dispute resolution lawyer, ideally with experience in arbitrations.

The firm has a strong national property team and has provided key advice on significant and high profile property developments. Their national team includes specialists in key niche areas including retirement living, environmentally sustainable projects, industrial, retail and high rise residential developments.

You will work alongside lawyers of varying levels on both property and children’s matters ensuring that there is always someone available to discuss particularly complex matters. The firm has a talented in-house counsel to run trials which is attractive to clients. Ref: RCW3475

Ref: RCW3108

You will be encouraged to play a key role in your matters and will have the opportunity to appear in court. The firm has an outstanding feel and the lawyers share a warm camaraderie. This is a perfect alternative to top tier practice for a lawyer wanting to make their mark.

You will be engaged in running significant matters across construction, engineering, energy and insurance. You will be working with blue chip local and international clients on high value matters. The firm’s Perth Office works seamlessly with its international offices and has experienced steady growth. The firm has steadily attracted some of the region’s leading lawyers and continues to perform very strongly relative to its size. This is a key appointment for the firm. Ref: RCW3310


Contact Angela Bamford on 6316 4660

Legal Secretary / Paralegal Family Law

Legal Secretary Commercial Litigation

Temporary Legal Secretaries Various areas of Law

Are you an experienced Legal Family Law Secretary who wants to be more involved with the files? This is the role YOU have been chasing!

Boutique CBD based law firm is seeking an experienced Commercial Litigation Secretary to support a busy Director. You will need to be possess solid experience (5+ years) in commercial Litigation preferably at Partner level.

Experienced Legal Secretary seeking temporary opportunities? You will need to have a minimum of 12 months experience in a law firm environment as a Legal Secretary together with a flexible and can do approach to tasks!

You will need a proactive approach to tasks, and be able to work well under pressure. A mature manner is essential. You will need to have a minimum typing ability of 60wpm, with 98% accuracy +, digital dictation together with billing experience.

You will need to meet a minimum typing ability of 60wpm with high accuracy, intermediate knowledge of Word. Billing experience is highly desirable but is not essential for all roles.

If this is the role for you, do not delay – a highly competitive salary is on offer for your experience.


Situated in a prime CBD location, you will be working in a small, friendly and personable Family law team. A team player mentality is essential to fit with this firm. The ideal candidate will possess a minimum of 3 years experience as a Legal Secretary, with some recent family law experience. Your technical skills will include a minimum typing speed of 70wpm, (with high accuracy) in addition to advanced Word skills. Digital dictation and billing experience is essential. Ref no: AMB3480

We work with a wide range of clients from boutique to top tier, and cover all areas of law!

Ref: AMB3478

For a full list of all of our available positions please see our website parkesrecruitment.com.au PARKES LEGAL Ross Wheatley (BA LLB)

T: (08) 6316 4661 M: 0401 344 040 E: ross@parkesrecruitment.com.au

PARKES LEGAL SUPPORT Angela Bamford T: (08) 6316 4660 M: 0423 471 524 E: angela@parkesrecruitment.com.au


A quality management system helps you meet your regulatory obligations Val Antoff Estate Planning Lawyer, Irdi Legal and QPS Consultant

This article explains how a quality management system helps legal practices comply with regulatory obligations and improve the quality of the service delivered. It is targeted for those working in private and government practice – partners, lawyers, practice managers and support staff – who are keen to minimise risk and improve the quality of their service.

The Quality Practice Standard (QPS)


LAW 9000

Any director of an incorporated legal practice must have an appropriate management system. Failure to comply with s105(3) of the Legal Profession Act 2008 (WA) amounts to professional misconduct.

The LAW 9000 standard was developed by SAI Global, the College of Law, the Law Society of NSW and the NSW Office of the Legal Services Commissioner, and launched in 2004. It underwent a major review in 2010.

For sole practitioners, a quality management system is likely to reduce or eliminate any client complaints. The 2015 Legal Profession Complaints Committee Annual Report shows that 46 out of 102 complaints (45.1%) against lawyers were made against sole practitioners. This is an increase of 9.1% on the period ending 30 June 2014. The same report shows that sole practitioners accounted for 8.7% of all practice certificate holders as at 30 June 2015.

A key difference between the two standards is that LAW 9000 mandates the establishment and maintenance of your precedent system.

The benefits of implementing and maintaining a quality management system are many: compliance with regulatory obligations, improved client satisfaction, a reduction in operating costs, improved efficiency, protection of reputation, and maintenance of competitive advantage. WHAT IS A QUALITY MANAGEMENT SYSTEM? "A quality management system is a collection of business processes focused on consistently meeting clients' needs and enhancing their satisfaction." ~ Wikipedia WHAT SHOULD A QUALITY MANAGEMENT SYSTEM INCLUDE? The development and implementation of a quality management system is informed by two quality standards designed specifically for the legal profession. 10 | BRIEF SEPTEMBER 2016

The Quality Practice Standard Committee comprises senior practice managers, consultants and experienced lawyers from different fields of the profession. The Committee has developed the Quality Practice Standard (QPS) with great care. As of the end of December 2015, a total of 47 law firms in Western Australia have achieved accreditation under the QPS.

WHICH STANDARD IS RIGHT FOR MY LEGAL PRACTICE? Both standards are based on the international standard for quality management ISO 9001. The QPS is the shorter version and represents a costeffective alternative within reach of all legal practices. If your practice has never had a quality management system, the QPS would be a good starting point. Several sections of the QPS can be met easily, as these requirements have already been imposed on legal practitioners by the Legal Profession Act 2008 (WA). The LAW 9000 standard is for better resourced legal practices, as the implementation and management of the standard requires more time and effort. Additional benefits can be gained by meeting the requirements of the LAW 9000 standard in areas of precedent management, risk management, human resources, legal project management and several other areas not covered by the QPS.

HOW DO YOU DEVELOP AND IMPLEMENT A QUALITY SYSTEM? The process is not that hard. It begins with appointing one or more quality representatives from the legal practice who agree on the scope of the QPS and can identify all key processes. The next step is documenting the relevant processes and collating them into the QPS manual. The time required to detail your business processes in writing will depend on what you have already documented. Plenty of software tools can help you develop visually engaging procedures through the use of diagrams and flowcharts. IS THERE A ROLE FOR AN EXTERNAL CONSULTANT? Without full support from top management and without dedicated internal resources, the path to accreditation may be long and exhausting. External consultants can provide guidance, but there are no off-the-shelf solutions because all legal practices operate differently. The QPS needs to reflect the way you do things at your practice. WHAT ARE THE BENEFITS? QPS and HR benefits Legal practices must have a manual that sets out quality policies and organisational objectives. It is a useful induction tool for new recruits to the legal practice. Training all personnel in the quality system is likely to improve consistency in service delivery. QPS financial benefits In the first year, QPS-approved legal practices are entitled to a 7% discount on professional indemnity insurance premiums, and a 5% discount thereafter. This can significantly help offset the costs of accreditation. By reducing errors and complaints, you

will reduce the time diverted to deal with such issues. QPS improves communication with the client A significant percentage of claims against lawyers relate to poor retainer management and client communications. Drafting and updating your retainer agreement is not a formality, but it is a risk-reduction opportunity that enables better communication with your clients. To make sure that your practice has a consistent approach to agreements concerning costs, the QPS mandates that a legal practice have a procedure covering the drafting and post-execution of costs agreements. Such a procedure would be valuable if communicated to all professional staff and included in the induction programme for new lawyers. Information that should be communicated to clients includes: •

• • • •

the scope of personal information required and how it is likely to be collected, held, used and disclosed; how a client can access and correct their personal information; any alternative courses of action which could be taken; billing intervals and payment arrangements; procedures and relevant costs of engaging the services of any person, such as an independent barrister;

the likely outcome; and

what documents the legal practice will retain and who will have access to them.

QPS improves the management, review and supervision of matter files One of the biggest opportunities to cut malpractice claims lies in the good management of the matter files. By implementing and supporting a robust file management system, you will increase the effectiveness and efficiency of your legal practice and reduce your risks for errors and client complaints. The QPS mandates that matter files should be reviewed periodically by supervising professional personnel for compliance with the quality manual and to make sure that all matters are being handled appropriately. QPS could help with handling client complaints The QPS mandates an effective arrangement for communicating with clients about complaints, including the steps to be taken when addressing

complaints. The principles in your redress policy should align with the guiding principles of the Australian standard 'Customer satisfaction – Guidelines for complaints handling in organisations (ISO 10002:2004, Mod)'. These principles are visibility, accountability, responsiveness, objectivity, confidentiality, a clientfocused approach, accessibility and continual improvement. Adherence to your procedure for client's redress is likely to help you resolve complaints quickly and professionally. Sharing your procedure with complainants will show transparency and preparedness to handle their grievances.


The LAW 9000 standard builds on the documentation requirements of the QPS. It mandates that all records in a legal practice – client communications, feedback, purchasing, corrective action reports, staff training, audits, meeting minutes, trust account, insurance and other internal and external records – should be controlled. Controlling of records includes the identification, storage, protection, retrieval and disposal of records.

By developing and implementing either the QPS or the LAW 9000 standard, you will:

LAW 9000 and records of preengagement communications Pre-engagement communications form part of your legal matter files and should be managed like any other client communication. They are also subject to a lawyer-client privilege. Preengagement communications may take the form of a free first interview, free legal advice via email, telephone and email communications, and enquiries from friends and the public. The practice may have these communications with potential clients before the professional relationship is formalised by the retainer agreement. The implementation of a process for identifying, storing, protecting and later merging your pre-engagement communications would satisfy the requirement of LAW 9000 about preengagement communications and reduce certain risks to your practice and clients. LAW 9000 and an engagement policy? The standard instructs that a legal practice should have an engagement policy setting out the types of matters in which the practice will accept instructions. This policy is a risk management tool that helps eliminate the possibility of failing to achieve your objectives. The policy will filter out services which you cannot offer effectively, efficiently or economically. You can minimise the negative effect of uncertainty on your objectives by establishing your rules of engagement.

To ensure that all its activities are carried out according to the rules, requirements and procedures detailed in the quality manual, the legal practice should establish a regular internal audit schedule for the QPS or LAW 9000. The schedule of internal process audits is based on an assessment of the potential risks associated with each process, and the frequency with which the documents might change. SUMMARY

Protect your reputation

Prevent loss by reducing and eventually eliminating malpractice claims

Reduce operational costs

Achieve competitive advantage

Improve the quality of the working environment

Identify and encourage time-saving processes

Improve consistency in service delivery

Improve risk management

Improve client communication, resulting in fewer client complaints

Highlight deficiencies

Identify marketing opportunities

Find solutions for your expansion plans

Attract and retain high-calibre talent

Reduce insurance premiums

Reduce errors

Increase clients' confidence and loyalty

Become eligible to compete for some government tenders.

For more information about Quality Practice Standard, visit lawsocietywa.asn.au/qps or contact Francesca Giglia on (08) 9324 8606 or qps@lawsocietywa.asn.au.

The LAW 9000 standard is available for purchase from SAI Global.


Commercial Common Sense in Interpreting Contracts Joshua Thomson SC and Peter Lochore

Some penetrating observations of Lord Neuberger PSC in the recent decision of Arnold v Britton [2015] UKSC 36; [2015] AC 1619 highlight a potential danger in using commercial common sense to interpret contracts. This is of particular note, having regard to the statements of principle made by French CJ, Hayne, Crennan & Kiefel JJ in Electricity Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640 at [35], which were recently repeated in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 89 ALJR 990; (2015) 325 ALR 185 at [51]-[52], based upon prior English authority. In Electricity Corporation, French CJ, Hayne, Crennan & Kiefel JJ approved an English approach to contractual interpretation which had been stated by Arden LJ in Re Golden Key Ltd [2009] EWCA Civ 636 at [28]. They agreed that, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a business like interpretation on the assumption that the parties intended to produce a commercial result. They also said that a commercial contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience. The potential danger in these statements derives from an assumption that neither party intended to make a bad bargain, because such a bad bargain may be characterised as not producing a commercial result or as working commercial inconvenience. If, by using commercial common sense as part of the process of construction, judges are able to make certain assumptions about parties acting in a commercially reasonable manner, then in substance the process of construction starts from a default point that parties have not made a bad bargain. The existence of such a default position may well deviate from giving the words chosen by the parties their natural and ordinary meaning, which is the preferred approach stated by the High Court in Darlington Futures v Delco.1 In practice, if it is permissible to use commercial common sense as guiding the process of contractual construction at every stage, courts may feel justified in trying to strain the literal meaning of 12 | BRIEF SEPTEMBER 2016

Unless the words adopted by the parties are given an ordinary and natural meaning ... the process of construction risks becoming a label which disguises a judicial discretion to achieve justice by a "game with words"... words of a contract in order to produce a commercial result, or a result which avoids commercial inconvenience or commercial nonsense. The extent to which a court will go in order to achieve these results may be a matter of inclination for particular judges. However, if commercial common sense requires departure from the literal words chosen by parties to any great extent, this may lead to judges substituting their own view as to what is commercially convenient or what a reasonable business person would agree, for the actual words adopted by the parties themselves. The potential difficulties of using commercial common sense as part of the reasoning process in arriving at a proper construction of a contract were particularly identified in Arnold v Britton [2015] UKSC 36; [2015] AC 1619. Lord Neuberger of Abbotsbury PSC specifically warned at [19]-[20] about the limitations which apply in using commercial common sense to construe a contract. He said (with the concurrence of Lords Sumption and Hughes JJSC): (a) commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked

out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how such matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made; (b) while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. It is not unknown for people to enter ill-advised arrangements, and it is not the function of the court when interpreting an agreement to relieve a party from the consequences of imprudence or poor advice. The court should be astute to avoid rewriting a contract in an attempt to assist an unwise party or to penalise an astute one.

These admonitions against overplaying the use of commercial common sense in the process of construing a commercial contract are well founded. Unless the words adopted by the parties are given an ordinary and natural meaning, which may lead to the conclusion that a bad bargain has been struck, the process of construction risks becoming a label which disguises a judicial discretion to achieve justice by a "game with words": Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at 296. It is the existence of proper principle which marks the "‌ stopping place on the road that runs between second-guessing parties who have simply contracted incautiously and leaving a party at the mercy of unconsidered words" (Casson v Ostley PJ Ltd [2001] EWCA Civ 1013; [2003] BLR 147 at 152 per Sedley LJ). The key risk in an interpretative approach based upon a presumption about the intended commerciality of a bargain is that it potentially provides a basis for judges to reverse engineer a result of contractual construction by reference to its commercial effect. It introduces an element of teleological (consequencebased) reasoning. In essence, taken to its extreme, such an approach would allow individual judges to decide between alternative interpretations based upon a personal or even idiosyncratic evaluation

of the commercial consequences of the competing interpretations.2 We certainly do not suggest that this has occurred as a result of the High Court decisions to which we have referred, or that there is a widespread practice of teleological construction in lower courts. However, we think that there is a significant danger that the approach identified by the High Court may be taken to mean something more than was probably intended, and may promote an impermissible approach to construction unless guarded against. Courts should not depart from the ordinary meaning of the words used by the parties merely because they regard the result as inconvenient or unjust.3 Rather, if after considering the contract as a whole and the circumstances known to the parties, a court concludes that the language of a contract is unambiguous, the court must give effect to that language unless to do so would give the contract an operation which is commercially absurd.4 In other words, commercial common sense will usually represent a limit upon the range of possible constructions which are available from the natural and ordinary meaning of the language used, if any of those possible constructions produce a result which is not business like: e.g.,

City of Subiaco v Homebase [2015] WASCA 54 at [25]-[26]. If they do not, then commercial common sense does not come into play to any great extent: Australian Vintage Limited v Belvino Investments No 2 Pty Ltd [2015] NSWCA 275; (2015) 90 NSWLR 367 at [61]. By specifically drawing attention to the dangers of relying upon commercial common sense, we hope that the pitfalls which we have identified will be avoided. NOTES 1.

Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500 at 510. See also the NSW Court of Appeal's caution against judicial re-writing in Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91] per Gleeson JA, Basten and Meagher JJA agreeing. This caution echoes one made as long ago as 1791: Gibson and Johnson v Minet and Fector (1791) 1 H. Bl. 569 at 615; 126 E.R. 326 at 353, cited by Leggatt, Sir George, "Making Sense of Contracts: The Rational Choice Theory", (2015) 131 LQR July 2015 454, at 473.


Cserne, Peter, "Policy arguments before courts: identifying and evaluating consequence-based judicial reasoning", 16 October 2009, Humanitas Journal of European Studies, 2009 vol. 3, pp9-30 at p14, available at http://ssrn.com/abstract=1625887.


Fitness First Australia Pty Ltd v Fenshaw Pty Limited [2016] NSWSC 47, [58] per Darke J, referring to Australian Broadcasting Commission v Australasian Performing Right Association (1973) 129 CLR 99 at 109; McGrath v Sturesteps [2011] NSWCA 315; (2011) 81 NSWLR 690 at [17], cited in Newey v Westpac Banking Corporation [2014] NSWCA 319 at [90].


Fitness First Australia Pty Ltd v Fenshaw Pty Limited [2016] NSWSC 47, [58] per Darke J, referring to Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91], citing Jireh International Pty Limited v Western Exports Services Inc. [2011] NSWCA 137 at [55].

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

EMAIL US lpmc@collaw.edu.au

CALL US 08 9214 0200

VISIT US collaw.edu.au/lpmc


The Pitfalls of Performance Management

Mark Cox Director, MDC Legal

Performance management is important to the success of any enterprise. But it is an aspect of workplace relations that can be fraught with risk, especially if mishandled, and often forms the basis of claims by employees against their employers. For this reason, lawyers will often be called upon to advise on performance management and related issues, such as the implementation of policies and procedures; the training of management on performance management processes; and dealing with claims or complaints by employees who have been placed under performance management, or terminated following such a process. Lawyers may also be contacted by employees who wish to make complaints or claims. THE IMPORTANCE OF SOUND PERFORMANCE MANAGEMENT PROCESSES Employers are entitled to expect their employees to perform to a required standard for the employment relationship to be mutually beneficial. How that performance standard is set and conveyed, and how it is monitored and managed varies considerably from workplace to workplace; but the common elements of risk minimisation are clarity of expectation, timeliness of communication and fairness of implementation. And of course documentation; a written record of each of these elements is crucial.

Nikita Barsby Senior Associate, MDC Legal1

to follow, clear performance management and or assessment procedures – enabling poor performance to fly under the radar and or resulting in a lack of procedural fairness; and (d) a lack of performance management skills. Competently addressing underperformance is crucial. Underperforming employees can expose employers to reputational damage; the risk of dissatisfied customers; the risk of breaching commercial agreements and other liability (e.g. occupational health and safety risks). Underperforming employees also affect workplace morale and productivity, and can cause stress or other unsafe work environments for other employees. Terminating employees for underperformance can be a costly exercise, with a replacement employee needing to be found and retrained. Mishandled performance management can also result in allegations of bullying, claims for stress leave or workers compensation, and or claims alleging unfair dismissal, breaches of an employee's general protections and, in some circumstances, breaches of contract. So, lawyers advising employers and employees alike must be able to advise on performance management issues.

