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AUTUMN/WINTER 2020 – ISSUE 139
J O U R N A L O F T H E L AW S O C I E T Y O F TA S M A N I A
COVID-19 RESPONSE: MANAGING MATTERS AND STAFF IN A VIRTUAL WORLD
THE TASMANIA LAW REFORM INSTITUTE HITTING THE RIGHT NOTE CYBER RISK FOR LAWYERS: A UNIQUE FORM OF PROFESSIONAL RISK
www.lst.org.au
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 1
LEAVE A GIFT THAT WILL CHANGE LIVES
Since 1899, the St Vincent de Paul Society – also known as Vinnies – has been dedicated to shaping just and compassionate communities and supporting people who are vulnerable in Tasmania.
Vinnies 1500 members and volunteers provide practical, every-day essentials – financial assistance when bills mount up, material aid during times of disaster, meals when there are few or far between, and friendship during times of hardship and personal crisis.
But more than that, with the support of the community it serves, Vinnies
provides hope. Hope for a better future.
One of the most important sources of funding for the Vinnies work in the community comes from people who have included a gift in their will.
Supporting the Society in this special way not only creates a lasting legacy of kindness, it plays a vital role in continuing to provide ‘a hand up’ to people in need for generations to come. When you leave a gift in your will, you may never meet the person you have helped, but your generosity lives on in their lives. For a confidential discussion about how you can leave a lasting legacy by
remembering the St Vincent de Paul Society (Tasmania) in your will, please contact Bernadette Ulbrich-Hooper at St Vincent de Paul Society, on (03) 6333 0822 or by email at: bernadette.ulbrich-hooper@vinniestas.org.au
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Contents From the President ............................................................ 6 From the Society................................................................. 7 Law Society Activities......................................................... 8 Opening of the Legal Year 2020...................................... 10 The Future of Law Reform in Australia -
Micheil Paton........................................................ 22
Features
Six Ways to Ace a Video Interview Jason Elias............................................................. 24 Can We Rebalance the Scales? Access to Justice for Parents in The Tasmanian Child Safety System - Teresa Hinton............................. 26 Women's Legal Service Tasmania Yvette Cehtel......................................................... 29
The Moral Limits of Law: Reflection for the Opening of the Legal Year 12
Reflections of the Recent High Court Decision in Love v Commonwealth of Australia [2020] HCA 3: The Constitution, Indigenous Rights and Immigation Law Kate Slack and Aaron Hartnett............................ 30 2020 Admissions................................................... 34
REVEREND PROFESSOR RUFUS BLACK
COVID-19 Response: Managing Matters and Staff in Virtual World 14
JAMES FLETCHER
Technology and the Law...................................... 36 Spotlight on the Profession................................. 38
Hitting The Right Note
Risk Management................................................. 42 Ethics..................................................................... 46 Opinion.................................................................. 47
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THE HONOURABLE JUSTICE STEPHEN ESTCOURT AM
Superannuation.................................................... 48 Finance.................................................................. 50 People................................................................... 52
The Tasmania Law Reform Institute
Young Lawyers Report.......................................... 53 Library News......................................................... 55
18
JEMMA HOLT
Family Court Case Notes..................................... 56 Book Reviews........................................................ 58
Cyber Risk for Lawyers: A Unique Form of Professional Risk
LawCare........................................................59
Editor: Luke Rheinberger
GPO Box 1133, Hobart, Tasmania, 7001
28 Murray Street, Hobart, Tasmania, 7000
DX:
111 Hobart
Phone: (03) 6234 4133 Fax:
(03) 6223 8240
Email: info@lst.org.au Web: www.lst.org.au
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SIMONE HERBERT-LOWE
SUBMISSION OF ARTICLES AND ADVERTISING Contributions to the Law Letter are always welcome. For further details or advertising rates please contact Shelley Harwood on (03) 6234 4133 or shelley.harwood@lst.org.au. Views expressed by contributors are not necessarily endorsed by the Law Society of Tasmania. No responsibility is accepted by the Law Society of Tasmania, the editor or the printers for the accuracy of information contained in the text and advertisments. LAW LETTER AUTUMN/WINTER 2020
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From the President “RUN TO WHERE THE PUCK IS GOING, NOT WHERE IT HAS BEEN” THE LEGAL FORECAST
My intention during my Presidential term which began in October 2019 has been to ensure there continues to be a significant focus on one of the Society’s primary duties, which is supporting the interests and welfare of our members within the legal profession.
readiness for the realities of practice, and considering the potential for clerkships at an earlier stage;
to, the Strategic Planning Day, which our Executive Director, Luke Rheinberger and I also attended.
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considering the timetable for recruitment by Tasmanian firms to reduce the loss of high- quality graduates to interstate firms;
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liaising with the Legal Practice Course to further promote awareness of the opportunities available in the North and NorthWest regions;
I see this as a five-year project, and my recent appointment by the Law Council of Australia (LCA)to its national Rural Regional and Remote Lawyers Committee for a three year term will align well.
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considering potential subsidies for regional firms to encourage recruitment opportunities;
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sourcing and communicating model career expectations materials for firms to tailor to their own requirements for early career lawyers;
Attract, Retain and Sustain Early Career Lawyers This is a key issue which all firms grapple with, and it is essential that work, moving forward, proactively addresses this. Accordingly, our Attraction and Retention of Early Career Lawyers Working Group (of which I am the Chair) was established last year to identify, develop and implement programs and initiatives to help attract, retain and sustain early career lawyers in Tasmania. The objective of the Strategic Planning Day back in January 2020, facilitated by Melissa Lyon from Hive Legal, was to agree our purpose and vision; find ways to achieve our purpose; decide which initiatives and programs to develop and implement and how to do so; and to agree the next steps to be taken. A Design Thinking/Human Centred framework was utilised encouraging collaboration and prototyping. The Working Group considered its vision and what it is working towards, who is relevant to its purpose and what matters to them (including both our early career lawyers, our firms and other stakeholders); and created an experience map (from University to year five of practice) identifying positive and negative experiences/insights to assist.
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supporting firms, senior lawyers and leaders in the profession to recognise the importance of a cultural and mindset change to raise awareness as to the pivotal requirement for change to sustain early career lawyers;
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encouraging mentoring (external and internal) for early career lawyers;
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implementing further training and assistance for early career lawyers;
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working with the judiciary to provide an environment and processes that enables early career lawyers to develop and thrive;
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potentially creating a social media presence for the Society as a medium to communicate with early career lawyers;
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increasing communication with those leading in the profession as to this work (including collaboration at Leaders’ Lunches; and the introduction of profiling of regional lawyers in Law Letter to promote the opportunities available); and
The concepts and action items currently being contemplated include: •
capturing further data as to the loss of early career lawyers, and why;
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encouraging firms to attend LawFest to emphasis the opportunities available in Tasmania; increasing engagement with the University of Tasmania and firms to ensure
I wish to personally thank Simon Gates, Amanda Thompson, Kirsten Siejka, Helen Bassett, Luke Taylor and Amelia Higgs for their involvement in, and contribution
6 LAW LETTER AUTUMN/WINTER 2020
the ongoing work around wellbeing in the law.
Being Well in the Law The work around sustaining lawyers has highlighted the real need to address wellbeing for the whole of the profession. The Society has now followed the position taken by other States in establishing its own Wellbeing Committee. We all share a responsibility to promote being well in the law. Work will commence to develop a Building Resilience in the Law Guide, and a new feature of future Laww Letters will be ‘Top 3 Tips for Dealing with Stress’ by different members of the profession to counteract stigma around these issues and to create awareness. The Society will also continue its invaluable efforts in providing further resources around wellbeing to the profession (noting I now hold a very impressive resource base from the material obtained from the interstate Societies).
The Future of the Profession
I also take this opportunity to draw your attention to the LCA’s work in establishing a Futures Advisory Committee, of which I have now been appointed, to advise on key issues and policy responses to the challenges and opportunities presented by social, technological and regulatory changes, that may in the future impact upon the Australian legal profession, and consumers of legal services. This is a very positive initiative for the profession at a national level and I will report back to members regarding its work. I welcome questions, comments and suggestions from the profession on any and all Law Society issues and encourage practitioners to contact me direct or through the Law Society. CRYSTAL GARWOOD President
From the Society WORKING THROUGH THE PANDEMIC
This edition of the Law Letter has been some time in the making. Production was in fact well advanced in March when COVID-19 struck, forcing the Law Society to close its doors, with all staff working from home. The six months or so from that time has seen the world change dramatically to say the least. The period from mid-March until the end of June proved to be an extremely busy one for the Law Society. As the principal representative organisation of the legal profession, our initial priority was gathering, interpreting, organising and disseminating the vast quantity of news, announcements and information flooding the profession. The materials from the various courts such as practice guidelines, notices and instructions alone would make a very decent sized book; not to mention the myriad of health directions and emergency orders, government announcements and news from other stakeholder groups. A second and very substantial piece of work during this period was the annual practising certificate and professional indemnity insurance renewal process. The 2020/2021 renewals were complicated by the fact that all Law Society staff were working remotely and the renewal process had, in the past been almost entirely paper based. It is pleasing to report that there was a very small drop only in the number of practising certificate renewals. The profession should be extremely proud of the work of Law Society staff when faced with the demands placed upon them as a result of COVID-19. For example, the practising certificate renewal process was completely revamped to a paperless process. This involved generating new procedures from beginning to end and communicating those new processes to practitioners and practice managers. Apart from a few bumps in the road the process worked very effectively.
The efforts of Law Society staff in moving all CPD offerings online should also be acknowledged. The work involved in learning the intricacies of the new webinar platform and training presenters on its use has made for a CPD program that continues to provide relevant and accessible content for all practitioners. I take this opportunity to thank members of the Law Society Council for their support during the period and to especially note the efforts of Law Society President Crystal Garwood. The demands on her time have been significant and the issues she has been asked to deal with are unprecedented.
the ACT and South Australia. I believe the rules will be of benefit to the entire profession. To date, practitioners have had to navigate ethical problems by reference to the few conduct rules that resided in the Rules of Practice 1994 as well as by reference to common law principles, various textbooks and case law. The new rules provide sensible and comprehensive ethical guidance for the profession. Visit the Society’s website for further information, including information sheets, a copy of the Rules and the Law Council of Australia Solicitors’ Conduct Rules Handbook.
Cyber Risk Insurance for Tasmanian Lawyers The Law Society, on behalf of all law practices, has purchased a foundational cyber risk insurance policy for 2020/2021. The policy is underwritten by the MS Amlin Syndicate 2001 at Lloyds. Subject to the policy limit for each practice of $50,000.00, cover includes the reasonable and necessary costs incurred to investigate or remediate a cyber-attack, loss of business income, cyber extortion payments as well as crisis management costs and customer notification expenses.
The profession worked hard to find solutions that allowed the business of the law to continue operating within government mandated restrictions, and will continue to do so.
Of course, the effects of COVID-19 will continue to be felt for a significant period and to praise Law Society staff and Council is not to downplay the challenges faced by all in the profession. I do think the profession can look back with a degree of satisfaction on its approach to, and handling of the crisis, particularly during lockdown periods. The profession worked hard to find solutions that allowed the business of the law to continue operating within government mandated restrictions, and will continue to do so.
The policy is no substitute for robust systems to deal with the threat of cyber attack and firms need to remain vigilant and institute appropriate training, systems and procedures to minimise the risks. LUKE RHEINBERGER Executive Director
Legal Profession (Solicitors Conduct) Rules 2020 The Legal Profession (Solicitors Conduct) Rules 2020 rules commence on 1 October 2020. From that day Tasmanian practitioners will be subject to the same rules of conduct that apply in New South Wales, Victoria, Queensland,
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 7
Law Society Recent Activities Garwood spoke to the ABC around cyber fraud.
The Society continues to advocate on behalf of the profession in a number of ways. It meets regularly with the Attorney-General, heads of jurisdiction and other people and organisations connected with the legal/ justice sector.
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21/7/2020 - The President Crystal Garwood attended the Working Group with the Courts, the Prison and Legal Aid Commission of Tasmania.
It provides submissions on proposed legislative amendments, law reform issues and matters of interest to the profession. Recent examples include:
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21/7/2020 - The Executive Director Luke Rheinberger attended the Pilot Intermediary Scheme Steering Committee (PISSC) Meeting.
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21/7/2020 - Employment, Diversity & Inclusion Committee Meeting.
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20/7/2020 - PCL Working Group – Contract Review Survey.
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16/7/2020 - Executive Director Luke Rheinberger met with the CEO of legalsuper to discuss responses to COVID-19 and end of financial year.
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25/8/2020 - Deputy Executive Director Francesca Saturno and Property and Commercial Law subcommittee met with the State Revenue Office.
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25/8/2020 - Contract of Sale Property Commercial Law Working Group Meeting.
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25/8/2020 - Criminal Law Committee Meeting.
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15/7/2020 - Practising certificates were issued to all legal practitioners.
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25/8/2020 - Centre for Legal Studies Board Meeting.
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24/8/2020 - Vice President Trevor McKenna spoke on ABC radio on the Dangerous Criminal and Electronic Monitoring Bills.
16/7/2020 - The President Crystal Garwood wrote to the Chief Justice and Chief Magistrate in relation to sexual harassment and the Courts’ response to recent revelations.
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19/8/2020 - Executive Director Luke Rheinberger attended a meeting of state and territory Law Society CEO’s.
6/7/2020 - Executive Director Luke Rheinberger met with Department of Justice Secretary and Deputy Secretary.
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6/7/2020 - Property and Commercial Law Committee Meeting.
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3/7/2020 - Submission on the Review of the Strata Titles Act 1998.
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2/7/2020 - LST Council Meeting held.
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2/7/2020 - Executive Director Luke Rheinberger met with the Director of Legal Aid Commisson of Tasmania.
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18/8/2020 - Executive Director Luke Rheinberger attended a Department of Justice briefing on the Court Backlog Bill.
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11/8/2020 - President Crystal Garwood spoke to The Advocate on the proposed Burnie court relocation.
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10/8/2020 - Deputy Executive Director Francesca Saturno and Property and Commercial Law Contract Review Subcommitee met with CEO of REIT and REIT Reps.
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1/7/2020 - Property and Commercial Law Committee submissions – draft commercial tenancies relief regulations: COVID-19 Disease Emergency (Commercial Leases) Regulations 2020.
spoke to The Examiner and The Advocate on sexual harassment in the legal profession. •
23/6/2020 - Elder and Succession Law Committee Meeting.
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19/6/2020 - The President Crystal Garwood spoke to The Examiner and The Advocate on Drug Driving Laws.
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19/6/2020 - The President Crystal Garwood spoke to The Examiner and The Advocate on the Northern Prison.
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18/6/2020 - Centre for Legal Studies Board Meeting.
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16/6/2020 - Employment, Diversity and Inclusion Committee Meeting.
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11/6/2020 - Vice-President Trevor McKenna participated in a radio interview on ABC with Leon Compton in regards to parenting Orders and COVID19.
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6/6/2020 - The President Crystal Garwood was quoted in The Advocate article calling for Judge alone trials.
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5/6/2020 - President Crystal Garwood appointed a member of Law Council Standing Committee: Rural, Regional and Remote Committee.
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5/6/2020 - Joint letter from the Law Society, Tas Bar and Legal Aid to the Chief Justice in relation to the resumption of Court business.
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4/6/2020 - The President Crystal Garwood was quoted in The Advocate article on funding announcement for the Burnie Court upgrade.
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4/6/2020 - Family Law Committee Meeting.
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3/6/2020 - Executive Director Luke Rheinberger attended the Administration of Justice Meeting.
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2/6/2020 - Board of Legal Education Meeting held.
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2/6/2020 - Litigation Committee Meeting.
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7/8/2020 - Law Foundation Meeting.
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6/8/2020 - The Executive Director Luke Rheinberger met with the Director of the Legal Aid Commission of Tasmania.
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1/7/2020 - President Crystal Garwood spoke to The Advocate on Criminal Code and Sentencing Act amendments.
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6/8/2020 - Council Meeting.
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6/8/2020 - Family Law Committee Meeting.
1/7/2020 - President Crystal Garwood spoke to the media on sexual harassment in the law.
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1/6/2020 - President Crystal Garwood wrote to the Attorney-General in regard to Burnie Court House funding.
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5/8/2020 - Law Society CEOs Meeting (meeting of all CEOs of Law Societies across Australia).
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30/6/2020 - Criminal Law Committee meeting.
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1/6/2020 - Property and Commercial Law Committee.
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4/8/2020 - Litigation Committee Meeting.
29/6/2020 - Executive Director Luke Rheinberger attended the swearing in of Magistrate Hartnett.
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30/5/2020 - The President Crystal Garwood was quoted in The Mercury on ‘one punch’ laws.
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4/8/2020 - Board of Legal Education Meeting.
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29/5/2020 - LCA President Meeting.
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4/8/2020 - Elder and Succession Law Committee Meeting.
27/6/2020 - President Crystal Garwood, Rohan Foon and Executive Director Luke Rheinberger attended a meeting of the Law Council of Australia directors.
28/5/2020 - The President, Crystal Garwood was quoted in The Advocate article on fast tracking the Burnie Court upgrade.
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3/8/2020 - Property and Commercial Law Committee Meeting.
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27/5/2020 - Law Society CEO’s Meeting. 27/5/2020 - Council member Philippa Wilshire attended the COVID-19 Hobart Magistrates Court Response Meeting.
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30/7/2020 - Medico-Legal Working Group Meeting.
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27/7/2020 - The President Crystal Garwood attended the National Round table Addressing Sexual Harassment.
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24/7/2020 - The Society’s Governance Working Group Meeting.
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23/7/2020 - The Executive Director Luke Rheinberger met with Legal Aid Commission of Tasmania to discuss the Commission’s proposed conflict of interest policy.
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26/6/2020 - Executive Director Luke Rheinberger attended a Meeting of state and territory Law Society CEOs.
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26/6/2020 President Crystal Garwood attended a meeting of state and territory Law Society Presidents.
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26/6/2020 - Vice President Trevor McKenna, Deputy Executive Director Francesca Saturno, Executive Director Luke Rheinberger and Property and Commerical Law Subcommitee met with LGAT (21st Century Councils Consultation).
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27/5/2020 - Law Society’s member legal practice / business financial relief program announced.
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24/6/2020 - President Crystal Garwood spoke to The Examiner and The Advocate on drug driving laws.
27/5/2020 - Submissions – issues identified by the profession concerning eventual COVID-19 Disease Emergency (Commercial Leases) Act 2020 and (absent) regulations.
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24/6/2020 - President Crystal Garwood spoke to The Examiner and The Advocate on the Northern Prison.
25/5/2020 - Practising Certificate Renewals – new electronic processes launched.
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21/5/2020 - Working Group Strata Titles Meeting.
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22/7/2020 - Executive Director Luke Rheinberger attended the Administration of Justice – Service Delivery Meeting.
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21/7/2020 - The President Crystal
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8 LAW LETTER AUTUMN/WINTER 2020
24/6/2020 - President Crystal Garwood
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15/4/2020 - Executive Director Luke Rheinberger attended a meeting of Law Society CEO’s.
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6/3/2020 - President Crystal Garwood attended a meeting of Law Society Presidents.
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9/4/2020 - The Board of the Centre for Legal Studies met.
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5/3/2020 - Family Law Committee Meeting.
18/5/2020 - Council Meeting.
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14/5/2020 - Executive Director Luke Rheinberger met with the Society’s auditors to plan 2019/20 audit.
9/4/2020 - Law Society CPD Response Program Commences.
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14/5/2020 - Meeting of the Board of the Centre for Legal Studies Ltd.
8/4/2020 - Executive Director Luke Rheinberger attended a meeting of Law Society CEO’s.
4/3/2020 - President Crystal Garwood spoke at the Soroptimist International Devonport International Women’s Day event.
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12/5/2020 - Deputy Executive Director Franesca Saturno attended Australian Law Management Group (Law Council of Australia) Meeting.
4/3/2020 - Executive Director Luke Rheinberger attended a meeting of the Magistrates Court, Criminal and General Bill Steering Committee.
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3/3/2020 - Board of Legal Education Meeting.
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2/3/2020 - Property and Commercial Law Committee Meeting.
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28/2/2020 - President Crystal Garwood spoke with The Examiner regarding the review of sentencing amendments. Story published on 7 March 2020.
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27/2/2020 - Executive Director Luke Rheinberger attended a dinner to mark the retirement of three long serving Centre for Legal Studies directors.
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27/2/2020 - Law Foundation Meeting.
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27/2/2020 - President Crystal Garwood and Executive Director Luke Rheinberger met with Shadow Attorney-General.
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27/2/2020 - Centre for Legal Studies Board Meeting.
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26/02/2020 - Pro bono Committee Meeting.
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25/02/2020 - Criminal Law Committee Meeting.
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24/02/2020 - Executive Director Luke Rheinberger met with law school representatives to discuss curriculum review.
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18/02/2020 - Executive Committee Meeting.
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18/02/2020 - Employment, Diversity and Inclusion Committee meeting.
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13/02/2020 - Deputy Executive Director Luke Rheinberger attended a meeting of Law Society and Land Titles Office representatives.
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12/02/2020 - Executive Director Luke Rheinberger attended a meeting with UTAS and Government representatives to discuss Tasmania Law Reform Institute issues including future funding.
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12/02/2020 - Executive Director Luke Rheinberger attended a meeting of Law Society CEO’s.
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6/02/2020 - Professional indemnity insurance claims review with Executive Director Luke Rheinberger, Claims Manager, Broker and Insurers. 04/02/2020 - Elder & Succession Law Committee meeting.
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20/5/2020 - Law Society CEO’s Meeting.
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20/5/2020 - Executive Director Luke Rheinberger attended the Administration of Justice Meeting.
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19/5/2020 - Employment, Diversity and Inclusion Committee Meeting.
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6/4/2020 - Meeting of the Council of the Law Society.
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6/4/2020 - Executive Director Luke Rheinberger attended a meeting of the Administration of Justice – Service Delivery Group.
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8/5/2020 - LCA Presidents Meeting
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7/5/2020 - Executive Director Luke Rheinberger attended a meeting of the CORO working group.
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3/4/2020 - LCA President Meeting.
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7/5/2020 - CPD Committee Meeting.
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6/5/2020 - Law Society CEO’s Meeting.
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6/5/2020 - Executive Director Luke Rheinberger attended a meeting of the Executive of the International Institute of Law Association Chief Executives.
2/4//2020 - Executive Director Luke Rheinberger attended a meeting of the Conference of Regulatory Officers Working Group.
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2/4/2020 - Executive Director Luke Rheinberger attended a meeting of Law Society CEO’s.
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2/4/2020 - Family Law Committee Meeting.
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31/3/2020 - President Crystal Garwood’s Report – COVID-19 Restrictions.
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5/5/2020 - Board of Legal Education Meeting held.
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4/5/2020 - Property and Commercial Law Committee held.
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1/5/2020 - President Crystal Garwood and Executive Director Luke Rheinberger met with the President of the Tasmanian Bar.
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1/5/2020 - New Committee Year commences.
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30/04/2020 - New Committee Year Term (1 May – 30 April) announced.
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29/4/2020 - Submissions COVID-19 Disease Emergency (Commercial Leases) Bill 2020.
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29/4/2020 - Elder and Succession Law Committee Meeting held.
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28/4/2020 - Criminal Law Committee Meeting held.
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31/3/2020 - Property and Commercial Law Committee Meeting – COVID-19 Issues.
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30/3/2020 - Executive Director Luke Rheinberger attended the Administration of Justice Meeting.
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28/3/2020 - Law Society doors close, transition to remote operations, COVID-19 safety and other comms initiatives rolled out.
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27/4/2020 - Submissions to Secretary, Department of Justice: Restrictions on North West Practice.
24/3/2020 - Deputy Executive Director Francesca Saturno attended a meeting with State Revenue Office
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23/3/2020 - LTO/LST Meeting.
27/4/2020 - Deputy Executive Director Luke Rheinberger and PCL Committee Working Group met with Department of Justice regarding COVID-19 Disease Emergency (Commercial Leases) Bill.
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23/3/2020 - COVID-19 Resources Portal Published – Law Society Website.
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23/3/2020 - First Law Society weekly COVID-19 Update Newsletter issues.
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16/3/2020 - Law Society programs close due to COVID-19 related circumstances.
22/4/2020 - Executive Director Luke Rheinberger attended a meeting of the Administration of Justice – Service Delivery Group.