Bungled performance management can be attributable to, amongst other things:


(a) the uncomfortable and stressful nature of managing poor performance, sometimes leading to avoidance or delay in raising problems, or performance managing "in your head";

Trends in recent authorities suggest that the procedural aspects of managing underperforming employees are a common pitfall for employers. Zygmant v Braap Pty Ltd T/A Braaap Motorcycles [2015] FWC 6318; Michael Burke v Suncorp Group Ltd [2015] FWC 3357; Oliver Chalmers v EMO Trans Australia Pty Ltd [2015] FWC 2048 and Rebecca Johnston v Woodpile Investments Pty Ltd T/A Hog's Breath CafÊ – Mindarie [2012]

(b) time pressures on those responsible for implementing performance management; (c) the non-existence of, or failure 14 | BRIEF SEPTEMBER 2016

FWA 2 are all illustrative examples. In determining whether a dismissal is unfair, the first factor that the Fair Work Commission must consider is whether there was a valid reason for the dismissal related to the person's capacity or conduct.2 A determination of an employee's capacity is a determination of their ability to do their job as required by the employer.3 The appropriate test is not whether an employee is working at their personal best, but whether work is performed satisfactorily when considered objectively.4 Where an employee is not carrying out work to the required standard, a performance issue arises. A performance issue may also arise where an employee fails to observe an employer's policies, procedures or rules.5 Common myths about performance management include that: (a) an employee must agree to all performance targets for them to apply; (b) all performance targets must be set out in writing; (c) performance concerns can only be raised formally and must be formally documented; (d) there is a set period of time that employers must give an employee to improve performance; and (e) there is a minimum number of warnings that must be given prior to terminating an employee's employment. It is not necessary that an employee agrees to performance targets for them to apply. Effectively drafted employment contracts will enable employers to introduce or vary performance targets according to business needs, without requiring agreement from employees. On the other hand, having the employees agree to performance targets gives them

ownership and makes it harder for them to argue that they are unreasonable or unfair. Performance targets need not necessarily be set out in writing. What is important is that they have been clearly communicated to the employee, so that both the employer and employee have a common understanding of the required level of performance. However, setting out performance targets in writing increases the likelihood of a common understanding being achieved, and is useful evidence of what the required level of performance is in the event of a claim. Performance concerns can be raised informally or formally, but in either case should be documented. Initially an informal approach may be advisable, progressing to a more formal approach where underperformance continues. It is prudent to advise both employer and employee clients to document all forms of performance management, whether this be by way of a diary note, a short email confirming an earlier discussion, a formal letter or a formal performance improvement plan. There is no set time frame that must be given to an employee to improve performance; however the timeframe must be reasonable.6 What is reasonable will depend on the circumstances of the particular case, including the size and needs of the enterprise. There is also no minimum number of warnings that must be given when managing underperformance. However, it should be borne in mind that warnings are designed to put an employee on notice of their underperformance and to provide them with an opportunity to remedy the underperformance.7 A warning should: (a) identify the relevant aspects of the employee's performance that are of concern; and (b) make it clear that the employee's employment is at risk unless the performance issue identified improves.8 POLICIES, PROCEDURES AND PROCEDURAL FAIRNESS An employee's failure to observe an employer's policies and procedures may constitute a performance deficiency.9 In some circumstances, it may also constitute misconduct. Policies and procedures that require compliance must be clear and available to employees. Employees should also be

trained in those policies and procedures, ideally by way of induction when commencing employment and followed up with regular (for example, annual) refresher training. Although employer clients will want to require compliance with policies and procedures from employees, often employers will not want to be likewise bound; particularly if this exposes the employer to a breach of contract claim. In Dafallah v Fair Work Commission [2014] FCA 328, Ms Dafallah argued, amongst other things, that her employer, Melbourne Health, had breached her contract of employment when it failed to adhere to a disciplinary procedure. Ms Dafallah was unsuccessful in discharging her burden of proving that the policy document was incorporated into her employment contract. However, the case is a reminder to employers of the importance of taking steps to ensure that policies and procedures are not incorporated into the employment

contract if they wish them not to have contractual effect. Yet, even where policies and procedures are expressly ousted from forming part of the employment contract, failure to adhere to their contents can still expose employers to the risk of claims for unfair dismissal and or breach of the implied term of the duty of good faith (if there is such a term)10. In any event, the trends in recent authorities suggest that the most effective strategy for employers seeking to minimise the risk of successful claims is to approach performance management with procedural fairness in mind. As Deputy President Sams said in Sommers v Dawson Media Pty Ltd T/A Pink Pages [2014] FWC 6179 at [96]: Even an employer with zero human resource management or expertise or specialisation is not relieved of the obligation to act fairly and fairness is not something that one learns doing a human resources management 15

" ... even where policies and procedures are expressly ousted from forming part of the employment contract, failure to adhere to their contents can still expose employers ... " If required, the employee should also be provided with time to consider the allegations of underperformance and respond. This may be required if, for example, an employee becomes upset during a performance management meeting. The expected manner or level of performance should be set out clearly, with measurable and reasonable performance objectives set that are to be reviewed within a reasonable timeframe. The employee should be asked to confirm that they understand what is required of them. This will ensure an objective assessment of whether there is any improvement in performance. degree. Fairness is part and parcel of being a human being and treating each other properly and fairly. Advising employer clients of the importance of being familiar with all sources of obligations owed to employees, including collective agreements, will assist in their performance management approach. Industrial instruments, such as enterprise agreements in particular, can contain detailed processes applicable to performance management and must be complied with to avoid claims for breach of the instrument's terms, which can result in penalties. IMPLEMENTING PERFORMANCE IMPROVEMENT PLANS Part of ensuring procedural fairness during performance management may include the development and implementation of a clear, written performance improvement plan. A performance improvement plan should always be developed after consulting all sources of obligations owed to the underperforming employee, including the contract, employer policies and any applicable award or enterprise agreement. An informed and compliant performance management strategy, which is less likely to result in claims, can then be devised.


Communication with the underperforming employee is important. There may be many possible reasons that underpin underperformance including: lack of understanding of expectations; lack of training; personal illness or injury and difficult personal circumstances. Approaching performance management discussions with empathy and with an open mind will reduce the risk of communication breakdown and assist in facilitating a cooperative discussion that is more likely to result in identifying the reason behind the underperformance. This will in turn increase the likelihood of enhanced performance. The employee must be given a reasonable opportunity to understand what the performance issues are and respond to them. Accordingly, clear, detailed and recent examples of underperformance should be provided. Broad or vague statements should be avoided (for example, not being "a team player"; not performing in accordance with the "culture" of the business) and, where possible, objective examples should be referred to (e.g. number of sales made by reference to KPIs; specific errors or omissions in tasks, etc.). The employee should be asked if there is any explanation or reason for the poor performance.

Future meetings should be set for ongoing performance to be reviewed, and improvements and effort to improve should be acknowledged where relevant. Any performance management process should be documented. Records of meeting requests and notes from those meetings should be kept, and any informal discussions should be confirmed in writing (even if by way of a more casual email) and or file noted. Performance management and assessment documents can provide objective evidence on which to base a decision to terminate an employee, and can be relied on in defending any claim that later arises. MANAGING STRESS AND OR MEDICAL CLAIMS ARISING IN THE CONTEXT OF PERFORMANCE MANAGEMENT Performance management can be a stressful process for the underperforming employee. It is too frequently the case that the employee claims to be stressed to the point of illness, and then exercises their workplace right to take personal or other leave. Sometimes, personal illness or injury may be underlying the underperformance. In either case, lawyers should advise employer clients to take a cautious approach when managing

underperformance involving personal illness or injury. Disciplinary action or dismissal on the basis of illness or injury can form the basis of claims alleging: (a) unfair dismissal; (b) breaches of the General Protections provisions of the Fair Work Act 2009 (Cth): ss340, 351 and 352; (c) breaches of state and federal antidiscrimination legislation; and (d) breaches of contract. Where the personal illness or injury is the cause of underperformance, consider what reasonable adjustments can be made to support the employee. Let the employee know that the employer wants to support them to reach the required level of performance, while remaining clear and consistent as to what that level of performance is. Employers do not have to avoid performance management of ill or injured workers altogether, but should adopt appropriate, fair and lawful strategies for doing so. The employer also must take care to avoid discriminating against the employee by reason of their illness or injury. If possible, the underperformance and illness/injury should be managed as separate issues. AVOIDING CLAIMS Before deciding to discipline or dismiss an employee for alleged underperformance, employers should be advised to reflect on their performance management process to ensure it afforded procedural fairness. Are there any additional steps that can be taken prior to disciplinary action? If disciplinary action is warranted, is the proposed action proportionate to the underperformance? Some performance management pitfalls to be wary of include: (a) Previous positive performance reviews: In Allen v New Horizons Enterprise Ltd [2005] NSWIRC 1179 previous favourable performance reviews were a factor in the decision that dismissing an employee for poor performance was unfair. Performance records should be regular (at least annual), accurate and properly reflective of underperformance. If previous favourable performance reviews exist, an explanation for any inconsistency between prior performance reviews and the reasons for dismissal will be required.

(b) Unfair performance assessment systems: Evidence of unfair performance assessments may be used to support an unfair dismissal or other claim. These include, for example, denying employees an opportunity to provide feedback, setting unreasonably high performance targets or treating employees inconsistently.11 (c) Failure to inquire: The employee should be asked if there is any reason or explanation for the poor performance, such as illness or other personal circumstances. (d) Failure to conduct performance assessments: Clear and transparent performance assessment processes are needed. If an employee is dismissed in circumstances where performance assessments have been irregular or non-existent, ensure that there is other objective evidence of underperformance and procedural fairness. (e) Performance assessment processes forming part of the employment contract and or industrial agreement: This should be avoided if possible with purposive statements to the contrary and carefully drafted policies, procedures and management guides. Management should be familiar with, and trained in, all sources of obligations owed to employees – with regular refresher training. Note that a risk of a claim may also arise where there is a contractual entitlement to a performance review and one is not carried out. (f) Discriminatory performance assessment systems: Performance management should be objective in nature, with no performance indicators that are potentially discriminatory on unlawful grounds, or in breach of general protections or National Employment Standards (e.g. performance indicators based on the level of personal leave taken). (g) Proper documentation: Employers should ensure that any documents created as part of the performance management process clearly and accurately record discussions and outcomes and the names of the people involved. Documents should be dated and, where possible, those involved in the process, including the underperforming employee, should sign the documents.12 Having said that, the employee's refusal to sign does not invalidate the document.

(h) Failure to follow performance management processes: An employer's failure to follow its own process can itself mean that a dismissal will be unfair.13 This may also expose employers to the risk of breach of contract claims. CONCLUSION Employers need performance management skills, policies and procedures to ensure that their workplace is safe and productive, and to mitigate the risk of exposure to legal claims. Workplace relations lawyers need to be able to advise clients on policies and procedures, and be available to advise clients to deal with performance management and associated claims as and when they arise. This is especially so in light of the trends in recent authorities that suggest that even where an employer has a valid reason to discipline or dismiss an employee, this action may still result in an unfair dismissal finding where its performance management process is flawed. Employers should regularly review and refine their performance management processes, ensuring regular training and refreshers for those responsible for implementing the process. Approaching performance management in a careful and considered manner will increase the likelihood of a competent and lawful process being adopted, which will hopefully enhance an employee's performance and, at worst, leave the employer well placed to defend legal claims. NOTES 1.

Prepared with research and contributions from Gemma Little, former Paralegal at MDC Legal.


Fair Work Act 2009 (Cth) s387(a).


Nair v United Petroleum Pty Ltd [2014] FWC 340 at [10].


Ibid at [10] citing Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].


Rebecca Johnston v Woodpile Investments Pty Ltd T/A Hog's Breath Café – Mindarie [2012] FWA 2 at [55].


Sommers v Dawson Media Pty Ltd T/A Pink Pages [2014] FWV 6179.


Dafallah v Fair Work Commission [2014] FCA 328 at [89].


Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [38] – [39].


Ibid at [55].


The law is unsettled as to whether such an implied duty of good faith in contracts exists: CBA v Barker [2014] HCA 32.


Joydeep Hor and Louise Keats, Managing Termination of Employment: a Fair Work Act Guide, (CCH Australian Limited, 2nd ed, 2009), 105.


Joydeep Hor and Louise Keats, Managing Termination of Employment: a Fair Work Act Guide, (CCH Australian Limited, 2nd ed, 2009), 106.


Ross Fichera v Thomas Warburton Pty Ltd [2012] FWA 4382.


Embracing Diversity in the Law: solutions and outcomes Paper presented at the Hellenic Australian Lawyers Association (Queensland Chapter) seminar on Friday, 10 June 2016 in the Banco Court, Supreme Court of Queensland. The Hon Wayne Martin AC Chief Justice of Western Australia


expertise and experience in issues associated with cultural diversity.

The Judicial Council on Cultural Diversity (the Council) was formed under the auspices of the Council of Chief Justices and reports to the Council of Chief Justices. The primary function of the Council is to provide advice and recommendations to Australian courts, judicial officers and administrators, and judicial educators, for the purpose of improving the response of the courts to evolving community needs arising from Australia's increasing cultural diversity.

The Council's interests are not restricted to cultural diversity arising from recent migration, but extend to and include the issues associated with the cultural diversity of Aboriginal and Torres Strait Islander communities.

The Council comprises judicial officers from all Australian geographical jurisdictions and all levels of court. Our judicial resources are augmented by additional members with particular 18 | BRIEF SEPTEMBER 2016

The question of whether Aboriginal and Torres Strait Islander people are properly included within the grouping "culturally and linguistically diverse" (CALD) is controversial in some quarters. With the greatest of respect to those who have expressed a view on the topic, it seems to me that the issue is one of terminology, rather than substance. As a matter of substance, there can be no doubt that the issues which arise when

the descendants of the first Australians interact with our justice system are of profound significance to both indigenous communities and the justice system. Because of the significance of those issues, the Council also has an Aboriginal member, although the fact he has had to be recruited outside the judiciary should not go unremarked. Later in this paper I will identify specific ways in which the Council hopes to further those objectives in two important areas under current consideration, namely: (a) equal justice for indigenous and CALD women; and (b) the use of interpreters in courts and tribunals. I would like to set the scene for my

discussion of those two projects by explaining what I mean by "equal justice", and how it differs from equal treatment. EQUAL JUSTICE "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".1 When lawyers talk about 'equality' before the law, they generally connote the notion of equality often 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".2 Application of this notion of equality to the legal system: 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]3 So, the provision of equal justice depends critically and fundamentally upon the identification of all the characteristics that are relevant to the legal outcome. Thus, in Bugmy v The Queen4 the High Court held that the Aboriginality of an offender was irrelevant to the sentencing process, although the circumstances of social deprivation often associated with Aboriginal communities may be relevant to that process for individual Aboriginal offenders. Because the relevant characteristic is social deprivation, not Aboriginality, equal justice 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. Equal justice also requires all who have suffered extreme social deprivation to be treated alike, irrespective of whether or not they are Aboriginal.

THE LEGAL RELEVANCE OF CULTURE However, in other circumstances the High Court has held that the culture of an alleged offender can be relevant to the legal process. Those decisions have been controversial – especially in cases in which the purported behavioural norms of a defendant are not considered consistent with the standards of 'ordinary' persons. In Masciantonio v The Queen,5 McHugh J considered that the culture of an accused was relevant to the application of that aspect of the law of provocation which relates to the loss of self-control by the accused. In that context he observed: … 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.6 On one view this approach is entirely consistent with the provision of equal justice because it treats differently those who have different cultural perspectives of provocative behaviour. On another view, this approach could be seen as the legal condonation of purported cultural norms which are not acceptable to mainstream Australian society, such as the subordination of females, if necessary by violence. I note that McHugh J was in the minority on this point in Masciantonio. In another case involving provocation however, Moffa v The Queen,7 the High Court accepted that ethnic and cultural background of the offender was relevant to the assessment of the character of the provoking conduct. Some considered the decision to be laudable judicial recognition of multiculturalism.8 However, others were less complimentary: In Moffa's case, an Italian male was partly excused for the killing of his wife because of his ethnically linked hot bloodedness.9 Associate Professor Bird condemned the decision which she considered embedded "stereotypes in the law which

are profoundly racist" and because the "inclusion of male versions of ethnic characteristics and belief systems into a structure that is already male further disadvantages women".10 Associate Professor Bird's comments highlight some of the difficulties in this area. How can the courts know what the norms are for diverse cultures and who should inform them? Clearly there might be reason to be cautious of the arguments put forward on behalf of the accused by defence counsel. The issue of stereotypical and often highly derogatory characterisations, together with the marginalisation of women's perspectives, in particular indigenous women, has made this a fraught area.11 These observations have a particular resonance with the work of the Council, and highlight the importance of working in consultation with CALD and indigenous women on the issue of family violence – a topic to which I will return. It is also the case that the legal relevance of culture may turn upon factual issues of nuance and degree particular to each case. Cases in which a witness wishes to give evidence wearing clothing which obscures her face from view provide an example of the potential significance of the particular facts of the case. In those cases, the nature of the evidence to be given by the witness and its significance, the likelihood of a significant contest with respect to the credibility of the witness, whether the tribunal of fact is a judicial officer or a jury and the source and strength of the witness's conviction with respect to facial covering are all considerations properly taken into account by a court when deciding the appropriate course in a particular case.12 ADDRESSING DISADVANTAGE Despite these observations, or perhaps because of them, it is important that the likelihood of contention with respect to the appropriate judicial response to cultural and linguistic diversity is not overstated. Equal justice requires that disadvantage within the justice system be identified and ameliorated to the greatest practicable extent. The two areas to which I will now turn – namely, justice for CALD and indigenous women, and the use of interpreters by courts and tribunals both provide examples of areas in which disadvantage is manifest. The consequence is that the courts must take all reasonable steps to ameliorate those disadvantages in order that justice is equally available to all irrespective of their cultural background or the language they speak.


JUSTICE FOR CALD AND INDIGENOUS WOMEN The Council is undertaking a project aimed at strengthening the capacity of Australian courts to provide access to justice for women facing cultural and linguistic challenges. Although the project was not specifically focused upon family violence and family law issues, perhaps unsurprisingly, research and consultation showed that these are the two areas in which women most commonly come into contact with the justice system.

speaking backgrounds does not provide a reliable guide to the comparative prevalence of violence experienced by those groups. However, the literature does establish that family violence in CALD communities can have particular characteristics including: •

Migrant and refugee women are more likely to move in with their husband's family after marriage and suffer abuse from extended family members;

Migrant and refugee women are particularly vulnerable as a result of their immigration status, which may in turn limit their capacity to access welfare;

The Council's project involves three phases: •

Research and consultation;

Development of a framework of best practice guidelines and protocols for use by courts throughout Australia;

Advice on training packages for judicial officers and court administrators relating to gender, culture and family violence.

Issues relating to dowry and bride price can result in violence;

Migrant and refugee women are more likely to be vulnerable to forced marriage and female genital mutilation or cutting;

RESEARCH AND CONSULTATION Although there was a significant overlap between the issues confronting indigenous women and women from CALD communities when they come into contact with the justice system, there are also significant differences. For that reason, the issues confronting indigenous women were addressed separately from those confronting women from CALD communities. Separate reports have been published in relation to each group and are available on the Council's website.13 The following portions of this paper draw upon the published reports. The full reports make very interesting reading, and are highly commended to all with an interest in this important area.

Data relating to family violence The literature relating to family violence generally establishes that one very significant characteristic of such violence is under-reporting, the precise extent of which is, almost by definition, very difficult to estimate. It follows that data relating to the prevalence of family violence in Australia cannot be relied upon to establish the precise extent of the phenomenon, or even comparative trends over time, because it is impossible to know whether increases or decreases in reports are due to increases or decreases in prevalence, or to increases or decreases in reporting rates. For the same reason, data relating to the prevalence of family violence amongst people from English-speaking backgrounds as compared to people from non-English 20 | BRIEF SEPTEMBER 2016

The lack of financial independence, often exacerbated by language barriers, lower education levels making it difficult to obtain work or manage finances, visa status which precludes working, visa status which precludes access to welfare;

The importance of integrated support services so that, for example, legal, settlement and domestic violence service providers have a better appreciation of the issues arising from family violence;

Poor police responses, including failure to encourage reporting, failure to engage an interpreter where required, lack of understanding of the impact of culture and failure to enforce intervention or restraining orders;

The impact of pre-arrival experiences including a history of torture and trauma inducing, perhaps, posttraumatic stress disorder or lack of trust in police and the courts;

Community pressures arising from cultural stigma relating to divorce and family breakdown, or which assume the subordination of women;

Uncertainty about immigration status and fear of deportation in the event of family breakdown including the possible loss of Australian born children;

The cost of securing legal representation in order to render the Australian legal system comprehensible.

The literature reports increasing evidence of human trafficking for sexual and domestic servitude.

The difficulties confronting CALD women who are victims of family violence, with or without these particular characteristics, are often exacerbated by linguistic difficulties, the lack of an independent rental history, lower employment rates, lack of transport, lack of friend or family support, social isolation or, perhaps, cultural ostracisation, barriers to accessing welfare, lack of understanding of the Australian legal system and lack of an awareness of available support systems. The research indicates that perpetrators of family violence often exploit the particular vulnerability of CALD women. CALD women – consultation


understanding, including the lack of a realisation that they were being subjected to behaviour which is not acceptable by contemporary Australian standards, a lack of comprehension of the Australian justice system and its capacity to protect victims of violence;

The consultation phase of the project relating to CALD women involved the engagement of CALD women from all regions of Australia in focus groups. The outcomes of those consultations have been presented in three key areas: •

Barriers to reporting family violence;

Communication barriers – working with interpreters;

Attending court – barriers to full participation.

Barriers to reporting family violence The focus groups consistently revealed that women from CALD communities face particular barriers to reporting family violence as a consequence of their backgrounds.14 The barriers most consistently reported were: •

Lack of legal knowledge and

Communication barriers – working with interpreters The focus groups consistently reported serious concerns with respect to the use of interpreters, including key issues with respect to: •

Lack of clarity about responsibility for engaging the interpreter;

Failure to assess the need for an interpreter or incorrectly assessing need;

The lack of training and qualifications of translators sometimes engaged;

Lack of awareness amongst judicial officers, lawyers, police and others in relation to the proper way of working

with an interpreter; •

Failure to ensure that interpreters are appropriate for the individual woman, particularly having regard to gender, the importance of maintaining confidentiality, and the need for separate interpreters for protagonists in a situation of conflict; Unethical or inappropriate professional conduct by interpreters.

CALD women attending court – barriers to full participation The consultations with CALD women consistently showed significant barriers to full participation in the court process by those women. The barriers most frequently reported were: •

The intimidating process of arriving at court, where there is often inadequate signage, even in English;

Safety concerns while waiting at court arising from inadequate secure waiting areas separating women from alleged perpetrators;

Difficulty understanding forms, orders and judgments;

The dynamics of the courtroom, including the requirement that women must sit in the same room as the alleged perpetrator;

As with CALD women, the consultation phase of the project involved a series of focus groups conducted around Australia. As with CALD women, the results of the focus group consultations have been reported in three areas: •

Before court – barriers to reporting family violence;

Communication barriers;

Attending court – barriers to full participation.

Indigenous women: before court – barriers to reporting family violence As with CALD women, consultation revealed that indigenous women experience barriers to reporting family violence associated with their indigenous background. The barriers to reporting family violence most consistently reported were: •

A lack of understanding of court processes resulting in a failure to adequately engage with those processes;


Fear that reporting violence will result in the removal of children;

Geographic isolation from police, courts, child protection agencies, support services and welfare agencies;

Lack of cultural awareness by judicial officers and court staff; The limited availability of men's behavioural change programmes generally, and culturally appropriate programmes in particular; The abuse of court processes by perpetrators.

Violence against indigenous women The research establishes conclusively that indigenous women are significantly more likely to be victims of violence, including particularly family violence, than non-indigenous women. Indigenous women are also over-represented in the data relating to self-harm and suicide. Previous research has also confirmed very high levels of under-reporting of family violence in indigenous communities, and the increasing prevalence of such violence in rural and regional communities, as compared to metropolitan communities. The research also showed an association between family violence and alcohol abuse in indigenous communities, together with cannabis and increasingly, the use of amphetamine type stimulants and prescription medication abuse.

The need for greater understanding of the impact of intergenerational trauma, experiences of discrimination and racism, poverty, a past history of abuse, difficulties with literacy, health and mental health issues, and welfare dependency on Aboriginal or Torres Strait Islander women's access to the justice system;

Poor police responses including discouraging of reporting and not taking complainants seriously; Family and community pressure discouraging women from reporting violence; The potential complexity of the inter-related legal issues which confront indigenous women reporting violence, including criminal law, family law, child protection and residential tenancy issues;

Limited access to legal assistance;

Lack of legal knowledge and understanding of legal rights.

Indigenous women: communication barriers – working with interpreters The difficulties experienced by indigenous women requiring the assistance of an interpreter reported during the consultation phase were similar to those reported by CALD women, including: •

interpreter services; •

Uncertainty with respect to the responsibility for engaging an interpreter;

The lack of appropriately trained interpreters in many indigenous languages;

The practical difficulty of obtaining an appropriate interpreter without a connection with one or other of the participants in the dispute;

Failure to assess when an interpreter is required;

Lack of knowledge by judicial officers and court staff as to the proper ways of working with an interpreter;

A failure to appreciate the need to engage separate interpreters for the protagonists in a dispute.

Indigenous women: attending court – barriers to full participation Again, the barriers to full participation in court proceedings reported by indigenous women are similar to those reported by CALD women. The key issues arising from the consultations were: •

The intimidating nature of arriving at court without adequate signage or appropriately staffed reception areas;

The burden of lengthy waiting times;

The poor case coordination for women who often have complex legal needs across a variety of criminal, family children's and drug courts;

The lack of safe and secure waiting areas in which victims can be separated from alleged perpetrators;

A lack of understanding of the court processes, resulting in failure to adequately engage with those processes;

Difficulty understanding forms, orders and judgments of the court;

Courtroom dynamics, including the need to be present in the same courtroom as the alleged perpetrator;

Lack of cultural awareness by judicial officers and court staff;

Abuse of court processes by perpetrators.

THE PROPOSED POLICY FRAMEWORK The Council has published a draft policy framework responding to the issues identified and is currently consulting with interested parties in relation to that draft framework. The key components of the draft include:

The lack of funding for indigenous 21

Emphasising the importance of leadership from senior judicial officers and court administrators and the need to adjust court practices and procedures to achieve equal justice for indigenous and CALD women; Establishment of cultural diversity committees in each court, charged with various responsibilities including monitoring the implementation of the framework, overseeing judicial education programmes, raising awareness among the judiciary and court staff, coordinating community outreach events, overseeing the development of resources for indigenous and CALD court users and reporting to the Council on progress; Improving court engagement with communities, including through community education forums, regular meetings with key stakeholders amongst indigenous and CALD communities, regular visits to communities, court open days and tours, and the celebration of diversity; Court planning and policies to address issues identified in the consultation phase of the project and to consider other positive steps such as development of reconciliation action plans; Education of judicial officers and staff in relation to the particular issues which confront indigenous and CALD court users; Implementation of employment strategies which would increase the engagement of indigenous and CALD staff members; Possible engagement of indigenous and CALD cultural liaison officers to serve courts operating in areas with a significant component of either indigenous or CALD communities; Implementing steps to improve the comprehensibility of court processes through education sessions and the provision of easy to read information, including information translated into languages used by significant groups of court users; Improving data collection with respect to court use by community members; Assessing court satisfaction levels amongst indigenous and CALD court users;

Supporting the provision of on-site legal and other support services;

Improving the ways in which courts utilise interpreters;


Improving signage in courthouses and, where possible, providing secure waiting areas in which victims can be separated from alleged perpetrators; Ensuring victims are aware of the option to participate in court hearings through video link from a remote and secure area where this option is available; The establishment of key performance indicators to measure progress in the achievement of these objectives.

Consultation in relation to the draft framework has only just commenced, and it is therefore quite likely that the final terms of the framework may differ significantly from the current draft. SUMMARY – INDIGENOUS AND CALD WOMEN IN THE AUSTRALIAN JUSTICE SYSTEM The research and consultation phase has confirmed that indigenous women and women from CALD communities suffer very significant and specific disadvantages at all levels within the Australian justice system as a consequence of their cultural heritage and linguistic differences and other associated social deprivations. Disadvantages are experienced before the justice system is invoked, and discourage the reporting of family violence, and in the barriers to communication which arise from the inadequate use of interpreters. Further disadvantages arise once the court process has been engaged, discouraging full participation in that process by women from indigenous and CALD backgrounds.

Council embarked upon a major project relating to the use of interpreters in courts and tribunals. The objective of the project is to improve the ways in which courts and tribunals utilise interpreters by developing: •

Australian national standards to be applied when interpreters are used by courts and tribunals;

Model rules of court for utilisation by courts around Australia;

A model practice note, again for utilisation by courts around Australia;

A Code of Conduct governing the work of interpreters engaged to serve in courts and tribunals.

Each of these documents has been made available to interested parties for consultation. AUSTRALIAN NATIONAL STANDARDS The proposed national standards propose minimum standards for courts, judicial officers, interpreters and legal practitioners, and also suggest a number of optimal standards which courts should consider adopting. The minimum standards for courts include standards relating to: •

Adoption of model rules of court;

Engagement of interpreters where required to ensure procedural fairness;

Provision of information to the public about the availability of interpreters;

Training of judicial officers and court staff in the use of interpreters;

If the Australian community and the courts take the commitment to the provision of equal justice15 seriously, it is imperative that action be taken to address these significant disadvantages. The framework which is currently under development by the Council should provide guidance and assistance to courts with respect to the specific steps which might be taken to address the multi-faceted disadvantages experienced by women from these backgrounds.

Provision of adequate budgetary resources to engage interpreters where required;

Systems facilitating the coordination of the engagement of interpreters;

Provision of support for interpreters including working areas, positioning within the courtroom, and trauma counselling where required.


Advance booking of interpreters;

Arrangements for simultaneous interpreting, including the use of equipment to facilitate simultaneous interpreting;

Arrangements for team interpreting;

Provision of professional mentors to interpreters;

Provision of professional development to interpreters.

Much needs to be done to improve the utilisation of interpreters by courts and tribunals in order to provide equal justice to those who do not have a sufficient command of the English language to adequately participate in court proceedings without the use of an interpreter. In order to address those issues, the

The optimal standards to which courts might aspire include standards relating to:

The proposed standards relating to judicial officers include minimum standards dealing with: •

Duties of a judicial officer when an interpreter is utilised;

Desirability of judicial officers ensuring that proceedings are conducted in plain English when interpreters are utilised;

Training of judicial officers as to the manner in which interpreters should be utilised; Training of judicial officers and court staff in the assessment of the need for an interpreter; Conduct of proceedings utilising an interpreter.

The minimum standards proposed for legal practitioners include standards with respect to: •

Assessing the need for an interpreter;

Advance booking of interpreters where required;

Terms of engagement of an interpreter where the interpreter is engaged by a lawyer rather than the court;

The need to adequately brief interpreters in advance of the hearing;

The use of plain English by practitioners in proceedings which are being interpreted.

THE MODEL RULES OF COURT The Model Rules of Court are intended to provide guidance to courts as to the rules which they might implement in order to ensure the optimal use of interpreters. The model rules deal with the circumstances in which interpreters might be engaged, and the circumstances in which interpreters must be engaged. They also deal with the qualifications required for the performance of the office of interpreter and specify the functions to be performed by the interpreter. The proposed model rules also include an obligation for an interpreter to comply with the proposed code of conduct. The rules also empower the court to give directions with respect to all and any matters associated with the use of interpreters. THE MODEL PRACTICE NOTE As with the Model Rules, the Model Practice Note is intended to provide guidance to courts as to the practices and procedures appropriately adopted with respect to the engagement and use of interpreters. Subjects addressed in the Model Practice Note include the provision of the code of conduct to any interpreter

engaged to provide services to a court, the matters appropriately considered when an interpreter is engaged, the fees to be paid to interpreters, the manner in which proceedings utilising an interpreter are to be conducted, and the implementation of the proposed national standards. THE PROPOSED COURT INTERPRETERS' CODE OF CONDUCT The proposed Code of Conduct is intended to be adopted by courts and by interpreters engaged to provide services during court hearings. It includes provisions relating to the interpreter's overriding general duty to the court, the obligation of complying with directions of the court, and specific duties in relation to: •





FLEXIBILITY Although the manner in which I have described these documents might suggest that they impose rigid and prescriptive standards, in fact, they incorporate a degree of flexibility which is necessitated by current circumstances in relation to the provision of interpreters. The most significant of those circumstances is the limited supply of interpreters qualified to a standard appropriate for court interpretation in many languages. Because of that significant circumstance, the proposed national standards allow for differing minimal standards of qualification and experience depending upon the language which is to be interpreted. So, if there are a significant number of fully qualified interpreters in the language to be interpreted, the highest standards of qualification and experience are mandated by the proposed standards. As the number of accredited interpreters in any particular language diminishes, the minimum standards required also diminish. SUMMARY RELATING TO INTERPRETERS The Council has recognised a clear need for the introduction of professional standards with respect to the engagement and use of interpreters by courts and tribunals. The project currently nearing completion aims to provide assistance to courts and tribunals in the achievement of those professional standards.

involved in court or tribunal proceedings who lack a sufficient command of English to adequately comprehend and participate in those proceedings are so obvious and so profound as to not require any further elaboration by me. If equal justice is to be provided to such persons, the effective and professional provision of the services of an interpreter is essential. The Council hopes that the work it is doing in relation to this project will help courts and tribunals to achieve this important objective. GENERAL SUMMARY The title to this seminar is appropriately optimistic and positive, in its reference to solutions and outcomes. The work of the Council in the two areas I have addressed in this paper – namely, indigenous and CALD women in the justice system of Australia, and the effective use of interpreters by courts and tribunals shows significant deficiencies in current practices and procedures in each of these areas. I hope that in this paper I have shown the steps which the Council is taking to assist courts and tribunals to improve relevant practices and procedures in order to facilitate the achievement of the vital objective of providing equal justice to all in a community enriched by increasing cultural diversity. NOTES 1.

Per French CJ, Crennan & Kiefel JJ in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 [28].


Aristotle, Ethica Nicomachea (Trans W D Ross) (1925) Volume 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 2.


[2013] HCA 37; 249 CLR 571.


[1995] HCA 67; 183 CLR 58.


At 74.


[1977] HCA 14; 138 CLR 601.


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.


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




See for example the controversial sentencing of a 55 year old Aboriginal man in the Northern Territory for one month for the assault and sexual assault of a 14 year old girl, whom it was claimed had been promised to him under traditional law (The Queen v GJ (Sentence) SCC 20418849, 11 August 2005) and Irene Watson, 'Aboriginality and the Violence of Colonialism' 8(1) (2009) Borderlands e-Journal available at: www.borderlands. net.au/vol8no1_2009/iwatson_aboriginality.pdf.


The Council hopes to issue guidelines for use by courts in relation to these issues later this year.




Although some of these barriers might also be experienced by women in the cultural mainstream.


In the sense I have described.

The disadvantages suffered by persons 23

Replacing appointors and guardians of discretionary trusts Grahame Young Barrister, Francis Burt Chambers

Discretionary trusts will have a Trustee (always) an Appointor (usually) and a Guardian (less often). The incidents attaching to each office form an integrated scheme for the governance of the trust. From time to time it can be necessary or desirable to replace the existing officeholder because of death, incapacity or conflict. Death or incapacity may be anticipated and provided for, or may come as an untimely surprise. Unfortunately, conflict is becoming more common as the first generation to make extensive use of discretionary trusts in Australia ages and passes control and benefit to the next generation, whether voluntarily or not. Much has been written and litigated concerning replacement of a trustee. This article discusses the less trammelled topic of replacement of Appointors and Guardians. It is intended as an introduction to the issues. THE DRAMATIS PERSONAE The Settlor and the Instigators The Settlor is usually an unrelated person, often an adviser to the instigators or an ancestor, who settles a nominal amount to establish the trust and then has no ongoing role and must not be a beneficiary. The true instigators of the trust will then fund the trust and cause it to acquire the initial trust property. I will refer to them as the matriarch and patriarch. Typically they will initially also be or control the trustee and be named as Appointor, Guardian and beneficiaries.1 The Trustee The trustees of discretionary trusts have extraordinarily wide powers of management and disposition conferred on them. Self-dealing is permitted; exculpation from liability is conferred to the greatest extent possible, together


with rights of indemnity against the trust property and, on occasion, beneficiaries. The offices of Appointor and Guardian are designed to provide a system of checks and balances over the powers of the trustees.2 While there is substantial identity between the office holders, the need for checks and balances over the trustee's powers is in abeyance. In Australia this leads to the conclusion that the purpose of the offices is not for initial control, but rather in relation to succession and generational issues.3 It is in relation to those issues that consideration is likely to be given to replacing the Appointor and Guardian and their successors. A few paradigm cases are listed below. After the trust has been established and operating for a period, the matriarch and patriarch may wish to step down from the quotidian tasks as trustees but nevertheless wish to retain control over dispositions of income and capital and other major overriding powers. They can do this by retaining the power to remove the Trustee and maintaining their veto over certain decisions. The appointment of one child as trustee may be intended to give that child the ability to favour that child and their family over their siblings. In those cases the favoured child may also succeed, or be named to succeed, to the office of Appointor or Guardian or both. But times and relationships may change and the matriarch and patriarch may seek to make other appointments or to annul those previously made. In other cases, one child may be appointed as trustee because of superior management capabilities but all children may be appointed as Appointors and Guardians jointly, perhaps with power to act by a majority. The appointment may be immediate or as successors to the matriarch and patriarch. Conflict between the siblings may render this arrangement unworkable.

The Appointor In this article an Appointor is the person having power to remove and appoint the trustee. In some deeds the trustee is required to give the Appointor notice of intention to exercise certain powers, thus enabling the Appointor to remove the Trustee before the power is exercised. It has been held that the power of an Appointor is fiduciary, Re Burton, Wily v Burton [1994] FCA 1146; 126 ALR 557, a case that has been followed on many occasions, but it is less clear what that means. A distinction has been drawn between wholly or fully fiduciary powers on the one hand and intermediate, mere or semi-fiduciary powers on the other.4 It would appear that a fully fiduciary power is subject to the full panoply of fiduciary duties, including the duty to consider the exercise of the power and to exercise it if the circumstances warrant. An intermediate power, if exercised, need only be exercised honestly and in good faith. In my experience it is rare for a trust deed to specify the nature of the Appointor's powers or to make provision for the Appointor to be in a position to properly consider the exercise of their powers, for example by requiring copies of financial statements to be provided or requiring the trustee to respond to requests for information. In the latter case a question arises what limits are to be placed on the information required to be made available – will it include statements of wishes, or reasons for the exercise of discretion, which have been held not to be subject to compulsory disclosure? The Guardian The Guardian has a power of veto over the exercise of some of the Trustees powers, usually in relation to distributions of income and capital, changing the vesting date, adding or excluding beneficiaries and amending the trust deed. The Guardian may be in a position to

benefit personally from withholding consent, as for example if the Guardian is a default beneficiary, or may have a more generalised interest, as for example being able to rule from the grave by entrenching a scheme of distributions. It can be difficult to determine the nature of the Guardian's powers, particularly if one of the Guardians and their successor has a personal interest and the other does not. As the powers are granted to the officeholder, it is not logical that the nature of the powers should change depending on the identity of the officeholder. If the power is purely personal then it may be exercised capriciously, without due or any enquiry and without concern for conflict of interest, the only fetter will be the doctrine of fraud on the power. Other names or offices At times when only an Appointor is named, the consent of the Appointor may be required for the exercise of some trustee powers. This will give rise to questions whether all of the powers of the officeholder are of the same nature, but there will be at least a presumption that is the case. Other names may be used, such as Principal or Protector, whose powers may be those of an Appointor or a Guardian or a combination. Rarely in Australia, an office holder may have powers to direct a trustee as to whether and in what manner to exercise their powers. MODES OF REPLACEMENT Provisions for succession Most trust deeds have specific provisions for successor Appointors. If they do not section 7 of the Trustees Act 1962, and its equivalent in other Australian and common law jurisdictions, sets out who may appoint a substitute trustee, but does not give a power to remove. The drafting of trust deed provisions varies greatly. Some provide for a named successor on death, but do not refer to incapacity or retirement. Others may provide for a successor during incapacity, raising the question whether the appointment revives each time capacity returns. Incapacity may or may not be defined. Provisions in the Schedule to the deed may conflict with provisions in the body of the deed. Sometimes there is a provision for retirement of the Appointor but no provision who is to succeed in that event.