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22/4/2020 - Executive Director Luke Rheinberger attended a meeting of Law Society CEO’s. 19/4/2020 - The President Crystal Garwood spoke to The Examiner on COVID-19 related offences.
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18/4/2020 - LCA Directors Meeting.
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16/4/2020 - Cyber-security Insurance Policy – All Firm Coverage – Member Benefit Negotiated by Law Society – Announced.
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7/3/2020 - President Crystal Garwood, Executive Director Luke Rheinberger and Law Society Director Rohan Foon attended the quarterly directors meeting of the Law Council of Australia. 6/3/2020 - President Crystal Garwood and Executive Director Luke Rheinberger attended a meeting of the Conference of Law Societies. 6/3/2020 - Executive Director Luke Rheinberger attended meetings of Law Society and Bar CEO’s.
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 9
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04/02/2020 - Litigation Committee Meeting.
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03/02/2020 - Property ad Commercial Law Committee Meeting.
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03/02/2020 - Criminal Law Committee Chair Ian Arendt and Executive Director Luke Rheinberger met with Department of Justice to discuss section 194K of Evidence Act and Dangerous Criminals Act reform.
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• Finance
3/2/2020 - President Crystal Garwood attended a celebration of Glen Emmett for 30 years of service as Justice of the Peace
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3/2/2020 - President Crystal Garwood met with the Director of Legal Aid to assist in Legal Aid’s strategic planning.
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6/2/2020 - Executive Director Luke Rheinberger attended professional indemnity insurance scheme claims review with scheme claims manager Fleur Dewhurst, Society Broker Graham Vasileff and representatives from Vero and CGU insurance.
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4/2/2020 - Litigation Committee Meeting.
3/2/2020 - Property and Commercial Law Committee Meeting. 3/2/2020 - Executive Director Luke Rheinberger and Criminal Committee Chair Ian Arendt met with Brooke Craven, Director Strategic Legislation and Policy, Department of Justice to discuss proposed amendments to section 194K of the Evidence Act and to Dangerous Criminal legislation.
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29/1/2020 - President Crystal Garwood spoke to The Examiner about Productivity Commission data on delays in Tasmanian Courts.
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29/1/2020 - Immediate Past President Evan Hughes spoke to ABC television about Productivity Commission data on delays in Tasmanian Courts.
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23/1/2020 - Executive Committee held.
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22/1/2020 - President Crystal Garwood provided a statement to Win TV and spoke to The Advocate on TLRI report on juries, the internet and social media. Story in Advocate and Examiner.
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18/1/2020 - President Crystal Garwood and Executive Director Luke Rheinberger attended the Attraction and Retention Working Group strategic planning day, facilitated by Melissa Lyon at Staffordshire House.
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17/1/2020 - President Crystal Garwood and Executive Director Luke Rheinberger attended the North West new year drinks in Devonport.
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15/1/2020 - TLRI Media launch of Final Report No. 29, Review of the Judicial Review Act (Tas).
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6/1/2020 - President Crystal Garwood and Executive Director Luke Rheinberger attended the North West new year drinks in Devonport.
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6/1/2020 - President Crystal Garwood and Executive Director Luke Rheinberger attended the attraction and retention working group strategic planning day, facilitated by Melissa Lyon at Staffordshire House
Opening of the Legal Year – Friday, 31 January 2020 St David's Cathedral, Hobart
10 LAW LETTER A SU UM T UMMEN R //W AU IN TT UEMRN2 2 00 21 09
Photos: Oliver Berlin
Legal Profession Dinner – Friday, 31 January 2020 Hotel Grand Chancellor, Hobart Congratulations to all award recipients whose contributions to the profession were recognised at the Society's Annual dinner President's Award - Marcus Turnbull SC Young Lawyer of the Year - Theo Kapodistrias Committee's Award - Property & Commerical Law Committee
L ALW AW L ELTETTETRE R S UAM UM T UEM R /NA/U WTI U NM T ENR 22001290 1 1
THE MORAL LIMITS OF LAW: REFLECTION FOR THE OPENING OF THE LEGAL YEAR
TASMANIAN WOMEN LAWYERS ASSOCIATION 2018
REVEREND PROFESSOR RUFUS BLACK
In a nation where few go to church, and in a world troubled by religious claims to guide the state, a Christian church service to open the legal year might seem quaint to the kind; anachronistic to the progressive; and provocative to others. So today I want to argue for its importance – even for those who have no belief in God. The significance of the church service lies in the ritual connection that it provides to the pre-modern traditions of thought where the deepest roots of the common law lie. It invites us to attend to those roots. As with any good gardening, if we attend well to the roots we nurture the vitality of plant. The same is true of the common law itself because the precedent set by the past is not a mute object, only to be animated by historians; but is a living voice in the courtrooms of the present. The thought that this pre-modern past might be the teacher of the present has, for a long-time, been greeted with condescension – that one is regressing to the world’s intellectual childhood – to a period full of myths, superstitions and simplicities that we modern adults should really have grown out of. But I think this view is changing. An indication of this change is the rise to prominence of figures like Michael Sandel, Martha Nussbaum and Amartya Sen - people from intellectually respectable neighbourhoods, who have not just pointed out the fatal flaws of modern conceptions of justice – be they utilitarian, Rawlsian, subjectivist or positivist; but also pointed us back to the conceptual richness of our deeper past. So, in the spirit of that change, I want to raise just one notion from the common law’s foundation– the idea that there are inherent moral limits to law.
The reading from the Gospel of Mark contains the famous passage “Render to Caesar the things that are Caesar’s, and to God the things that are God’s”. It is one of the founding passages for the pre-modern doctrine of “two kingdoms” – a doctrine of political thought, which has taken many forms across time and denominational divides - but which, at its essence, maintains that there is a proper scope for secular authority, but also a limit to it. Three hundred years later, in marking what those limits might be, St Augustine would say “a law that was unjust wouldn’t seem to be law” (De Libero Arbitrio Book I v, 11). And Thomas Aquinas, a thousand years later, with characteristically greater precision and subtlety, held that unjust law was “not a law simpliciter, but rather a sort of perversion of law” (Summa Theologiae Books I-II q95,a2c). That Thomist perspective deeply informed the world of thought out of which the common law grew. And so it is no surprise to find Sir William Blackstone in his famous commentary of the late 18th Century write “no human laws are of any validity, if contrary to this [referring to the natural law]. . . Nay, if any human law should allow or enjoin us to commit [murder, demonstrably forbidden by the natural law] we are bound to transgress that human law’. (Commentaries on the Laws of England Introduction, Section 2; Finnis, Natural Law and Natural Rights, Ch 12) In our time, this notion has surfaced again. Perhaps its most notable contemporary formulation was in Justice (later Lord) Cooke’s much noted observation in Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 that, “I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not over-ride them”. Views like Cooke’s have been given short shrift in modern times. John Austin, one of the founders of legal positivism,
12 LAW LETTER AUTUMN/WINTER 2020
speaks for the majority when he writes “to say that human laws which conflict with the divine law are not binding, that is to say they are not laws, is to talk stark nonsense”. If the notion that there are moral limits to sovereignty is not “stark nonsense”, but is to be taken as a potentially vital notion in a world that still knows tyranny – of which we have so recently been reminded – indeed, even democratic governments have yielded to the temptation to transgress taboos like torture with the justification of “the greater good” – we might helpfully begin by returning to Aquinas and his idea that an unjust law is “not a law simpliciter” – not straightforwardly. What is important about Aquinas’s observation is that it recognises the multivalent nature of law. Certainly, law possess those features the great positivists have taken pains to map; and so an unjust law is, in some important respects, still a law. However, what the great pre-modern moral tradition suggests is that the obligation of law - which is a feature of what makes a law a law – is not ultimately grounded in the threat of force – present and practically compelling though that may be – but in an ethical obligation. Or, put another way, the obligation to obey the law is part of our ethical obligation to pursue the common good. The finest statement of this case is made by the great contemporary Oxford jurisprudential philosopher John Finnis (Finnis, Natural Law and Natural Rights). In Finnis’ scheme, the obligation to obey a law is ultimately founded on the idea that a great many worthwhile things in life – from the provision of health care to higher education – things which, when taken together, we call the common good – can only be pursued when we cooperate with one another. Large groups can’t achieve consensus about what to pursue or how to pursue it. Reason compels us to accept some form of authority to make those judgements. What makes it an authority is that we accept those judgements – even about
the things on which we disagree – as the reasonable price of pursuing any substantive form of the common good. However, and here is the catch – if that authority requires acts like torture that do not advance the common good – if it requires acts that thwart the worthwhile things in life - then reason no longer prima facie compels obedience to that authority. I say prima facie because there may be situations where conformity to the law may still be required to prevent weakening of the whole edifice of law itself – thereby imperilling the entire common good. Nevertheless, without a reasonable basis for obligation, the law is missing an essential feature – and is, therefore, not straightforwardly law. What does this mean in practice? First, we should recognise – in time, perhaps in the Preamble of our Constitution – that our institutions of government – including the Parliament and its laws, and the courts – are not only positivist creations of the political will of the people; but are institutions, whose most basic ethical foundations are not changeable by acts of political or public will.
We should recognise that the ultimate guarantor of government for the common good is not the rule of law simpliciter; but the rule of law, only when we understand it in its fullest pre-modern sense. Second, any charter should recognise that there are some rights which are not created by the Parliament, but are recognised by the Parliament as identifying the inherent limits of its sovereignty – a recognition of the moral boundaries of the very concept of government itself. They might include the right not to be tortured, be put to death, or deliberately treated in inhumane or degrading ways. Third, that the Courts, even in the absence of a Charter, should be prepared to interpret the law so as to say that, while an unjust law may have the form of a law, it has no force or obligation upon those subject to it nor upon those directed to enforce it. In closing, I hope that these reflections have not just been the sketch of an argument for the moral limits of law, but have suggested that an engagement between religion and public life might be important. Important, not simply for what it might offer to significant contemporary discussions; but because we live in a time when we face a vital choice about how we deal with religion.
The temptation, in a world with extremisms of many faiths, is to harden a division between the state and religion; it is to seek to privatise religion and seal it off from public life - to argue, however implicitly, that religion belongs to an earlier, darker age before a time of scientific and philosophical enlightenment. I hope today I have hinted at the possibility of a rigour that would put paid to such objections – because I believe that the path of hermetic separation will only lead to greater extremism, social division and insecurity. The alternative is to recognise the proper place of religion in public life – to make it mainstream not marginal. Because it is at the darkness of the uncontested margins that extremism grows. I think there can be no better symbol for the place of religion in public life than having a church service to mark the beginning of the legal year. REV'D PROFESSOR RUFUS BLACK Vice-Chancellor University of Tasmania
Opening of the Legal Year Service, St Davids Cathedral, Hobart, 31 January 2020.
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COVID-19 TASMANIAN WOMEN LAWYERS RESPONSE: ASSOCIATION 2018
MANAGING MATTERS AND STAFF IN A VIRTUAL WORLD JAMES FLETCHER
In April, I was privileged to deliver a live webinar on “Managing Matters and Staff in a COVID-19 Virtual World” to an audience of some 80 Tasmanian lawyers.1 Even though this was just four short months ago, a great deal has changed in that time, including an unfolding second wave of COVID-19 affecting Victoria and some other parts of Australia.. What follows are some of the themes and top tips from the April webinar with some updates to take account of recent developments.
Challenges on colleagues’ minds
Many if not all of us are grappling with COVID-19 related challenges, such as: •
the uncertainty of the situation –
when will it end? •
what will be the eventual health and economic toll?
•
how do we manage ourselves, our teams and legal matters when it is business as unusual?
Other examples of the types of challenges identified by legal colleagues are:
•
dealing with the challenge of mental health in this new environment.
Do these sound familiar? If so, you are not alone. The question then becomes: so what can we do to cope with these challenges whilst simultaneously managing legal matters, ourselves and legal teams?
Alta Pete’s 5 Top Tips
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managing work from home amid distractions (including young children);
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finding quiet spaces for smooth videoconference meetings;
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feeling socially isolated and missing human interaction;
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market penetration when traditional and online forms of advertising have fallen away;
Volatile – frequent and sudden changes which may be unexpected and/or of unknown duration;
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dealing with clients who themselves are feeling nervous;
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adapting to new routines and changes in the law;
Uncertain – difficult to predict changes and most change not following a predictable pattern;
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finding constant videoconferences tiring; and
What follows are Alta Pete’s top 5 tips for managing legal matters and teams during these challenging times.
Tip 1: VUCA circumstances require an adaptive approach The COVID landscape is VUCA, that is:
Complex – multiple interacting elements are involved making decision-making difficult; Ambiguous – information overload can
IMAGE: ADOBE STOCK
14 LAW LETTER AUTUMN/WINTER 2020
cause ambiguity with no clear picture. Ronald Heifetz, a leadership expert who wrote ‘The Work of Leadership’ writes that as professionals, we often deal with technical challenges where the solution comes from established precedents; or known solutions based on similar projects. Whereas for complex, adaptive, VUCA challenges, lawyers need to think about discovering new ways of doing things, new learning and going beyond existing expertise. By reading this article and keeping an open mind to new ideas, you are actually following Top Tip (being open to new ways of thinking).
Tip 3: In managing your matters, achieve tasks and build relationships •
•
Stay connected and maintain your professional and social networks, including via email, social media, video-conference and telephone;
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Pay attention to your own needs and feelings. It is OK to admit that you are finding it tough – this does not make you weak, but actually can enhance rapport and build trust.
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Recharge - Engage in healthy activities that you enjoy and find relaxing;
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Exercise regularly, keep regular sleep routines and eat healthy food and keep hydrated;
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Keep things in perspective - Try to focus on what you can control (e.g. your own attitude; following Health advice) and try to avoid focusing on the things you cannot control (e.g. predicting what will happen; whether others follow the rules of social distancing).
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Keep informed, but don’t over-do negative news and social media. Limit your checking of news etc. to only certain times of the day. Consider leaving your phone in another room.
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Focus on just one task at a time and take regular breaks. There are lots of Apps and frameworks (like the Pomodoro technique) that can help with this.
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Manage expectations with clarity, including timeframes and where there is uncertainty in the legal risks you advise on.
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Keep informed of what is happening in the legal industry (e.g. updated Practice Notes allowing use of software like MS Teams for hearings).
Work to your natural energy cycles. Are you a morning or afternoon person? Try to structure your work tasks accordingly.
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Use down time wisely (e.g. build your professional network on LinkedIn; invest in your professional development; advance some longerterm goals).
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In what ways can you increase your new learning and go beyond your existing expertise, when needed?
Tip 2: Look after yourself
Invest time in building trust with clients. Really take the time to truly listen and look for common ground.
increase work on those tasks that are urgent and important and not urgent and important.
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Follow best practice guidance for remote legal work and supervision. As part of this, I recommend conducting structured and regular one on one meetings with the lawyer being supervised. Make it a priority to ask about wellbeing as well as work matters. Keep communication clear and regular. Up to 93 per cent of human communication comes from our tone and non-verbals, so if you can’t meet face to face; video-conference could be the next best option.
Tip 4: Make appropriate adjustments for virtual legal teams •
Make technology your friend and make sure all team members are trained in how to use it.
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Hold regular check-ins and provide feedback. Remember to ask colleagues what you can do to support them.
•
•
Ask lots of questions (e.g. ‘Is there anything we can be doing better to make our team meetings more effective?’). Look for ways to make people feel valued and connected. A good way to do this is to recognise a colleague who went over and above. Also, get to know each others’ interests outside of work as this builds trust and rapport.
Tip 5: Find ways to keep productive and avoid distractions •
But also be gentle with yourself – no-one is perfect and rest is important. Remember life is a marathon not a sprint.
Summary Many professionals are finding it challenging to manage their legal matters and staff in the COVID-19 landscape. My hope is that these tips make it easier for you – even in some small measure. Finally, I hope to meet you in person in beautiful Tasmania, as I will be delivering a 3 (PM, PS) CPD point workshop in Hobart in March 2021. Save the Date - LST CPD Program Wellbeing, Resilience and Recharge Workshop 9.30-1pm Friday 12 March 2021 JAMES FLETCHER Managing Director Alta Pete Consulting www.altapete.com.au jamesf@altapete.com.au 1.
You can view that webinar here https://members.lst.org.au/shop/products/managingmatters-and-staff-virtual-world/
Prioritise your weekly tasks according to urgency and importance. Try to
Member Services – Book Shop By arrangement with the Law Institute of Victoria, members of the Law Society of Tasmania can now use the LIV Bookshop with a member saving of 10 per cent off Bookshop purchases. The LIV Bookshop offers an extensive range of legal, practice management and related publications and products for use in your legal practice. Further details www.lst.org.au/ practice-resources/members-benefits/book-shop/
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TASMANIAN WOMEN LAWYERS ASSOCIATION 2018 HITTING THE RIGHT NOTE
HON. JUSTICE STEPHEN ESTCOURT AM
When I was appointed as a judge in 2013 I noted that the practice that I had given up had taken me all over Australia both as Queen’s Counsel and as a part time deputy president of the Commonwealth Administrative Appeals Tribunal. It had exposed me to counsel from every Australian State and Territory, both appearing before me and as opponents in many cases. From that experience I was able to say that Tasmania could be very proud of the standard of its advocates both senior and junior. They are the equal of any in this country. At my welcome sitting I said: Presenting written submissions orally in a way that involves the minimum court time will keep the cost of access to justice to the lowest possible level and that is something about which every person in this room is or has been concerned at one time or another. The corresponding challenge for me as a judge will be to use counsel’s written submissions in an efficient and practical way so as to avoid overwritten judgments and to be able to provide decisions in the minimum possible time. I have a particular interest in advocacy of course, having coached both in Australia and overseas for almost 30 years. The Tasmanian profession can have faith in itself, as I am sure it does, and it should embrace and be proud of its wonderfully high standards of advocacy. Counsel face modern challenges however, as on both the civil and criminal sides of the
Court we are now very firmly in the age of written advocacy. Written submissions on appeals and in other matters where they are required by the Court’s Practice Directions have now transcended the original idea of “skeletons” or “outlines”, and frequently run for many pages, as the Court, unlike most other State and Federal Courts, has not (as yet), imposed a page limit, much less a font size restriction as applies in the High Court. In the last year or so, for my part, I have also encouraged and have received written submissions on pleas of guilty in the Criminal Court. These are of great assistance in the timely handing down of sentences and are certainly advantageous to clients of defence counsel in a number of respects. Written submissions are not just a precursor to the argument of counsel, they are an integral part of it. As Allsop P, as his Honour then was, put it, in a paper presented at Lincolns Inn in January 2012; Written submissions are not mere preparations for the appeal, they are not a mere procedural precondition for the appeal. They are now the first half of the appeal. You do not get enough time to argue appeals entirely orally. If you do written submissions badly, half your appeal has been done badly. I think written advocacy is so much part of the work of busy counsel these days that the challenge has become, not their preparation, but their presentation. The real skill is in knowing how to present written submissions to the Court in a way that involves the minimum hearing time in oral advocacy – heresy twenty years ago – fact of life now. In my experience the real difficulty presented by the very valuable transition over the last decade from chiefly oral argument to principally written submissions is to know how to present the argument to the court in a persuasive way, which of course is the essence of good advocacy. Having had the benefit of reading and considering the written submissions in a matter before going into court, what judges need, in my view, is
16 LAW LETTER AUTUMN/WINTER 2020
to the hear the essence of the argument, not to hear a repetition of the written case. Of the very fine advocates I have had the privilege of appearing with or against what each of them had in common was that their oral argument plucked the very heart from their written submissions, but did not necessarily refer to those submissions expressly, or even speak directly to the written document. The worst possible advocacy is to waste court time by reading out, word for word your written submissions, or even paraphrasing them paragraph by paragraph. Finding the balance is not always easy as not all appeal court judges will have had time to read everything in the appeal book or referred to but not set out in the written submissions. In Tasmania, the relevant Practice Direction states that you may assume that the judgment below or the summing up and the notice of appeal have already been read by the Full Court. However, often with a busy court with no separate Court of Appeal, that is all you may assume. If a member of such a Bench calls upon you, either expressly (or impliedly by questions), to address your written submissions in more detail, then you will need to do so, whatever I may have said or am about to say in this short paper. I would suggest counsel could start with presenting oral argument at a relatively high level of abstraction, expecting a Socratic dialogue with the Bench, but be prepared to descend if necessary. I note in passing that it now ought to be taken as read that as counsel you rely on the written submissions that have been filed. However, out of excessive caution, it does no harm to state that clearly to the court. Headlining the points that you propose to make at the outset of your oral submissions is often no bad thing and can provide the court with a roadmap of your submissions. However, if you say you have four points then stick to them because the judges will have written down the four points, and if it turns out
that there are six points, or, worse still, four points each with five subparts, your headlining will have proved confusing and not helpful. A good tip, I think, is to identify a small number of key points”. And remember what has been dubbed the “infection” theory of advocacy – your weak points infect your good ones. If you have weak ones then leave them to speak from the written document. Counsel should seek to identify the essence of the written argument, and orally present the pith and substance of that argument. And avoid, at all costs, repeating the point. It goes without saying that a point is not improved by repeating it or by embellishing it with epithets or intensifiers. I believe that the most important technique to be utilized, in both preparing and orally presenting written submissions, is the framing of the essential issue in the case. Hayne J, in a paper given to the Victorian Bar Continuing Legal Education program in November 2004, albeit referring to the written argument, put it this way: In any written argument, but especially an application for special leave to appeal, a statement of the issue that is said to arise is very often of critical importance. Putting the issue in terms that reveal the issue of principle that is said to be at stake is very important. That is not done by saying that ‘the issue is whether the Court of appeal erred in making the orders it did’. Such a statement of issue tells the High Court absolutely nothing about the case. Bryan A Garner is a US lawyer, lexicographer and teacher. He has written several books about English usage and style, including Garner’s Modern American Usage and Elements of Legal Style. He is the editor-in-chief of all
current editions of Black’s Law Dictionary, and he has co-authored two books with Justice Antonin Scalia: Making Your Case: The Art of Persuading Judges (2008), and Reading Law: The Interpretation of Legal Texts (2012). In A Dictionary of Modern Legal Usage, 2nd ed (1995) at 471, Garner said: "There is no more important point in persuasive and analytical writings – and certainly no point that is more commonly bungled – than framing the issue." Garner maintains that the framed issue should be no more than 75 words and should be phrased in separate sentences. He says that the format should either be “statement, statement, question” or “premise, premise, conclusion”. Garner offers an example of framing the issue in an appeal in the case of a man charged with murder whose doctor is unavailable to give evidence at his trial, and an application for an adjournment has been refused: John Smith will likely be convicted of capital murder and sentenced to death at next week’s trial unless he can present evidence of his mental retardation. Smith’s expert on mental retardation must undergo emergency surgery to remove a cancer that his doctor had just discovered. Did the court abuse its discretion in refusing to grant Smith an adjournment? There is, of course, nothing to stop counsel from writing down their oral argument. Indeed there is a good deal to recommend it. In the High Court, counsel are required to provide a written summary of their oral argument. Hayne J points out in his paper that opinion differs about how much of your oral argument you should write down. He said:
Some of the best advocates in the country have had very full notes of their argument. This has enabled them to cut and paste on their feet according to the direction that debate takes. Others seem to treat it as a badge of honour that they have very little written material before them except the application book or the appeal book. In the end, it is of course, a matter for individual choice but, if in doubt, write it down. The discipline of writing often conduces to brevity and accuracy. Whether as American literature suggests, you prepare a ‘podium book’ in which you have your speaking notes, chronology and one or two critical documents, is a matter for you. Some find it helpful. The guiding principle is that you must be able to present your argument in a way in which you are engaging the Court. Counsel who puts his or her head down in order to read a prepared speech, or a slab of judgment, foregoes any opportunity to engage the Court. There is also good advice to be found in Allsop P’s paper. His Honour said: Remember – your court will be busy. They will have read your written submissions – perhaps more than once, perhaps once. They are quite likely not to have fully absorbed them. You have a group of intelligent, busy people who may have a jumbled or confused understanding of what you want to say. You have to ensure that the structure and detail of their understanding accords with your argument. What must they grasp? What structure of argument? What central body of facts? Take them in the materials to what you wish them to understand. Do not just read the written submissions. Time is precious. Think about what case, what facts, what parts of the trial judgment you wish to read – then and there. Use of transcript references, and, in my view, equally, use of authorities should be made sparingly in oral argument. The relevant references and authorities will be in your written submissions, with page references and important passages set out in full. It is poor advocacy for counsel to read long passages from the judgments, even more so from the quotations from them that have already been set out in the written submissions. In my view, only the most persuasive, highly authoritative (and never trite), cases should be read to the court.
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THE HONOURABLE JUSTICE STEPHEN ESTCOURT AM Judge Supreme Court of Tasmania
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THE TASMANIA LAW REFORM INSTITUTE
JEMMA HOLT
As the Tasmania Law Reform Institute (TLRI) enters its nineteenth year it has as much reason to look forward as it does back. What is TLRI? The TLRI was established on 23 July 2001 by agreement between the Government of the State of Tasmania, the University of Tasmania and the Law Society of Tasmania. The creation of TLRI was part of a Partnership Agreement between the University and the State Government signed in 2000. TLRI is based at the Sandy Bay campus of the University of Tasmania within the Faculty of Law. TLRI is an independent law reform body which undertakes law reform work and research on topics proposed by the government, the community, the University and the Institute itself.
The members of the TLRI Board are Dr Brendan Gogarty (Acting Chair), Professor Tim McCormack (Professor of Law at the University of Tasmania), the Honourable Justice Helen Wood (appointed by the Honourable Chief Justice of Tasmania), Ms Kristy Bourne (appointed by the Attorney-General), Associate Professor Jeremy Prichard (appointed by the Council of the University), Mr Craig Mackie (appointed by the Tasmanian Bar Association), Ms Ann Hughes (appointed at the invitation of the Institute Board), Mr Rohan Foon (appointed by the Law Society of Tasmania), Ms Kim Baumeler (appointed at the invitation of the Institute Board) and Ms Rosie Smith (appointed at the invitation of the Institute Board as a member of the Tasmanian Aboriginal community). The Board oversees TLRI’s research, considering each reference before it is accepted, and approving publications before their release.
The work of TLRI involves the review of laws with a view to: •
the modernisation of the law
•
the elimination of defects in the law
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the simplification of the law
•
the consolidation of any laws
•
the repeal of laws that are obsolete or unnecessary
•
uniformity between laws of other States and the Commonwealth.
Who is TLRI? Professor Kate Warner was the inaugural Director of the Institute when it was established in 2001. Associate Professor Terese Henning was thereafter Director from May 2015 until her recent retirement in December 2019. Dr Brendan Gogarty, Director of Clinical Legal Practice at the University of Tasmania, is currently Acting Director until a permanent replacement Director is appointed in 2020.
TLRI is an independent law reform body...
TLRI staff currently consists of: Dylan Richards and Jemma Holt, both Research Fellows and Joint Acting Executive Officers (Research); Kira White, Executive Officer (Administration), and Bruce Newey, Editor.
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Report on the Commissions of Inquiry Act 1995 (Aug 2003)
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Physical Punishment of Children (Oct 2003)
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Offending while on Bail (May 2004)
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Vendor Disclosure (Sept 2004)
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The Forfeiture Rule (Dec 2004)
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Intoxication and Criminal Responsibility (Aug 2006)
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Warnings in Sexual Offences Cases Relating to Delay in Complaint (Oct 2006)
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The Establishment of a Drug Court Pilot in Tasmania (Dec 2006)
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Criminal Liability of Organizations (April 2007)
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A Charter of Human Rights for Tasmania (Oct 2007)
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Sentencing (June 2008)
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Law of Easements in Tasmania (March 2010)
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Criminal Liability of Drivers Who Fall Asleep Causing motor Vehicle Crashes Resulting in Death or Other Serious Injury: Jiminez (Oct 2010)
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Racial Vilification and Racially Motivated Offences (April 2011)
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Consolidation of Arrest Laws in Tasmania (May 2011)
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Evidence Act 2001 Sections 97. 98 & 101 and Hoch’s case: Admissibility of ‘Tendency’ and ‘Coincidence’ Evidence in Sexual Assault Cases with Multiple Complainants (Feb 2012)
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Non-Therapeutic Male Circumcision (Aug 2012)
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Sexual Offences Against Young People (Oct 2012)
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The Legal Issues Relating to SameSex Marriage (Oct 2013)
2001 – 2018 Since its establishment in 2001, the TLRI has completed many diverse law reform projects, including: •
Custody, Arrest and Police Bail (March 2003)
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Adoption for Same Sex Couples (May 2003)
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Protecting the Anonymity of Victims of Sexual Crimes (Nov 2013)
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Review of the Law Relating to Selfdefence (Oct 2015)
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Bullying (Jan 2016)
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Problem Trees and Hedges: Access to Sunlight and Views (Jan 2016)
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A Comparative Review of National Legislation for the Indefinite Detention of ‘Dangerous Criminals’ (July 2017)
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Facilitating Equal Access to Justice: An Intermediary/Communication Assistant Scheme for Tasmania? (Jan 2018)
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Responding to the Problem of Recidivist Drink Drivers (April 2018)
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Consensual Assault (May 2018)
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Review of the Guardianship and Administration Act 1995 (Tas) (Dec 2018)
2019-2020 The TLRI has had a particularly prolific 2019 and start to 2020, with several long-term law reform projects coming to fruition during that period. •
Should Tasmania Introduce Notional Estate Laws? (Sept 2019)
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Review of the Defence of Insanity in s 16 of the Criminal Code and
Fitness to Plead (Dec 2019)
Law Reform Submissions
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Review of the Judicial Review Act 2000 (Tas) (Jan 2020)
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Social Media, Jurors and the Right of an Accused to a Fair Trial (Jan 2020)
In addition to the reference based project work that the TLRI conducts, TLRI is also contacted on a regular basis with invitations to make submissions on proposed legislative reforms.
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Legal Recognition of Sex and Gender (Feb 2020)
Interstate Collaboration
Current and Future Projects In 2020, TLRI will commence and/or continue work on the following projects, which have been accepted by the TLRI Board and for which the TLI has received confirmed funding: •
A Study into the Operation of the Special Hearing Scheme under Section 6A Evidence (Children and Special Witnesses) Act 2001 (Tas)
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Conversion Practices (aka ‘reparative’ or ‘ex-gay’ therapy)
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Re-examination of the Case for a Tasmanian Human Rights Act
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Review of the Tasmanian Constitution
The TLRI Board has also accepted the reference, Review of Privacy Laws in Tasmania, for which TLRI is currently seeking to secure funding. A number of further reference referrals are currently awaiting consideration by the TLRI Board.
TLRI and the South Australian Law Reform Institute (SALRI) are closely aligned and are currently collaborating on multiple law reform projects. TLRI and SALRI share unique challenges and opportunities associated with undertaking effective modern law reform in smaller jurisdictions such as Tasmania and South Australia and they are committed to working together on contemporary and topical law reform topics of common interest such as: •
Jurors, Social Media (& Suppression Orders);
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Court Intermediaries; and
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Special Hearing Scheme
JEMMA HOLT Research Fellow and Acting Executive Officer (Research) Tasmania Law Reform Institute To read more about immediate past Tasmania Law Reform Institute Director University of Tasmania Adjunct Associate Professor Terese Henning, please see “A Life Devoted to Reform” on pages 38-41.
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CYBER RISK FOR LAWYERS: A UNIQUE TASMANIAN WOMEN LAWYERS ASSOCIATION 2018 FORM OF PROFESSIONAL RISK Simone Herbert-Lowe
Cyber events impacting law firms can be targeted or untargeted Cyber risk includes funds transfer frauds and other losses with the potential to impact multiple clients, ongoing income and professional reputation. The risk has increased with the number of people working remotely due to the pandemic. Lawyers’ duties of competence and confidentiality means courts may imply a duty of competence in the use of technology. Cybercrime is challenging organisations everywhere, with daily news stories about businesses, government organisations and even IT companies that have been hacked. Law societies and insurers have been warning lawyers about cyber risk, in particular funds transfer frauds in which a scammer sends a fake email impersonating either a lawyer or their client with the aim of tricking the other into paying funds into the wrong bank account. While payment redirection frauds impacting client funds are a key area of concern, these are not the only cyber events that can have significant impacts for legal practices. In contrast with traditional categories of professional risk, cyber exposure encompasses new types of losses, some of which are not insured under legal professional indemnity insurance (PII) policies, and they can have unprecedented potential to impact multiple clients, ongoing income and professional reputation. Importantly, while cyber risk may have little connection with your skills as a lawyer, it can have everything to do with your professional duties as a fiduciary and custodian of confidential information.
Cyber events impacting law firms can be global and random Two major incidents in 2017 involving the WannaCry and NotPetya malware demonstrated the potential damage that cyber events can cause in terms of business interruption, loss of data and income, and remediation costs. The first victim of the NotPetya malware was
a small software company in Ukraine which was targeted by Russian hackers. The malware spread rapidly from the company to its contacts, encrypting computer records and making data permanently unavailable. The malware spread from computers that had not been patched for vulnerabilities to computers that had been patched. It took only one unpatched computer in a network to cause havoc to a company’s infrastructure (see Wired.com). Total losses from NotPetya worldwide have been estimated at more than $10 billion. While news reports at the time focused on high profile organisations such as transportation giants Maersk and TNT, it has been reported that 22 per cent of small businesses breached by the 2017 ransomware attacks could not continue operating (see Wired.com + asbeco.gov.au. DLA Piper was among many victims globally, with the malware compromising operations for days as lawyers at the firm had no access and then only limited access to computer systems or email. The firm later revealed it spent 15,000 hours in overtime for IT employees in response to the event. According to the article (see itnews.com.au) While NotPetya purported to require the payment of a ransom, in fact the virus could not be unlocked even if a ransom was paid. In other cases, ransomware is effective in locking up computer networks and unless reliable backups are available the affected firm may be forced to consider paying a cyber extortion demand in order to retrieve its information. Ransom ware can also threaten to publih infomration
Cyberattacks and email fraud can also be highly targeted More than 90 per cent of cyberattacks reportedly start with a phishing email designed to manipulate the recipient into inadvertently revealing log-in credentials or installing malicious software by opening attachments or clicking on malicious links. Many such emails can be generic and untargeted in nature – the good news is that these can often be caught by email filters.
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Unfortunately, however, as generic emails are increasingly likely to be filtered out, phishing emails can also target specific individuals for cyberattacks ("spear phishing") by tailoring a personalised message for the targeted individual. Once access has been obtained to a mailbox using phishing techniques, the hacker can collect confidential client information, access address books, scan a mailbox for correspondence identifying high-value transactions, tamper with correspondence to facilitate funds transfer frauds, or copy sensitive information that can be used for a range of purposes including identity fraud against clients or the theft of information that is commercially sensitive. As well as computer intrusion techniques such as phishing, another type of business email compromise involves pure impersonation fraud not involving any computer intrusion. In these cases, the scammer may impersonate a client, colleague or manager while providing directions for a funds transfer. “CEO fraud” is one of the most effective forms of business email compromise and involves sending an email to an employee of a firm impersonating a senior person such as a managing partner or chief financial officer. Because the employee believes the email is from an owner or senior staff, s/he may action these payment requests quickly and without question unless s/he has previously been educated about the existence of this type of scam. PII policies designed to protect against third party risks do not indemnify the practice’s own losses in this situation. Professional duties as fiduciaries and custodians of confidential information amplify the risks presented by cyber events. Obligations to maintain the confidentiality of information received from clients arise from a variety of sources, including the common law, equity, professional conduct rules and legislation such as the Privacy Act 1988 (Cth). When so much information is stored and communicated electronically the prevalence of cybercrime brings a new challenge to meeting this obligation. Whereas once an intruder needed to physically break into an office to steal information, without adequate safeguards
this can now be done via the internet. The capacity for criminals to mine that information for profit or to cause damage is unprecedented, with technology also amplifying the risk of information being intentionally or unintentionally disclosed to a wider audience. In some cases, businesses may have concerns about a possible hacking episode but may be reassured by the apparent absence of any fraud, when in fact sensitive data such as contact details, credit cards, financial records and health information may have been copied and made available for sale on the dark web. In cases where there is evidence that a hacker may have accessed confidential information that could, for example, expose clients to identity fraud, there may be disclosure obligations under fiduciary duties and the Privacy Act. Bar rules in a majority of American states now require a competency component for lawyers in relation to technology. While such a duty is not currently included in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, courts may imply a duty to take reasonable care to ensure information security given the fundamental nature of lawyers’ duty of confidentiality. Law firms are now targets for fraud, theft of confidential information or cyber vandalism in a way that is unprecedented. Remote working has the potential to increase risk through less face-to-face interaction, increased reliance on emails, COVID-19 themed scams, security risks
Image: Adobe Stock
associated with video conferencing and the use of collaborative software. Preventing cyber risk involves an acceptance that appropriate technology management is now encompassed within lawyers’ professional duties and cannot be regarded as a problem solely for an IT contractor or department to manage. While a strong relationship with a cyber security specialist is vital, technology solutions, coupled with a more holistic approach encompassing user education, risk prevention processes, mitigation via incident planning and an insurance program that factors in the unique perils of cyber exposure are all needed to protect your firm from this new and challenging form of professional risk.
Save the Date - LST CPD Program Cyber Resilience: Be COVID-Wise 1-2pm Thursday 29 October 2020
SIMONE HERBERT-LOWE Director Law & Cyber Pty Ltd simone@lawandcyber.com.au This is a edited version of an article first published in the Australasian Law Management Journal.
I will be delivering a CPD webinar for the Society in October 2020 – please join me.
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THE FUTURE OF LAW REFORM IN TASMANIAN WOMEN LAWYERS ASSOCIATION 2018 AUSTRALIA MICHEIL PATON
In December 2019 the ALRC released a suggested program of work for the next five years. The topics that the ALRC suggests should be prioritised are: automated decision making and administrative law; principle-based regulation of financial services; defamation; press freedom and public sector whistleblowers; and corporate structures for social enterprises. In 2019 the Australian Law Reform Commission (ALRC) broke new ground, asking the public which law reform topics should be prioritised for future inquiries. Although public consultation has long been a hallmark of the ALRC inquiry process, the public has not traditionally had a formal opportunity to inform the selection of inquiry topics. The project has provided fascinating insights into areas of law which are of concern to the
Australian public. The project has also facilitated valuable reflection on the role of the ALRC and the elements of an appropriate and effective ALRC inquiry. On 2 December 2019 the ALRC launched its project report at its new premises in Brisbane. A copy of the report has been provided to the Commonwealth Attorney-General for consideration. The choice of ALRC inquiry topics remains in the Attorney-General’s discretion, as the ALRC does not have any statutory power to ‘self-refer’ inquiries.1 To come up with the final list of suggested inquiry topics, the ALRC reviewed a number of sources including: other law reform agency reports; significant court judgments; academic writing; and public statements from professional organisations and civil society. The ALRC received hundreds of submissions via an online survey, conducted several public seminars, and held a number of targeted consultations. Early in the process, the ALRC settled on five ‘selection criteria’ against which it would assess the ideas raised: jurisdiction, importance, impact, effectiveness and suitability. Speaking at the report launch, the Hon Michael Kirby AC CMG, inaugural Chairman of
Image: Adobe Stock
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the ALRC, described these criteria as ‘excellent’ principles for identifying an appropriate and useful inquiry topic. Using these criteria, the ALRC boiled the many ideas down to five priority topics.
Automated Decision Making Does the law need reform to both facilitate and appropriately regulate the use of automated decision making software by government departments? Can the law better provide for outcomes that are fair, transparent, and accountable? What kind of human involvement (if any) should be required in government decisions? Participants at our public seminars in particular highlighted the urgency and significance of these questions, emphasising that the use of such software is already prevalent across many government agencies, and is expected to increase over time.
Regulation of Financial Services The Hayne Royal Commission identified an urgent need to simplify and rationalise the regulation of financial services, clearly identifying the principles that underpin specific provisions. The ALRC has suggested specific parts of legislation it
could review, and endeavour to illustrate how Commissioner Hayne’s vision might be implemented in practice. This topic responds to concerns in submissions to the ALRC about the complexity of relevant legislation, and would build on the ALRC’s work in its current inquiry into Corporate Criminal Responsibility.
Defamation How should defamation laws operate in this age of digital communications? Would federal legislation be preferable to the existing ‘model uniform provisions’? How might dispute resolution forums and processes be designed better to reflect the evolving nature of defamation disputes? The Council of AttorneysGeneral is currently considering some aspects of defamation laws, and the ALRC could build on their work with a broadranging independent inquiry.
Press Freedom Are reforms necessary to Commonwealth laws in order to appropriately protect public interest journalistic activity? Are existing laws adequate to protect whistleblowers in the public service? A large number of submissions called for a review of related issues including human rights protection, free speech, national security, and transparent and accountable
government. A careful and considered indpendent review of relevant laws would appear timely.
Social Enterprises Social enterprises are organisations that engage in trade and seek to make a profit, but are also committed to the achievement of social or environmental goals. They are often described as ‘hybrid’ organisations, caught between the regulatory worlds of ‘for profit’ and ‘not for profit’ entities. There is currently no dedicated corporate structure for social enterprises in Australia, unlike in many overseas jurisdictions. Is a new dedicated corporate structure desirable in Australia? Could existing corporate structures be adapted? How might the law better facilitate social impact investing?
Other Significant Topics The report also outlines a number of potential alternative topics that received significant support in submissions, including the Australian Constitution, and environmental law. For example, in the face of protracted constitutional stagnation, the ALRC suggests that the Government consider establishing a dedicated constitutional reform body. That body could meaningfully involve members of the public in the
That’s why many legal practices in Tasmania have turned to BDO. We are the only accounting firm in Tasmania with a full‑time forensics division experienced in litigation support, business valuation, family law financial matters, commercial dispute resolution, quantification of loss, corporate governance, fraud investigation and criminal defence. BDO’s global network extends across 167 countries and territories, with 88,120 people working out of 1,617 offices—and they’re all working towards one goal: to provide our clients with exceptional service. At BDO we appreciate that no two assignments are the same. That’s why your distinctively different needs drive our approach.
Kurt Stevens
identification and development of constitutional reform ideas, and could subsequently propose specific questions regarding constitutional reform for inquiry by the ALRC. In relation to environmental law, the ALRC set out a number of areas of concern raised in submissions, and suggested that the Government await the outcome of the current independent review of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) before identifying a particular focus of any ALRC inquiry.2 Overall, the ALRC considers the project to have been a valuable exercise, and anticipates conducting a similar process in the coming years. The full report is available for download at: www.alrc. gov.au/publication/the-future-of-lawreform-2020-25/. MICHEIL PATON Australian Law Reform Commission Principal Legal Officer micheil.paton@alrc.gov.au 1. 2.
See Australian Law Reform Commission Act 1996 (Cth) s 20. Department of the Environment and Energy (Cth), ‘Independent Review of the EPBC Act’ <epbcactreview.environment.gov.au/aboutreview>.
Craig Stephens
Audit | Tax | Advisory For more information contact Kurt Stevens | +61 3 6234 2499 Craig Stephens | +61 3 6234 2499 www.bdo.com.au
BDO is the brand name for the BDO network and for each of the Member Firms. © 2020 BDO. All rights reserved.
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SIX WAYS TO ACE A VIDEO TASMANIAN WOMEN LAWYERS ASSOCIATION 2018 INTERVIEW JASON ELIAS
As the pandemic continues, it’s wise to be prepared for interviewing via videoconferencing COVID-19 has fundamentally changed the way the legal recruitment process operates. Video interviews have become the norm and require a different technique from conventional face to face interviews. Use these tips to ace your next video interview.
Appearance
Presenting a professional appearance is interviewing 101, but video interviews present some challenges to looking your best. For starters, you should familiarise yourself ahead of time with where exactly your webcam is going to be hitting you – knowing which parts of you will be visible will help you plan an outfit that is professional without being distracting. As tempting as it might be, resist the urge to wear pyjamas below the view of the webcam. During a video interview of my own, there was a moment when I had to get up from my kitchen table mid-interview and I was happy I’d put on appropriate pants.
Surroundings
If you’re being interviewed remotely, odds are you’re doing the interview from your home. Before your interview begins (preferably long before), stake out the perfect spot to set up your laptop or tablet for the interview, being conscious of what the recruiter will see in the background. Also be conscious of lighting. Having bright light behind you can leave you as a silhouette. Depending on the culture of the company you’re interviewing for, you might use this opportunity to demonstrate a little personality – a carefully placed memento from your university or picture of your pet can add a little colour without being distracting. Otherwise, keep things clean and safe. You should be the star of the show on video, not a messy kitchen or barking dogs.
Videoconference Tools
Almost every Zoom meeting starts with “can you hear me?” Tech issues are a great way to distract from your interview. Even though you are not being recruited for an IT role, make sure you have all the tech set up properly and even dial in a few minutes early if possible to test the sound. If you are competing with others for bandwidth (have you met my kids?), arrange for them not to be online during your interview.
Interviewers
As with any job interview, your homework begins long before the video interview itself. You should thoroughly research the firm, its people, its strengths and its achievements so you’re prepared to discuss them during the interview. Additionally, the internet has made it simple to familiarise yourself with your interviewers before you meet them virtually. Partners and HR professionals are generally very active on LinkedIn and a quick Google search will shed some light on who you will be meeting.
Make a Lasting Impression
The previous four tips are really all about one thing: putting your best foot forward. It can be easy when interviewing virtually to forget about the personal touches that can really make you stand out. Keeping that in mind, remember non-verbal communication can make up to 80 per
cent of the decision to progress your application. Make sure you are authentic and leave an impression that you are willing and able to do the job.
Ask Good Questions
It is a good idea to prepare a few questions to ask at the end of the interview when invited to do so. Try and avoid “me-me” questions about what you will get. Instead show you have listened to the interviewers and try to have them imagine you are joining them. For example: •
What does a typical day in this role look like?
•
What would success look like in this job six months down the line?
•
What do you like most about working in this organisation/ team?
•
How would you describe the culture of the team?
JASON ELIAS Chief Executive Officer Elias Recruitment jason@eliasrecruitment.com Jason Elias is CEO of Elias Recruitment, specialist legal recruiters in Melbourne, Sydney, Brisbane and Perth. He is a former lawyer at Baker McKenzie and has been recruiting lawyers for more than 20 years. He was recently awarded Australian Recruitment Leader of the Year.
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CAN WE REBALANCE THE2018 SCALES? TASMANIAN WOMEN LAWYERS ASSOCIATION
ACCESS TO JUSTICE FOR PARENTS IN THE TASMANIAN CHILD SAFETY SYSTEM TERESA HINTON
What challenges face legal professionals working to advise and represent Tasmanian families involved in the Child Safety system? What do these challenges say about our ability to implement the intent of the legislation, which is family preservation and reunification? In 2019, the Social Action and Research Centre (SARC) at Anglicare Tasmania embarked on research to explore this issue, which has now been published in a report. Introduction
The ‘noise’ around child protection systems in Australia, and indeed across the world, has been increasing as growing numbers of children and young people are removed from their families and enter the out-of-home care system (OOHC). There is an ongoing debate about how risk of abuse and neglect is assessed and to what extent removal from the family, temporarily or long-term, is an effective intervention in protecting children and ensuring their safety. In Tasmania, these decisions about whether children are removed and for how long, where they are placed and arrangements for contact with their birth families are made in the Children’s Division of the Magistrates Court. Here, the Court and legal system provide a check and balance on judgements made by Child Safety about children’s best interests and their current and future relationship with their birth families. A set of Principles guide how The Children, Young Persons and their Families Act 1997 is to be implemented in practice. The Principles promote a partnership approach between Government, non-government agencies and families, stating that:
•
a high priority is given to supporting and assisting the family to carry out their primary responsibility for a child’s care and protection, in preference to commencing proceedings;
•
families are treated with respect at all times;
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removal only occurs when there is no other reasonable way to safeguard a child’s wellbeing. Eventually they should be returned to reside within the family;
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contact between the child and family and community should be encouraged and supported to preserve and strengthen the relationships, whether or not the child resides with the family; and
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families have the right to be provided with information sufficient to enable them to participate fully in proceedings.
Through the voices of birth parents and the lawyers involved in representing them, the research for the Rebalancing the Scales: Access to Justice for Parents in the Tasmanian Child Safety System report set out to explore how far these Principles are being achieved as families cross the interface between the Child Safety system and the judicial system.