Appointors, or their successors may be given power to appoint successors which may be limited as to form (by deed or will) or event (on death). These comments also apply to succession provisions for Guardians, although it is not unusual to find there are no such provisions and that the scheme of the trust deed is that when there is no Guardian certain powers or discretions cease to be exercisable so that the trust becomes fixed. However the provisions are drafted, it is necessary to pay close attention to them if they are to be used. Amendment of the trust deed If there are no, or insufficient, provisions in the deed, then the next option is to consider amendment of the deed.5 There can be two kinds of amendment, one to appoint the officeholder when none is provided for or to give or amplify the power to appoint successors while the present officeholder remains until a terminating event, and the other to override the provisions naming the officeholders and their successors. Two issues will arise, first whether there is an amendment power that is sufficiently wide to make the desired amendments and second whether the exercise of the power may be constrained. Both of these issues arose in Mercanti v Mercanti [2015] WASC 297. The appeal from the decision has been heard by the Court of Appeal but its decision has not been handed down at the time of writing. In Kearns v Hill (1990) 21 NSWLR 107 Meagher JA held that the terms of a modern discretionary trust deed are to be construed in the context that they are designed to provide maximum flexibility and should not be read down by reason of drafting infelicities or by reference to historical considerations as to the presumed intention of settlors in earlier times. In Mercanti Le Miere J held at [101] that a power to vary the trusts did not extend to varying the terms and conditions dealing with the office of Appointor. To the same effect is Jenkins v Ellett [2007] QSC 154. With respect, and subject to the context of the trust deed requiring a different construction, those findings are clearly correct. But it is necessary to draw a distinction between construing the breadth of the power and the manner and form of exercise. Restrictions as to manner are construed strictly. If the trust deed requires the amendment to be by deed,

then a resolution of the trustee or other form of document will not be effective. Similarly requirements for notice or consent must be strictly adhered to. It does not matter how apparently absurd or unreasonable the requirements are, such as using a particular coloured ink or paper.6 There are other constraints. The first is that, as a matter of construction, the general power of amendment may not override specific provisions in the trust deed as to the identity of the office holder and provisions for successors. This is very much a live issue in Mercanti. It is submitted that whatever is decided by the Court of Appeal in respect of the particular trust deed in Mercanti (and there are peculiarities in the drafting of that deed which are not common in other trust deeds I have read) it will always be necessary to consider the terms of the relevant deed without preconceptions. There will be other constraints to consider: excessive execution (which may simply be the issue of construction considered in the previous paragraph or something wider7); breach of fiduciary duty applying the tests in Karger v Paul [1984] VR 161; fraud on the power8 or inability to alter the substratum of the trust.9 Intervention by the Court In the case of an officeholder with fiduciary powers a court may intervene under its inherent power to supervise and secure the proper administration of a trust – see the discussion in Blenkinsop v Blenkinsop Nominees Pty Ltd [No. 2] [2016] WASC 61 at [27] – [38]. An Appointor was removed and a successor appointed in Kennedy v Kennedy [2011] NSWSC 1619 in unusual circumstances where the officeholder had disappeared, but the decision, delivered ex tempore, does not specify the source of the power. Where the power was personal, Allanson J in Blenkinsop [No. 2] declined to remove a Guardian citing Vagliviello v Vagliviello [2003] WASC 61 per Barker J at [61]. While neither decision precludes intervention, it is submitted that a court will only intervene in extreme cases. ANALOGIES WITH PROTECTORS OF OFFSHORE TRUSTS In Blenkinsop [No. 2], Allanson J relied on a number of cases concerning protectors of offshore trusts. In my article cited at footnote 3, I pointed out significant differences between protectors of offshore trusts and Appointors and Guardians of Australian discretionary trusts. 25

In summary, offshore trusts are established by settlors settling significant assets on unknown persons in foreign jurisdictions having unfamiliar legal systems. The reasons for so doing include commercial benefits and succession planning, but the primary reasons are often to protect the assets from depredations of creditors, family claimants and fiscal authorities. It was readily apparent that there was also a need to protect against misconduct by the trustee and those appointed by the trustee to assist in administration of the trust.10 The aptly named protector was not only given the powers of an Appointor and a Guardian but also often had powers of direction to ensure the benefits flowed as intended by the settlor. This may be contrasted with the Australian position where the appointments were not significant initially but were intended to be used in the context of succession planning. The differing contexts will be relevant in construing the provisions of trust deeds. It is submitted that courts will more readily intervene where the protector of an offshore trust is not the settlor and is frustrating the purposes for which the trust was established.11 Further, offshore jurisdictions and a number of American states have specific statutory provisions dealing with trust protectors.12 Although it may be true, as Allanson J put it in Blenkinsop [No. 2] at [28], that the courts of the offshore jurisdictions "proceeded on familiar principles regarding the inherent jurisdiction of the courts to supervise


trusts", they did so against different statutory backgrounds. For these reasons it is submitted that Australian courts should be cautious in seeking guidance from decisions of those courts.


This identity and overlapping control should not be considered to cause the trust to be considered a sham or illusory – see the recent decision of the Supreme Court of New Zealand, Clayton v Clayton [2016] NZSC 29.


There is an illuminating discussion in Orlanski v Spiegel [2015] VSC 662.


For a fuller discussion see my article "Trust Protectors – An Australian Perspective" Oxford Journal of Trusts and Trustees, OUP Vol 22, No. 4, May 2016, pp. 455463.


See LGSS Pty Ltd v Egan [2002] NSWSC 1171 per Austin J at [108] – [113]. The variety of names given does not signify a multiplicity of categories.


For a fuller discussion of the issues, reference may be made to my papers Amending Trust Deeds Taxation Institute National Tax Intensive 18 August 2006, Where are we at amending trust deeds after Clark's case Taxation Institute National Convention 14 March 2013 and a paper by Ron Jorgensen Managing Trust Deed Amendments Taxation Institute WA Tax Intensive 29 April 2016.


Rutland v Doe d. Wythe (1843) 10 Cl & Fin 419 at 425; 8 ER 801 at 804. Re Cavill Hotels Pty Ltd [1998] 1 Qd R 396 is best seen as an application of this principle. The amendment clause permitted amendment by deletion of names of beneficiaries. It was held that an amendment listing the continuing beneficiaries and deeming all others to have been deleted was beyond power.


See Thomas on Powers; Prof Geraint Thomas OUP 2nd Ed 2012 Ch 8.


For illustrations of application of the doctrine see Coventry v Smith [2004] FamCA 249 and Austec Wagga Wagga Pty limited v Rarebreed Wagga Pty Limited [2012] NSWSC 343. Both were in the context of family disputes where the appointment of a new trustee was intended to frustrate the claims or actions of an estranged wife.


In Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 it was suggested that the substratum principle may be no more than an application of the doctrine of fraud on the power. The decision contains at [74] a succinct exposition of the doctrine.


As an example see Schnmidt v Rosewood Trust Ltd [2003] 2 AC 709 where it appears the trustee contemplated taking advantage of the untimely death of the settlor.


In the matter of the K Trust Royal Court of Guernsey Judgment 31/2015. Other cases dealing with removal of a protector, and which were not cited in Blenkinsop [No. 2], include In the matter of the A Trust [2012] JRC 066 (Jersey), and In the matter of the Piedmont Trust [2015] JRC 196 (Jersey).


Excerpts from the statutes are contained in three texts: Holden Trust Protectors, Jordan Publishing 1st Ed 2011; Hubbard Protectors of Trusts, OUP 1st Ed 2013; Bove Trust Protectors Juris Publishing 1st Ed 2014.

CONCLUSIONS If it is desired to replace an Appointor or Guardian, even with their consent, it is necessary to give careful attention to the relevant provisions of the governing trust deed and to the constraints on the exercise of the relevant power, particularly if replacement is to be effected by amendment of the deed. It should never be assumed that a power exists or can be exercised without careful consideration of any constraints that may exist. The drafting of trust deeds is often inadequate and will continue to pose difficulties for practitioners and courts. Provisions which clearly state the nature of the powers reposed in the officeholders, and specify the constraints, or the lack thereof, on the exercise of power will assist in resolving the problems. In particular it should be made clear whether or not the amendment power enables amendment to remove an Appointor; if not there may be an unseemly rush to remove the trustee before the trustee amends the deed to remove the Appointor. The texts on Trust Protectors listed at footnote 12 each contain useful precedents that can be adapted to Australian discretionary trust deeds.

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The Myth of Magna Carta – Or, How a Failed Peace Treaty with French Aristocrats was Reinvented as the Foundation of English (and American, and Singaporean) Liberty This article was originally published in the January 2016 edition of the Singapore Law Gazette, the official publication of the Law Society of Singapore. Reproduced with permission. Simon Chesterman Dean of the National University of Singapore Faculty of Law

The Hereford Cathedral Magna Carta was brought to Singapore and displayed at the Supreme Court from 19 to 23 November 2015. The visit provided an opportune moment to reconsider its near-mythical status in the common law tradition. This article expands on an op-ed first published in the Straits Times. Magna Carta bears an iconic status in legal history. Signed by King John at Runnymede, near Windsor, eight centuries ago last year, it laid the foundations for constraints on arbitrary power – the basis for the rule of law, democracy, and human rights. In the late nineteenth century, F.W. Maitland declared it a "sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had".1 From medieval to modern times it has been invoked by those struggling against injustice around the world, from Mahatma Gandhi to Nelson Mandela. In the past two years alone, it has been cited twice by Singapore's High Court as the origin of liberties protected by articles 9(1)2 and 11(1)3 of the Constitution. It is even more revered in the US. Speaking in London in 2011, President Barack Obama observed that "when kings, emperors, and warlords reigned over much of the world, it was the English who first spelled out the rights and liberties of man in the Magna Carta".4 At the launch of a celebration of its anniversary at the Library of Congress, Chief Justice John Roberts referred to it as the cornerstone on which 28 | BRIEF SEPTEMBER 2016

the rule of law was built.5

and Singaporean – law?

The only problem with the historical account is that almost none of it is true.

For three basic reasons. First, there was not one Magna Carta but several. Second, text that had lain dormant for centuries was later used opportunistically in another English battle against another King. And third, Americans carried the spirit of Magna Carta across the Atlantic – without necessarily bothering to read the words.

The agreement at Runnymede was not a constitutional document intended to limit power, but a peace treaty to preserve the King's rule. Despite many paintings and a commemorative £2 coin showing him holding Magna Carta and a quill, King John never signed it. Oh, and it was not called Magna Carta.


"The Articles of the Barons", as it was originally known, did not guarantee freedoms for the English people. On the contrary, those limitations that it did impose on the King were primarily for the benefit of the Anglo-Norman – that is, French – aristocracy.6

Though the document agreed at Runnymede was a failure, it was reissued the following year after John's death by the regents of his son, the nine-year-old King Henry III. With the conclusion of the First Barons' War in 1217, the document was issued a third time. A separate Forest Charter (Carta de Foresta) was also concluded, leading to the main document being called 'Magna'. Henry III reissued it yet again with further changes in 1225 and his son, Edward I, did the same in 1297.

Such documents outlining the manner in which the monarch intended to govern, known as Coronation Charters, had been issued by Kings since at least Henry I in 1100; Kings in France had sworn oaths binding themselves to the administration of justice since 877. It is true that these were often disregarded in practice, but so too was the Articles of the Barons. Neither side complied with their commitments and it was soon annulled by Pope Innocent III, leading to the First Barons' War. Even if it had not been repudiated, the text hardly reads like the fountainhead of liberty. Among other things, the 1215 document limited the ability of a woman to testify on the death of anyone other than her husband and included punitive provisions applicable to Jewish bankers.7 So how is it that this misogynistic, antiSemitic, failed peace treaty came to assume such significance in English –

It was this last version that was incorporated into England's statutes and three provisions do remain in force today.8 The first two are of marginal significance. A statement that the Church of England is to be free from royal interference reads a little oddly in a postReformation world in which the British monarch holds the title of Supreme Governor of the Church of England. Similarly, the promise to respect the "liberties and customs" of the City of London and other cities, boroughs, towns, and ports is of historical interest regarding the governance of London but little practical impact. The third remaining clause is of more significance and echoes text from the

officers, shall in anything be at fault toward any one, or shall have broken any one of the articles of the peace or of this security, and the offense be notified to four barons of the foresaid five-and-twenty, the said four barons shall repair to us … and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression … within forty days … the four barons aforesaid shall refer that matter to the rest of the fiveand-twenty barons, and those five-and-twenty barons shall, together with the community of the whole land, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us.10 The better foundation for democracy came fifty years later, when Simon de Montfort, the rebel earl of Lancaster, convened the first parliament in which two knights were elected from every shire and two burgesses from each town. Montfort drew upon the spirit of Magna Carta, but elections were not among its provisions.11 Bury St Edmunds, Suffolk, England – April 17, 2016: A plaque on the Abbey ruins in Abbey Gardens, Bury St Edmunds, Suffolk, eastern England. It is one of two plaques which were erected on the ruined piers of the crossing of the Abbey Church in 1849 to commemorate the meeting held in the town in 1214 where the participants swore an oath to compel King John of England to accept the Charter of Liberties, the precursor to the Magna Carta which he signed the following year.

1215 original: No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.9 Limiting such protections to freemen, however, meant that they were of little relevance to the vast majority of the population who were not 'free' but villeins or serfs. Nonetheless, this 39th clause of the 1215 version (clause 29 in the 1225 reissue and thereafter) later came to be regarded as the basis for the jury system. Another provision is often regarded as the foundation for parliamentary

democracy – though it reads more like a consultation mechanism with a limited right of rebellion. Edited down, it reads as follows: Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance for ever, we give and grant to them the underwritten security, namely, that the barons choose five-and-twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we … or any one of our

THE (RE)INVENTION OF MAGNA CARTA So the failed peace treaty that started a war was amended and reissued, perhaps explaining its longevity.12 But its socalled liberties helped only those who were rich and originally French. How did it come to be regarded as the font of English liberty? Lawyers. Four hundred years later, Edward Coke (1552-1634) revived – or perhaps reinvented13 – Magna Carta during the seventeenth century as Britain's 'ancient constitution'. Coke had served as Solicitor-General, Attorney-General, and Chief Justice before being sacked by James I for rejecting the King's argument that the monarch could withdraw cases from the judiciary and decide them himself. The King might not be subject to man, Coke argued, but he was at least subject to God and to the law. This was not the sort of thing that kings liked to hear from their Chief Justices. After being dismissed from the bench, however, Coke returned to Parliament (which was by then well-established) 29

and set about trying to limit the powers of the King through legislation. James I had died and the trigger was the imposition by Charles I of forced loans to cover expenses in the Thirty Years' War, imprisoning those who did not pay. Coke led a rebellion of parliamentarians who adopted resolutions declaring that Magna Carta was still valid, that it prohibited detention without trial, and that the King could not levy what was essentially a tax without Parliament's consent. Not everyone was persuaded. Oliver Cromwell notoriously dismissed the argument with a scatological quip: "I care not for the Magna Farta!" (Writing in the New Yorker, Jill Lepore noted that this may be the single thing that most Americans remember about Magna Carta from high school history. Cromwell apparently had a flair for such lines; he is also said to have called the Petition of Right the "Petition of Shite".14) It took a civil war, the beheading of Charles I, the failed rule of his son, Charles II, and the overthrow and exile of his second surviving son, James II, before the Bill of Rights Act was adopted in 1689.15 This provided, among other things, that it was 'illegal' for the sovereign to suspend or dispense with laws, to establish his own Courts, or to impose taxes without parliamentary approval. It also provided that election of members of parliament should be free, and that parliamentary proceedings should be subject only to parliamentary scrutiny. The monarchy remained powerful and institutions supporting the rule of law weak, however. Judges were given security of tenure only in 1701; deprivation of trial by jury was one of the abuses cited in the American Declaration of Independence in 1776; Bills of Attainder were abolished only in 1870. Political participation in Britain remained deeply flawed through the nineteenth century; the franchise became universal only in 1928.

be revered not just as a weapon used against the excesses of power but as a kind of secular gospel for our age? Enter the Americans. It began in literary form. Two years before the English Bill of Rights, William Penn, after whom Pennsylvania is named, carried Magna Carta across the Atlantic and printed the first American edition under the title The Excellent Priviledge of Liberty and Property, Being the Birth-right of the Free-born Subjects of England.16 The volume began with a note to the reader: It may reasonably be supposed that we shall find in this part of the world, many men, both old and young, that are strangers, in a great measure, to the true understanding of that inestimable inheritance that every Free-born Subject of England is heir unto by Birth-right, I mean that unparalleled privilege of Liberty and Property, beyond all the Nations in the world beside; and it is to be wished that all men did rightly understand their own happiness therein; in pursuance of which I do here present thee with that ancient Garland, the Fundamental Laws of England, bedecked with many precious privileges of Liberty and Property, by which every man that is a Subject to the Crown of England, may understand what is his right, and how to preserve it from unjust and unreasonable men. So the text made its way into the American political consciousness. Several decades later, writing in Poor Richard's Almanack for June 1749, Benjamin Franklin enjoined his fellow colonists to remember that "On the 15th of this month, anno 1215, was Magna Charta sign'd by King John, for declaring and establishing English Liberty."17


In the succeeding years, those colonists were becoming increasingly unhappy with the taxes imposed on them. Following Franklin's lead, some began to cite Magna Carta as authority for their position. Summoned to the House of Commons, Franklin himself was asked on what basis the colonists could assert that the Stamp Act was an infringement of their rights. In response he cited "common rights of Englishmen, as declared by Magna Charta, and the Petition of Right".18

So a flawed document negotiated with a weak King is revived opportunistically four centuries later in another struggle with a series of weak monarchs. Yet how is it that the same document comes to

Note that the Stamp Act was legislation adopted by the British Parliament – not an extra-legal tax – but by now Magna Carta was more symbol than text. When Massachusetts adopted a new seal in

It was in this period, then, that the rule of law really came to mean something. Although Magna Carta might have been an inspiration for Coke and his contemporaries in their political struggle with the crown, it was certainly no precedent on which they could rely as a matter of law.


1775, it featured a man holding a sword in one hand and Magna Carta in the other. The 5,000-word Articles of the Barons had become a four-word slogan: "no taxation without representation". After independence, the idealised Magna Carta as a constant, a kind of constitutional pole star, contributed to the myth of the new American Constitution itself as unalterable – disregarding one of the main virtues that Thomas Paine and others saw in a written constitution: the fact that one could amend it. (It is astonishing how many Americans hold their Bill of Rights, for example, to be inviolable and immutable truths – the clue is in the name "First Amendment", "Second Amendment", and so on.) Sixteen US states are said to have incorporated the text of Magna Carta wholesale into their statute books between 1836 and 1943,19 though it is unclear what they made of references to 'scutage' and the promise to remove all 'kiddles' from Thames and Medway. More seriously, the Fifth and Fourteenth Amendments to the US Constitution – which protect against deprivation of liberty without "due process of law" – were adopted in 1791 and 1868 and can be read as elaborations of the 39th Article of the Barons. Other rights now protected in the US can also be attributed to the influence of Magna Carta, though as the Library of Congress delicately put it in the notes of its exhibition, that influence was shaped by "what eighteenth-century Americans believed Magna Carta to signify"20 (emphasis added) – rather than, say, its actual text. The US love affair with Magna Carta continues today. A quick search reveals that the combined Courts of Britain have cited Magna Carta around 150 times,21 including 14 citations by the House of Lords and UK Supreme Court.22 A similar search in the US finds more than three thousand references to Magna Carta, including around 200 by the US Supreme Court alone.23 We do not yet have figures for the number of people participating in the most recent Magna Carta jamboree, but in 1939 the Lincoln Cathedral Magna Carta was sent to New York for the World's Fair. Some 15 million Americans are estimated to have seen it. With Churchill urging the US to enter the Second World War at the time, he apparently contemplated offering it as a gift to the US – "the only really adequate gesture", as it was noted in Cabinet papers discussing the prospect, "which it is in our power to make in return for the means to preserve our country".24 In the

end it was not Churchill's to give, though the war delayed its return to Lincoln Cathedral – safely sitting out the conflict in Fort Knox alongside the Declaration of Independence and the original Constitution. By extension from the US, it went on to influence the United Nations and human rights. Speaking on the occasion of the adoption of the Universal Declaration of Human Rights in 1948, Eleanor Roosevelt expressed her hope that this new document "may well become the international Magna Carta of all men everywhere".25 Not bad for a hastily drafted set of demands negotiated under threat of arms by a King and his barons.

And so, through this chain of events, a document crafted to keep King John in power came to symbolise the freedom of English and American citizens – and citizens in Singapore and everywhere else – to enjoy the rule of law, democracy, and human rights. Postscript: Two days after the exhibition of the Hereford Cathedral Magna Carta at the Supreme Court concluded, the Court of Appeal declared for the first time that a detention without trial under the Criminal Law (Temporary Provisions) Act was unlawful.27 Coincidence? Probably.

Perhaps that is not surprising. Myths have power not because of their ties to the world as it was, but to the world as we might wish it to have been. Magna Carta is one such myth. First drafted as a stalling tactic by a weak King buying time in his fight against the aristocracy, it gained traction through repetition, eventually entering the statute books. There it lay for almost four hundred years until some enterprising lawyers saw it as a tactical means of justifying their own efforts to restrain another monarch in another age. It then crossed the Atlantic to be embraced by the Americans, becoming almost an article of faith in a country where faith plays a far larger role than in other democracies.

See e.g. Lord Sumption, "Magna Carta then and now: Address to the Friends of the British Library" (9 March 2015); available at: <http://www.supremecourt.uk/docs/ speech-150309.pdf>.


Jill Lepore, "The Rule of History: Magna Carta, the Bill of Rights, and the Hold of Time", New Yorker (20 April 2015).


In legal contexts, the Bill of Rights is often assigned the year 1688 for historical reasons, though it received Royal Assent on 16 December 1689. See the discussion at note X1; available at: <http://www.legislation.gov.uk/ aep/WillandMarSess2/1/2/introduction>.


William Penn, The Excellent Priviledge of Liberty and Property Being the Birth-Right of the Free-born Subjects of England (Philobiblon Club, 1687); available at: <http://press-pubs.uchicago.edu/founders/documents/ v1ch14s5.html>.


Benjamin Franklin, Poor Richard's Almanack (New York: Barnes & Noble, 2004), p 168. Available at: <https:// books.google.com.sg/books?id=FvoL_ BQ0YOwC>.


John Phillip Reid, Constitutional History of the American Revolution, Volume I: The Authority of Rights (Madison: University of Wisconsin Press, 2003), p 167. The spelling "Magna Charta" is an alternative to Magna Carta but pronounced the same.


Lepore, supra (note 14 above).


"Magna Carta: Muse and Mentor", exhibition notes available at: <http://www.loc.gov/exhibits/magna-cartamuse-and-mentor/magna-carta-andthe-us-constitution. html>.


CONCLUSION: A GREAT CHARTER? Magna Carta literally means "Great Charter". As this brief history shows, the document was not born great but instead had greatness thrust upon it.26


Frederick Pollock and Frederick William Maitland, The History of English Law Before the Time of Edward I, 2 vols. (Cambridge: Cambridge University Press, 1898), p 184. This was despite the fact that much of it had been repealed even when these words were written.


Yong Vui Kong v Public Prosecutor [2015] SGCA 11, paras 16-18.



Public Prosecutor v Hue An Li [2014] SGHC 171, para 110.

Lexis search of "UK Cases, Combined Courts" database, November 2015.



President Barack Obama, Speech at UK Parliament (25 May 2011); available at: <https://www.whitehouse. gov/the-press-office/2011/05/25/remarks-presidentparliament-london-united-kingdom>.

In a search in November 2015, BALII finds 14 citations by the UK Supreme Court; Westlaw says 16.


In a search in November 2015, Lexis finds 207, Westlaw says 190. In a recent speech, Chief Justice Roberts put the number at 150.


Chief Justice John Roberts, Speech at Library of Congress (5 November 2014); available at: <http://www. loc.gov/today/cyberlc/transcripts/2014/141105law1100. txt>.



The English text is available in full here: <https:// en.wikisource.org/wiki/Source_Problems_in_English_ History/Appendix/Magna_Carta._1215>.

Cabinet papers proposing that Magna Carta be gifted to the USA, with annotations by Sir Winston Churchill; available at: <http://www.bl.uk/collection-items/cabinetpapers-proposing-that-magna-carta-be-gifted-totheusa>.



Magna Carta (1215), cll 10-11, 54. See Tom Ginsburg, "Stop Revering Magna Carta", New York Times (14 June 2015).

Eleanor Roosevelt, "On the Adoption of the Universal Declaration of Human Rights" (United Nations, Paris, 9 December 1948); available at: <http://www.americanrhetoric.com/speeches/ eleanorrooseveltdeclarationhumanrights.htm>.


See Magna Carta (1297), available at: <http://www. legislation.gov.uk/aep/Edw1cc1929/25/9/contents>.



Magna Carta (1297), cl 29. Clauses 39 and 40 of the 1215 version read: "39. No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. 40. To no one will we sell, to no one will we refuse or delay, right or justice".

Or, as Simon Schama nicely put it, "if Magna Carta was not the birth certificate of modern democracy it was the death certificate of despotism". Simon Schama, A History of Britain: At the Edge of the World? 3000 BCAD 1603 (London: BBC Publications, 2000), p 162.


Tan Seet Eng v Attorney-General [2015] SGCA 59, concluding that the detention of alleged match-fixer Dan Tan Seet Eng "was unlawful because it was beyond the scope of the power vested in the Minister, which was to detain persons in the circumstances where activities of a sufficiently serious criminal nature threatened to or did undermine public safety, peace or good order in Singapore" (para 148). Magna Carta was not cited in the judgment, though it did make reference to the development of the doctrine of habeas corpus from "the early part of the 13th century" (para 23).


Magna Carta (1215), cl 61.


See generally John Robert Maddicott, Simon de Montfort (Cambridge: Cambridge University Press, 1996).


J.C. Holt, Magna Carta (Second edition, Cambridge: Cambridge University Press, 1992), pp 1-2.

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2016 Sir Ronald Wilson Lecture

Presented by the Law Society, Tuesday, 2 August 2016, Central Park Building Theatrette, Perth

The High Court: legal answers to contemporary political, social and administrative issues Greg McIntyre SC Barrister, John Toohey Chambers

THE HIGH COURT'S ROLE The High Court of Australia operates as the highest Court determining law in Australia1. Under Australia's Constitution it is the final appeal Court for all other Australian State, Territory and Federal Courts2. It has jurisdiction to hear cases which are not appeals, but commence in the High Court (in what is described as its 'original jurisdiction') in certain circumstances specified in the Constitution. The most common of those is where the Commonwealth Government is a party or an order is being sought against a Minister of the Commonwealth Government.3 The Constitution also provides for the Parliament to make laws conferring original jurisdiction on the High Court in matters arising under the Constitution or involving its interpretation or arising under any law of the Commonwealth Parliament.4 The Judiciary Act 1903 conferred original jurisdiction on the High Court in matters arising under the Constitution or involving its interpretation.


Lecture proudly sponsored by

TOPIC 1: CONSTITUTIONAL LIMITS OF EXECUTIVE POWER SEPARATION OF POWERS It is a fundamental principle of the Australian Constitution (taken from other written constitutions of federal states, such as that of the United States of America) that there is a separation of powers between three elements of government: the Legislature, the Executive and the Judiciary. The separation of powers is designed to protect the people against the power of government, by distributing power between those three arms of government. Under the Australian Constitution, where the Parliament enacts a law which is beyond the law making power given to it by the Constitution, the High Court has power to declare the law invalid. It is often called upon also to determine that a law is validly enacted within the Parliament's heads of legislative power set out in the Constitution.

The Executive Government is made up of the Governor-General and Ministers and other officers and public servants acting as their agents5. It is able to be controlled by laws of the Parliament.6 The Executive's powers include – •

powers given to the Executive by statutes of the Parliament;

powers of the Executive to interfere with the rights of others without statutory authority (known as 'prerogative powers')7;

power to protect and advance the nation8; and

power to do what any other citizen might do, subject to the operation of the law9 and subject to limitations upon the power of the Commonwealth to contract and to spend money, only in respect of matters conferred upon the Commonwealth by the Constitution, either expressly or impliedly.10

The High Court has power to determine that the Executive has acted beyond

the scope of its Constitutional power. The limits of the Executive power are not defined in any specific terms in the Constitution. It follows that it is a complex task for the High Court to determine in any case whether the Commonwealth is acting within one of the several areas which gives rise to executive power. EXECUTIVE AND LEGISLATIVE POWER AND OFFSHORE DETENTION The limits upon executive power are illustrated by the case of Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors,11 in which it was decided that the detention of an asylum seeker in Nauru Regional Processing Centre was not unlawful and the Commonwealth was participating in that detention pursuant to the Migration Act 1958 (Cth). The focus in that case was upon the capacity of the Commonwealth to deprive a person of liberty.12 Since September 2012 more than 2000 asylum seekers, described as "unauthorised maritime arrivals" in the Migration Act, who have arrived within Australia's migration zone, have been taken to the Republic of Nauru and detained at a Regional Processing Centre pending processing of their claims to be refugees within the meaning of 'refugee' in the Refugees Convention.13 The Refugee Convention14 defines a refugee as: A person who owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it... In the case of Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 the Plaintiff was a Bangladeshi who was an "unauthorised maritime arrival" as defined in the Migration Act.15 Upon her entering Australia's migration zone she was detained by officers of the Commonwealth and taken to Nauru pursuant to the Migration Act.16 The Migration Act17 provides that an officer may place and restrain the UMA on a vehicle or vessel, remove the UMA from the place at which he or she is detained or from a vehicle or vessel, and use such force as is necessary and reasonable.18 Nauru is a country designated by the Minister for Immigration and Border Protection under the Migration Act19 as a "regional processing country". The reference to 'processing' is to a determination by Nauru of claims by UMAs to refugee status under the Refugees Convention. Both Australia and Nauru are signatories to that Convention. On 29 August 2012 and 3 August 2013, the Commonwealth and Nauru

entered into successive Memoranda of Understanding setting out arrangements relating to persons who have travelled irregularly by sea to Australia and whom Australian law authorises to be transferred to Nauru.20 The High Court held that there can be no doubt that Commonwealth had the statutory power to remove the plaintiff from Australia to Nauru and to detain her for that purpose.21 The Court noted that in Plaintiff S156/2013 v Minister for Immigration and Border Protection22 it was held that s198AD(2) of the Migration Act is a law with respect to a class of aliens and so is a valid law within s51(xix) of the Constitution, and the case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs23 holds that the legislative power conferred by s51(xix) encompasses the conferral upon the Executive of authority to detain an alien in custody for the purposes of deportation or expulsion. That power is limited by the purpose of the detention and exists only so long as is reasonably necessary to effect the removal of the alien.24 Plaintiff M68/2015 contended that her detention on Nauru was "funded, authorised, caused, procured and effectively controlled by, and was at the will of the Commonwealth"; and relied upon a statement in Lim that an officer of the Commonwealth Executive who "purports to authorize or enforce the detention in custody of ... an alien" without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by a valid statutory provision.25 33

"treating those required to remain in the relocation centre as prisoners irrespective of their circumstances or their status save only as asylum seekers, is to offend against their rights and freedoms..." Chief Justice French and Justices Keifel and Nettle (in a joint judgment) held that it was Nauru who detained the Plaintiff, not the Commonwealth26. They held that the Commonwealth materially supported, but did not authorise or control the plaintiff's detention.27 They noted that Lim established that the Commonwealth has power to make laws for the expulsion and detention of aliens and their restraint in custody to the extent necessary to make their deportation effective; and provisions of the Migration Act authorising the same did not interfere with the exclusivity of the judicial power under Chapter III of the Constitution.28 They concluded, however, that it was nevertheless necessary for the Commonwealth's participation in the detention of the plaintiff on Nauru to be authorised by the law of Australia.29 They held that s198AHA of the Migration Act which authorised the Commonwealth to 'take any action' in relation to the regional processing functions of a country provided the requisite authorisation by law.30 Justices Bell and Gageler, in separate judgments, concluded that section 198AHA(2) of the Migration Act conferred authority on the Commonwealth to make payments and take action in relation to regional processing functions of Nauru, including exercising restraint over the liberty of a person.31 Justice Gordon dissented, holding that – •

the Commonwealth detained the Plaintiff on Nauru32;

the MOU, authorised under s198AHA says nothing about and so does not provide the basis for detention33; and

section 198AHA is not a valid law under: (a) the aliens power – s51(xix) of the Constitution34; (b) the immigration power – s51(xxvii) of the Constitution35;


(c) the external affairs power – s51(xxix) of the Constitution36; or (d) relations with the Islands of the Pacific – s51 (xxx) of the Constitution37. Section 198AHA was inserted into the Migration Act by the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth). It was passed by both Houses of Parliament in record time, having been introduced into the House of Representatives on 24 June 2015, gone to the Senate on 25 June 2015, been passed by both Houses on the same day and assented to by the Governor-General on 30 June 2015. The Parliament, in enacting this legislation, took the extraordinary step of enacting that the provision had retrospective effect from 18 August 2012. That was related to the fact that it was on 29 August 2012 that the Commonwealth had first entered into a Memorandum of Understanding with Nauru relating to the transfer of persons to Nauru. The agreement the Executive Government had entered into with Nauru and the Commonwealth funds and assistance the Executive had provided to Nauru, which had been provided between 29 August 2012 and 30 June 2015, had been without a legislative base and beyond the power of the Executive. The passing of the 2015 Act retrospectively validated the Executive's action. If a case such as that of Plaintiff M68/2015 had come before the High Court before the enactment of the retrospectively operating Migration Amendment (Regional Processing Arrangements) Act on 30 June 2015 an entirely different result might have been expected. RETROSPECTIVITY AND THE RULE OF LAW The enactment of retrospective law is not possible in some parts of the world. The US constitution states that "No …ex post facto Law shall be passed" by either the State or Federal government.38 The enactment of retrospective law is generally regarded as undesirable if we are to be governed by the Rule of Law. The Rule of Law means that government is bound by rules fixed and known beforehand – rules which make it possible to foresee how the government will use its coercive powers and behave accordingly.39 The Rule of Law dictates that people must know what the law is, so they can abide by it. A general resort to the exercise of a power to make

retrospective laws would place us under a "government of men" or the whim of whoever is in power, rather than a "government of laws".40 THE AUSTRALIAN LEGAL PERSPECTIVE ON RETROSPECTIVE LEGISLATIVE ENACTMENTS However, there is no provision prohibiting the enactment of retrospective legislation in the Australian Constitution. The Federal government has enacted retrospective laws in other circumstances: taxation laws, including the "bottom of the harbour tax laws" passed in 1982; retrospective war crimes legislation in Polyukhovich v Commonwealth;41 and retrospective social security legislation.42 INDIVIDUAL FREEDOMS AND CONSTITUTIONAL PROTECTION On 26 April 2016, following the High Court's decision relating to the Commonwealth's powers in relation to detention of asylum seekers on Nauru, the Supreme Court of Papua New Guinea, in a unanimous decision of a five-member bench, held that detention of asylum seekers in the Manus Island Regional Processing Centre in Papua New Guinea is contrary to the Constitution of Papua New Guinea.43 There were then 850 men in the detention centre on Manus Island. Approximately half of them had been found to be refugees44. The PNG Supreme Court has ordered that – Both the Australian and Papua New Guinea governments shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island and the continued breach of the asylum seekers or transferees constitutional and human rights.45 The PNG decision arose from an application before a five-member bench of the Supreme Court of PNG by the PNG Leader of the Opposition, Belden Namah against the PNG Minister for Foreign Affairs and Immigration, Rimbink Pato and the National Executive Council and Independent State of Papua New Guinea. The PNG Supreme Court noted that the PNG government entered into two MOUs on 8 September 2012 and 5 and 6 August 2013 "under which the asylum seekers who were seeking asylum in Australia were forcefully brought into PNG…

Dr Tony Buti MLA; David Price, Chief Executive Officer, the Law Society of Western Australia; Professor Jürgen Bröhmer, Dean of Murdoch University's School of Law; Greg McIntyre SC, Barrister, John Toohey Chambers; Elizabeth Needham, President, the Law Society; Professor Peter Handford, member of the Sir Ronald Wilson Lecture Sub-Committee; and the Hon Robert Nicholson AO KCSJ FAAL at the 2016 Sir Ronald Wilson Lecture.

[T]he two governments proceeded to bring in the asylum seekers who consist of men, women and children, under Australian Federal Police escort and have them held at the MIPC against their will. The MIPC is enclosed with razor wire and manned by security officers to prevent the asylum seekers from leaving the centre. All costs are paid by the Australian government".46 The Court found that these "arrangements were outside the Constitutional and legal framework in PNG" and "the forceful bringing into and detention of the asylum seekers on MIPC is unconstitutional and therefore illegal".47 The Court held that an attempt to amend the PNG Constitution to validate the arrangements was invalid and unconstitutional. The Court noted that the UN High Commission for Refugees had reported that "the facilities on Manus Island lack some of the basic conditions and standards required".48 The PNG Constitution, s42(1) provided that: "No person shall be deprived of his personal liberty", subject to certain exceptions. The only exception applying to migration49 provided for "preventing unlawful entry … or… effecting lawful removal of a person from Papua New Guinea". Section 1 of the Constitution Amendment (No. 37) (Citizenship) Law 2014 sought to add a paragraph to the exceptions which gave a power to deprive a person of personal liberty "for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country … that the Minister, in his absolute discretion, approves."

Rachel Tanner, Greg McIntyre SC, Denise McAllister, Chau Huynh and Yanthe McIntyre-Gadsby at the 2016 Sir Ronald Wilson Lecture.

The PNG Court noted that when an amendment to the Constitution relates to rights and freedoms the amendment must –

opinions of the International Court of Justice, European Commission of Human Rights and European Court of Human Rights,

the Final report of the preIndependence Constitutional Planning Committee; and

declarations of the International Commission of Jurists.

take into account "the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind";

"be expressed to be a law that is made for that purpose"; and

"specify the right or freedom that it regulates or restricts".50

The PNG Constitution stipulates that to determine that a law is "reasonably justified in a democratic society having a proper respect for the rights and dignity of mankind" the Court must have regard to – •

the National Goals and Directive Principles,

the Basic Social Obligations,

the Charter of the UN,

the Universal Declaration of Human Rights,

UN decisions concerning human rights and fundamental freedoms,

the European Convention on Protection of Human Rights,

The Court concluded that it was not demonstrated that the law was "reasonably justified in a democratic society having a proper respect for the rights and dignity of mankind";51 and "treating those required to remain in the relocation centre as prisoners irrespective of their circumstances or their status save only as asylum seekers, is to offend against their rights and freedoms as guaranteed by the various conventions on human rights at international law and under the PNG Constitution".52 The Australian Constitution does not provide for any similar protection of individual freedoms. INDEFINITE DETENTION This lacuna in Australia's legal framework has given rise to decisions such as that in the case of Al-Kateb v Godwin53 in which the High Court, by a four to 35

three majority held that although the applicant was a stateless Palestinian, the Migration Act sections 189 and 196-198 authorised the government to detain him indefinitely. Al Kateb was born in Kuwait and moved to Australia and applied for a temporary protection visa. The Minister refused his application. He declared he wished to return to Kuwait. However, no country would accept him. He was declared stateless and detained under the policy of mandatory detention. The Government identified that at that time there were 24 stateless persons in indefinite detention. The government subsequently granted bridging visas to nine of those persons, including Al-Kateb. A bridging visa is subject to conditions that the visa holder may not work or study, and is not entitled to social security or health-care benefits. So Al Kateb, and those like him, exist in limbo with no capacity to exercise any control over their lives. I receive regular calls from a 47 year old man in immigration detention, who was born in Iran in 1969. At the age of 10 he left Iran with his parents and arrived in the USA in 1981 with his mother, who was granted refugee status in the USA. In 1991 he entered Australia on a Tourist visa. In 1993 he was recognised as a refugee and 1994 he was granted a Bridging visa, in association with his application for a Protection Entry Permit. His imputed religion is Bahai (from his Mother) and his actual religion is Christian. His Father's role with the Iranian secret police, domestic security and intelligence service (SAVAK) is enough to impute him with a political opinion, which, together with his long absence from Iran, opening him to the suspicion of being a spy, was sufficient for a delegate of the Minister for Immigration to conclude that he had a reasonable fear of persecution. His permit to re-enter the USA expired in 1992 and he has never been given permanent residency in Australia. In 2003 an International Treaties Obligation Assessment concluded that Australia's non-refoulement obligations applied to him. He has over 200 convictions in Australia for property related offences and has served 15 years' imprisonment during the 22 years he has been in Australia. In 2012 his visa was cancelled on character grounds, because of his convictions. While he has undoubtedly 'done-the-crime', he has also 'done-the-time'. However, with no visa, upon completing his latest term of imprisonment, he was moved into immigration detention at Yongah Hill Detention Centre, near Northam, and


from time-to-time is shuttled between there and Christmas Island. The Administrative Appeals Tribunal54 upheld the Minister's decision cancelling his visa on character grounds, but observed that the Minister would be unable to deport him. A judicial review application to the Federal Court55 and appeal to the Full Federal Court56 have concluded that there was no jurisdictional error and noted that following Al-Kateb v Godwin57 he is likely to remain in immigration detention indefinitely. When he calls me, there is nothing I can offer him which will change his situation. Absent an intervention by the Minister for Immigration in the "public interest"58, he seems destined to remain in detention for the rest of his life.