Research Methods
The research involved talking to 36 parents across the state who, between them, had experienced the removal of 78 children. They related their experiences of accessing legal advice, attending Court and alternative dispute resolution (ADR) mechanisms like section 52 conferencing and family group conferencing. Two-thirds of our sample had experience of attending Court without any legal representation. The research also involved talking to 45 lawyers experienced in representing parents involved in the Child Safety system. These experiences were collected through 43 responses to an online survey and 24 one-on-one interviews with the researcher. Between them, lawyers were able to reflect on over 2,500 families they had worked with in the
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previous two years. In addition, views were sought from the Child Safety Legal Group, Family Law Practitioners Association, the Chief Magistrate, Child Safety staff, professionals involved in providing expert reports for the Court and community support organisations. Existing administrative data sets were explored to establish possibilities for quantifying the themes arising from interviews and the survey. This research aimed to be solutionfocused, providing recommendations and a platform for debating how best to improve parents’ experiences, their access to justice and the outcomes for families. As well as collating priorities for reform from research participants, the research reviewed the range of interventions being progressed in other jurisdictions nationally and internationally to improve experiences and outcomes for families and how far these models might be relevant in the Tasmanian environment. The work was advised and guided by a research reference group with representatives from the Legal Aid Commission, the Tasmanian Aboriginal Community Legal Centre, parents, community service organisations, the Family Law Practitioners Association, and the Departments of Communities and Justice.
What did the research find?
There was a remarkable consensus among legal professionals and parents about the challenges, gaps and areas for reform in how care proceedings are conducted and decisions made. When asked about the challenges inherent in working in the Child Safety jurisdiction, lawyers (and parents) identified three main issues: access to legal representation; the nature of the representation task; and the administrative processes, procedures and timeframes associated with the decisionmaking process. They talked about a failure to adequately equip families to participate in the justice system, shortfalls in the quality of legal advice and representation available to them, and
a judicial system which is ill-equipped to make decisions about complex family matters or provide independent oversight of Child Safety judgements.
Access to legal representation
Although it might be assumed that entering an adversarial legal system would require mandated access to legal advice and representation for those being prosecuted by the state, this is not the case. Parents and legal professionals described shortfalls in access to legal information, advice and representation, at a time of crisis when families are dealing with the removal of a child. Families may not be aware that legal advice is needed, have difficulty in accessing it, be reluctant to seek it or not be granted adequate levels of Legal Aid funding, resulting in them accessing help at a late stage in proceedings and potentially attending Court unrepresented and with no support to navigate their way through the system. Although Magistrates will adjourn hearings when there is a selfrepresented client and advise them to seek legal representation, this can delay proceedings and there is no guarantee that they will be able to find good quality legal advice. Tasmania has a core of skilled and experienced lawyers committed to working in the Child Safety jurisdiction and there is a high rate of consensus between parents and lawyers about what good representation entails. It includes a ‘caring approach’, empathy and understanding and, in the absence of a supportive infrastructure for parents who have had children removed, the provision of more holistic help in
accessing therapeutic and other support services. At the same time, lawyers are challenged by working with parents who have low levels of legal capability and experience difficulties in engaging and giving instructions. There is often a gap between the lawyer’s perceived role and parent expectations, with this issue being identified as a challenge in the majority of their cases for over half of the lawyers in our survey. Two-thirds of lawyers responding to the survey indicated that inadequate levels of Legal Aid funding and late access to legal advice were issues in the majority of their cases. The low fees payable for Legal Aid funded work directly impact on the quality of legal advice available to parents and put them at a disadvantage in arguing their case, undermining any sense of natural justice and fair play. This was seen as promoting a ‘consent culture’ where litigation is discouraged and parents agree to consent to Orders rather than contest them. Whether or not a parent has legal representation, going to Court is described as isolating and stressful. The physical environment, the brevity of court appearances, discouragement from speaking directly to the Magistrate and few opportunities for support during or after Court visits confuse and confound parent expectations of a fair hearing and marginalise them from their own case. This lies in contrast to those who experience sympathetic treatment from a Magistrate who acknowledges their circumstances and their presence in the courtroom, which can have a major impact on parents, encourage behaviour change and promote a sense that they
have been heard and justice has been done.
Processes, procedures and timeframes
Highly complex decisions about the best interests of the child, family functioning and possibilities for family preservation and reunification are made by a generalist judiciary. They are assisted in this task by evidence of risk or potential risk to the child provided by Child Safety and expert opinion and have opportunities through ADR to engage all parties in identifying the issues and coming up with solutions. However, across the board, both parents and lawyers raised concerns about the operation of these procedures and processes and how they functioned to erect barriers for families trying to achieve preservation and reunification. The late serving of Child Safety affidavits and the nature and quality of the evidence used to support them, noncompliance with the Rules of Court, the operation of ADR, the quality and independence of expert evidence and the delays endemic to care proceedings all impose additional stresses, pressures and costs on families, legal practitioners, the Legal Aid funding pool and the Child Safety system. In commenting on care proceedings, the key point of difference between parents and their legal representatives, and the most contentious, was the willingness of lawyers to contest evidence of risk in Court. Parents, and lawyers, were highly critical of the quality of the evidence from Child Safety and reported factual
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inaccuracies, use of hearsay evidence, information taken out of context and even fabrication. For parents, the ability to test and challenge evidence of risk was key to achieving a fair and just outcome. But a common experience was being advised to consent rather than challenge evidence, which parents regarded as proof of an unfair system. Lawyers described playing a longer, more strategic game. Although-two thirds (64 per cent) of lawyers identified that the nature and quality of the evidence used was a major issue in the majority of their cases, and agreed that the Court did not exist to rubber stamp Child Safety proposals, challenging weighty affidavits with substantial evidence of risk on a Legal Aid budget can be unproductive. Instead, lawyers operated more strategically by advising parents to consent to Orders whilst focusing on negotiating as much access as possible between parent and child. Decisions about access once children have been removed – its frequency, time, location and whether or not it is supervised and by whom – are important goals for parents and for lawyers. These decisions provide pathways to family reunification and to sustaining family and community relationships. Regular contact reinforces attachment, shows commitment and provides opportunities to demonstrate and improve parenting capacity. But the research described a number of obstacles to maintaining quality contact once children are removed, and 89% of lawyers who responded to the survey identified that negotiating access and keeping the Department accountable for access arrangements was a challenge in the majority of their cases. The underresourcing of these arrangements by the Department, especially those which require supervision services, mean that whether or not a parent gets regular access is determined by departmental budgets rather than a child’s best interests. Parents experience restricted, unsuitable and cancelled arrangements due to the inability of Child Safety to resource and facilitate them and a shortage of supervisors and support workers. This weakens relationships, increases distress and trauma and, especially with infants, makes it increasingly difficult to develop and maintain attachment. Removal then becomes inevitable and a self-fulfilling prophecy. Although the Court is able to make Contact Orders which are legally enforceable and specify the details of access, the preference is to specify these details in a notation attached to Orders. Notations stipulate contact arrangements and place them on the Court record but are not legally binding. Breaching a notation cannot then be held to have contravened a Court order. This leaves parents and their representatives unable
to hold Child Safety to account for failing to facilitate access arrangements and smooth a pathway to reunification.
Hearing the Voices of Birth Parents
Despite their centrality to making decisions about children’s safety, parents reported being silenced and disempowered in the face of investigation by Child Safety and prosecution by the State. Although the Act promotes partnership working with families, the use of ADR and ensuring families have information so they can participate fully in proceedings, there were high levels of dissatisfaction with the ability of the system to hear the parent voice. Instead of clear and transparent decision-making involving parents from the beginning, with a clarity about goals and timelines and a culture of empathy and respect, parents reported a lack of partnership working, unclear goals, and a lack of information about their rights and about processes and procedures. They experienced ADR processes where their voice was highly dependent on the skills of facilitators and often drowned out by professional voices. They did not necessarily know what their rights were, how to get help or how to hold the Department to account. Amongst those who have been through the system, there is a significant appetite to get involved in shaping policy and practice. Parents wanted professionals to understand their experience and the pain of relating it and provide an opportunity for healing. They wanted to ensure that practice is improved for other birth parents who find themselves in similar situations.
What is Happening in Other Jurisdictions?
These issues are not unique to Tasmania. Across the English-speaking world child safety systems are dealing with similar issues and introducing reforms to improve the experiences of families and reduce the numbers entering the OOHC system. These initiatives have focused on family preservation and diverting families from legal processes, improving access to skilled legal assistance at an earlier stage and providing wraparound support for families. Most significantly, initiatives have sought to move from adversarial legal processes to more inquisitorial and therapeutic systems that better meet the needs of vulnerable families with complex challenges. Many of these initiatives demonstrate concrete and positive results in keeping families together and/or in reuniting them as quickly as possible and could be adopted in Tasmania.
An Urgent Need for Reform Throwing a spotlight on the legal and decision-making processes associated
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with the Child Safety system illuminates the absence of a well thought through strategic approach to family preservation and reunification and a lack of clarity in conceptualising the interface between the Child Safety and Justice systems. Currently we are failing to implement the intent of the legislation for far too many families and the frustration that those participating in the system express must be translated into a positive energy and investment to make it work better. There are a diverse range of reforms which would radically improve the situation for children and families and alter the way in which decisions are made about a family’s future. When asked what kind of changes they would like to see, both lawyers and parents prioritised stronger pre-proceedings processes to provide a more effective ‘wake-up call’ so that families are better able to engage with the safety concerns expressed by the Child Safety system. This was closely followed by specialist magistrates in the Child Safety jurisdiction and intensive Court case management to provide a more effective check and balance on Child Safety actions. Improvements for parents in access to quality legal representation and to a range of support and therapeutic services as well as the availability of non-legal advocacy to support them through care proceedings and their contact with Child Safety were all seen as crucial in improving the capacity of parents to have their voices heard and to participate in decision making about their family’s future. The report recommends the commissioning by the Tasmanian Government of a high level working group which can promote a whole systems, coordinated approach to addressing the needs of vulnerable families. What is required is the coordination of initiatives and reforms across the Child Safety, Justice interface which can rebalance the relationships between children, families, Child Safety and the legal system to provide a smoother more supported path for families to family preservation and reunification. TERESA HINTON Senior Research and Policy Officer Social Action Research Centre Anglicare Tasmania T.Hinton@anglicare-tas.org.au The full research report Rebalancing the Scales: Access to Justice for Parents in the Tasmanian Child Safety System by Teresa Hinton was published by the Social Action and Research Centre, Anglicare Tasmania in July 2020. It can be downloaded at https://www.anglicare-tas. org.au/research/rebalancing-the-scalesaccess-to-justice-for-parents-in-thetasmanian-child-safety-system/
WOMEN'S LEGAL SERVICE TASMANIA
TASMANIAN WOMEN LAWYERS ASSOCIATION 2018 Doing their business differently - how the WLST has pivoted their community legal education activities during COVID-19
YVETTE CEHTEL With changes to the way legal services can be delivered due to the COVID19 pandemic, Women’s Legal Service Tasmania has been turning to technology to share our message with the Tasmanian community.
Sheets with current legislation and additional information about COVID-19. The fact sheets are online accessible resources that provide an overview of common legal matters.
In early April, we also worked with Healthy Tasmania’s Penny Terry (former ABC presenter), to produce a special episode as part of the Health Speak podcast about finding confidence to safely help those who are experiencing family violence during COVID-19. A Unable to continue with our regular community legal education and outreach survivor advocate, Deb, spoke with us about her experience with family programs, we have programmed a few violence and ways that other people and short legal information sessions that services can help. You can listen to the have been delivered through facebook episode by using this link or by searching live on a Friday afternoon instead. With for Health Speak on Apple Podcasts, topics such as Family Violence Orders, Spotify, via the Health Speak Facebook Child Safety, E-Safety and Property page or via Healthy Tasmania’s website. Settlements, these have been very The popularity of this format has been popular amongst our audience, with immediately recognised. This episode our most popular session, titled "Family has had over 1000 listens in the first four Violence: Economic Abuse - What it is! (and tips)" collecting over 580 views since weeks, and has proven to be a great way to get crucial information out to those it was recorded. in need, in an accessible, storytelling We also recognise that as more services format. It is also intended to educate the turn online, we need new resources that wider community on the nature of family can adapt to a community style of service violence. delivery. This is especially important for We have now begun the process of specialist family violence and women’s developing a series of podcasts for services, who need to work in a trauma release, with supporting online content, informed way within a family violence with the aim to educate the community framework. We have updated our Fact
around the more general legal concepts that we see callers to our telephone advice line experiencing. Additionally, in May, we partnered with the University of Tasmania to livestream a panel discussion session on family violence facilitated by law students. Contributions from us, Dobson Mitchell & Allport, Engender Equality and a lived experience contribution provided all participants with an opportunity to see family violence from a range of different perspectives. This was a great initiative of UTAS. Delivering legal information during COVID-19 presented many challenges. As a service we highlighted our adaptability and flexibility by using technology to allow us to continue to engage with the community in innovative ways. As a service we will continue to adapt our service delivery to best meet the needs of our clients. We are also committed to facilitating ongoing cultural conversations, to challenge gender inequality, the driver of family violence. YVETTE CEHTEL Chief Executive Officer Women's Legal Service Tasmania yvette@womenslegaltas.org.au
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REFLECTIONS ON THE RECENT HIGH COURT DECISION IN LOVE V COMMONWEALTH OF AUSTRALIA [2020] HCA 3: THE CONSTITUTION, INDIGENOUS RIGHTS AND IMMIGRATION LAW KATE SLACK and ARRON HARTNETT
On 11 February 2020 the High Court handed down its decision in Love v Commonwealth of Australia [2020] HCA 3 (‘Love’).1 The decision, by a majority of four judges to three, determined that Aboriginal Australians, according to the ‘tripartite test’ for Aboriginality described by Brennan J in Mabo v Queensland (No. 2) (‘Mabo’)2, were not within the reach of the Commonwealth Parliament’s so-called ‘aliens power’ in section 51(xix) of the Constitution. This article briefly examines the factual background of both plaintiffs in Love, the constitutional and legislative issues raised by the case, the High Court’s decision and reasoning, and some observations about potential, future implications that the judgment might have (particularly for Aboriginal and Torres Strait Islander people in Australia).
Background
Love involved two plaintiffs, Mr Love and Mr Thoms, each of whom were born overseas. Neither Mr Love nor Mr Thoms are Australian citizens. Mr Love was born on 25 June 1979 in Papua New Guinea (‘PNG’) and is a PNG citizen by birth. Since 18 October 1985, he has resided continuously in Australia and has not departed. Mr Love identifies as a descendant of the Kamilaroi tribe. He is recognised as a descendant by at least one elder of the Kamilaroi tribe. His paternal great-grandfather was descended, in significant part, from Aboriginal inhabitants of Australia who lived in Australia prior to European settlement. Mr Thoms was born on 16 October 1988 in New Zealand. He is a New Zealand citizen by birth. Since 23 November 1994,
Mr Thoms has permanently resided in Australia. He identifies as a member of the Gunggari People and is accepted by other Gunggari people as such. The Gungarri People hold common law native title in respect of lands in Queensland’s Maranoa region.3 The Gunggari People’s land claims were recognised in two separate Federal Court proceedings in 2012 and 2014. Because neither of the men were citizens of Australia, their lawful presence in Australia depended upon their each holding a valid visa. Both Mr Love and Mr Thoms had types of permanent residence visas which permitted them to indefinitely remain in Australia. Their status as non-citizens, however, made their lawful right to remain in Australia conditional upon the continued validity of each of their permanent residence visas. Each of the men were convicted in Queensland of criminal offences. On 25 May 2018, Mr Love was sentenced for an offence against the Criminal Code 1899 (Qld) (Code) section 339(1) (assault occasioning bodily harm). He was sentenced to a term of imprisonment of 12 months. On 17 September 2018, Mr Thoms was sentenced for an offence against the same provision of the Code (in a domestic violence context). He was sentenced to a term of imprisonment period of 18 months. Because Mr Love and Mr Thoms were sentenced to periods of imprisonment of 12 months or more, each of their permanent residence visas was mandatorily cancelled.4 This cancellation revoked their right to remain in Australia as lawful non-citizens and both were taken into immigration detention. Both men requested that the mandatory cancellation be revoked. On 27 September 2018, a delegate of the Minister revoked the mandatory cancellation of Mr Love’s visa and he was released from detention. Mr Thoms’ revocation request was refused and he remained in immigration detention throughout the High Court proceedings.
Constitutional and Legislative Issues Litigants challenging the cancellation of their visas generally have very limited rights of review. The Migration Act
30 LAW LETTER AUTUMN/WINTER 2020
1958 (Cth) (‘Migration Act’) purports to oust the jurisdiction of courts to review migration decisions of the Minister (or delegate) through a privative clause.5 The plaintiffs avoided the operation of the privative clause by commencing proceedings in the High Court’s original jurisdiction under section 75(iii) of the Constitution seeking damages for false imprisonment for the period of their detention. A key hurdle for the plaintiffs was that their detention appeared to be authorised by section 189 of the Migration Act. That section, broadly, requires officers of the Department of Immigration and Border Protection to detain persons that they reasonably suspect are unlawful non-citizens until they are removed from Australia under section 198.6 Because it was not in dispute that the plaintiffs were not Australian citizens, the plaintiffs had to show that section 189 could not have valid application to them. The primary way that the Commonwealth Parliament regulates the detention and deportation of unlawful non-citizens in Australia through the Migration Act is by using the ‘aliens power’ in section 51(xix).7 If the plaintiffs were incapable of falling within the meaning of the term ‘alien’ for section 51(xix), then section 189 could not be valid in its application to either plaintiff.8 The plaintiffs argued that they could not possibly fall within the ordinary understanding of the word ‘alien’ in section 51(xix) because, despite their lack of Australian citizenship, they were Aboriginal Australians.
The Decision
The High Court, by majority,9 decided that Aboriginal Australians, understood according to the tripartite test in Mabo,10 are not within the reach of the ‘aliens’ power in section 51(xix) of the Constitution. The tripartite test involves a person self-identifying as an Aboriginal person, showing descent from Aboriginal ancestors and demonstrating that people enjoying traditional authority in that person’s Aboriginal community recognise the person as a member of the community. Each member of the majority authored a separate judgment. Three members of the Court dissented, and each dissenting member of the Court similarly authored a separate judgment.
The majority all accepted that, while the power of the Commonwealth Parliament to legislate with respect to aliens is a broad power, including a general power to determine who an alien is,11 the term ‘alien’ does not mean whatever the Parliament says that it means.12 In Pochi v Macphee, Gibbs13 CJ explained that ‘the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s. 51 (xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word’. In Nolan v Minister for Immigration and Ethnic Affairs, the High Court observed that, as a matter of etymology, ‘alien’ means ‘belonging to another place’.14 The plaintiffs’ submission was that the mere fact of their being citizens of a foreign country was not enough to make them ‘aliens’. They submitted that Aboriginal Australians, understood according to the ‘tripartite test’ in Mabo, fell within a group of persons who could not possibly answer the description of an ‘alien’ within the ordinary understanding of that word. The majority accepted both of those propositions. The divergence of the reasoning of the Court (both the majority and the minority judges) does not permit an expansive exegesis of all of the reasoning in the judgments in an article of this length. But, in essence, the majority considered the unique position that Aboriginal Australians have in Australia, both in relation to its lands and waters, and also the Australian polity. Bell J noted that: [t]he position of Aboriginal Australians, however, is sui generis. Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite
the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.15 In relation to Australian lands and waters, the majority made significant reference to Mabo, in which the High Court first decided that Indigenous Australians’ rights and interests in land survived the Crown’s acquisition of sovereignty over Australia. The plaintiffs submitted that it was significant that Aboriginal Australians were the only persons capable of holding common law native title. However, the plaintiffs argued that even if native title had been extinguished, that did not mean that Aboriginal Australians do not continue to have a unique connection with Australia.16 Gordon J wrote that native title ‘is one legal consequence flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia’.17 Her Honour said that Aboriginal Australians not being aliens for section 51(xix) is simply another consequence of the recognition of that connection that the common law has always known. In relation to the connection between Aboriginal Australians and the Australian polity, Edelman J pointed out that metaphysical ties of a non-Indigenous Australian’s birth on Australian soil to an Australian citizen parent was sufficient to establish that a person was not an alien. His Honour concluded that ‘[t]he same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or “mother nature”’.18 Nettle J saw the connection between Aboriginal Australians and the polity as
one involving reciprocal and permanent obligations of protection (by the Crown) and allegiance (by Aboriginal people to the Crown). The content of the obligation of protection, his Honour said, necessarily ‘extends to not casting [an Aboriginal person] out of Australia as if he or she were an alien’.19 The minority judges expressed concern that the judgment gives rise to issues of ‘competing sovereignty’.20 Kiefel CJ and Keane J both expressed concern, particularly with the aspect of the Mabo test that gives authority to the elders of an Aboriginal community to (in part) determine Aboriginality (thereby preventing the Commonwealth Parliament from designating such people aliens). Kiefel CJ called this a ‘kind of sovereignty which was implicitly rejected by Mabo (No 2)’.21 Keane J said that a determination by Aboriginal elders that a person is an Aboriginal person and thus beyond the reach of the aliens power amounts to ‘an exercise of political sovereignty by those persons’.22
Implications Immediate implications At a narrow level, the case provides a functional limit on the Commonwealth Parliament’s power to treat Aboriginal Australians as aliens (even if they are non-citizens). Effectively, this immunises Aboriginal Australians from deportation under section 198 of the Migration Act, and any detention anterior to deportation under section 189. In that sense, the practical impact of the narrow ratio in Love,23 is likely to be minimal. Most Aboriginal Australians are Australian citizens because they are born in Australia to Australian citizen parents.24 Australian citizens, regardless of their race, are not
IMAGE: ADOBE STOCK
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liable to detention in, or expulsion from, the Commonwealth because they are categorically not ‘aliens’. Because a person’s Aboriginality is a question of fact,25 it remains to be seen whether other federal courts will, for the purposes of section 51(xix), consider the tripartite test in Mabo as an exclusive and exhaustive test for how a person must prove that they are an Aboriginal Australian. Anderson J of the Federal Court, in obiter comments, has doubted that that is so, suggesting that it is ‘for future argument by a non-citizen of Australia that, on the basis of his or her Aboriginality, he or she is not an alien notwithstanding that he or she does not satisfy each of the three elements of the tripartite test’.26 It was not necessary to consider other modes of prove in Love. The plaintiffs had framed their case as one in which they were Aboriginal Australians according to the test in Mabo (No 2).27 Certainly, the Mabo test does not at some broader level dictate what it means to be ‘Aboriginal’ in a factual sense for every legal purpose, as recent New South Wales Court of Appeal authority makes clear.28 Broader implications At a broader level, the case shows that a majority of the High Court consider Aboriginal Australians’ relationship with both the lands and waters of Australia, and the Australian polity, as unique. Because a case of this nature has never been decided, its impact on other legal and constitutional issues remain to be seen. Nettle J explained that the common law of Australia must have been taken to have always ‘comprehended the unique obligation of protection owed by the Crown to [Aboriginal] societies and to each member in his or her capacity as such’.29 His Honour also observed that the protection cannot be cast off by the exercise of the Crown’s power to extinguish native title.30 Predicting whether such statements have application beyond aliens power jurisprudence is difficult, but these sentiments are reminiscent of the type of fiduciary obligation, recognised in Canada, that the Crown owes its Indigenous people. Toohey J in Mabo referred to a ‘trust-like’ or ‘fiduciary’ relationship between he Crown and Indigenous people31 in terms of native title,32 but the existence of such a relationship has never been formally decided. Concerns about the fracturing of sovereignty were directly addressed by the majority judges. The decision does not call into question the principle, settled in Mabo, that the sovereignty of the Crown cannot be challenged in an Australian municipal court.33 Gordon J, who wrote extensively about sovereignty in her reasons, explained that ‘[r] ecognition of Indigenous people as
part of the “people of Australia” denies that Indigenous people retained, or can now maintain, a sovereignty that is distinct or separate from any other part of the “people”34. The judgment does not, as some have asserted, created a separate category of persons. The binary distinction between ‘alien’ and ‘nonalien’ is, and has always been, the law in Australia. The difficult interpretative issues that the aliens power has thrown up have largely been a by-product of Australia’s protracted journey to emerge as a fully independent nation with its own concept of an ‘Australian community’. Aboriginal people form an indelible part of that community. The majority judgments are important for another reason. Despite the extensive reference to Aboriginal Australians’ unique relationship with Australia, there is no mention of them in the Constitution. 35The case should not be seen as going as far as amounting to ‘judicial recognition’, in a broad sense, of Aboriginal Australians in the Constitution. Love explores, and shows, that the common law recognises a unique relationship that Aboriginal Australians have with Australia. Because the Constitution was drafted against the backdrop of the common law, that unique relationship will sometimes have occasion for constitutional significance. But Love cannot be seen, nor should it be seen, as a substitute for the constitutional recognition for which Indigenous Australians have long fought.36 Instead, the case is one strand in the tapestry of significant and thoughtful work that should form part of the much broader conversation about constitutional recognition for Indigenous Australians. The authors of this article, Kate Slack and Arron Hartnett appeared, led by Stephen Keim SC, for the plaintiffs in Love.