TOPIC 2: STATUTORY INTERPRETATION AND ACCORDING HUMAN DIGNITY INTERPRETATION OF STATUTES The High Court has an ultimate role in interpreting the words of Australia statutes. It is a very nuanced task. The High Court, in AB v Western Australia59 said In Commissioner for Railways (NSW) v Agaliano60, Dixon CJ referred to the importance of the context, general purpose, policy and fairness of a statutory provision, as guides to its meaning. The modern approach to statutory interpretation uses 'context' in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed61. Judicial decisions which preceded the Act [in question] may be relevant in this sense, but the task remains one of the construction of the Act. The Court in AB62 also noted that the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation63 to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation "the courts have a special responsibility to take account of and give effect to the statutory purpose". It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a "fair, large and liberal" interpretation64. As stated by Brennan CJ and McHugh

J in I W v City of Perth,65 "when ambiguities arise, [courts and tribunals] should not hesitate to give the legislation a construction and application that promotes its objects" provided they "faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope."66 Brennan CJ and McHugh J also acknowledged67: No doubt most anti-discrimination statutes are legislative compromises ... Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory. High Court Justice Michael Kirby, delivering the Hamlyn Lectures at the University of Exeter on the subject of judicial activism,68 rejected the doctrine of strict constructionism, and declared that: Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced... contrary to myth, judges do more than simply apply law. They have a role in making it and always have. As Lord Simon of Glaisdale said in Maunsell v Olins69: Statutory language, like all language, is capable of almost infinite gradation of 'register' â&#x20AC;&#x201C; ie it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of the court to tune in to such register and so to interpret the language as to give it the primary meaning which is appropriate in that registerâ&#x20AC;Ś In some cases, as Dennis Danuto submitted to the Court in The Castle70, "It's the vibe". REGISTRATION OF SEXUAL IDENTITY The Common Law has traditionally only contemplated male and female identification.71

husband was neither man nor woman but was a combination of both, and a marriage in the true sense of the word ... could not have taken place and does not exist".77 Beazley ACJ in the NSW Court of Appeal commented in Norrie v NSW Registrar of Births, Deaths and Marriages that if similar facts were to ever "arise again for determination, the outcome would depend upon the terms of any relevant legislation and any scientific or medical evidence that may be adduced", rather than upon the application of this now outmoded legal test.78 In the Norrie case79 the High Court, in 2014, was called upon to consider whether the Registrar of Births, Deaths and Marriages of the New South Wales had statutory power to register a person's sex as 'non-specific'.

In the 1988 case of R v Harris, the existence of a category of sex identification other than male or female was explicitly rejected.72 A submission was made to the NSW Court of Criminal Appeal that, where a person underwent medical or surgical sex reassignment treatment but not to a sufficient extent to be legally recognised as the other sex, it was "open for the Court to say that there is a third state" that they could fall into. Justice Carruthers dismissed this submission as "lack[ing] substance".73 Mathews J commented that there was "no place in the law for a 'third sex'", because "[s]uch a concept ... could cause insuperable difficulties in the application of existing legal principles" and "would also relegate transsexuals to a legal 'no man's land'".74 In the Marriage of C and D (falsely called C)75 Bell J determined the validity of a marriage between a cisgender woman and a person born with ambiguous sex who identified and lived as male. He applied the test from Corbett v Corbett (otherwise Ashley)76 and held that "the

Norrie was born in Scotland with male reproductive organs. In 1989 she underwent a "sex affirmation procedure". A sex affirmation procedure is defined80 as: a surgical procedure involving the alteration of a person's reproductive organs carried out: (a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or (b) to correct or eliminate ambiguities relating to the sex of the person. Norrie considered that the surgery did not resolve her sexual ambiguity. She applied on 26 November 2009 for her sex to be registered under the Act as 'non-specific'. The Administrative Decisions Tribunal of New South Wales found that Norrie does not identify as male or female, but as 'non-specific' and considers that identifying herself as male or female would be a false statement. The Tribunal concluded that the Registrar did not

have power to register a change of sex as 'non-specific' and that, under the Act, it is assumed that "all persons can be classified into two distinct and identifiable sexes, male and female"81. The Court of Appeal of New South Wales heard an appeal by Norrie and set aside the Tribunal's decision. It held that the Act contemplated that Norrie might be assigned to a specific category of sex other than male or female, such as 'intersex', 'transgender' or 'androgynous'. The Registrar appealed that decision to the High Court. The Registrar argued throughout that the Registrar was required to decide whether the applicant's sex should be recorded in the Register as being either male or female. Even, as in this case, where the application showed persisting ambiguity in the sex of the applicant following a sex affirmation procedure. The High Court noted that the New South Wales Births, Deaths and Marriages Registration Act 1995 expressly recognises that a person's sex may be ambiguous82. It also recognises that a person's sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person "to be considered to be a member of the opposite sex"83. When a person has undergone a sex affirmation procedure, the Act84 empowers the Registrar to register a change of sex of the person upon an application by that person. The question in the appeal to the High Court was whether it was within the Registrar's power to record in the Register that the sex of the respondent, Norrie85, was, as she said in her application, 'non-specific'. The High Court concluded86 that: The provision of the Act which acknowledges 'ambiguities' and the context of the 1996 Amending

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Act, which referred to persons of "indeterminate sex", are a sufficient indication that the Act recognises that, as this Court observed in AB v Western Australia87, "the sex of a person is not ... in every case unequivocally male or female." In AB v Western Australia88 the High Court, in 2011, decided an appeal which related to the interpretation and application of the Western Australian Gender Reassignment Act 2000. The Act creates a Gender Reassignment Board with power to issue recognition certificates which, upon production to the Registrar of Births, Deaths and Marriages, require the Registrar to alter the register in view of the reassignment and issue a birth certificate in accordance with the register. A person can apply to the Board if a reassignment procedure has taken place. There were two appellants in this case, AB and AH, who identified themselves as male although they retained some gender characteristics of a female. Each of the appellants had undergone gender reassignment procedures, in the nature of a bilateral mastectomy and testosterone therapy. The Board was satisfied in each case that the appearance of each of the appellants is that of a male person and that all the indications were that they had adopted the lifestyle of such a person. The sole reason why it determined not to issue a certificate to them was that they retained a female reproductive system. The Board reasoned: The fact of having a female reproductive system is inconsistent with being male. Because it is inconsistent with being male, it is inconsistent with being identified as male.89 The Board went on to say that there would be adverse social and legal consequences should the appellants be issued a recognition certificate whilst they have the capacity to bear children. Following a review of the Board's decisions in each case, the State Administrative Tribunal set the decisions aside, granted each application for a recognition certificate and directed the Board to issue such a certificate90. The Court of Appeal of the Supreme Court of Western Australia allowed appeals from those decisions and set aside the Tribunal's decisions. The Court of Appeal had to consider the definition of the term 'gender characteristics' and, in particular, whether each of the appellants has the


"physical characteristics by virtue of which a person is identified" as male. The majority (Martin CJ and Pullin JA) did not consider this question could be answered in the appellants' favour, because the appellants retained some characteristics of a female. Martin CJ held that each of the appellants "possess none of the genital and reproductive characteristics of a male, and retain virtually all of the external genital characteristics and internal reproductive organs of a female" and that "[t]hey would not be identified, according to accepted community standards and expectations, as members of the male gender."91 Martin CJ recognised the nature of the legislation to be beneficial, but said that it was of no assistance on the approach which he took because Parliament had determined "that value judgments are to be made, involving questions of fact and degree, as to the gender with which a particular applicant is to be identified."92 He rejected the prospect that a person's gender characteristics might be determined by the observation of a casual bystander93. Buss JA dissented. He expressed the view that the physical characteristics by which a person is identified as male or female are confined to external physical characteristics, for the purposes of the Act94 and observed that the purpose of the Act is to alleviate the condition of persons suffering from gender dysphoria, by providing a legislative mechanism which will enable their reassigned gender to be legally recognised. Buss JA observed that, if the physical characteristics by virtue of which a person is identified as male or female were intended to include internal physical characteristics, such as organs associated with the person's gender at birth, the definitions would respectively have referred to the physical characteristics by virtue of which a person 'is' a male or female or 'will be' a person of the opposite sex95. Instead the definitions refer to the physical characteristics by which a person is, or will be 'identified' as a person of the opposite sex; connoting "recognised as"96. Chief Justice French and Justices Gummow, Hayne, Kiefel and Bell JJ in a unanimous decision of the High Court in AB97 expressed the view that the central issue with which the legislation grapples [is] that the sex of a person is not, and a person's gender characteristics are not, in every case unequivocally

male or female. As the definition of "reassignment procedure" makes plain, a person's gender characteristics may be ambiguous. AUSTRALIA AND THE US On 10 June 2016 an Oregon Circuit Court Judge ruled that Jamie Shupe, who was born male, who began transitioning to female in 2013 and who identified as neither male nor female, could legally change her gender from female to 'non-binary' by a notice posted "in a public place in Multnomah County". It was reported as the first known ruling of its kind in the United States of America. The distinction between this and the High Court of Australia cases discussed is that Shupe was able to petition the Court for the ruling without any gender re-assignment process having taken place. However, Oregon law does not allow genders other than male or female on drivers licences and US federal law requires a male or female specification on documents such as passports98. In Australia currently, passports can be issued with sex identifications of M (male), F (female) or X (indeterminate/ unspecified/intersex), with the 'X' identification available as long as the relevant person can provide a letter from a medical practitioner certifying that the person is intersex.99 This recommendation was also picked up in 2013 when the Federal Government released the Australian Government Guidelines on the Recognition of Sex and Gender.100 The Government Guidelines are a set of guidelines relating to sex identification and record keeping that apply to "all Australian Government departments and agencies".101 They came into force on 1 July 2013 and are intended to be fully implemented by 1 July 2016.102 The Government Guidelines differentiate between sex and gender, and set out that the "preferred Australian Government approach is to collect and use gender information", whereas "[i]nformation regarding sex would ordinarily not be required".103 Importantly, they require that where sex/gender information is collected and recorded, "individuals should be given the option to select M (male), F (female) or X (Indeterminate/Intersex/ Unspecified)".104

TOPIC 3: COURT-MADE LAW AND ADVOCATE'S IMMUNITY COMMON LAW OR COURT-MADE LAW The Common Law is the law which is derived from custom and judicial precedent, which had its genesis in English Court decisions; rather than statute law created by the Parliament.105 ADVOCATE'S IMMUNITY The doctrine of 'advocate's immunity' is a common law rule which provides that lawyers are protected from a charge of negligence in performing tasks intimately related to litigation. In a decision delivered on 4 May 2016 in Attwells v Jackson Lalic Lawyers Pty Ltd106 the High Court considered whether immunity from liability applies to work done by a Barrister or Solicitor out of court which leads to a decision affecting the conduct of a case in court. It was addressing the issue of the limits of 'advocate's immunity'. Attwells v Jackson Lalic Lawyers Pty Limited107 raised the question of whether advocate's immunity extends to negligent advice to compromise proceedings by an out-of-court settlement.108 Chief Justice French and Justices Keifel, Bell, Gageler and Keane, in Attwells, held that advocate's immunity "does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstances that, in the present case, the parties' agreement was embodied in consent orders".109 Australia is the only common law country which recognises advocate's immunity. In a 1988 decision of Giannarelli v Wraith110 the High Court of Australia recognised and applied a principle adopted by the House of Lords in 1969 in Rondel v Worsley111 to hold that at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which is intimately connected with the conduct of a case in court. The Courts created the immunity, as a part of the development of judge made common law, for public policy reasons. The justification for the immunity was to avoid the adverse consequences for the

administration of justice of re-litigating issues determined in concluded cases112. The Courts have applied the immunity not only to barristers, who appear before the Court, but to solicitors doing work out of court which leads to a decision affecting the conduct of the case in court. The existence of the immunity was reaffirmed by the High Court in Australia in 2005 in D'Orta-Ekenaike v Victoria Legal Aid,113 despite a 2002 decision of the House of Lords revoking it in England: the case of Arthur JS Hall & Co v Simons.114 The New Zealand Court of Appeal followed the House of Lords in approving the immunity in 1974 in Rees v Sinclair115 and then revoking it in 2005 in Lai v Chamberlain.116 The High Court's reasoning in D'OrtaEkenaike was that for a client to demonstrate negligence on the part of an advocate in the conduct of litigation, re-litigation of the concluded issues would be an inevitable step. They said it is was essential to the public confidence in the finality of proceedings that litigation should not be re-opened except in a few narrowly defined circumstances. They described that as "the finality principle". The High Court stressed that the immunity does not attach to an advocate by reason of some special status accorded to the advocate above other professionals. The Court said that the immunity applies by reason of the advocate's participation in court proceedings, for which other participants (judges, witnesses and jurors) hold immunity. It is not the pressure of the

courtroom which affords the advocate the immunity, since, for example, a surgeon is under the same kind of strain whilst operating and no immunity from suit attaches to any negligence in the operating theatre117. Justice Kirby (true to his nick-name, "The Great Dissenter") dissented in D'Orta-Ekenaike, pointing out that the High Court had held to legal account architects, civil engineers, dental surgeons, specialist physicians and surgeons, anaesthetists, electrical contractors, financial advisers, police officers, builders, pilots, solicitors (giving out-of-court advice) and teachers, and asked â&#x20AC;&#x201C; So why are the lawyers in this case entitled to be treated in such a special, protective and unequal way? Is this truly the law in Australiaâ&#x20AC;Ś?118 The answer, according to the High Court in the recent Attwells case, is 'yes', but the immunity does not apply to cases where the advocate's advice leads to an out-of-court settlement, even if that results in a Court making an order which flows from that settlement;119 and it does not apply to advice given as to what case to commence.120 CONCLUSION The High Court is called upon to answer many and varied complicated questions relating to the common law, statute law and the Constitution. The answers are not obtainable by the mechanical application of an understanding of words in a written law or to be drawn solely from rules created in cases which have been decided before. The real


task of the High Court is for the Judicial officers who make up the Court to apply their collective wisdom to the disputes brought before them, taking into account the will of the Parliament, as expressed in legislation and the historical experience of the Courts in deciding any similar cases which may have gone before and to attempt to provide justice to the citizens of the nation, where government or other citizens might otherwise deprive them of the fundamental rights and freedoms which are regarded as applicable to them in accordance with the international norms of a democratic society. NOTES 1.

Huddart Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330. Since the Australia Act.


Constitution 1901, s73.


Constitution 1901, s75.


Constitution 1901, s76; Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315; 65 ALR 74.







Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [128]; Victoria v The Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338 at 380, quoting Attorney-General (Vict) v The Commonwealth [1935] HCA 31; (1935) 52 CLR 533 at 566; [1935] HCA 31.

At [32] - [35].


At [39].


(1979) 35 FLR 340.


At [40].


[1971] P 83 (Corbett v Corbett).


At [41].


At 345.


At [41]-[46].



At [71] and [259]-[265].

(2013) NSWLR 697, 724 [134] (Norrie v NSW Registrar).


At [355].



At [371].

NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490; [2014] HCA 11.


At [376]-[402].


In s32A.


At [403].


At [23].


At [404]-[411].


Section 32A(b).


At [412].


Section 32A(a).


Article I, section 9 and section 10 respectively.


Section 32DC.


F A Hayek, Road to Serfdom, 1944.



http://skepticlawyer.com.au/2011/11/03/retrospectivelegislation-against-the-rule-of-law/; Joseph Raz, 'The Rule of Law and its Virtue' (1977) 93 QR 195 at 198.

The respondent used, and the Court's reasons used, the personal pronouns 'she' and 'her' to refer to the respondent.


At [37].

(1991) 172 CLR 501. See the Australian Parliament's Legislation Handbook, which provides recommendations for legislative procedure, at [6.18].


(2011) 244 CLR 390 at 402 [23]; [2011] HCA 42.


(2011) 244 CLR 390; [2011] HCA 42.


[2011] HCA 42, at [12].


Fam 111, 144.


Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43.


AB & AH v Gender Reassignment Board (WA) (2009) 65 SR(WA) 1 at 21 [145].


Namah v Pato & others SC 1497 (SCA. No 84 of 2013) delivered 26 April 2016.



http://www.abc.net.au/news/2016-04-26/pngcourt-rules-asylum-seeker-detention-manus-islandillegal/7360078. By 17 July 2016 the Supreme Court of PNG was told that more than 600 asylum seekers had been processed and given refugee status.

The State of Western Australia v AH (2010) AMLC 30-025 at 36,058 [115] Pullin JA agreed that it was necessary to apply community standards in order to answer the question posed by the Act, at [124].


At [105].


At [110].


At [197].


At [206].


At [205].


At [23].


http://www.pbs.org/newshour/rundown/oregon-courtrules-that-nonbinary-is-a-legal-gender/; https://www. theguardian.com/world/2016/jun/16/jamie-shupe-firstnon-binary-person-oregon.


Department of Foreign Affairs and Trade (Cth), Sex and Gender Diverse Passport Applicants: Revised Policy, Australian Passport Office <https://www. passports.gov.au/web/sexgenderapplicants.aspx>.


Namah v Pato, at [74](6).


At [20].


At [39].


At [27].


Section 42(1)(g).


Section 38.


At [65].


At [69] and [117].


[2004] HCA 37.


BHFC v MIC [2013] AATA 166.


BHFC v MIC [2013] FCA 1049.


BHFC v MIBP [2014] FCAFC 25.

For example, power to create a national flag, commemorate the Bicentenary, foster national initiatives in science, literature and the arts and establish the Australian Federal Police Force and ASIO: Davis cv Commonwealth (1988) 166 CLR 79; 82 ALR 633.


(2004) 219 CLR 562.


Pursuant to the Migration Act 1958 section 195A.


[2011] HCA 42, at [10].


[1955] HCA 27; (1955) 92 CLR 390 at 397; [1955] HCA 27.

101. Ibid 2.

Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [132]-[136].


CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.

103. Ibid 3 (emphasis in original).


At [24].

104. Ibid 4.

Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [122]; Williams v Commonwealth (No 1) [2012] HCA 23; (2012) 248 CLR 156 at 193 [38], 237-238 [154]-[155], 253-254 [204], 352-353 [518]-[524], 373374 [595].


[1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; [1991] HCA 49.


IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, 39 per Gummow J; [1997] HCA 30, referring to Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333.

105. R S French, "The Common Law and the Protection of Human Rights", Anglo Australasian Lawyers Society, 4 September 2009, http://www.hcourt.gov.au/assets/ publications/speeches/current-justices/frenchcj/ frenchcj4sep09.pdf ; http://www.duhaime.org/ LegalDictionary/C/CommonLaw.aspx.


[1997] HCA 30; (1997) 191 CLR 1.


Ibid 15.

106. [2016] HCA 16; Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2016] HCATrans 48 (8 March 2016).


at 15.

107. (2016) 90 ALJR 572; [2016] HCA 16.


Michael Kirby (19 November 2003). First Hamlyn Lecture 2003 – "Judicial Activism" – Authority, Principle and Policy in the Judicial Method (Speech). University of Exeter. Retrieved 14 October 2006. Michael Kirby (20 November 2003). Second Hamlyn Lecture 2003 – "Judicial Activism" – Authority, Principle and Policy in the Judicial Method (Speech). University of Exeter. See also Michael Kirby (6 January 1997). Bar Association of India Lecture 1997 – Judicial Activism (Speech). New Delhi Hilton Hotel. Retrieved 14 October 2006. Kirby is critical of the term "judicial activism" as applied to himself and other judges. Kirby believes the term is "code language", applied chiefly by conservative commentators to views and to people with which they disagree: "The Great Dissenter: Justice Michael Kirby". Sunday Profile. 25 November 2007.

108. [2016] HCA 16 at [4].


[1975] AC 373 AT 391.

118. D'Orta-Ekenaike, Kirby J, at [210].



119. [2016] HCA 16, at [6].


Bennett, Theodore --- "No Man's Land': Non-binary Sex Identification in Australian Law and Policy" [2014] UNSWLawJ l 31; (2014) 37(3) University of New South Wales Law Journal 847 http://www.austlii.edu.au/ cgi-bin/sinodisp/au/journals/UNSWLawJl/2014/31. html?query=.

120. [2016] HCA 16, at [50] and [128].

Re Residential Tenancies Tribunal (NSW): Ex parte Defence Housing Authority (1997) 190 CLR 410 at 441; [1997] HCA 36; Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [121]. For example, the power to request extradition of an accused person from a country without an extradition treaty with Australia, resulting in the Extradition (Foreign States) Act 1966 not applying: Barton v Commonwealth (1973) 131 CLR 477; 3 ALR 70.


[2016] HCA 1. [2016] HCA 1.


Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [146].



See Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [106].


Article 1 of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).


Migration Act 1958 (Cth) s5AA.


Section 198AD(2) provides that: "An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.


Section 198AD(3). Directions have been made under s198AD(5) of the Migration Act by the Minister as to the particular classes of UMAs who are to be taken to Nauru.


French CJ, Kiefel and Nettle JJ Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 at [1].


Section 198AB(1).


Ibid at [2] and [68].


Plaintiff M68/2015 at [31].


(2014) 254 CLR 28 at 42-43 [22]-[25], 46 [38]; [2014] HCA 22.


(1992) 176 CLR 1 at 10, 32-33.


(1988) 17 NSWLR 158.


Plaintiff M68/2015 at [31].


At 170.


Ibid at [38].


At 194. See also W v W (Physical Inter-Sex) [2001]


100. Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (July 2013) (Government Guidelines)< http:// www.ag.gov.au/Publications/Documents/ GovernmentGuidelinesontheRecognitionofSexand Gender/AustralianGovernmentGuidelinesonthe RecognitionofSexandGender.PDF>. 102. Ibid 8.

109. Ibid at [6]. 110. (1988) 165 CLR 543. 111. [1969] 1 AC 191. 112. Giannarelli per Mason J at 555. 113. (2005) 223 CLR 1. 114. [2002] 1 AC 615 115. [1974] 1 NZLR 180. 116. [2005] 3 NZLR 291. 117. D'Orta-Ekenaike, per McHugh J at [188]; http:// www.thymac.com.au/publication/advocatesimmunity-from-suit-goddard-elliott-a-firm-vfritsch-2012-vsc-87/?utm_source=Mondaq&utm_ medium=syndication&utm_campaign=View-Original.


Book Review Tom Hughes QC: A Cab on the Rank, by Ian Hancock Review by Rob O'Connor QC

There are many biographies of Queen's Counsel who become judges, but not many of QCs who do not go on to be judges. This biography of Tom Hughes is one of those few. Hughes was much more than a QC, and this makes for a very interesting life story. At various times Hughes was a wartime pilot in England, junior barrister, Member of the House of Representatives, Commonwealth Attorney-General, a leader of the Australian Bar retiring in 2012 at age 89, a grazier and a racehorse owner. The biography is written by Ian Hancock, a non-lawyer, who is an Editorial Fellow at the Australian National University, Canberra . Hancock has done an outstanding job, giving chapter and verse of Hughes' 92 years to date. He gives more than that by detailing Hughes' ancestral family history of four earlier generations in Australia. The family has a long commitment to public affairs. Great-great-grandfather Thomas arrived in Sydney in 1840 and carried on a grocery business in central Sydney. Great-grandfather John was a wealthy businessman and a very generous benefactor to the Catholic Church; he was a Justice of the Peace and a magistrate. Grandfather Sir Thomas was a solicitor and became Lord Mayor of Sydney, a member of the NSW Legislative Council for 22 years and a Royal Commissioner several times; he owned a substantial number of properties, was a member of many company boards and gave generously of time and money to Catholic institutions and charities. Father Geoffrey MC, AFC served as a pilot Captain in World War I and was a very prominent Sydney solicitor. Hughes' daughter Lucy was a Lord Mayor of Sydney and is the wife of current Prime Minister Malcolm Turnbull. Hancock was greatly assisted by the large archive of family records still


retained, Hughes' letters to his parents during his RAAF service in World War II, Hughes' personal diaries for some of his life and his retention of personal files and professional records such as fee books for his whole career as a barrister. Hughes also co-operated with Hancock by making himself readily available for interviewing by Hancock. This wealth of material has made the book particularly detailed, giving the impression in some parts that the materials have been included simply because they were available. My own view is that Hughes' air force record in England contains too much unnecessary detail, especially as Hughes himself described his war career as a pilot "a relatively lucky and safe war". One interesting aspect of Hughes' air force service in England was his serving with Sir Francis (Red) Burt, later Chief Justice in WA. They remained close friends until Sir Francis's death in 2004. Another chapter written in too much detail is Hughes' unsuccessful application for a Rhodes scholarship. Hughes came third in the contest for two scholarships. Hughes' successful efforts to gain Liberal pre-selections and then elections for the Federal seat of Parkes, and later the seat of Berowra, make very interesting reading. Hughes was very ably assisted in those campaigns by young solicitor, later Prime Minister, John Howard. One of the best chapters deals with Hughes as Attorney General. He appeared for the Commonwealth twice before the High Court in his determination to test the extent of the Commonwealth's legislative powers generally, but especially in matters such as the continental shelf and territorial sea, restrictive trade practices and the corporations power. Hughes and Prime Minister John Gorton held 'centralist' views, taking the attitude that, if the Constitution gave the power to the Commonwealth, there were no relevant State 'rights'. Sir Clarrie Harders was Secretary of the Attorney-General's Department under eight AttorneysGeneral. He said that Hughes was "not

only my favourite but the best AttorneyGeneral under whom I served". Hughes supported Gorton in the power struggle between Gorton and William McMahon. The book details the steps leading up to the resignation of Fraser as a member of Gorton's Cabinet which show that Hughes was able to establish that Fraser's story in his resignation speech was not an accurate or full account of what had occurred. When McMahon won the leadership of the Liberal Party and became Prime Minister in 1971 on the casting vote of Gorton himself, McMahon sacked Hughes for being a Gorton supporter, for his views on State rights (which were unpopular with the States), and for floating the possibility that homosexuality should cease to be a criminal offence. Hughes was very bitter at the time, but it turned out to be a blessing in disguise for his future. Hughes gained preselection for the next election, but withdrew before the election was held. He returned to the Sydney Bar. Hughes soon became head of his chambers and President of the NSW Bar Association. Some areas were starting to be agitated for reform and Hughes had the carriage of those. He had to defend the Bar from criticisms in newspaper articles about restrictive trade practices such as that a QC had to appear with a junior counsel and the junior was able to charge a fee of two-thirds the QC's rate. This must have presented some difficulties for him in view of his hard-line approach to restrictive trade practices while Attorney-General. Those practices ceased to exist some decades ago. He also made submissions to the Federal Government's National Committee of Inquiry on Rehabilitation and Compensation against changes being proposed for the abolition of common law actions for damages arising from personal accidents and the introduction of a universal compensation scheme, which threatened the income-earning livelihoods of many barristers and solicitors. Hughes' submission did not oppose introduction of a no-fault scheme but wanted the retention of common law litigation for the victims of serious injuries

who deserved justice in their cases. Royal Commissioner Justice Woodhouse rejected this stance, but the Labor Government's Bill was not passed by the time of the dismissal of the Government in November 1975, and the incoming Fraser Government never resurrected the Bill. A case which created a lot of early publicity for Hughes was his representation of High Court Justice Lionel Murphy for his comment: "And what about my little mate?". This involved representation before Senate Committees, a Commission consisting of three judges, and then Court appearances. Hughes found Murphy "a difficult client". In 1977 Hughes resigned from the 11th floor of Selborne Chambers and moved to 16th floor Wardell Chambers following a nasty dispute at 11th floor of Selborne Chambers concerning the admission to membership of the floor of a junior female barrister with whom Hughes had a close personal relationship. A decision at a board meeting to elect the junior barrister was challenged at a later meeting held while Hughes was away from Sydney. No one spoke directly to Hughes about their objections. In a letter to a colleague, Hughes said that he was appalled and disgusted by the cruelty and injustice of some of his other colleagues. "I was naïve once to think that escape from politics would bring me back to a gentlemanly environment. Now I know better." Decades later, although Hughes is still disappointed that no colleagues spoke to him personally about the matter, he accepts that at the time he made unwise decisions and choices. Hughes came to national prominence as a QC in 1978 with the publication of a cover story in The Bulletin written by 23 year-old Rhodes scholar Malcolm Turnbull under the title "From silk to riches – Portrait of a $1,000-a-day QC". This followed a number of high-profile appearances, often in defamation cases. From a huge number of possible cases, the book has selected a good number of interesting ones to illustrate the style, skill and expertise of Hughes as one of Australia's leading QCs. One of Hughes' most devastating performances was his representation of Federal Minister for Finance Eric Robinson in the Royal Commission of Inquiry: Matters in Relation to Electoral Redistribution Queensland 1977 set up by PM Malcolm Fraser after certain allegations were made by Liberal MP Don Cameron. The Commissioner was Justice Douglas McGregor. Hughes

cross-examined Cameron for nearly three days and Cameron's accusations against Robinson fell away completely after the merciless cross-examination by Hughes which had Cameron conceding that he himself "lacked common decency", had "a lamentable disregard for accuracy", was "a backstabber" and had "a scant regard for truth". Hancock closely examines Hughes' technique as a cross-examiner with the aim of destroying Cameron's character and credit, which was at times brutal and always relentless and unsettling. Hughes also demolished Cameron's supporting witnesses. Robinson was completely exonerated by no findings being made against him. However, there was an unexpected victim in that Royal Commission. The Commissioner found that Minister Senator Reg Withers from WA had acted with impropriety by suggesting to the Electoral Commissioners that in the electoral re-distribution they retain the name of McPherson for the seat instead of the proposed name Gold Coast. If the name of the seat was retained, under arrangements existing between the Coalition parties (Liberal Party and Country Party), Robinson would be able to contest the next election without a Country Party candidate also contesting the seat. (If the name of Gold Coast had been adopted, it would have been regarded as a 'new' seat and both parties could have fielded a candidate.) Fraser does not come out of this well, because Robinson said that he told Fraser three times that Withers had spoken to the Chief Electoral Officers and approached the Distribution Commissioners about the name change and Fraser therefore had three opportunities to form the view that Withers had acted with impropriety. Fraser nevertheless sacked Withers. Hughes believed that Withers, himself a former barrister, acted unwisely by not having legal representation at the Royal Commission. Withers' final comment to Hughes before giving evidence at the Royal Commission had been "It'll be a breeze." It is surprising the number of times prior to the mid-1980s that Hughes expressed his concerns as to whether there would be enough work coming through his door and whether he would be able to meet his expenses. It is interesting to read the annual income figures from his fee books. That position changed in the mideighties in the era of the high-flying corporate characters. Hughes acted in many cases involving takeover battles, the stockmarket crash, banks, major

media organisations, and insurance, construction, finance and industrial companies. He appeared in cases involving Warwick Fairfax, Alan Bond, Laurie Connell, Robert Holmes a Court, and Gina Rinehart (where he famously tangled with witness Rose Porteous). The book discusses Hughes' skills in many other cases, including defamation cases, and the levels of compensation awarded by juries: Jane Makim (sister of Sarah, Duchess of York), solicitor Nicholas Carson, rugby league footballer Andrew Ettingshausen, Chief Judge Elizabeth Evatt, cricketer Clive Lloyd, rugby league coach Reg Austin and architect Harry Seidler. He had two successful appeals to the Privy Council. By this time Hughes was known as the venerable lion of the Sydney Bar. Justice Howard Smith of the Supreme Court of WA was admired by Hughes: "…urbane and pleasant…enjoying himself testing me out to the utmost, while being extremely polite in the process." Part of a 2009 letter in reply to Justice Geoffrey Miller is also quoted. A very interesting revelation is that when Hughes was Attorney-General in early 1970 he invited Sir Francis Burt, then aged 51, to consider appointment to the High Court, but Sir Francis declined. Hughes' views of Sir Francis's qualities were: "a limpid mind, a great grasp of principle, a capacity for clear and simple expression and a tolerable understanding of the foibles of human nature." The book also discusses Hughes' marriages to Joanna (1951–1973) and Chrissie (happily since 1981), personal relationships in the period in between, his brother art critic and author Robert, and his children Lucy (wife of Malcolm Turnbull), Tom Jnr (a Sydney barrister) and Michael. A valuable part of the book is the description of Hughes' special skills as a barrister by such learned legal personalities as the Hon Murray Gleeson QC, the Hon Sir Anthony Mason QC, the Hon Sir William Deane QC, the Hon Michael McHugh QC, the Hon Dyson Heydon QC, the Hon Chief Justice Tom Bathurst, Jim Merralls QC, Terry Tobin QC, the Hon Justice Ian Harrison and Justin Gleeson SC. The book provides a snapshot of the political and legal landscape over the past 50 years. Altogether, it is an exceptionally enjoyable book for a lawyer to read.


YLC Inter-Profession Networking Event Wednesday, 1 June 2016, Ernst & Young Shea Lukey, Solicitor, Ernst & Young; Member, Young Lawyers Committee

Following a successful launch in late 2015, the Young Lawyers Committee held the second instalment of its interprofession networking series at the beginning of June. The objective of this ongoing series is twofold: first, to equip young professionals with the fundamentals of networking in an informal setting; and second, to facilitate young lawyers networking with their counterparts in other professions. This instalment mixed things up by bringing young property professionals into the fold, who descended upon the ever-picturesque Ernst & Young offices along with lawyers and accountants to brush up on their soft skills and enjoy the company of like-minded peers.

Ian Crisp, a partner in tax at Ernst & Young, introduced the evening with his observations on the value of soft-skills in professional services. From Out of the Box Biz, the networking and personal brand aficionado Fleur Allen was the star of the night, providing an entertaining presentation complete with visual aids and crowd interaction. According to Fleur, an effective networker takes a subtle, indirect approach, demonstrating a preference to 'reFleur' capable contacts rather than impose one's own credentials. Whether a Freudian slip or a soon to be trademarked Fleur Allen slogan, the funky concept of a 'reFleurral' resonated with the crowd and ensured that those in attendance wouldn't soon forget Fleur's unique match-making

approach to networking. The attendees spent the balance of the evening mingling amongst each other over canapés and drinks. Thanks to Fleur's fresh tips and ideas, by the end of the night many new acquaintance had been made and business cards successfully exchanged. The committee would like to thank our generous hosts Ernst & Young, our enlightening speaker Fleur Allen and all those who attended. It is only with the enthusiasm and hard work of all of those involved that this event can continue to be a phenomenal success. Look out for updates on Facebook and via email for details of the next instalment of this increasingly popular series!

YLC Assembly Thursday, 26 May 2016, the Law Society of Western Australia Alex Biddulph, Solicitor, Gadens; Convenor, Young Lawyers Committee Kirsten Young, Associate, Hogan Lovells; Deputy Convenor, Young Lawyers Committee

On 26 May 2016 the Young Lawyers Committee (YLC) hosted its first annual Assembly. The Assembly is designed to get a grass roots view of particular issues relating to junior members of the profession. The information is then used to help formulate YLC policy and guide the committee's direction for the following year. This year the Assembly explored mental health and wellbeing in the profession, with a particular focus on: 1. What is reasonable overtime? 2. Are billable targets appropriate or useful? 3. Behaviours witnessed or experienced in the workplace – what is reasonable? The Assembly heard from two speakers, Alex Biddulph and Kirsten Young, who recounted their personal experiences of working in private practice and facilitated further discussion amongst the attendees. Kirsten focused on stress and fatigue brought on by expectations in the


workplace, with the group exploring the driving forces behind a young lawyer's motivations to work long hours and why it has become so common place in the legal industry. Alex then took the group through an engaging discussion on modern day bullying practices, harassment and discrimination. In particular, the attendees considered ways for young lawyers to address and respond to bullying in the legal profession. The range of responses from audience members was varied, but common themes included: •

most young lawyers viewed 50 or more hours a week as a customary working week;

every young lawyer in the room had witnessed bullying or had been bullied in the workplace; and

there still remains a severe lack of training and awareness of how the current conditions of legal workplaces directly affect the mental health of members of the profession.

The response from many young lawyers in the room was concerning and those who attended agreed that further work was necessary to ensure that: 1. measures are put in place that set modern workplace standards for all lawyers and particularly young lawyers; and 2. appropriate mental health first aid training is provided to all staff so that people can identify or be aware of the signs of mental fatigue that can occur while working in the profession. Springing from the feedback gathered during this Assembly, the YLC will provide a proposal to the Law Society for a WA first work satisfaction index. The aim of the index will be to provide both lawyers and employers with an anonymised analysis of WA legal workplace environments, including how particular types of organisations perform against certain mental health and wellbeing criteria.

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

Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia [2016] FCAFC 80 A group of shareholders of Commonwealth Bank of Australia purported to give notice under section 249N of the Corporations Act 2001 (Cth) of three alternative resolutions which were proposed to be moved at the Bank's next annual general meeting. Following the Bank's refusal to include the first and second resolutions in its notice of meeting, on the basis the resolutions were not capable of being legally effective, the shareholders applied for a declaration that the disputed resolutions could validly be moved. At first instance, the primary judge rejected the shareholders' application as the resolutions were not referable to a power vested in the shareholders in general meeting, but to a power of management vested in the Bank's directors. On appeal, the shareholders argued that it was not necessary to identify a source of power to pass the disputed resolutions. Although the shareholders conceded that the proposed resolutions had no legal effect, they submitted

they had the power to pass ineffective resolutions. Alternatively, if a source of power was necessary, the shareholders argued they had the requisite power by reason of their 'plenary' or implied power to express opinions concerning the management of the company. The Full Court of the Federal Court dismissed the appeal and rejected the argument that shareholders have the power to pass ineffective resolutions, referring to the following established principles: (a) if the object of a requisition to call a meeting is such, that in no manner and by no machinery can it be legally carried into effect, the directors are justified in refusing to act upon it;1 and (b) shareholders in general meeting have no authority to act on behalf of the company except to the extent and in the manner authorised by the company's constitution or any relevant statute.2 The Full Court found that the disputed resolutions were not referrable to any power vested in the shareholders and clarified that the powers and capacities of a company arise from its constitution

and statute and not from the legitimate interests of its shareholders. Therefore, the legitimate interests of the various shareholders in the management of a company cannot be aggregated to provide a justification for a resolution of the shareholders. Further, the Full Court found there was no 'plenary' or implied power vested in the shareholders to express an opinion, by resolution, on a matter concerning the company's management. This case reaffirms that a resolution will not be put to a general meeting unless there is a power vested in the shareholders to pass the resolution as an act of the company. Additionally, it emphasises the limited circumstances in which shareholders have the power to pass resolutions concerning the management of a company. NOTES 1.

Isle of Wight Railway Co v Tahourdin (1883) 25 Ch D 320 at 334.


Clifton v Mount Morgan Ltd (1940) 40 SR (NSW) 31.

Author: Marc McCaughey, Solicitor, HopgoodGanim

SAVE THE DATE Society Club hosted by the Indigenous Legal Issues Committee

End of Year Celebration

Thursday, 20 October 2016 The Western Australian Club

Catch up over drinks and canapĂŠs to finish 2016 with friends and colleagues.

Society Club is a regular collegial networking event which is complimentary for members.