6.
7. 8. 9. 10. 11.
12. 13. 14. 15.
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17. 18. 19. 20. 21. 22. 23.
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25. 26.
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KATE SLACK Barrister Higgins Chambers kslack@qldbar.asn.au
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ARRON HARTNETT John Jerrard Chambers Barrister ahartnett@qldbar.asn.au
29. 30. 31.
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32. 33.
2. 3. 4.
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The case was two consolidated special cases (Love v Commonwealth and Thoms v Commonwealth) which were referred to the Full Court to be argued together (1992) 175 CLR 1. http://www.gunggaripbc.com.au/gunggaricountry/ Visas are mandatorily cancelled if a person is sentenced to a period of imprisonment of 12 months or more: Migration Act 1958 (Cth) section 501(3A). The person is then required to show reasons why that mandatory cancellation should be revoked, if the person chooses to do so: Migration Act 1958 (Cth) section 501CA. Migration Act 1958 (Cth) section 474. Although, as explained in Plaintiff S157 v Commonwealth (2003) 211 CLR 476, the Commonwealth Parliament cannot oust the jurisdiction of the High Court to issue
32 LAW LETTER AUTUMN/WINTER 2020
34. 35.
36.
the remedies listed in section 75(v) of the Constitution which are aimed at challenging decisions on the basis that they are affected by jurisdictional error. An unlawful non-citizen is a non-citizen who does not have a visa and is present in the migration zone: Migration Act 1958 (Cth) s 14(1). Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 26 (Brennan Deane and Dawson JJ). This was most clearly expressed by Nettle J: Love at [285]. See also, Acts Interpretation Act 1901 (Cth) section 15A. Bell, Gordon, Nettle and Edelman JJ; Kiefel CJ, Gageler and Keane JJ dissenting. (1992) 175 CLR 1 at 70 (Brennan J). The most obvious example of how this is exercised is the conferring or granting of Australian citizenship under the Australian Citizenship Act 2007 (Cth). Love at [50] (Bell J); at [236] (Nettle J); at [311] (Gordon J); and at [395] (Edelman J). (1982) 151 CLR 101. (1988) 165 CLR 178 at 183. Love at [74] (Bell J) (footnotes omitted). Gordon J (at [333]) also expressed that Aboriginal Australians occupy a unique or ‘sui generis’ position in Australia. Written submissions of the plaintiffs filed 2 April 2019 at [44] < https://cdn.hcourt.gov. au/assets/cases/02-Brisbane/b43-2018/ Love_v_Cth_B43-2018-Thoms_v_Cth_B642018_-_Joint_Pltfs_subs.pdf>. Love at [364]. Love at [466]. Love at [280]. Love at [25] (Kiefel CJ), and at [197] (Keane J). Love at [25] (Kiefel CJ). Keane J at [197]. The ratio in Love is probably best expressed by Bell J at [81] ‘I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution’. Australian citizenship is automatically conferred on a child of an Australian citizen or Australian permanent resident: Australian Citizenship Act 2007 (Cth) section 12. Love at [75] (Bell J). McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [197] (noting comments of Bell J in Love at [80]). Nettle J, however, could not be satisfied on the facts that Mr Love met the tripartite test (at [287]-[288]). Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [153] (Basten JA) (regarding the meaning of ‘Aboriginal child’ for the purposes of the Adoption Act 2000 (NSW)). Love at [272] Love at [277]. There is a line of authority to this effect in Canada, starting with Guerin v The Queen (1984) 2 SCR 335. Mabo (1992) 175 CLR 1 at 96-97. Mabo (1992) 175 CLR 1 at 31. (See also, Love at [356] (Gordon J)). Love at [356]. Since the adoption of the Constitutional Alteration (Aboriginals) 1967 the only two references to Aboriginal people in the constitution were (properly, in the context of those sections) repealed. See for example, Final Report of the Referendum Council, 30 June 2017, Uhm, Statement from the Heart, at p i. <https://www.referendumcouncil.org.au/ sites/default/files/report_attachments/ Referendum_Council_Final_Report.pdf> accessed 19 May 2020.
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TECHNOLOGY AND LAW FIRM CULTURE FABIAN HORTON
In this time of technological change it can be difficult to develop a healthy, consistent culture within your firm. Whatever your approach, it is essential to develop a culture that can take advantage of technology and change, rather than being overrun by them. The key is to understand how your team, your technology and your firm’s story all interrelate. Only from that understanding can a resilient, yet agile, culture be built in the law firm. Introduction
Many managers of law firms get excited about implementing a new process or bringing in a new technology. And rightly so; introducing these types of advances can really help make their teams more efficient, productive, and (hopefully) happier. The impact of new technology on the culture of a working environment is well known. When introducing technology changes, managers need to carefully consider how they will impact the team, both positively and negatively. As the legal profession is traditionally conservative, this assessment needs to be made with care to ensure that any causes for resistance or negative reactions are minimised. Understanding and explaining the need for change is part of the challenge that managers face, to ensure that the culture within the firm is altered in the desired way. It is this challenge of ‘understanding and explaining’ the effect of technology on culture that can, at times, prove difficult. Focusing solely on the expected benefits of a new technology is not always the most persuasive approach in convincing people to change their habits. What counts as a benefit is often framed from the perspective of management, who can be somewhat distant from the coalface of
the change. A disjointed narrative on how a new technology will impact the firm’s culture can see potentially beneficial changes fail to take hold, due to a lack of team buy-in. What is required is a way of expressing how technology and the culture interact so that a common understanding of what is occurring can be promoted. New theories from the philosophy of technology have shed light on what is happening in our human-technologyworld relationships. Called ‘technological mediation’ this approach, put forward by philosopher Peter-Paul Verbeek, helps us conceptualise technology and its effect on us.1 Not to be confused with technologies used in mediations (dispute resolution), Verbeek’s approach to understanding our relationship with technology considers how technology fundamentally alters the way humans perceive and react to the world around them. Every technology has a mediating effect on us. And understanding these effects is critical to understanding (and anticipating) the role technology plays in the culture of a firm.
Technological Mediation
Each time a new technology is employed within a law firm those who interact with it are inescapably changed in some way. This change might be small or large depending on the technology and the person concerned. It is not just technological devices that can have an impact on us. Technological concepts, such as a new process or workflow, can also have an effect. So the mediating effect of technology essentially changes our relationship with the world. It does this in two ways. It changes the way we perceive and interpret the world (affecting the ‘dimension of perception’). And it changes the way we interact with the world (impacting the ‘dimension of practice’). Understanding the dimension of perception and the dimension of practice is pivotal to understanding our relationship with technology.
Dimension of Perception
The dimension of perception is based on the concept of human-technology-world
36 LAW LETTER AUTUMN/WINTER 2020
relations and considers how technology influences the way the world becomes meaningful to us. Technology is such an intrinsically entrenched part of how we experience the world that it mediates reality– altering our perception of the world.2 A simple example is putting on a pair of reading glasses. The lenses of the glasses alter the way the light enters the eyes, enabling a person to read something that they previously could not. Due to the technology ‘embedded’ in the glasses, the person now perceives their world differently. Perceptions of the world can also be changed through technological concepts we encounter. Technological concepts are ways of thinking that are brought about by living in a technological society. For example, the Internet and our mobile phones have brought about the technological concept of hyperconnectivity. Our hyperconnected lives have changed the way we related to each other and what we expect from the world around us. Businesses, including law firms, are re-evaluating their service models in light of our online (onlife) existence.3
Dimension of Practice
In understanding how technology mediates our practices, it is useful to look at the relationship between humans and technology as a relationship in which both actively co-shape each other (human + technology). The noted philosopher Latour expressed this form of technological mediation using the concept of “translation” of a “program of action”.4 He gives the example of a person and a gun. A gun alone is just a device and its ‘program of action’ (the ability to shoot) is not activated. Similarly, without the gun, a person’s ‘program of action’ (intention to shoot someone) is blocked. But if a person picks up the weapon, it translates their intention on the basis of its ability to shoot. As such, the person is different by holding the gun and the gun is different by being held.5 Further to this, there is also the concept of a ‘script’ that is inscribed into a technology. A script places into a technology a ‘program of action’. This
means that a technology can be designed to shape the behaviours and actions of people. For instance, a speed bump can be thought of as having a ‘program of action’ inscribed, as it were, into the concrete.6 Consider a simple practice-based example; a law firm manager’s goal is to increase collaboration between the lawyers in the practice. The crucial decision is selecting the best practice management system to implement. Different systems can increase or decrease the likelihood of team collaboration. A system with a ‘script’ aligned to good collaboration habits will encourage and support the lawyers to engage with each other. As noted before, the combination of the human + technology sees the lawyers’ intention to collaborate translated into an effective outcome. The practice management system must have an appropriate script.
Technology as Culture
Technological mediation is not just an academic way of explaining our technological lives. It is a powerful analytical tool for understanding our relationship with technology. It provides a vocabulary through which an assessment of technology and its impact on our culture can be made. Thinking in terms of ‘perception’ and ‘practice’ is a useful conceptual device to help us unpack the positive and negative impacts of new technologies and processes in our workplaces. An apt application of this is the NewLaw phenomena. Based on the concept of the technology-enhanced law firm, NewLaw demonstrates how technology adoption can be the foundation of how a law firm is operated. Even at a macro level, technological mediation shows that a NewLaw firm is built on the perception that technology delivers a culture of efficiency and effectiveness. In terms of practices, the NewLaw firm’s use of ‘disruptive’ technologies which substitute new efficiencies for old practices, allows the operations to deliver ‘more for less’.7 But not every law firm aspires (or indeed desires) to be a NewLaw firm. NewLaw firms promote a certain type of culture
that may not be beneficial in every circumstance. Not every firm seeks to be on the cutting edge of technology, yet they can still deliver valuable services for clients. What is unavoidable, however, is the technologicalisation of society in general and how this is affecting the legal industry. From governments and policy makers, through to legal practices and courts, all have a level of technological engagement that affects perception and practices. And this level of engagement is constantly changing. The online conveyancing systems, that totally changed how we think about and undertake property transfers, is just one example of how technological change becomes the ‘new normal’.
support it. The culture that exists within a firm is directly related to the technological culture that is current in our society. Lawyers need to understand and decide on the culture they want their law firm to have. New ways of working should not happen by chance; the world is too complex for that now. Proper assessment and good judgement can mean that lawyers and technology continue in a relationship that sees positive outcomes within the firm and ultimately for clients.
Firm Culture in a Time of Change
Technology changes our practice. It has the ability to fundamentally change our behaviours which directly impacts our culture.
Technological change is a fact of life. And it seems the speed of this change is increasing. Law firms, for the most part, have risen to the challenge of creating a workplace culture that can adapt to new technologies when needed. However, for many, there is a lot of pressure to be seen to have the new technology ‘toy’. The question needs to be asked: does this assist in creating a better firm by (ultimately) helping the lawyer and the client? Creating and maintaining a culture within a firm that is resilient to technological change is an important goal for every law firm. Not being overwhelmed by technological advances is also important. To do this, consider if that new technology or process really does help you see/interpret/understand (a particular part of) the world better. Similarly, consider if the new technology or process is inscribed with a script that enhances your particular program of action. For one thing– at least you will be forced to be clear on what your program of action is or should be. Implementing a new technology or process can have many benefits. Aside from the functional outcomes, an assessment of how technology supports your people is essential. As Verbeek states: ‘human beings have their own goals and intentions, and products should help them to realize them in an optimal way. In many cases, though, these goals and intentions do not exist independently from the technologies that are used.’8 So helping people who are interacting with the technology see how it helps them interpret their world, and give effect to their intentions, is vital to maintaining a workplace culture that is in sync with the evolving technologicalisation of law.
Conclusion
Technology and Law Firm Culture
Technology changes our perception of the world; how we see it and what it means to us.
Our workplace culture does not have to be driven by technology but it will nonetheless be affected by technology. A proper assessment of how technology affects law firm culture will ensure better outcomes for lawyers and their clients. FABIAN HORTON Principal Solicitor Connect Law T: (03) 5265 1539 fabian@connectlaw.com.au www.connectlaw.com.au Fabian Horton is a lecturer at the College of Law Australia and director of ConnectLaw. He is the foundation chairperson of the Law Institute of Victoria, Technology and the Law Committee. Printed with permission from the Law Institute of Victoria, first published in the LIJ. 1.
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8.
Lawyers should rest a bit easier knowing that technology should not drive the culture of their firm, rather it should
The theory of technological mediation was put forward by Verbeek. For an introduction to the topic see Peter-Paul Verbeek, ‘Beyond Interaction: A Short Introduction to Mediation Theory’ (2015) Interactions <https://core.ac.uk/ download/pdf/31151236.pdf> See Peter-Paul Verbeek, ‘Don Ihde: The Technological Lifeworld’ in Hans Achterhuis (ed), American Philosophy of Technology: The Empirical Turn (Indiana Univeristy Press, 2001) 119. The term ‘onlife’ reflects “the new experience of a hyperconnected reality within which it is no longer sensible to ask whether one may be online or offline”. Luciano Floridi (ed), The Onlife Manifesto: Being Human in a Hyperconnected Era (Springer, 2015). 1. Bruno Latour, Pandora’s Hope. Essays on the Reality of Science Studies (Harvard University Press, 1999). 178. Ibid. 178–179. Ibid. 189. George Beaton, NewLaw New Rules - A conversation about the future of the legal services industry (Beaton Captial, 2013). Kindle 1603. Peter-Paul Verbeek, ‘Beyond Interaction: A Short Introduction to Mediation Theory’ (2015) Interactions.
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 3 7
Spotlight on the Profession
A LIFE DEVOTED TO LAW REFORM Upon her retirement, Tasmania Law Reform Institute Director and University of Tasmania Adjunct Associate Professor Terese Henning spoke with Law Letter about a life devoted to law reform and human rights, and what still needs to be done. Typical of lifelong law reformer and human rights advocate Terese Henning, she is juggling much more than just answering Law Letter’s interview questions when we speak about her retirement as Director of the Tasmania Law Reform Institute (TLRI). It is a severe fire danger day on the slopes of Mt Wellington where University of Tasmania Adjunct Associate Professor Henning lives, the mobile phone network has stopped working and the weather is “absolutely frightful and shocking with both high temperatures and strong winds”. So, while we speak, AAProf Prof Henning continually juggles people coming and going to prepare for any fire eventuality while also making sure her dog, which is barking in the background, and the people around her are looked after and safe. “Pop her [the dog] in the laundry Emma,” AA Prof Henning says mid-sentence while talking about law reform and then, without breaking stride, returns to the legal topic at hand, only to decide her four-legged companion needs more encouragement and support. The day encapsulates the way AA Prof Henning has lived her life – adroitly juggling an almost impossible number of tasks, looking out for the welfare of those around her (particularly the vulnerable and those without a voice), and doing so with compassion, calm, humour and focus. Born in Launceston in 1954, AA Prof Henning began her professional life in her twenties as a librarian and teacher at Glenora District School, north-east of Hobart, having gained a Bachelor of Arts at the University of Tasmania and a Diploma of Librarianship at the Tasmanian College of Advanced Education in 1974.
She left after a few years and completed a commercial cooking course at TAFE with the idea being to turn her love of cooking into a new career. “That was a big mistake,” Prof Henning said with typical directness and selfdeprecation. “Never try to turn a hobby into a job. All I ended up doing was ‘slinging hash’ for 18 months, and it was after that that I decided to study law at the age of 30.” “I loved law right from the beginning because it was a real channel for all the social justice issues that I’d been engaged in up until that point. I was already a member of the Women’s Electoral Lobby and Animal Liberation Tasmania, and when I started studying law it helped bring things into focus: ‘Okay, this is how we can make things better. This is how the system works, this is how you can target things to deal with injustices’”. While at the University of Tasmania, AA Prof Henning somehow made time not only to study so hard that she graduated with First Class Honours in 1984 (with five prizes in her final year), but also to become strongly involved with long-term law reform campaigns in three significant areas: domestic violence law reform,
38 LAW LETTER AUTUMN/WINTER 2020
sexual offences law reform, and for the establishment of a sexual assault support service. Once AA Prof Henning commits to a cause she is in for the long haul, and it took a decade of research, lobbying, meetings and activism as part of a group of women from different sectors and backgrounds before the Hobart-based Sexual Assault Support Service (SASS) was established in 1986. “Ten years it took us. We were still campaigning when I started practice,” AA Prof Henning said. “The idea was initially opposed by the police and government agencies who thought that any sexual assault support service would discourage women from reporting assaults or else encourage false allegations, while others in positions of authority just didn’t think it was necessary: ‘Oh no, there are not enough rapes in Tasmania,’ is what they said.” “But we got there in the end and now SASS is seen as a really important organisation and an essential part of the fabric of Tasmania. It is now funded by the Department of Health and Human Services and provides a 24-hour phone crisis response program; a 24-hour phone support and counselling service
to people affected by sexual abuse; and face-to-face information, support, counselling and referral services to anyone affected by sexual abuse. It also contributes to state and national inquiries and conducts education and training programs. It is an institution that is of profound value and effect.” AA Prof Henning was admitted to practice in 1986 and started her legal career in private practice, working at Piggott Wood and Baker (now PWB Lawyers). She left private practice to take up the position of Assistant to the Tasmanian Law Reform Commissioner in 1987. “I worked with wonderful people at PWB including Leigh Sealy who subsequently became Solicitor-General and the fabulous Audrey Mills. I think that private practice is the bedrock of our justice system and offers huge opportunities to make a difference, often at the individual level, but the opportunity to work on law reform with then Tasmanian Law Reform Commissioner, former Supreme Court Justice the Hon. H.E. Cosgrove QC was too tempting and I jumped at the chance to do so.” “Henry [now deceased] had a mind like a planet,” AA Prof Henning said, with great admiration. “He taught me many things, but the most important was that if you wish to reform any aspect of the law, you need to know its history and the foundational principles on which it is grounded. You need to understand its original purpose, whether it still meets that purpose and if not, why not.” “So, I used to research the history of the law, its interpretation over time and the principles that had guided its development. It was on this basis that Henry assessed the necessity for reform and what form that reform might take. He strongly advocated a principled approach to law reform based on foundational precepts. He was also concerned to make sure that the law worked as intended in a practical sense.” While working with the Hon. H.E. Cosgrove QC, AA Prof Henning continued to campaign for law reform in her spare time and also began tutoring and lecturing part-time in law at the University of Tasmania. In 1989 she accepted a full-time position in the Law Faculty at the university, lecturing and tutoring mainly in evidence law, criminal law and criminology. Academics normally split their time three ways: 40 per cent teaching, 40 per cent research and 20 per cent
community engagement and university administration. The setup allowed AA Prof Henning to continue to work on and champion a range of legal social justice issues, including those she had first taken up as a law student, while also helping to educate the next generation of lawyers.
Terese Henning, Gary Edmond, Rebecca McMahon, James Metzger & Mehera San Roque).
•
Member of the Tasmanian Sentencing Advisory Council
“Teaching at UTAS was an enormous and exciting adventure. It opened up a whole new perspective on teaching for me as a co-operative endeavor, one where you learn with the students and encourage them to learn with each other,” AA Prof Henning said.
•
Member of the Tasmanian Magistrates Court Diversion List Steering Committee
•
Category E member of the Human Research Ethics Committee
•
Member of the Tasmanian Disability Justice Strategy Steering Committee
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Tasmanian editor of the Criminal Law Journal
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Sub-editor of the Journal of Law Information and Science
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Honorary Associate Member of the Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh
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Member of the Australasian Law Teachers’ Association
•
Member of the Board of the Tasmanian Commissioner for Review
•
In 2006 the ARC College of Experts nominated AA Prof Henning as an internationally recognised ‘expert of international standing’ eminently suited to assess Federation Fellowships proposals
“I loved the subjects I taught and researched. While I have truly loved everything I have done in the law up until then, working as an academic, was hugely fulfilling. Academic life can, of course, be very challenging but it enables you to engage with the law in a host of different ways – as a teacher, a researcher, a reformer and an advocate.” “I have been hugely privileged to work as an academic lawyer. It has also given me the opportunity to work with some of the finest legal and scholarly minds in Australia, including Her Excellency, Professor, the Hon Kate Warner AC, the current Governor of Tasmania; John Blackwood, one of Tasmania’s preeminent experts in criminal law; Professor Jill Hunter of UNSW; Professor Jeremy Gans of Melbourne University; and Dr David Plater of the University of Adelaide. These people have helped to shape Australian laws and their interpretation in highly significant ways. They have opened opportunities for me and shared possibilities for contributing to the great task of achieving social change and justice through law reform.” AA Prof Henning became a senior lecturer in Law in 1997 and during her time at the university held positions in the Law Faculty including Associate Dean Learning and Teaching (2008 – 12), Sub-Dean (2013 -14) and Director of the Tasmanian Law Reform Institute (2015 – her retirement at the end of last year). During this time, she was also awarded a number of scholarships to read criminology at Trinity Hall, Cambridge University, resulting in a Master of Philosophy in Criminology. She has authored and co-authored research papers, conference papers, chapters in books and influential legal textbooks, including Criminal Process and Human Rights (Jeremy Gans, Terese Henning, Jill Hunter & Kate Warner), Litigation I: Civil Procedure and Litigation II: Evidence and Criminal Procedures (Jill Hunter, Camille Cameron & Terese Henning), and The Trial: Principles, Process and Evidence (Jill Hunter,
Her professional appointments included:
Her membership of government and government-associated law reform committees included: •
Member of the Board of the Law Reform Institute of Tasmania
•
Member, Australian Law Reform Commission, Advisory Committee (Uniform Evidence Act)
•
Member of the Women’s Advisory Group to the Tasmanian Attorney General
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Member of Uniform Evidence Law Reform Committee
•
Member of the Child Witnesses Law Reform Committee
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Member of the Mental Element in Crime Law Reform Committee
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Consultant to the Tasmanian Justice Department Sexual Assault Task Force
•
Tasmanian representative on the Reference Group for the Model Criminal Code, Sexual Offences
When the office of Law Reform Commissioner lapsed in mid-1997 due to a sunset clause in the legislation which
LAW LETTER AUTUMN/WINTER 2020
3 9
the then government declined to extend, AA Prof Henning was part of a campaign, led by Professor Donald Chambers (the Law Reform Commissioner at the time), for the reinstatement of the office. Some four years later, the campaign led to the creation of the Tasmania Law Reform Institute (TLRI) in July 2001. The Institute is the premier law reform body in the state and AA Prof Henning was appointed to the inaugural TLRI board before becoming director in 2015, a position she held concurrently while continuing her academic work at the University of Tasmania. During her time at the TLRI, AA Prof Henning has been involved with more than 40 law reform inquiries, although she is much less interested in numbers than she is in results. By way of example, she points to important changes that have been made in the area of sexual offences law due to her work and the work of others over an extended period of time, beginning all those years ago when she was a law student. “On behalf of sexual assault victims, we achieved major changes to substantive law, to the definition of rape, and to the notion of sexual offences more broadly. We achieved a graduation of offences - rape, aggravated sexual assault, sexual assault and a raft of other allied offences,” AA Prof Henning said. “We also achieved a complete overhaul of the adjectival law as it applies in sexual offences cases as well, including directions from trial judges to the jury and changes to the law relating to sexual history evidence relating to complainants. These are two really huge areas of the law.” “We also achieved changes to the admissibility of tendency and coincidence evidence in sexual offences cases - and the admissibility of children’s evidence, which is most important usually in sexual offences cases. Most recently, there have been the contributions to the development of communication assistant and intermediary schemes for children and other people with communication needs in sexual offences cases. These schemes enable people who might otherwise not be able to testify or to communicate accounts of events to do so. Their aim is to give these people access to justice which has hitherto been denied to them.” As part of her fierce and relentless pursuit of law reform, particularly for the vulnerable, AA Prof Henning never felt it was enough simply to change the law, she also wanted to make sure the intended positive effects of those changes actually occurred, and she has done so by researching and monitoring
the implementation of law reform. “You can have all the law reform change you want, but if it is not implemented properly, then you need to do something about it. Over time, quite a bit of tweaking needed to be made to the new sexual offences laws.” “I, along with my PhD students and research assistants, have spent a lot of time investigating trial transcripts to analyse how Counsel and judges have implemented the law reforms. This work revealed problems in the way the laws were being implemented. This led to further reforms of the law. Law reform is only ever incremental.” AA Prof Henning believes magistrates and judges play a vital role in ensuring the correct application and implementation of laws once they are changed. “It is very important that the magistracy and the judiciary are alive to the intent of the reforms and to the needs that prompted the reforms,” AA Prof Henning said. “Without this understanding, judicial interpretations may run counter to the legislative intent of reforms, by adhering to traditional interpretations.” “One of the most significant legal developments in recent times has been the reconceptualisation of the notion of fair trials. Current conceptualisations of fair trials have moved beyond focusing solely on the accused and now include fairness to victims, witnesses and the broader community.” “Fairness to the accused remains paramount, but fairness also extends to victims, witnesses, and the wider community. This reconceptualisation is inherent in many of the reforms that have been achieved in the laws relating to sexual offences. If this is not understood, then those reforms can be undermined.” As well as repeatedly pausing our interview to ensure the people around her and her dog are OK and to take urgent calls, AA Prof Henning also expresses concern a number of times about “sounding as if I am blowing my own trumpet, which is something I hate.” With that in mind, she is extremely keen to further acknowledge those with whom she has worked at UTAS, particularly Emeritus Professor of Law and Governor of Tasmania Professor the Hon Kate Warner and Senior Lecturer in Law Dr Brendan Gogarty. “From the time I was a law student, through private practice and since then, if ever I had a question about law reform I would always go to Kate and ask: ‘What looks like the best way forward? What is the optimum reform in this area?’ She is absolutely superb.”