Wednesday, 7 December 2016 Lamont's Bishops House

Further details to be announced soon lawsocietywa.asn.au 45

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

Property – Exclusion of future tax debt from pool upheld but error found in treatment of debt under s75(2) In Rodgers [2016] FamCAFC 68 (4 May 2016) the parties had run a successful tourism business. The wife was to retire from the business and the husband (who was to retain it) appealed to the Full Court (Thackray, Ainslie-Wallace & Murphy JJ) against Crisford J's rejection of his argument at trial that the future tax debts of an entity the parties controlled should be deducted from the $4.9m pool. They were to arise as a result of Division 7A loans of $1.5m which, if forgiven, would trigger a large tax liability ([11]). The Full Court said ([15]): … [T]he husband contended that … $517,000 should be adopted as the liability … in … recognition of the fact that the postulated figures contained differing assumptions … [and that] that figure 'is less than the number that will probably … be paid' … [implying] that if the liability was to be taken up by her Honour … the quantum of that liability could not have been precisely ascertained, even if the calculated amounts of the potential liability were confined by the assumption that the inter-company loans would not be forgiven and the tax consequently crystallised. Finding no error of law in Crisford J's exclusion of the debts from the pool, the Full Court cited Campbell & Kuskey (1998) FLC 92-795 and said ([41]) that "[l]iabilities that are vague, uncertain, unlikely to be enforced and the like might be treated differently because those circumstances might, in the circumstances of the particular case, render it unjust and inequitable for liabilities to be deducted". In allowing the appeal, the Full Court did find error in the trial judge's decision to make a s75(2) adjustment in the wife's favour, saying ([80]-[82]): The evidence before her Honour did not allow her to arrive at a presentday value of the future taxation. Conversely, it was clear that none of the calculated sums would be payable immediately or in the future in any such sum. … [T]he evidence is a long way short of providing the 'actual figures' of which the Court spoke in Clauson [(1995) FLC 92-595] … [W]e cannot see that her Honour's reasons pay due regard to these significant


issues. Her Honour's reasons do not reveal either a consideration of the impact in real terms of the mooted contributions assessment or any attempt to give numerical meaning either to the 'impost' or the 'management' of the taxation to which she refers … Child support – Repayment to husband of funds he settled under a child support trust for fees of school the child did not attend refused In Bass & Bass and Anor [2016] FamCAFC 64 (29 April 2016) the Full Court (Strickland, Murphy and Kent JJ) dismissed the husband's appeal against Aldridge J's refusal to order the refund of $300,000 by a child support trust (CST) under a consent order on the ground that the money was settled by him for the fees for a private school which the (intellectually disabled) child did not attend. Murphy and Kent JJ (with whom Strickland J agreed) said ([19]) that by the consent order "[t]he husband achieved … his … intention of eliminating any … child support for the child". The Court continued ([26]) that "importantly the trial judge made reference to the consent orders providing … for the CST to be wound up on 31 December 2015 … and that upon the winding up of the CST 'the trustee shall hold any residual corpus in the CST for the child absolutely'", agreeing ([28]) "with the conclusion reached by the trial judge … that the CST did not fail by reason of failure of purpose [in that] the CST had several purposes which he identified". The Court (at [34]) cited a statement from Scott and Ascher on Trusts, approved by Gummow and Hayne JJ in Byrnes v Kendle [2011] HCA 26 that "it is necessary, when dealing with the creation of a trust and its terms, to speak not of the settlor's intention but of the settlor's manifestation of intention", saying ([44]) that "[n]o express term [of the CST] provides for any residue to revert to the husband, nor does any express term allude to any such outcome". Children – Family violence allegations should not be ignored at interim hearing because they are contested – Discharge of earlier supervision order set aside In Salah [2016] FamCAFC 100 (17 June 2016) the Full Court (May, Ainslie-Wallace

& Cronin JJ) allowed the mother's appeal against Judge Dunkley's interim order that a consent order made a month earlier that due to family violence she alleged against him the father's time with the children be supervised be discharged. The Full Court cited authority as to a court's approach to contested allegations at an interim hearing, including ([39]) SS & AH [2010] FamCAFC 13 in which Boland and Thackray JJ said that "[a]part from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims" and that "it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue". The Court continued ([41]-[45]): The difficulty … is that his Honour … having determined that he could not make any findings, ignored the allegations and found the presumption of equal shared parental responsibility applied. His Honour's comment 'given no other evidence' suggests that his Honour required corroboration or objective support for the mother's allegations in proof of them. To so suggest is an error. Family violence often takes place in private in circumstances where no corroboration is available. ( … ) His Honour was in error in … failing to pay any heed to allegations which he had earlier regarded as 'significant' and in failing to consider those allegations in the context of an interim hearing. The Court added ([61]): The … circumstances of the making of the recent consent orders, while not determinative of the issue were, in our view important factual background to the issues before his Honour and were worthy of consideration by him. That his Honour did not consider them is, in our view an error. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

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Law Council Update INDEPENDENT OVERSIGHT OF IMMIGRATION DETENTION AND BORDER PROTECTION LAWS NEEDED FOLLOWING NAURU LEAKS The Law Council of Australia has strengthened its call for the appointment of an Independent Inspector of Immigration Detention and an Independent Monitor for Migration Laws following leaked reports regarding the welfare of individuals held in detention in Nauru. Law Council of Australia President, Stuart Clark AM, said both Offices are necessary to monitor the integrity of Australia's national security framework and ensure confidence in the safety and integrity of border protection. "The Law Council has consistently stated that Australia retains responsibility for the health and safety of asylum seekers transferred to other countries for offshore processing and assessment under the Convention relating to the Status of Refugees," Mr Clark said. "This responsibility derives from the Commonwealth's common law duty of care and obligations arising under international law. "Making these key appointments could limit the risk of future harm to asylum seekers held in detention without undermining Australia's border protection policies. "An independent reviewer specific to detention centres could operate in a similar fashion to the Federal Inspector-General of Intelligence and Security. The first task of this reviewer should be to examine the disturbing reports of alleged incidents in Nauru. "A second independent, specialist body should be established to review and monitor Australia's border protection legislation, similar to the role of the Independent National Security Legislation Monitor. This has proved successful in the national security space, strengthening the integrity of intelligence services, whilst not undermining operational efficiency," Mr Clark said. Mr Clark said the Law Council maintained its position that statutory minimum safeguards are necessary to ensure Australia's compliance with international standards, including limits on detention and the best interests of the child principle. "It is also important that Government employees, including contracted medical staff, should have the ability to speak out about such incidents without fear of retribution," Mr Clark said. The Law Council's position over the standards required in immigration detention, that adhere to the rule of law and Australia's international human rights obligations, are


set out in its Policy Statement Principles Applying to the detention of Asylum Seekers and its Asylum Seeker Policy. AUSTRALIAN LEGAL PROFESSION CONDEMNS HORRIFIC VIOLENCE AGAINST LAWYERS IN PAKISTAN The Law Council of Australia has condemned the terrorist attacks in Quetta, Pakistan, which claimed the lives of dozens of lawyers who had rushed there to protest and mourn the earlier fatal shooting of Bilal Anwar Kasi, President of the Balochistan Bar Association. At least 70 people were killed outside the Civil Hospital, most of them lawyers. Over 100 more were injured. Law Council of Australia President, Stuart Clark AM, said the killings were a particularly horrific example of the threat faced by lawyers around the globe. "The scope of the horror in Quetta defies easy comprehension. On behalf of the Law Council of Australia, I want to offer our sincere and heartfelt condolences to those killed and those injured, as well as their families," Mr Clark said. "The judiciary is a fundamental pillar of any democracy and the targeting of lawyers and judges, whether by a government or those seeking power through force of arms, is calculated to intimidate or remove those who stand for the rule of law and against corruption. "We urge international assistance for the Pakistani Government so that it can effectively investigate this violence and ensure that any persons who are charged are dealt with according to law and receive a fair trial. "It is indeed ironic that it will be Pakistani lawyers who will demand that any persons charged with offences in relation to this tragedy receive a fair trial. "In far too many places in the world, it requires extraordinary bravery to practice law. "The Law Council of Australia salutes the bravery and dedication to the rule of law shown by the Pakistani legal profession," Mr Clark said. CAUTION AND SAFEGUARDS NECESSARY IN ANY MOVE BY AUSTRALIA'S AGS TOWARD NATIONALLY CONSISTENT POSTSENTENCE PREVENTATIVE DETENTION SCHEME The Law Council of Australia has welcomed the emphasis on maintaining safeguards in any nationally consistent post-sentence

preventative detention scheme, as Australia's Attorneys-General meet today. Ahead of talks, Federal Attorney-General the Hon George Brandis QC has indicated this morning that: "any post-sentence preventative detention regime contain a range of safeguards, including that only a court will be able to decide whether a person should be detained beyond the expiry of their sentence. This decision will be appealable and subject to regular review." In addition, Mr Brandis noted that: "To make a continuing detention order, the court would need to be satisfied to a high degree of probability, on the basis of admissible evidence including experts' reports and psychological assessments, that the offender posed an unacceptable risk of committing a serious terrorist offence if released into the community, and that no other less restrictive measure would be effective." Law Council of Australia President, Stuart Clark AM, has welcomed Mr Brandis's emphasis on safeguards ahead of the meeting, and urged the Attorneys-General from around the nation to proceed with caution. "Keeping Australians safe from terrorism is obviously a profoundly important goal for governments at every level, but altering our post-sentence detention laws must be considered very carefully so as not to compromise the rule of law," Mr Clark said. "The Attorneys-General who are meeting today have a heavy responsibility to ensure any post-sentence preventative detention regime accords with Australia's rule of law principles. If we fall short in this regard the forces of global terrorism will have claimed a victory over our nation." Mr Clark noted several safeguards that needed to be part of any post-sentence detention scheme. "Applications for post-sentence controls must always be heard by a court where the person who is the subject of the application is given the opportunity to answer the material on which the application is based," Mr Clark said. "The scheme must be monitored by those responsible for its administration, the Parliament and the Independent National Security Legislation Monitor, and all orders must be periodically reviewed. The person who is the subject of the order must also be able to apply to the court to have their case reviewed should their circumstances change. "There should also be a commitment that any new legislation, at any level, should also be reviewed within three years of its commencement."

pam sawyer


Professional Announcements Career moves and changes in your profession

Bodekers Family Lawyers & Mediators Bodekers Family Lawyers & Mediators are pleased to announce that Elliot Ryan has been promoted to Senior Associate. Elliot has been with Bodekers since 2010. He will continue to work exclusively in family law. Panetta McGrath Lawyers Natalie Zurita has joined Panetta McGrath Lawyers as an Associate in the Workplace Relations section of the firm.

Bowen Buchbinder Vilensky

Anthony R Clarke & Associates is pleased to announce that Cassandra Cassandra Joss Joss has joined the firm as a solicitor in March 2016. Cassandra offers advice and representation in all aspects of family law.

The directors of Bowen Buchbinder Vilensky are pleased to announce that Rhonda Griffiths, highly respected family law practitioner of many years, has joined the firm as Special Counsel in their Family Law section joining Senior Associate Adam Spashett. Laura Di Cristofaro has been promoted to Associate in the Commercial Wills and Estates section of the firm. Laura has extensive experience in wills and complex estate planning matters including Family Provision claims.

Natalie Zurita

IRDI Legal

Celeste          Kathryn        Rosemary     

IRDI Legal is pleased to announce the appointment of lawyers Val Antoff and Nathan Sgro to their estate planning and administration team. The appointments strengthen IRDI Legal's position as a premium estate planning service which provides a full range of complex to simple Wills and estate administration solutions.

Val Antoff

Anthony R Clarke & Associates Family Lawyers

Nathan Sgro


Heldsinger Legal Heldsinger Legal is pleased to announce the appointments of Rosemary Miller, Solicitor and Celeste de Saint Jorre, Solicitor. Rosemary has a special interest in workplace relations law and established herself in this field whilst working for Herbert Smith Freehills in Perth and Melbourne. Her interest in workplace relations continued in the USA, where she was admitted to practice in New York and worked for Cornell University, School of Industrial and Labour Relations in Buffalo, New York.  Celeste completed her Law degree in 2015 and undertook her practical legal training at Heldsinger Legal. She was admitted to practice on 1 August 2016.

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Rhonda Griffiths

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Gilchrist Connell Specialist insurance law firm Gilchrist Connell, is pleased to announce the promotions of Bradley Baker and James Duffy to Senior Associate.

Bradley Baker

James Duffy

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New Members New members joining the Law Society (July 2016)

Associate Membership Mr Andrew Sutton Mr Raj Logarajah Mrs Sharna Booth Mr Andrew Clarke Mr Daryl Langman Miss Ashley Lee Ms Emiko Watanabe Mr Damian Eynon-Williams Ms Kylie Turner Mr Chris Colalillo Mrs Jess Leckie Ms Emily-Rose Templeton-Knight Ms Jo Washington-King Ms Grace Waugh Mr Michael Olds Mr Gregory Martinovich Mr Nicholas Rogers Mr Michael Anderson Ms Elizabeth Hersey Mr Matthew Giles Mr Richard Nicholls

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Palermo Legal Pty Ltd Estate Partners Pty Ltd

Restricted Practitioner Mr Eric Li Ms Eunice Ong Ms Nicole Golding Ms Anna Christiansen Mr Herbert He Mr Ollie Green Ms Joanne Low Ms Rachel Pachacz

DLA Piper Australia Hammond Legal MDA National Insurance Pty Ltd BNT Legal Pty Ltd Grand Legal Pty Ltd Newmont Asia Pacific Legal Care Australia Pty Ltd Taylor Construction Lawyers

Looking to sell your files and/or legal practice? We are an expanding boutique commercial law firm.

Classifieds FOR LEASE 2 Office rooms

(approx 12 sqm with window & 15 sqm)

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

Includes use of shared conference room

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

Send any enquiries by email in the first instance to perthlawfirm@gmail.com All enquiries will be dealt with in strict confidence.


EQUUS, 580 HAY STREET, PERTH Office space of approx. 100m available for rent with shared reception and boardroom facilities; suit professional office; negotiable rent. 2

All enquiries to 0409 113 115 Email: advertiser2516@gmail.com

LIFE-STYLE LEGAL PRACTICE If there is such a thing we believe we have created it. Tony and Rosemary Lee offer for sale their unique Legal Practice at beautiful Mission Beach in Tropical North Queensland. Accommodation on site available Registered boat mooring Please direct enquiries to admin@leeandco.com.au or phone (07) 4068 8100

MISSING WILL Any person holding or knowing the whereabouts of the last Will and Testament of the late CARL ERNEST JOHANNESEN of unit 301/4-6 Doepel Street, NORTH FREMANTLE, W.A. 6159 who died on 10/05/2016, please contact MARTIN JOHANNESEN, 99 Blanche Street, GOSNELLS, W.A. 6110 on (08) 9490 9903 or johanmar@arach.net.au within 1 month of the date of this publication of this advertisment.


Events Calendar

With thanks to our CPD partner

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





Gala Dinner

Perth Convention and Exhibition Centre

Thursday, 22 September

Social Justice Opportunities Evening

Central Park Theatrette


The Essential Legal Assistant

Delivered online

Tuesday, 13 September

Motor Vehicle (Catastrophic Injuries) Act 2016 (WA)

The Law Society of Western Australia

Wednesday, 14 September

Engaging with in-house counsel: tips for private practitioners to build a trusted legal advisor relationship

The Law Society of Western Australia

Thursday, 15 September

Shareholder and Joint Venture Agreements and Disputes

The Law Society of Western Australia

Friday, 16 September

Empowering communication: Assertive communication

The Law Society of Western Australia

Friday, 16 September

Ethics on Friday: Social media – handcuff v adaptability

The Law Society of Western Australia

Tuesday, 20 September

Sale of business workshop

The Law Society of Western Australia

Wednesday, 21 September

Employment law in the new age: the future of work

The Law Society of Western Australia

Wednesday, 21 September

Asset protection in the Family Court

The Law Society of Western Australia

Thursday, 22 September

Issues relating to company meetings and lawyers acting as directors

The Law Society of Western Australia

OCTOBER MEMBERSHIP EVENTS Society Club hosted by the Indigenous Legal Issues Committee

Thursday, 20 October

The Western Australian Club


Marketing in a downturn

The Law Society of Western Australia

Wednesday, 5 October

Skilled minute taking

The Law Society of Western Australia

Thursday, 6 October

Practical tips for transactional lawyers

The Law Society of Western Australia

Monday, 10 October

Accessing the law: a State and National perspective

The Law Society of Western Australia

Monday, 10 October

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

The Law Society of Western Australia

Tuesday, 11 October

Non-contentious Probate Rules: citations and caveats

The Law Society of Western Australia

Tuesday, 11 October

Urgent wills and assessing a client’s mental capacity

The Law Society of Western Australia

Wednesday, 12 October

Anti-bribery and Corruption: the brave new world

The Law Society of Western Australia

Thursday, 13 October

Change of plea when an accused pleads guilty in a superior court

The Law Society of Western Australia

Friday, 14 October

The impact of poor work culture: the people and productivity benefits of wellness

The Law Society of Western Australia

Friday, 14 October

Ethics on Friday: ethical dilemmas in advocacy

The Law Society of Western Australia

Tuesday, 18 October

Community Title Schemes: development and management issues for lawyers

The Law Society of Western Australia

Tuesday, 18 October

Privilege: the scope and limits of without prejudice communications and legal professional privilege

The Law Society of Western Australia


OCTOBER CPD SEMINARS Wednesday, 19 October

African cultural awareness

The Law Society of Western Australia

Wednesday, 19 October

Strategies for managing difficult or vexatious litigants

The Law Society of Western Australia

Thursday, 20 October

Environmental approvals: implications of the Beeliar Wetlands decision

The Law Society of Western Australia

Monday, 24 October

Law Mutual (WA) Seminar: Cyber crime – how to prevent an attack and its impact on professional liability

The Law Society of Western Australia

Tuesday, 25 October

Law Mutual (WA) Seminar: Cyber crime – how to prevent an attack and its impact on professional liability

The Law Society of Western Australia

Wednesday, 26 October

Practical tax update for non-tax lawyers

The Law Society of Western Australia

Wednesday, 26 October

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

The Law Society of Western Australia

Thursday, 27 October

Law Mutual (WA) Seminar: New practitioner risk 101

The Law Society of Western Australia


Mixed Netball Competition hosted by Young Lawyers Committee

Matthews Netball Centre

Wednesday, 16 November

Welcome to the Profession

Pan Pacific Perth


Drafting good pleadings workshop

The Law Society of Western Australia

Wednesday, 2 November

Compulsory taking of land: current issues of law and principle

The Law Society of Western Australia

Monday, 7 November

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

152-158 St Georges Terrace, Perth

Tuesday, 8 November

Contract law masterclass

The Law Society of Western Australia

Wednesday, 9 November

Review of recent workers’ compensation decisions

The Law Society of Western Australia

Thursday, 10 November

Surrogacy: Lessons from the Baby Gammy Case

The Law Society of Western Australia

Tuesday, 15 November

Gender Equality: a business issue

The Law Society of Western Australia

Tuesday, 15 November

Assessing damages in personal injury matters

The Law Society of Western Australia

Wednesday, 16 November

Keep calm and stay resilient

The Law Society of Western Australia

Wednesday, 16 November

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

The Law Society of Western Australia

Friday, 18 November

Lead on Purpose

The Law Society of Western Australia

Friday, 18 November

Ethics on Friday: a practical approach for commercial lawyers

The Law Society of Western Australia

Monday, 21 November

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

The Law Society of Western Australia

Tuesday, 22 November

Focus on costs

The Law Society of Western Australia

Wednesday, 23 November

Security for costs: a practical approach

The Law Society of Western Australia

Thursday, 24 November

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

The Law Society of Western Australia


End of Year Celebration

Lamont's Bishops House

DECEMBER CPD SEMINARS Thursday, 1 December

A view from the Bench

The Law Society of Western Australia

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692 For all upcoming events and further information please visit lawsocietywa.asn.au 49

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Profile for The Law Society of Western Australia

Brief September 2016  

Brief September 2016

Brief September 2016  

Brief September 2016

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