40 LAW LETTER AUTUMN/WINTER 2020
“In academe, we’ve co-taught, co-researched and co-supervised PhD students. She has been my very closest colleague and an absolutely wonderful mentor, friend and support. I could not have wanted for better. She’s brilliant, and such fun to work with.” “Brendan is also a wonderful colleague, someone who can fire your enthusiasm for an issue. We’re both really interested in social justice issues and in law reform. He has loads of flair, brilliant ideas, and is generous to a fault with his time, ideas and his knowledge.” In a jointly authored article in The Mercury in December last year to mark AA Prof Henning’s retirement as director of the TLRI, Prof Warner and Dr Gogarty praised her “life’s work as a law reformer and leading expert on criminal law, evidence and criminology”. “Terese has always chosen to promote the interests of others over herself, not least in her lifelong contributions to law reform, but especially in respect of improving the justice system to better protect the most vulnerable in our society.” Equally important to AA Prof Henning are all the women she has worked with over the decades, both lawyers and women from many other spheres. “I can’t stress enough the importance that so many wonderful women including my closest friends - have had on my professional and personal life.” “I’ve always worked with really wonderful women, who were hugely committed, stayed the course, wanted to see change and got things done. I could not have achieved any of the things that I’ve achieved without them. They have worked without recognition or accolades and achieved major advances for women in Tasmania. It’s really important to me to acknowledge them - Christine Tilley, Michelle Moseley, Jenny Wilson and Audrey Mills. SASS would never have been established without their tireless work and refusal to be discouraged. They were also instrumental in campaigning for major sexual offences and domestic violence law reforms.” AA Prof Henning was a founding member of Tasmanian Women Lawyers (TWL) and she considers receiving the TWL Biennial Achievement Award a highlight of her career: “Being recognised by your peers is something special and I cherish the award.” One thing still to be done, and which AA Prof Henning will continue to champion in retirement, is the need for a Charter of Rights for Tasmanians. In 2006, the then Tasmanian government asked the TLRI to formally investigate how human rights were protected
in Tasmania and whether existing protections of human rights could be enhanced or extended. In particular, the Government asked the Institute to determine whether Tasmania should have a Bill or Charter of Rights and if so, what model would best suit the needs of the Tasmanian community. AA Prof Henning conducted the reference, authoring the initial TLRI Issues Paper, running the community consultation and authoring the Institute’s 2007 Final Report “A Charter of Rights for Tasmania” which called for the introduction of a Tasmanian Charter. However, successive governments have refused to act. In her typically determined manner, AA Prof Henning has never conceded defeat and remains as convinced as ever of the need for a Charter or Human Rights Act to protect and ensure the fundamental human rights of Tasmanians. At her last meeting as Director of the TLRI in late 2019, the Institute agreed
to adopt a new reference proposed by a number of community organisations, “Re-examination of the Case for a Tasmanian Human Rights Act” which will, amongst other things, re-examine the recommendations of the 2007 report. “The main barrier to the adoption of a Charter has been political,” AA Prof Henning said. “Government must have courage to enact this reform, because not everyone in Government or the Executive arm of Government likes the idea of a Human Rights Act because it enables their work and conduct to be scrutinised against a human rights standard.” For someone who has achieved so much in the world of law, AA Prof Henning’s greatest achievement has nothing to do with the law or legal profession. “The biggest highlight of, and most important event in my life was the birth of my daughter in 1991,” AA Prof Henning said emphatically.
“There is absolutely nothing as important to me as my daughter. She’s very beautiful. She is very courageous. She is amazing.” While AA Prof Henning has stepped down as Director of the TLRI, she expects to remain busy in academe for some time. “I’m seeing my remaining PhD students through and working with a wonderful research team on elder abuse law, which is a human rights issue, and I will be involved with the upcoming launch of a small number of TLRI reports.” Thankfully, the fire danger on the day of our interview did not materialise in any fires close to AA Prof Henning’s home or garden. MICK PASKOS ONMESSAGE MEDIA Ph: 0412 201 044 Email: mpaskos@onmessage.com.au
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Risk Management
TASMANIAN PII CLAIMS - TRENDS AND TAKEAWAYS
As we have finalised another Professional Indemnity Insurance policy renewal, I thought it was timely to provide an update and overview on the current PII Scheme and claims that are impacting on the profession in Tasmania. I am pleased to say that the PII Scheme in Tasmania is in excellent shape with the number of claims for the 2019 period at its lowest since the year 2000 with only 13 claims. Notifications were steady with 50 notifications made by practitioners. In this article, from a review of the claims and claims data, I have chosen to highlight a number of areas where claims are impacting on the profession and provide some risk management suggestions on how firms and practitioners might mitigate risks.
Due to the lower number of claims in Tasmania, in any review of the data it is important to provide comparative data. I have provided comparative data from LawCover that demonstrates a similar percentage of claims arising in respective practice areas. What is striking about the comparative data is that the claims arising in Tasmania are in line with the claims arising across other jurisdictions.
means such as advertising properties for sale or previous commercial transactions. The cyber hacker compromises the clients email account, poses as the client and advises the law firm that bank account details have changed and settlement funds should be deposited in to an alternative bank account.
From Law Society
Data as Advised by Profession
(From LawCover Data)
Transactional (commercial and
59.0 per cent
(51 per cent)
Litigation (including family and
34.5 per cent
(38 per cent)
Probate/other/unknown
6.5 per cent
(11 per cent)
conveyancing) common law)
Claims impacting on the Profession From a review of the recent claims I have chosen a few examples where there are underlying causes with the aim of raising awareness. I have also included an overview summary of risk management strategies that firms might adopt to manage these matters.
Risk Management Strategies. •
In my last article for the Law Letter I wrote about the increase of cyber fraud that has been reported in other jurisdictions within Australia. In Tasmania the predominant area where cyber fraud is occurring is in the practice areas of commercial law and conveyancing transactions.
Cybercrime risk management should form an integral part of a law firm’s risk management strategy. This includes ensuring that staff are provided with education on the current techniques used by cyber criminals and that firms have robust internal mechanisms to communicate to staff and update staff on a regular basis.
•
Interestingly, previous cyber fraud claims have seen the cyber criminals targeting firm IT systems and this has been subsequently discovered on IT review.
Educate your clients. In any engagement letter set out what is expected from the client. Advise the client what you require if there is to be a change of any detail, particularly bank account details.
•
Never accept change of bank account details from an email sent by the client mid-transaction. This should be a red flag. Always have the client call to confirm the account details or attend your office if practicable to sign the change in authority.
•
Consideration should be given to appropriate top up insurance cover
Cyber Fraud What does the data tell us about PII claims in Tasmania? The Law Society collects data on the PII claims in Tasmania and has collected this data since the year 2000. This provides over 20 years of data and provides insight into the practice areas where claims are arising. I have represented the Tasmanian data and comparative LawCover data in the table (right). From a review of the data it is apparent that most claims in Tasmania arise from transactional work in the practice area of commercial and conveyancing with 59 per cent of claims arising from this area. This is followed by Litigation, including family and common law that represents 34.5 per cent of claims and probate and other claims at 6.5 per cent.
With firm IT systems becoming more prepared and sophisticated to manage cyber-attacks, it is apparent that cyber hackers are now targeting client emails and hacking the email accounts of clients. Often these clients have become known to the hacker through other
42 LAW LETTER AUTUMN/WINTER 2020
to assist firms manage remediation following a cyberattack. As stated above, these additional financial costs may be incurred depending on the nature of the cyberattack or data breach. •
•
Firms should immediately contact the PII Claims Manager if they suspect that a cyber fraud claim has taken place. This allows the Claims Manager to take necessary steps to notify the underwriters and to provide advice to manage the circumstances of the potential claims. Consideration should be given by firms to business continuity plan measures and the management of business disruption. One strategy recommended is that firms should review their current client engagement letters to determine if business disruption is contained within that engagement to manage potential liability issues.
Claims Impacting on the Profession Conflicts - Regulation 12. Surprisingly, a number of recent professional indemnity claims have involved an underlying cause of conflict of interests. These claims tend to arise in the area of commercial and conveyancing where practitioners elect to act for multiple parties to a transaction. It is interesting to observe that in all of the claims where conflict of interest has been an underlying cause that very few of the solicitors have complied with the Rules of Practice 1994-Regulation 12 and failed to demonstrate the steps required to discharge their obligations when acting for multiple parties. These cases are particularly troublesome in a PII context as currently under the PII policy of insurance, if you act for more than one party in a transaction, otherwise than in
accordance with Rule 12, your firm will be liable for a double excess.
Claims Impacting on the Profession Client Engagement
It is important to understand that Regulation 12 is obligatory, not an optional extra. It permits you to act for more than one party provided you fully comply with its terms.
The other underlying cause of claims relates to the client engagement process. This often occurs in two situations, firstly where the solicitor takes on a matter that is outside the scope of their expertise and secondly, when an inadequate or incomplete description of the scope of work has created wider than intended obligations to the client. Claims involving poorly described scope of work has resulted in issues such as the provision of inadequate legal advice and inadequate drafting.
In order to comply with Regulation 12, each of the parties must consent to the practitioner acting for more than one party. This means that each of the parties must give an “informed consent”. Preferably this consent should be documented and retained on the client file.
Risk Management Strategies Conflicts - Regulation 12 To obtain an informed consent you are obliged to explain in plain language the circumstances of the conflict that exists. A proposed checklist for compliance can be explained as follow: •
A description of the subject matter involved;.
•
The nature of the conflict and the factors that create it;
•
The clients or other parties affected by the conflict;
•
Who you will represent and not represent;
•
The implications of the conflict on each client;
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The things you will and won’t do; and
•
The potential for interests to diverge at a later time and the requirement for you to cease to act for all parties because continuing to act will cause you to act in a manner ‘contrary to the interests of one or more of the parties’.
In these claims a factual review discloses that there has often been a very poor and unstructured engagement process including the failure to: •
Consider all issues associated with the matter;
•
The absence of an engagement letter; and
•
use of a proforma engagement letter that is lacking in detail and does not cover the scope of work to be performed.
Risk Management Strategies - Client Engagement One of the best risk management strategies that firms can adopt is to have a structured client engagement process. An essential component of this is a detailed client engagement letter. The client engagement letter should clearly set out the following: •
Outline of all of the issues and objectives;
•
The scope of the work to be undertaken;
•
The proposed timetable for the completion of the work;
•
Fees/costs that are associated with the work to be performed; and
•
How variations/problems will be handled, if they arise.
In closing, my role as the PII Claims Manager is not only to assesses and manage claims as they progress. An important aspect of my role is to provide support and guidance to the profession and to help manage potential claims and notifications. Please feel free to contact me for advice and support if you are concerned that a matter may progress to a potential PII claim.
Image: Adobe Stock
FLEUR DEWHURST Lawyer Professional Indemnity Insurance Scheme - Claims Manager PO Box 79, Lauderdale TAS 7021 Tel: 0427 800 030 fleurcd@fleurdewhurst.com.au
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 4 3
THE APPEARING ACT Many of us have gotten used to appearing in Court by phone or by video whilst safely ensconced at home or in chambers. For those in Victoria, this will be our way of practice for a little longer (I envy my Tasmanian colleagues). With this in mind, I have filed the following report from the front line (or front-facing camera, as it were) after a few personal experiences of appearing in such a manner.
reconnecting to the Cisco meeting after his slow internet connection frequently booted him off. He constantly answered: “Can you hear me?” to questions put to him in cross examination (which could have been a very cunning trick to avoid answering hard questions). In the end the hitherto very patient judge had jack of it, calling the exercise “hopeless”, and required the witness to come into court to give his evidence. Thankfully, he was not mine. Then there are the questions of instructors. Despite my having worded the instructor up that if she needed to communicate with me, she could do so by using the instant message feature on the Cisco application, she adopted
Soon after the pandemic hit I was briefed in a civil hearing in the County Court of Victoria, to be conducted by Cisco WebEx. There were three solicitors, three counsel, the clients and two expert witnesses. Each appeared by video, so ten little boxes with faces including the Judge and his associate.
instead to gesticulate wildly and point to her phone whenever she wanted me to look at a text message she had sent me. That led to the comment from the bench: “Mr Brimfield, I think your instructor might be in pain…”. No judge, but I was. Another cautionary tip follows. Some of you may have used Zoom to host parties with your friends and accomplices on weekends or after hours. A perfectly reasonable and safe way to maintain contacts with others in these times. It can be tempting, when engaging in such virtual gatherings, to adopt a nom-defestival. Just be sure to change it back to your real name before you go using Zoom again for Court. Yours truly almost appeared as Anastasia Beahverhausen in the Commercial Practice Court not long ago, only to change it just before the judge connected. Phew. FABIAN BRIMFIELD Barrister Victorian/Tasmanian Bars
The hearing, which was listed for a single day soon turned into three days after one particularly important expert witness was utterly hopeless at
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o o o o o o o o o
o o o o
o o o o o o
Fitness to stand trial Section 16 insanity defence Doli incapax Mental health and cognitive impairment assessments Offending behaviour and recidivism risk assessments Community protection and dangerous criminal assessments Parole risk assessments
Single expert reports Care and protection reports
Victims of Crime Personal injuries compensation Historical abuse in State care Workplace injury
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Ethics
THE LAWYER BY IMPLICATION
A basic understanding of the law of contract is clearly part of the core legal knowledge expected of a lawyer. There are, after all, few crevices of the civil law that have not been in some way invaded by contractual notions. There is, moreover, a reason closer to home for lawyers to maintain contractual knowledge: the lawyer-client relationship is inherently contractual, described by the specific term “retainer”. The latter is, from the lawyer’s perspective, the source of obligation, authority and entitlement. To this end, lawyers cannot ordinarily seek fees from persons who have not retained them, or exercise a lien as security for fees. Nor, aside from contract, do they possess authority to represent a person in a legal capacity. And retainer by a client attracts not only contractual obligations, but weighty tortious and fiduciary duties, amongst others. It stands to reason that lawyers, as well as (putative) clients, should be clear as to when a lawyer-client (contractual) relationship has come into being.
Contract law forms for the foundation for the lawyerclient relationship.
In many, indeed most, instances there will be little or no scope for misunderstanding in this regard. And this can remain so even if not every aspect of the retainer is reduced to writing. At the same time, documenting the retainer in
writing is strongly advisable, not only for proof as to its existence, but its scope. Instances may nonetheless arise where the law recognises a retainer between a lawyer and a person with whom the lawyer may not have intended to contract for this purpose. In these instances, despite the absence of a written retainer, a court may give effect to that person’s reasonable expectations of being represented in the matter, via what is termed an “implied retainer”. A well-known and instructive case illustration is Pegrum v Fatharly.1 There W wished to borrow money from the appellants and, to contain costs, proposed that the respondent solicitor, who was on retainer for W’s group of companies, prepare all the documents, to which the appellants agreed. The loan deed provided for W to pay the appellants’ costs pertaining to the instructions for and preparation of the deed. The respondent gave the appellants no warning that, to his knowledge by virtue of the existing retainer, W and his companies were a bad risk and the securities given by them were inadequate to secure the loan. When W could not repay the loan and the securities proved inadequate, the appellants succeeded in establishing that the respondent had acted as solicitor for them under an implied retainer. That no other solicitor was engaged in the transaction, regarding which each party contemporaneously attended upon the respondent, created in the appellants a reasonable expectation that the respondent acted for all parties. That the appellants were not liable for the respondent’s fee was no impediment to the retainer. By failing to disclose relevant knowledge, the respondent had breached his duty of care to the appellants triggered by the implied retainer, and was thus liable for the appellants’ loss. The spectre of an implied retainer, while concerning where the parties’ interests do not align (as for lender and borrower in Pegrum), can raise its head in instances of ostensibly compatible interests, such as partners, joint venturers and spouses. On each occasion it behooves the lawyer, and each such person, to
46 LAW LETTER AUTUMN/WINTER 2020
be clear who is the client and, just as importantly, who is not. A failure to be explicit in this regard can open the door to an expansive interpretation of the retainer, and potential liability not only in tort, but in the fiduciary sphere (by reason of conflicting client interests). A scenario may even arise, as it did in a relatively recent Singaporean case, where an implied retainer was utilised as the foundation for the presumption of undue influence.2
Being clear as to client identity is accordingly critical not just in managing risk but in fulfilling ethical responsibilities.
That the foregoing can be viewed from the perspective of risk management does not preclude an ethical dimension. In giving effect to the reasonable expectations of a party in the circumstances, the law is, after all, making an ethical judgment as to where the trajectory of responsibility should lie. And the disciplinary case law, to this end, reveals multiple instances of lawyers disciplined out of assuming conflicting responsibilities in retainers.3 Contract law, accordingly, cannot be overlooked closest to home. GINO DAL PONT Professor, Faculty of Law University of Tasmania 1. 2. 3.
(1996) 14 WAR 92. BOK v BOL [2017] SGHC 316. A recent illustration is found in Law Society of New South Wales v Ferry [2018] NSWCATOD 74.
Opinion
RACE DOES MATTER In the American, and for that matter Australian, legal ecosystems, critical scholars and practitioners are seen as outliers. The dominant paradigms of legal positivism and liberalism teach and practice the idea that race does not matter. In the case of the former it’s the Black Letter approach and in the case of the latter, the law treats all equally. Legislation and case law that ensures equality before the law ensures justice. There is room in a law degree to teach critical theory as an elective, but that’s all. But as we watch the dystopian scenes across the United States, triggered by what is on any account a brutal murder by a white police officer of a black man in Minneapolis, we should recognise that the critical legal scholars, particularly those who have championed Critical Race Theory (CRT), must become a central part of a lawyer’s education and practice. The US and Australian legal systems are built on the idea of the law being colour blind. In the former, the result is the gross over-incarceration of African Americans, routine police brutality in the execution of law enforcement of this racial group, and a culture within the law that perpetuates discrimination through the monumental failure to increase the number of African American lawyers and importantly judges. In Australia, while the Indigenous population is much smaller, similar points can be made. The legal systems of both nations need to embrace the learning of critical theories. In short, teach criminal law, torts, contracts and the rest, but alongside this make it equally mandatory to reveal the truth about the law’s role in enabling gross injustice towards people of colour, and work on fixing it.
CRT emerged in the 1970s and 1980s when Derrick Bell, the first African American on the staff at Harvard University Law School, and other legal scholars such as Richard Delgado, Alan Freeman and Kimberlé Crenshaw led a “small but growing group of scholars and minority activists who realized that the gains of the heady civil rights era had stalled and, indeed, were being rolled back,” as Delgado describes it. “Traditional methods such as litigation, exhortation, and marching were yielding fewer and fewer gains. New approaches were necessary to cope with the less sympathetic public and the more nuanced forms of racism that were developing,” wrote Delgado in 1998. Stephanie Phillips has described the core tenets of CRT and they include; •
holding that racism is endemic to, rather than a deviation from, American norms;
•
bearing scepticism towards the dominant claims of meritocracy, neutrality, objectivity, and colorblindness;
•
challenging ahistoricism, and insists on a contextual and, historical analysis of the law; and
•
challenging the presumptive legitimacy of social institutions.
Self-evidently then CRT scholarship in its analysis of the law and the role of the law in societies such as the US and Australia is antithetical to the positivist and liberal orthodoxy. It has struggled to be taken seriously by the legal academy, in particular. In 2018 a group of individuals in the US, magazine editor Helen Pluckrose, mathematician James Lindsay, and philosopher Peter Boghossian submitted ‘spoof’ articles to academic journals mocking CRT and other critical studies. Vox reported on October 15, 2018 that the three contended: “These fields of study do not continue the important and noble liberal work of the civil rights movements. They corrupt it while trading upon their good names to keep pushing a kind of social snake oil onto a public that keeps getting sicker.” More seriously, the oft-cited complaint from much of the legal industry and legal educators is that it is dangerous to teach lawyers to be sceptical about the liberal and positivist mantras of the rule of law.
Northwestern University’s Professor of Constitutional Law John O McGinnis writes that the “idea that law schools should steer students away from legal practice is an equally bad idea, [as is the idea] that law schools should imbue their students with a skepticism about the rule of law. This trope — drearily familiar from the critical legal studies movement — is obviously an ideological one as well. And in my view an indefensible one. To be sure, good societies have an imperfect commitment to the rule of law. But societies that lack that regulative ideal are truly dreadful ones. ”But where has the mainstream emphasis in legal education and in the way that law is practised got us? If you look at the impact of the legal system on African American or Indigenous Australians the CRT movement has been proven right has it not? It’s critique is robust and the teaching and practice of law must embrace some of CRT’s key tenets. Why is it so anathema to the US and Australian legal systems to recognise that the positivist and liberal underpinnings of law have, despite the civil rights and its accompanying movement in Australia (land rights, voting rights etc), failed because as CRT scholarship argues, racism is not a deviation but a norm? Shouldn’t law students, and lawyers be sceptical about “the dominant claims of meritocracy, neutrality, objectivity, and color-blindness”; examine how law is devised and operates in a contextual setting, and challenge “the presumptive legitimacy of social institutions” such as police and prisons? The United States and Australian legal systems are the enablers of racial oppression. CRT rightly shines the light on this uncomfortable reality. The murder of George Floyd and in the Australian context the fact that, as the the ABC’S Isabella Higgins noted recently, “[w]e lock up Indigenous Australians at four times the rate of black Americans” and almost 1 in 2 in youth detention are Indigenous, have to be examined from the perspective that legal systems have failed abjectly to protect on the basis of colour. GREG BARNS SC Barrister republicone@ozemail.com.au
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 4 7
Superannuation YOUR 2020 ANNUAL SUPER STATEMENT Your Annual Super Statement helps review past performance and plan future actions to achieve your retirement goals. At a time of heightened personal and economic uncertainty due to the COVID19 pandemic, super fund members are encouraged to scrutinise their Annual Super Statement. Super remains the bedrock of saving for retirement for most Australians and your Annual Super Statement contains a wealth of information. No doubt your Annual Super Statement will be one of many statements or bills you receive, but it is worth the effort to take a closer look at your Statement. After all, super is now the second highest form of savings for Australia, exceeded only by housing. If everything is in order, you’ll get increased peace of mind about your nest egg. Conversely, a quick check may reveal some opportunities to improve your position, and the sooner these are taken advantage of, the quicker your savings may increase or better meet your needs.
What to Look For
The layouts of statements vary between super funds, but there is minimum information required by law to be included. Some information appears in summary form, with a detailed breakdown shown elsewhere in the Statement. Here are some key actions to consider taking:
Compare your Investment Balance
Compare your investment balance at the end of 2019/20 to your investment balance at the end of the preceding financial year. This will show you how much your investments have changed over the year. Due to COVID-19 and impacts to the investment markets worldwide, investment returns were lower in 2019/20 and as a result any increase in 2019/20 of your super balance is more likely to be lower than that of previous years. By way of example, according to SuperRatings (an independent super research and rating advisory business) the median
return for a ‘balanced’ investment option for the one year ended 30 June 2020 was -0.8%. 1 Super exists to provide savings for retirement. One of the easiest ways to assess whether you’re on track to be comfortable in retirement, is to use your super fund’s tools and calculators. legalsuper’s Retirement Income Forecast calculator, is an excellent starting point as it helps you project your possible retirement income and explore options for improvements. 2 To help determine whether your retirement income target will set you up for the lifestyle in retirement you envisage for yourself and your loved ones, it is helpful to compare your retirement income target to the Association of Superannuation Funds of Australia (ASFA) Retirement Standard. The Standard benchmarks the annual budget needed by Australians to fund either a “comfortable” or “modest” standard of living in the post-work years of those aged around 65 and those aged around 85. The latest Standard, issued for the June quarter 2020, states that in retirement, a single person aged around 65 will need $27,902 per annum to lead a “modest” lifestyle and $43,687 per annum to lead a “comfortable” lifestyle. Couples aged around 65 years will need $40,380 per annum and $61,909 per annum respectively. (These figures assume the retiree/s own their home outright and are relatively healthy).3
Check Where You’re Invested
Your Annual Super Statement must show your investment choice. It’s important to periodically assess the level of risk and return you’re comfortable with and ensure your investment choice is aligned. legalsuper offers 13 investment options, including the ability to self-manage your super with our Direct Investment option. This SMSF-style alternative offers the flexibility of real time trading, for those who want to be more hands on with their investments. As a result of the economic impact of the COVID-19 pandemic, super funds have, understandably, received an increase in inquiries from members about the impacts to their super, including whether they should change their current investment option(s).
48 LAW LETTER AUTUMN/WINTER 2020
legalsuper’s members are to be assured that the fund’s highly experienced investment experts continue to actively monitor and respond to changing market conditions. Also, history tells us that economic downturns are temporary, as markets have demonstrated the ability to recover losses after a crisis. For example, despite share markets falling more than 40 per cent during the Global Financial Crisis of 2008, most balanced funds recovered the majority of losses in the following 12 months. That said, there may be an opportunity to change your investment option(s) to better suit your current and future needs and the best way to start this conversation is to call your super fund to discuss the options available.
Assess your Insurance
Your Annual Super Statement must set out what insurance you had at the end of the financial year, and how much it costs. You should check that the type and level of cover remains adequate given your circumstances, objectives and needs. Important items to check are whether you are paying for insurance cover you don’t need or whether you are inadequately insured.
Review your Transactions
Your Annual Super Statement lists the transactions applied to your account throughout the year. This will include any money received (employer and personal contributions, government contributions and rebates, plus any rollovers), investment earnings derived or losses incurred, and any money paid out (most commonly administration and investment fees, insurance premiums, any withdrawals and taxes). If you’re employed, you should receive an income statement via myGov or a payment summary from your employer for each financial year. You can use this to reconcile contributions your employer or you paid during the year against the amounts reflected in your Annual Super Statement, thereby checking if your employer has paid the right amount of super for you.
Check your Fees Against Investment Performance
Most commonly, super fund fees comprise of administration and investment
management fees. These may differ depending on your account balance and investment option(s) chosen and the kind of service the fund offers. It is to be remembered that high fees don’t always mean high investment returns and vice versa. It’s best to assess the two together and check if yours are competitive with other super funds.
Reach out for Help
Other things to check
legalsuper offers members one-on-one meetings with our team of Client Service Managers. Our dedicated team, or your personal financial planner can help you optimise your super strategy to stay on track for a great life in retirement.
•
Have you provided your TFN? If not, you will be charged extra tax.
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Are your contact details up to date? If not, your fund may be unable to contact you.
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Have you received more than one statement? More than one statement means more than one set of fees. Consider whether consolidating accounts will benefit you - but make sure you consider insurance coverage before consolidating super accounts.
•
Do you have a beneficiary? If you were to pass away, where would you want your super to be paid?
Super is one area in life where professional advice can really pay off. If you need help with understanding your Annual Super Statement, investment options, how to consolidate accounts, finding lost super, or ensuring you have the right insurance cover, reach out for help.
If you would like to meet with a member of our team of Client Service Managers for more in-depth support about your super, contact us and request a complimentary appointment. Call 1800 060 312 Monday to Friday between 8am to 8pm (AEST) or via email to mail@ legalsuper.com.au This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and
obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. Past performance is not a guide to future performance. Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879. ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@legalsuper.com.au. 1. 2. 3.
https://www.superratings.com.au https://www.legalsuper.com.au/formsresources/calculators https://www.superannuation.asn.au/ resources/retirement-standard
Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879. ANDREW PROEBSTL Chief Executive legalsuper aproebstl@legalsuper.com.au Telephone: 03 9602 0101
Are you looking for a Mediator or to BOOK MEDIATION FACILITIES WITH A MEDIATOR OF YOUR CHOICE in Burnie or North West Region? Please contact us at 03 6431 7674 or write to us at contact@tasdisputescentr e.com.au for more information or to request our rates. Visit us at www.tasdisputescentre.co m.au Tas Disputes Centre PTY LTD Suite 3, 30 Cattley Street BURNIE TASMANIA 7320
• • • •
High - speed WiFi Bookings easy to arrange Printing services Complimentary espresso, tea and snacks for each room
LAW LETTER AUTUMN/WINTER 2020
4 9
Finance RETIREMENT AND THE TRANSFER BALANCE CAP When looking to partially or fully fund your retirement lifestyle from your super benefits, there are several options available. Depending on your personal circumstances, you can choose to take your super benefits as: 1.
a lump sum,
2.
a retirement income stream, or
3.
a combination of both.
Most of us choose the third option; we take our super benefits as a retirement income stream (an accountbased pension), and also take a small proportion of our super benefits as a lump sum (once or every so often). Importantly, transferring your super benefits from accumulation phase to retirement phase by commencing an account-based pension, can be a tax-effective way to fund your retirement lifestyle because: •
•
Investment income and capital gains from the assets supporting a retirement phase pension are generally exempt from taxation. Income (pension) payments and lump sum withdrawals paid to you from age 60 will generally be paid to you tax-free.
However, it’s also important to note that there is a limit to the abovementioned tax concessions, which came into effect from 1 July 2017. The limit is referred to as the transfer balance cap (TBC). The TBC was introduced to limit the amount of super benefits that can be
taxed concessionally, so these funds are used primarily for retirement as opposed to, for example, intergenerational wealth transfer.
Index. Indexation of the general TBC to $1.7 million is expected to occur for the 2021-22 financial year. •
Upon commencing an accountbased pension, you also start to have a personal TBC, a transfer balance account, and a transfer balance – which remain with you until you pass away.
•
The personal TBC is initially equal to the general TBC for the financial year that you start to have a transfer balance account. However, the personal TBC can diverge from the general TBC over time.
•
The personal TBC is proportionally indexed in line with increases to the general TBC. For example, if only a portion of the personal TBC is used, then the unused portion is indexed, which works accordingly:
How does the TBC achieve this? The TBC limits the amount of super benefits that can be transferred to retirement phase (e.g. an account-based pension). This, in turn, limits the amount of super assets that are exempt from tax. Please note: There is no limit on the amount of super benefits that can be held in accumulation phase, which has its own tax concessions. Here is a summary of the key points relating to the TBC, with particular reference to those of us close to or nearing retirement and looking to commence a retirement phase accountbased pension: •
With the introduction of the TBC, also came other new concepts, such as the general TBC, the personal TBC, the transfer balance account, and the transfer balance (more on these below).
•
When you transfer your super benefits from accumulation phase to retirement phase for the first time, and commence an account-based pension, you must not exceed the general TBC.
•
The general TBC is currently set at $1.6 million (indexed) per person (not per account-based pension owned by a person) for the 2019-20 financial year.
•
The general TBC is indexed in $100,000 increments on an annual basis in line with the Consumer Price
Image: Adobe Stock
50 LAW LETTER AUTUMN/WINTER 2020
o
Let’s say, for example, you have a transfer balance of $800,000, and the general TBC is $1,600,000. This means you have an unused personal TBC percentage of 50 per cent.
o
When the general TBC is indexed to $1,700,000, you’re entitled to 50 per cent of the indexation amount, which is $50,000. This means that you now have a personal TBC of $1,650,000.
•
The transfer balance account operates similarly to a bank account. The balance (the transfer balance) of the transfer balance account is the sum of credits, less the sum of any debits.
•
Amounts transferred to retirement phase are a credit in the transfer balance account. As an example,
here are several events that can cause a credit in the transfer balance account: o
Repayments of a limited recourse borrowing arrangement (LRBA).
o
Receiving a reversionary or non-reversionary death benefit income stream.
o
Commencing a retirement phase income stream, such as an account-based pension.
•
Certain transfers out of retirement phase are a debit in the transfer balance account. As an example, here are several events that can cause a debit in the transfer balance account: o
o
o
•
•
A transition to retirement (TTR) income stream is not a credit event, until such time that a condition of release with a nil cashing restriction is met, such as reaching age 65.
•
Additional amounts can be transferred to retirement phase. However, it’s important to take care that these amounts don’t exceed the personal TBC.
A breach of the personal TBC can lead to excess transfer balance tax and the excess (and ssociated earnings) must be cashed out or transferred back to accumulation phase. •
Lastly, the differs from the total super balance in both its calculation and its effect on you. The total super balance determines your eligibility to utilise several wealth accumulation strategies:
Failing to comply with retirement income stream pension standards. Commencing a retirement income stream after making a structured settlement contribution to super. Receiving a full or partial commutation from a retirement income stream (e.g. cashing out or rolling over). Investment earnings and losses in respect of the assets supporting an account-based pension, as well as pension (income) payments, are not debit or credit events.
o
The work test exemption.
o
The Government co-contribution.
o
The spouse super contribution tax offset.
o
The concessional cap carry forward provision.
o
Non-concessional contributions and the bring-forward rule.
Moving forward
While there is much to digest when it comes to the TBC, it’s important to note that this is a summary of the key points
relating to the TBC and account-based pensions, not, for example, lifetime pensions. In a nutshell, a limit applies to the amount of super benefits you can transfer to retirement phase to support an account-based pension. The limit is currently set at $1.6 million (indexed) per person. Whether or not the limit will affect you will depend on your financial situation, goals and objectives. For context, according to the latest figures from ASFA, the super balance required for a comfortable retirement is: •
$545,000 for a single.
•
$640,000 for a couple.
This assumes, among other things, you draw down all of your capital, and receive a part Age Pension. However, if members of a couple wish to each target a higher super balance, fully utilising each of their transfer balance caps, contribution splitting and spouse non-concessional contributions can be valuable strategies worth considering, both now and into the future. CHARLES BADENACH Main Street Financial Solutions 6173 0070 or charles.badenach@mainstreetfs.com.au
LAW LETTER AUTUMN/WINTER 2020
5 1
PEOPLE
Practitioners • • • • • • • • • • • • •
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Jodi Brown has left Clarke & Gee. Rowena Macdonald has commenced at Angela Sdrinis Legal. Monica Lambley has commenced at Australian Health Practitioner Regulation Agency. Stephen Pao has left Sustainable Timbers Tasmania. Anna Davies has left Page Seager and is now at TasPorts. Rebecca Edler has commenced at Jonathan Smith Lawyers. Carly Hanson has commenced at Simmons Wolfhagen. Charli Barclay has commenced at Tremayne Fay Rheinberger. John Thurstans has commenced at Abetz Curtis. Laura Michaelson has commenced at Abetz Curtis. Ryan Gilmour has commenced at North-West Community Legal Centre. Nathan Street has left Abetz Curtis and commenced at Simmons Wolfhagen. Bunewat Keo has left Hobart Community Legal Service and commenced at Tasmania Police Prosecutions. Belinda Klye of KLG Legal has commenced maternity leave. Karen Abey has left Simmons Wolfhagen and commenced at Hobart City Council. Murray Chambers has retired from Shields Heritage. David Rosen has commenced at McMullen Lawyers. Sara-Jane Knott has returned to Page Seager from maternity leave. Hamish Locke has left Tasmanian Aboriginal Commuity Legal Service and commenced at Hobart Community Legal Service. Maria Dwyer has retired from Ogilvie Jennings. Georgia Burke has left Ogilvie Jennings. Sarah Pearce has returned to Douglas and Collins from maternity leave. Stephanie Manning has commenced at TasNetworks Pty Ltd. Freya Godfrey has returned to Page Seager from maternity leave. Alison Hay has left Dobson Mitchell Allport and commenced at Barry. Nilsson.Lawyers. Ryan Hartigan has commenced at Phillips Taglieri. Maggie Saunders has left Tremayne Fay Rheinberger Lawyers. Alison Clues has left Page Seager. Tenielle Howard has left Doolan and Brothers. Christopher Young has left North West Community Legal Centre. Jennifer O'Farrell has commenced at Dobson Mitchell Allport. Michael Flanagan has left Ogilvie Jennings and commenced at Murdoch Clarke. Kathryn Ellis has commenced at
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Hobart Community Legal Service. Andrew Chen has commenced at Hobart Community Legal Service. Shaun Hencl has commenced at Hobart Community Legal Service. Anne-Marie Cleal has commenced at Hobart Community Legal Service. Shivani Shory has commenced at Hobart Community Legal Service. Vincent Ertl has left Worrall Moss Martin Lawyers. Ruthie Jeanneret has left Murdoch Clarke. Jessica Sabapathy has left McLean, McKenzie & Topfer and commenced at Legal Aid Commission of Tasmania. David Bell has commenced at Blumers Personal Injury Lawyers. Mitchell Carnes has left Page Seager Lawyers. Wezley Frankcombe has left Archer Bushby and now at the City of Launceston. Hannah Boxall has left Worrall Moss Martin Lawyers. Christian Street has left Ogilvie Jennings. Jane Cameron has left Simmons Wolfhagen. Ella Wade has commenced at Page Seager. Leah Vailas has left Murdoch Clarke. Murray Jones has left Jonathan Smith Lawyers. Taya Ketalaar-Jones has commenced at Womens Legal Service. Aurora Kostezky has left Dobson Mitchell Allport and commenced at Ogilvie Jennings. Daniel Chan has commenced at Aged Care Quality and Safety Commission Pierre Dordhain has left Edge Legal and commenced at Legal Aid Commission of Tasmania. Alex Hall has commenced at Simmons Wolfhagen Launceston. Christine Arnott has commenced at Womens Legal Service. Masika Morris has commenced at Tenants Union of Tasmania. Josie Short has commenced at Tasmanian Aboriginal Community Legal Service. Jencie Harrington has left Tierney Law. Philip Welch has retired from practice. Jade Standaloft has left Julie Byrne Legal. Bernadette Davies has commenced at Blumers Personal Injury Lawyers. Elizabeth Saunders has left FitzGerald and Browne Lawyers and commenced at Ogilvie Jennings. Oona Fisher has left Women's Legal Service and commened with FitzGerald and Browne Lawyers. Henry Austin-Stone has commenced at BDF Law. Leanne Rama has commenced at Finlay Watchorn. Emma Swirsky has commenced at Archer Bushby. Damon Symes is now a Principal at Dobson Mitchell Allport.
52 LAW LETTER AUTUMN/WINTER 2020
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Rodney Powe has left Tierney Law. Sophie Greenacre has left Rae & Partners. Alexandra Graham has left Rae & Partners and opened a firm. Matthew Williams has left Page Seager. Ali Sawyer has commenced at Women's Legal Service Tasmania. Megan Scolyer has left Butler McIntyre & Butler and commenced at Murdoch Clarke. Bruce Leishman as left Sproal & Associates. Lina Howroyd has retired from Blumers Personal Injuries Lawyers. Che Mohamad has left Blissenden Lawyers. Lyndall Garnham has left Blissenden Lawyers. Hala Loubser has left Abetz Curtis. Caitlin Toussaint has commenced at Butler McIntyre & Butler. Courtney Dalton has commenced at Abetz Curtis. Melinda Torney has commenced at Rae & Partners. Jasper Lambe has commenced at Envionmental Defenders Office. Carmen Burns has left Rae & Partners and commenced at Bishops. Jade Standaloft has commenced at Women's Legal Service (Tas) Inc. Victoria Geason has left Page Seager. Sarah Howard has commenced at McVeity Dean. Thomas Moorhead has left Archer Bushby. Duncan Campbell has commenced at City of Launceston. Che Mohamad has left Blissendon Lawyers and commenced at Ogilvie Jennnings. Jonathon Budgeon has left Crotty Legal and commenced at Hobart Community Legal Service. Victoria Geason has commenced at Douglas & Collins Clare Mittermayer has commenced at Catholic Education Tas Alexander Pemberton has commenced at Clarke & Gee Theo Kapodistrias has left University of Tasmania and commenced at UpGuard James Schade has commenced at Phillips Taglieri Isabella Sia has commenced at ClinLegal Georgia Morris has commenced at Simmons Wolfahgen Dylan Keegan has commenced at Walsh Day James Mihal
Barristers
Firms • •
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Bold Lawyers haved moved downstairs in the same building, 1/326 Elizabeth Street, North Hobart. Paula Sutherland has left Murdoch Clarke and opened the firm Paula Sutherland & Associates, paula@ paulasutherland.com.au, PO Box 224, Sandy Bay, 7004, 6224 1376 or 0418 343 307. James Davis has opened the firm JGD Legal, tel 0478 789 957, 4/3 Clifford Court, Howrah TAS 7018, jgdlegal@ gmail.com. Angela Sdrinis Legal now located at Unit 5, 286 Macquarie Street, South Hobart 7004. Environmental Defenders Office Tasmania Inc is now Environmental Defenders Office Ltd (EDO). Andrea Trezise, Barrister & Solicitor ceased longer using DX. PL Corby & Co has moved to First Floor, 29 Paterson Street, Launceston. Whitelaw Legal Group, has moved to Suite 3, 30 Cattley Street Burnie 7320 from 1 April 2020. Rae & Partners Devonport are no longer using DX. Blissenden Lawyers are no longer using DX. ConMoto Group is now practising from Level 12, 188 Collins Street, Hobart, 7000. PL Corby & Co effective 4 May will be Rod Glover Legal incorporating PL Corby & Co. Glynn Williams Legal has incorporated Kay & Ruddle Lawyers with new address being 4/23 Cattley Street, Burnie, telephone 6431 1322. Philip Welch Lawyers no longer have a DX service.
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Aloysius Wong has retired from practice and closed his firm Wong, McDermott and White. The firms files are now with John Mountford, JM Legal & Conveyacning 6272 9337, admin@jmlc.net.au. Richard Atkins has closed his firm Pantheon Legal. Lyndall Johnson has closed her firm Lyndall Johnson Lawyers. James Davis has closed his firm JGD Legal. Thomas Glynn has opened a firm Glynns Lawyers, 86a Emmett Street, Smithton 7330, Ph: 1300 81 111 tom@ glynns.com.au. Jessica Bourke has left Blissenden Lawyers and is now practising at her own firm, Jessica Bourke, 1/191 Liverpool Street, Hobart. Ph 6236 90 52. David Cordell has retired and closed his firm. Bartletts Barristers & Solicitors is now Everett Flight & Associates Lawyers. Tasmanian Aboriginal Legal Service has ceased using the DX service. Walker Henderson Lawyers ceased using DX service 1 August. Please forward all mail to PO Box 1005, Devonport, Tas 7310. Michael Briant new address 402 Shark Point, Penna. BTF Lawyers - Paul Foster has opened a new firm BTF Lawyers, 154 Jacksons Street, Franklin TAS 7113, 0413 320 028, p.foster@btflawyers.com.au. Alex Graham Legal - Alexandra Graham has opened a new firm Alex Graham Legal, 17 Douglas Street Bicheno TAS 7215, 0407 242 265.
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A reminder to firms that Malthouse Chambers closed their DX box on 1 July 2019 and it is no longer being monitored. Kelvin Pearson has commenced as a Barrister, at Michael Kirby Chambers. Tel 0455 234 501, kelvin@ macstchambers.com. Leanne Pearson has commenced as a Barrister, Level 6, 111 Macquarie Street, Hobart. Tel 0432 282 700, lnpearson68@gmail.com. Bruce McTaggart and Carly Sluiter are now practising at Old Mercury Chambers, 91-93 Macquarie Street, Hobart, all correspndence to GPO Box 268, Hobart, Tasmania, 7001. Umbrella Chambers no longer using DX, correspondence can be forwarded to PO Box 1925, Launceston 7250. Fabiano Cangelosi is now at Edward Coke Chambers, 114 Bathrust Street, Hobart 7000. Cameron Scott is now at Edward Coke Chambers, 114 Bathurst Street, Hobart 7000. David Lewis of North West Chambers no longer using DX.
Northern Young Lawyers Committee
I am very pleased to be writing the NYLC contribution on behalf of our committee. The NYLC ended 2019 with a bang. We had our annual Long Lunch with Julia Higgins from Bishops presenting on how to negotiate rising through the ranks in the profession and progressing to the position of senior lawyer, partner or leader. Julia consistently supports the Northern Young Lawyers, so thank you Julia for speaking at our event. Also in November, we elected our Committee and Executive for 2020, with executive positions as follows:
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Vice President: Lucy Flanagan
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Secretary: Kate Hughes
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Treasurer: Lauren Binns
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Social Co-Coordinator: Alex Wells
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Sponsorship: Wesley Frankcombe
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CPD Sub-Committee: Jess Stewart, Claire Milligan, Thomas McCourt and Thomas Moorehead.
I would like to congratulate our new committee and executive and look forward to working with you all throughout the year.
The COVID-19 pandemic has impacted not only our industry, but our loved ones in other industries as well. NYLC are looking to continue our great plans for our CPD calendar by everyone's favourite professional video chatting site Zoom! Keep your eyes peeled for upcoming events. To keep updated with our upcoming events, please like our Facebook page "Northern Young Lawyers Committee". AMELIA GOSS President Amelia.Goss@raepartners.com.au
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 5 3
Southern Young Lawyers Committee
Much like the rest of organizations and committees globally, COVID-19 stopped the Southern Young Lawyers Committee 's ("SYLC") 2020 schedule in its tracks. The biggest victims of our schedule were our social events that we had planned, the much-loved Quiz Night being a particularly hard loss. However, we did strive to do what we could despite the
COVID barrier, particularly around CPD events. There is hope yet that we will be able to have our annual Christmas party before the end of the year, medical advice pending!
monthly Executive Committee Meetings but if anyone would like to join, they can email us, DM us or Facebook message us for more information.
Keep an eye on what SYLC are up to on our Facebook and Instagram: sylc.tas
ALI SAWYER AND JAKE FARMER Co-Presidents ali@womenslegaltas.org.au
At the moment we are only conducting
North West Young Lawyers Committee
I would like to thank all the past members of the Executive who have set the framework for what the North West Young Lawyers Committee (NWYLC) is today. Due to the nature of working on the north west coast, and the challenges that this brings, it has been fantastic to see the NWYLC grow over the past few years. In particular, I would like to thank our retiring President, Alexander McKenzie, for all the work that he has put into the Committee. After a number of years in the position, the NWYLC has certainly benefited from his involvement and leadership. Thank you Alex.
2019 saw an influx, at least in north west Tasmanian terms, of graduates to firms on the north west coast. The majority have shown an eagerness to get involved in the NWYLC with two of the four Committee’s Executive in 2020 coming from this cohort. The Committee welcomes Cameron Deavin (Greg Smith & Co), Daniel Pedder (Petersen Legal), Amber Scott (Rae & Partners), Mitchell Sheehy (Friend & Edwards) and Aysha Williams (McGrath & Co). The 2020 NWYLC Executive is comprised of:
54 LAW LETTER AUTUMN/WINTER 2020
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President - Callum Purcell (Bartletts)
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Vice President/Treasurer - Jenna Hesp (McGrath & Co)
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Secretary - Aysha Williams (McGrath & Co)
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CPD Coordinator - Amber Scott (Rae & Partners)
CALLUM PURCELL President callum@bartletts.com.au
Library
Database Spotlight In this issue of Law Letter, we are spotlighting the launch of three new databases that are available for financial library members to access remotely. Contact the Tasmanian Law Library for registration and access details, or visit our website to discover the wide range of electronic resources available.
at first instance and on appeal. Comprehensive headnotes and detailed catchwords accompany the full text of the judgments. It includes PDF versions of each case and includes content from 1992 onwards. •
Unreported Judgments Fast and efficient access to the latest unreported judgments from around Australia, including the High Court, Federal Court, State Supreme Courts and other selected jurisdictions.
Library@justice.tas.gov.au https://www.lawlibrary.tas.gov.au/ Ph: (03) 6165 7412
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The Advertiser (Jan 1 1996 – current)
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Herald Sun (Dec 27 1995 – current)
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Daily Telegraph (Jan 1 1996 – current)
Informit AGIS + text is a comprehensive database index of legal information resources that unlocks over 40 years of authoritative and peer-reviewed legal research from across Australasia and the Asia-Pacific region. Full text articles are available for selective titles. Features and benefits:
The following titles are included in our new practitioner platform. An expanded range of content is available to browse or search on our Department of Justice platform (access from within the library only). •
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Australian Commercial Precedents series. Online modules focussing on key areas of commercial law. FirstPoint A combination of the Australian Digest and Australian Case Citator. FirstPoint provides access to case references, citation, history, and digest information for Australian cases since 1825. Laws of Australia The Laws of Australia is an encyclopaedic reference tool covering all major areas of the law. It provides both an overview of relevant legal principles, and detailed commentary backed up by reference to cases and legislation. It covers over 320 specific topics across 36 broad subject areas. Tasmanian Reports This series represents the authorised reports and decisions of the Supreme Court of Tasmania published on behalf of the Council of Law Reporting of Tasmania. It includes important decisions both
Gale OneFile News provides access to over 2,300 major world newspapers and content from over 200 publishers and over 50 countries. The full-text newspaper database allows users to search articles instantly by title, headline, date, author, newspaper section or other fields. It contains: •
More than 161 million records from more than 2,300 newspapers including The Financial Times, The Times from 1985, The Economist from 1988 and The New York Times from 1985.
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Over 480 Australian and New Zealand publications including News Limited, Fairfax Media and Scoop Media ltd. Listed below are some popular titles, noting current indicates previous day:
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Over 160,000 records including full text articles from 142 resources dating back to 1975.
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Content from Australia, New Zealand and the Asia-Pacific region plus selected articles from the United Kingdom, United States and Canada starting from 1999.
Key subjects: •
Civil Procedure and Courts
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Constitutional and Administrative law
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Contract law
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Criminal law
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Equity and Trusts
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Intellectual Property and Copyright law
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History of law
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Labour law
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The Mercury (Jan 1 1996 – current
Legal Systems (civil, common and religious)
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The Advocate (August 28 2006 – current)
Legal theory (philosophy, economic analysis and sociology)
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The Examiner (May 11 1998 – current)
Legal institutions (judiciary, legislature, military, legal profession and civil society)
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The Australian (Jan 30 1996 – current)
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The Age (Jan 19 1991 – current)
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Sydney Morning Herald (Jan 29 2007 – current)
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Courier Mail (Jan 1 1996 – current
DEB BOWING Manager Tasmanian Law Library | Andrew Inglis Clark Deb.Bowring@justice.tas.gov.au
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FAMILY COURT CASE NOTES by Robert Glade-Wright
Property – Contributions can continue during separations – Rise in value of property resumed by government In Whiton & Dagne [2019] FamCAFC 192 (31 October 2019) the Full Court (Aldridge, Kent & Tree JJ) allowed Ms Whiton’s appeal against a property division of 75:25 in favour of her de facto partner. An 18 year relationship with 20 separations meant a 12 year cohabitation in total. At first instance a judge of the FCC found proved the wife’s allegation that the separations were due to domestic violence by the respondent. It was also found that the appellant “bore the major share of responsibility as a homemaker and parent for the parties’ children throughout the relationship” ([12]) and that the respondent should be credited with an initial contribution of a property at “Suburb B”. Its proceeds of sale of $160,000 five years later were used towards the purchase of a property at “Suburb C” for $258,000 which was resumed by the State Government 11 years later for $2,336,288. On appeal by the wife, the Full Court said (from [13]): “( … ) [I]t appears the trial judge equated each separation with the de facto relationship having then ended, for the purpose of assessing contributions. ( … ) [18] … [C]ommencing in mid 1999 with the birth of the parties’ first child and continuing … with the birth of [their] second child in late 2000 the wife maintained her contribution as the primary homemaker and parent … irrespective of any … separation … [19] … [T]he wife maintained external employment for much of the … relationship and provided financial support to the family and to the children ( … ) [25] The approach adopted by the trial judge was wrong in law. …” The Full Court said ([30]): “The Suburb B property … were … contributed to by the wife in both a financial sense, given her employment, and the payments towards the … mortgage, and by her nonfinancial contributions … Thus, the trial judge was clearly wrong to treat the $160,000 as solely the husband’s contribution and … to find that the
wife made no contribution to the acquisition of the Suburb C property.”
taken into account … in the division of … property.”
The Full Court added ([34]), citing Zappacosta [[1976] FamCA 56, that “it is well settled … that a … rise in property value brought about by a rezoning or resumption is properly treated as a windfall gain for which neither party can take sole credit”.
Property – Add-back of post-separation livestock sale proceeds in error where husband habitually relied on them In Cabadas [2019] FamCAFC 179 (11 October 2019) Kent J, sitting in the appellate jurisdiction of the Family Court of Australia, heard the husband’s appeal against an equal division made by a judge of the FCC of a $901,078 asset pool which included a notional $130,176 received by the husband from the sale of livestock over the previous five years.
Property – Interim dollar-for-dollar order granted to wife was ineffectual as husband’s solicitors carried their costs In Shelbourne [2019] FamCAFC 196 (4 November 2019) Loughnan J had made a dollar-for-dollar order three months before the trial by which the husband was to pay to the wife’s solicitor a sum equal to any amount he paid to his solicitor. The husband did not pay his lawyers any amount, so the amount paid to the wife’s lawyers was also nil. In the absence of payment the parties’ unpaid legal fees ballooned by the time of trial to $152,000 (the husband) and $264,000 (the wife). At the final hearing Gill J granted the wife’s application for a continuation of the dollar-for-dollar order so as to secure payment of costs paid by the husband post-trial. The Full Court (Ainslie-Wallace, Ryan & Tree JJ) allowed the husband’s appeal, saying (from [17]): “( … ) The source of power to make a litigation funding order includes s 74 … (by way of interim spouse maintenance), s 79 and s 80 … (interim property division) and s 117 … (interim costs order) … Different considerations will apply depending upon which head of power is sought to be engaged ( … ) [21] Plainly in making order 18 the primary judge was exercising discretion under s 117 … That discretion must be exercised by reference to … s 117(2A) … There is no advertence to those considerations in the primary judge’s reasons, and indeed the path of reasoning by which his Honour proceeded cannot be adequately discerned … save that his Honour was of the stated view that not extending the operation of the dollar-for-dollar order ‘would defeat’ it … It therefore follows that either his Honour did not have regard to the matters in s 117(2A) … or … did not sufficiently expose his reasoning as to how he … weighed the matters referred to in the provision. ( … ) [25] … The appellant correctly identifies that the effect of [the final dollar-for-dollar order] was to create an additional liability of the husband in the sum of $152,000, together with a corresponding asset … for the wife. That asset and liability were not extant at the time of trial, but only arose in consequence of order 18. The authorities are clear that any litigation funding order needs to be taken into account in determining the final property adjustment … The impact of order 18 ought therefore to have been
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Kent J said (at [17]): “ … [There is a] fundamental ... error of notionally adding back sums of money that may have been available to a party post-separation, as a notional asset, without any necessary finding to support that approach. Here, it can be seen that the trial judge took no account of the husband’s longstanding dependence upon income from livestock sales for his livelihood which continued in the post-separation period; nor did his Honour have any regard to likely business expenses or expenditure offsetting the gross livestock sales income over a five year period between the first recorded sale in August 2013 and trial in August 2018. In short, his Honour gave no consideration to the fact that reasonably incurred expenditure by the husband, either for his own living expenses and support or for business expenses to maintain the livestock/business operation, had to be taken into account as an offset to the gross amount of livestock sales income produced over a period of some five years.” The appeal was allowed, discretion reexercised and the adjusted pool (absent any notional add back) divided equally. Property – Wife’s application for financial orders permanently stayed as she failed to contest divorce proceedings in Dubai In Bant & Clayton (No. 2) [2019] FamCAFC 200 (7 November 2019) the parties married in the United Arab Emirates (“UAE”) and lived there and in Australia. Upon separation the husband was granted a divorce order in the UAE which was unopposed by the wife. The wife later applied for property and maintenance orders in Australia. At the hearing Hogan J held that UAE law did not permit an adjustment of property interests so the UAE divorce did not prevent the wife’s application in Australia. On the husband’s appeal, the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) said (from [6]): “Although the wife was notified of those proceedings and had lawyers acting … for her in Dubai, she did not appear … and orders were made on the husband’s application in … 2015. The orders granted the husband
a divorce and … had the effect of bringing to an end the wife’s rights to seek property orders under the law of Dubai. No appeal was brought … [8] … [H]er Honour correctly identified … that for a claim of res judicata estoppel to be made out it is necessary for the Court to be satisfied that in prior proceedings a court … over the same subject matter and … parties has by … order … finally … determined the same cause of action ( … ) [13] The thrust of the challenge to her Honour’s order is that she erred in concluding that the law of Dubai did not allow for redistribution of the parties’ assets, thus concluding erroneously that the Dubai proceedings left open the … adjustment of property interests … in the Australian proceedings.” The Full Court ([14]) recited the relevant law of Dubai which, although not analogous to s 79, did provide that “a woman … is free to dispose of her property and … [that if one spouse] participates with the other in the development of a property … he may claim from the latter his share therein upon divorce or death” with a right to alimony too ([37]). In allowing the appeal, the Full Court ([22]) cited Taylor v Hollard (1902) 1 KB 676 where it was said that “the fact that a party in local proceedings may receive more or less than the foreign proceedings does not prevent a cause of action in estoppel arising”, adding ([23]-[24]): “The doctrine explicitly embraces national differences … and the fact that different law will be applied in the two jurisdictions does not detract from the identity of the cause of action … The application of the doctrine has been extended to circumstances where a party who might be expected to raise a claim in the proceedings does not. [Henderson [1843] EngR 917 cited] ( … )” Children – Father’s application for parenting orders dismissed for noncompliance with s 60I (family dispute resolution) In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the mother’s appeal against orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). His application sought to have the existing, informal parenting arrangement (equal time with daughter but son spending no time with mother due to conflict between them) reflected in an order. In response, the mother applied for the dismissal of the father’s application as s 60I had not been complied with, arguing that the Court lacked jurisdiction. The father filed an affidavit as to his not filing a s 60I certificate, deposing that mediation had been tried by the parties but failed, which the mother disputed. At first instance, a judge of the Federal Circuit Court directed the parties to attend with a family consultant pursuant to s 11F of the Act. The mother appealed. In setting aside the order and dismissing the father’s parenting application, Kent J said (from [21]):
“( … ) [T]he provisions [of s 60I(7)] emphasise the requirement for parties to a dispute about parenting orders to make a genuine effort to resolve that dispute with the assistance of family dispute resolution before application is made to the Court. Only if one of the exceptions contained in subsection (9) applies, can an application be filed without the parties having participated in family dispute resolution. Even then, it can be seen that subsection (10) requires the Court to consider an order for the parties to attend family dispute resolution with a family dispute resolution practitioner. (…) [28] … [T]he primary judge was in error in proceeding to hear the father’s application not having made any finding … that any of the exceptions in subsection (9) applied. In other words, the mandatory requirement of subsection (7) applied, and the primary judge was in error in proceeding to hear the application notwithstanding that that mandatory requirement had not been complied with.” Property – Initial contributions of $4.97m (H) and $500,000 (W) to $12.5m pool assessed at 80:20 In Daly & Terrazas [2019] FamCAFC 142 (13 August 2019) the Full Court (AinslieWallace, Aldridge & Austin JJ) considered a nine year cohabitation between a 47 year old husband and 44 year old wife. The parties’ 14 and 11 year old children lived with the husband and saw the wife on weekends and on holidays. Finding that the husband’s initial contributions were worth $4.97 million and the wife’s $500,000, Rees J at first instance said that during the parties’ relationship they “conducted their financial affairs independently” although “each party invested both formally and informally in properties owned by the other” ([10]) and “each contributed their money and their efforts to the enterprise of their family” ([59]). The $12.5 million pool excluded superannuation, which was worth $342,351 (husband) and $83,619 (wife). The wife had worked professionally and earned income from shares during the relationship. Rees J found that the parties’ contributions up to the date of trial were equal, but that their initial contributions warranted an 80:20 contributions based adjustment. The wife then received a 10 per cent adjustment for s 75(2) factors, a division of 70:30 in favour of the husband overall. The husband appealed. In dismissing the appeal, Ainslie-Wallace J (with whom Aldridge and Austin JJ agreed) said (from [20]): “In short, the argument as to the first ground, shorn of the lawyerly language of the submission, is: ‘20 per cent is too much’. ( … ) [22] The appeal ground invites this Court to do the impermissible, to substitute our determination of what figure is appropriate to reflect the parties’ contributions instead of her Honour’s. Nothing put to us persuades me that we ought to, and further, her Honour’s conclusion was entirely open to her on the evidence. The outcome is not unreasonable or plainly unjust
such that a failure properly to exercise the discretion may be inferred (see House v The King (1936) 55 CLR 499 at 505). [23] In my view his challenge has no foundation and must fail.” Spousal maintenance – Applicant may reasonably claim expenses not being incurred due to inability to pay In Garston & Yeo (No. 2) [2019] FamCAFC 139 (16 August 2019) Aldridge J (sitting in the appellate jurisdiction of the Family Court of Australia) heard Mr Garston’s appeal against an interim order for spousal maintenance after the breakdown of a same sex marriage. Mr Yeo sought maintenance of $2,500 per week, Judge Boyle at first instance accepting that Mr Yeo was not in good health and although looking for work, he had been unemployed since 2014 while receiving a $1,000 weekly allowance from Mr Garston. It was ordered that the stipend continue at $1,000 per week, the Court rejecting $1,500 of Mr Yeo’s claimed expenses, including rent, skincare and holidays. In refusing leave to appeal, Aldridge J said (from [24]): “The appellant correctly submitted that a person seeking an order for spousal maintenance must satisfy the court, on the evidence before it, that he or she cannot support himself or herself adequately as set out in s 72(1) of the Act (Hall v Hall [2016] HCA 23 … at [8]). ( …) [29] A claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves (s 75(2)(d) of the Act) and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support. [30] Often, and conveniently, the identification of reasonable needs may be done by reference to expenses that are currently being incurred but obviously, that will not be possible or lead to adequate support in all cases. It is reasonable to claim that you need more money than you are currently spending (Seitzinger & Seitzinger [2014] FamCAFC 244 … at [53]). Here too, the Financial Statement was prepared very shortly after separation when it would be more difficult to identify the cost of reasonable needs. [31] It follows that the submission that because a claim is an estimate it must be disregarded cannot be accepted. It also follows that verification of expenditure is not necessarily required. ( … )” Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a looseleaf and online family law subscription service for lawyers, published in Melbourne.
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BOOK REVIEWS Book Reviews Advocacy – A Practical Guide 2019 Peter Lyons Reviewed by Simon Gates, McLean, McKenzie & Topfer
This book is brilliant. Not only is it chock-full of very practical advice and examples about advocacy, but Lyons also shares insights of a rare kind that only come from those who have a mastery of their area or discipline. Given that the art of persuasion and holding the interest of a court or jury is key to advocacy, it is no surprise that this is an engaging and entertaining read. The choice anecdotes and extracts from case transcripts illustrate the key messages Lyons is conveying to the reader in such a way that you can’t help but reflect on your own advocacy. The book had me aspiring to improve my advocacy skills and stirred a rekindling of the passion for advocacy which has at times been lost in the forest of competing demands of private practice. You can’t help but be inspired by the examples in the book of great advocates performing at their very peak. Lyons analyses what it is about these great advocates that sets them apart and explores what methods and approaches they used (and avoided using) that made them so successful. The book covers all aspects of advocacy including presentation skills and the qualities of good advocates, ethics and professional conduct, and case analysis. It also provides very practical ‘nuts and bolts’ advice about preparing motions, written submissions and preparing and examining witnesses. There is also detailed practical advice and guidance on addressing court and making oral submissions. Lyons’ guide to case analysis is the best I have read, and I can’t recommend it highly enough. Similarly, Lyons’ treatment of ethics and professional conduct condenses sometimes elusive concepts into an accessible guide that could be readily applied on the fly in a court or other setting where decisions have to be made quickly and under pressure. At a time like this when many of us are working at home and are tiring of Netflix series or tuning in to the 24-hour COVID19 updates, you could be reading this great little book and dreaming of future court room glories. So why not buy a copy and throw it into bed and jump in after it.
The Mortgagee’s Power of Sale 4th Ed. 2019 C Croft & R Hay Lexis Nexis Reviewed by Amber Cohen, Rae & Partners
Almost 40 years since the first edition of this text was published, the fourth edition is set in the context of the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The Royal Commission is described as having shifted the transactional pendulum towards better recognition of the rights of the consumer and inevitably the mortgagor. The text commences with a description of the nature of mortgages, both in regard to general law land and registered land. Next, the steps a mortgagee may take in selling mortgaged property under the power of sale are elaborated in distinct chapters, including: •
Source of the power of sale;
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Conditions precedent to the exercise of the power of sale;
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The mortgagee's right to possession of the mortgaged land;
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Recovery of possession of the mortgaged property;
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The exercise of the power of sale;
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The mortgagee's duty in exercising the power of sale;
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Permitted purchasers;
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Protection of the purchaser;
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The mortgagor; and
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Distribution of the proceeds of sale.
The value of the text is highlighted by a chapter which applies the legal principles discussed in a prior chapter to various factual scenarios. It therefore provides firm guidance to lawyers navigating difficult legal principles. The cases and legislation noted throughout the text are collated and provide a useful reference point. The conclusion of the text provides some precedents; and although they are not based on the Tasmanian process, they nevertheless may provide some limited assistance to a practitioner needing guidance as to how to structure relevant court documents. The text is comprehensive and the authors, Clyde Croft, a Judge of the Supreme Court of Victoria, and Robert Hay QC, are experts in the field. The text would be a welcome addition to the bookshelves of any lawyer who might find themselves needing to advise a client
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as to the mortgagee's power of sale. Practising Family Law 4th ed 2019 I Serisier LexisNexis Reviewed by Sophie Dalwood, Ogilvie Jennings
‘Practising Family Law’ (4th edition) is the latest edition of this text on the practice of Family Law in Australia, updated to include changes in the legislation and jurisprudence since 2012. As outlined in the preface, this text is designed to demonstrate the complexities of practising Family Law, an area which author Ian Serisier claims is underrated within the legal profession. It aims to provide a broad overview of Family Law with a particular focus on practical, dayto-day issues which are typically left out or inadequately covered in other materials. The text is divided into 21 chapters overall which, with 325 substantive pages, leaves each chapter relatively brief. The topics covered range from procedural aspects such as procedures in court and dispute resolution to more practical guidance on taking instructions, drafting and styles of negotiation and advocacy. There are also precedent client instruction sheets included as an appendix to the text. These instruction sheets set out in dot point form the kind of information which should generally be gathered in initial consultations for divorce, parenting and property matters. The text itself is easy to read and provides a very practice focused view of the law and procedure. As an example, the chapter on negotiation and dispute resolution contains several hypothetical scenarios and examples to demonstrate the points being made about negotiation styles. The Family Law Act 1975 (Cth) sections are set out and explained as they relate to each topic, however the text makes only limited reference to case law. Although this text is recommended to law students, in that context it would be best used in conjunction with other materials that cover more of the substantive law. Many of the skills and processes outlined are also applicable to other areas of practice such as taking instructions and negotiating on behalf of clients. Even though they are presented here in the context of Family Law, more experiences practitioners may get as much out of this text as those who are just starting their practice. Serisier has clearly drawn on his significant experience to provide this practical guide to the day to day practice of Family Law. The nature of this text makes it an ideal resource for the young practitioner who is commencing in Family Law.
LawCare
WORKING REMOTELY WITHOUT GOING STIR CRAZY When Bubonic Plague closed Cambridge University in 1665, Isaac Newton had to work from home. With nothing to distract him, he threw himself into his passion of mathematics and developed his three laws of motion. Quite a solid achievement, but then he didn’t have to respond to his scientist mates sending gifs or questionable memes. Fast forward to 2020 and working from home is now a common option. Working remotely is a bit like Vegemite in that you either love it or hate it. With the high probability that the coronavirus (COVID-19) will also hasten an outbreak of laptops on the kitchen table, first timers may find the isolation and lack of office banter hard to handle. Many of these may be younger workers who are used to being organised. Here are some essential strategies for a positive work at home experience.
Dress for work
That means no pyjamas or tracksuits. Sorry, but no. Once you start down that road, it’s all downhill. You don’t have to wear the full jacket and tie or heels, however you’re going to work even if it is in the next room. Dress as if your boss is going to knock on the front door and you’ll feel more empowered and in the right headspace. There is evidence to show that symbolic dressing for specific contexts or events helps your psychology line up with the job at hand.
Create a structure
Even artists and writers have a structure: they don’t just paint or write when they feel like it. They show up regularly and set goals for themselves. You might think being creative is a free-for-all, but Stephen King is not the only author who writes 2000 words, 365 days a year. You don’t have to start at 8 or 9. One of the advantages of being at home is that you can optimise your day around your most creative and focused time. For example, we know people who like to get up at 6:00am and work until about 11:00am. That’s because experience has taught them that’s when they do their most focused, detailed or conceptual work. They might then take a break do some exercise and have lunch. In the
Image: Adobe Stock
afternoon, they do the more pedestrian work that doesn’t require full brain bench-strength, like administration.
Set aside time to deal with emails
A big trap at home is to keep glancing at your email. A good strategy is to let your team or boss know that you will look at emails mid-morning and then again in mid-afternoon. If they have anything genuinely urgent, they can call you, but if you are working on something that needs your full attention, make sure they know so you won’t be distracted.
Designate a work area
You might not have the luxury of a study or separate room so dining table it is. That’s fine. Just set it up so it works for you and at the end of the day, put things away, which is also a signal for you to wind down, stop work and change gear.
Take frequent short breaks
Go outside, walk around, stretch, look at your overgrown garden or walk to the shops. You can even set yourself a goal: “If I finish A then I’ll go out for a coffee.” Make sure you take at least one 30-minute walk during the day or go to the gym in the middle of the day when it’s not busy. That way you’ll have social contact and come back with a fresh brain. Take short morning and afternoon tea breaks to talk to a friend or colleague on the phone, Facetime or Skype. You won’t be the only one at home and staying connected can help the potential downsides of isolation.
Let your manager know what you’re working on
This is reassurance for you as much as them. You have a plan, you let everyone know on Microsoft teams, Slack or whatever you use and everyone’s on the same page. It also keeps you from flipping around between tasks, which can happen if you’re not used to being away from the structure of natural office rhythms.
Distracted easily? Make yourself accountable
It’s easy to find other things to do at home. But a little displacement activity can wreck your day. A quick wipe of the oven can turn into a full clean and your time has gone. Fret not, you’re not the only one who gets distracted. Use something like Focusmate as your “accountability partner”. That’s another home worker who keeps an eye on you while you are at your desk. You can even check in on Messenger but don’t get caught up chatting. Leave that for a ten minute coffee break. There are so many options out there for remote workers so ask around and see what others do to make it work well for them. Converge International exclusively provides free and confidential counselling services to Law Society of Tasmania members. Download the EAP Connect app and check the website at www.convergeinternational.com.au. 1300 687 237
L A W L E T T E R A U T U M N / W I N T E R 2 0 2 0 5 9
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MAKE YOUR APP OINTMENT TODAY:
David Rausa Client Service Manager TAS | 0401 107 093 | drausa@legalsuper.com.au
legalsuper.com.au
mail@legalsuper.com.au
1800 060 312
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