2022 - Summer Law Letter - Issue 141

Forensic Psychological Assessment Services:

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Person of Concern Assessments

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From the President

My first two months as President have flown by. Past President Trevor McKenna told me that it will be one of the quickest and busiest 12 months of my life and that is fast becoming a reality. I am honoured to be your President for the 2022/23 year.

I am excited to announce a new council for the 2023 year. I thank outgoing councillors’ Trevor McKenna and Ian Arendt for their significant contribution to council and also to Immediate Past President Simon Gates for his presidency.

A big issue for me in my Presidential year will be attraction and retention. This important work has been commenced by previous Presidents and it is my intention to build on this work. This is a common theme raised by the profession and was

a hotly discussed topic at the recent leaders’ forums both in Launceston and Hobart. The common theme amongst sole practitioners, firms and government is the difficulty in not only finding professional and support staff but importantly, retaining them. It is not a secret that COVID has greatly changed the way we work and for many this has changed their expectations in terms of both flexibility and salary. The Society has recently conducted a salary survey of the profession which received an excellent response in terms of participation and I look forward to those results being shared with the profession to provide some guidance in this space.

The Executive Director and I recently met with the Chief Justice of the Supreme Court, representatives of the Department of Justice and the Attorney-General. Among other issues, at those meetings we detailed the immense pressure the profession is under in terms of workload, short staffing and issues arising as a result of the court backlog. The Society is acutely aware of the shortage of criminal

defence lawyers and the pressure that is putting on the small number of criminal lawyers and barristers working in that space. I am very eager to hear ideas from those practitioners to attract young practitioners to the area of criminal law.

Another focus for my Presidency will be continuing the work of Immediate Past President Simon Gates (and other predecessors) in the mental health space. My focus is less on what treatment options are available for those struggling, rather to looking at mental health from a preventative perspective and trying to find better ways for the profession to tackle mental health issues. In my view retention and ‘good’ mental health practices go hand in hand.

I wish everyone a very merry Christmas with your families and friends and I look forward to seeing you all at the opening of the legal year dinner.

AMANDA THOMPSON President

Current Law Society State Presidents

Law Council Dinner, Canberra 25 November 2022

From the Society

We have now had two online renewals of practising certificates. My hope is that online renewals and online applications for the granting of a first practising certificate, along with the updated website that accompanied the online renewal system is both decreasing the administrative burden on practitioners and firms and assisting the Society to communicate more clearly with its members.

The Society has this year had an improved level of communication with the three young lawyer committees. All parties have been working towards agreeing on a constitution that will provide uniformity and clarity around membership, governance and the role of these three, very important committees. Representatives of the young lawyer

committees have also met with the Wellbeing Committee to provide their input and ideas on wellbeing issues including ideas for improvement.

There are two surveys of importance to the profession that are in progress. The Society has provided data for the fifth biennial National Survey of the Profession. The completed report will provide a national and local picture of the profession’s demographics including gender, age, region, indigenous representation and practising type (private profession, corporate, government, community legal centre).

The second survey is the recent salary survey commissioned by the Society. The response was above expectations and the Employment, Diversity and Inclusion Committee are to be congratulated on putting the survey together. It has been some time since a similar survey was conducted. It remains to ‘slice and dice’ the results in the new year, and I am confident that the resulting information will be very useful to the profession.

In early 2021 Council made the decision that all practitioners should undertake the Sexual Harassment, Changing Workplace Culture Workshop. In 2021-

22 it was a condition of principal and barrister practising certificates that the workshop be completed. Participation in the workshop is free of charge and the Society allocates a date and time to each practitioner to attend. The 2021-22 participation by the profession was such that what was intended to be a three-year project will now be completed by the end of 2022-23. I wish to acknowledge our workshop facilitator Catherine Scott, who has led the workshops with skill, empathy and humour.

The Wellbeing Committee is the Society’s newest committee and the commitment and passion of its members is wonderful to see. The committee has been setting the groundwork for a number of initiatives that will begin in 2023.

As we approach the end of the year, I take this opportunity to wish our members and supporters a merry Christmas and a restful break. A special thank you is due to the Law Society staff who are small in number, but accomplish much on behalf of the profession.

LUKE RHEINBERGER Executive Director

The Law Society of Tasmania Members

The Society has in recent times committed to a number of initiatives aimed at increasing member engagement with the Society and improving the health and wellbeing of practitioners.

Mid

Winter Legal Year Service Friday, 29 July 2022 St David's Cathedral, Hobart

Photos: Tony Lomas

Mid Winter Legal Year Dinner – 29 July 2022

Crowne Plaza Hobart

Congratulations

• President's Award - Audrey Mills

• Young Lawyer of the Year - Amber Scott

• Outstanding Pro Bono Award - Australian Government Solicitor - David Wilson

• Outstanding Committee's Award - Elder & Succession Law and Property and Commercial Law

• Tasmania Legal Aid Award - Fran McCracken

to all award recipients whose contributions to the profession were recognised at the Society's Annual dinner.

POWER IMBALANCE IN COURT JUDICIAL BULLYING

THE HON. JUSTICE ROBERT PEARCE

lack of ability or lack of diligence.

On behalf of the Supreme Court of Tasmania may I welcome you to Tasmania and to Hobart, and acknowledge the important and valuable work done by magistrates all around the country. I would also compliment the office holders of the AAM on managing to convene this conference, and congratulate the organisers, Catherine Geason, the Chief Magistrate in particular.

The subtext below the somewhat imprecise topic of my paper is what has become known as judicial bullying. What I intend to try to address is what it is, what it is not, why it might happen, why it is a problem and what should be done about it when it does happen.

Ultimately, what I wish to leave you with is the rather high minded message that I do not think that there is ever a good reason or excuse for rudeness and discourtesy by judicial officers in court, no matter what the provocation. That is not to say that judicial officers cannot be firm or even abrupt, but rudeness and discourtesy are not qualities to be admired in judicial officers.

A Difficult and Stressful Job

Judicial officers at every level have busy, stressful and demanding jobs. The justice system in general is underresourced. We have little time and a heavy workload. Judicial officers assume responsibility for making public decisions which cannot be delegated to others. The process of decision-making is unrelenting.

It is particularly so for magistrates. The great majority, something around 90 per cent, of court matters in Australia are dealt with in magistrates courts. The reality is that most direct contact between courts and the legal profession and the public will be with magistrates rather than judges. If a member of the public has occasion to appear in court there is a very good chance it will be before a magistrate.

Magistrates in every State and Territory

have busy lists. Magistrates deal with a wide range of criminal, civil and administrative matters. From traffic offences to more serious criminal charges, from petty neighbourhood disputes to commercial litigation of some substance, and in Tasmania at least, appeals from various Tribunals and statutory bodies. A great deal of juggling and time management is called for. The work of a busy magistrate includes not only hearings but pre-hearing case management. In the course of all of this magistrates are called upon to deal with accused persons, witnesses, police prosecutors, lawyers, representatives of the various court services, court staff and other magistrates.

Demands placed on magistrates are high and have become all the more onerous because of shortfalls in funding to the courts and to court services, and the related increase in unrepresented litigants. The nature of the work in the magistrates court is such that persons often appear, both in civil and criminal matters, without a lawyer. Dealing with unrepresented persons, as we all know, presents its own challenges. Unrepresented litigants are frequently unfamiliar with the language and procedure of the court. Sometimes such persons are unrepresented because they are unable to find or afford a lawyer. Very often they want to do the right thing. Others are more difficult and demanding. They choose to be unrepresented because, for example, they may have quirky or idiosyncratic views about the merits of the case they are involved with. Such persons can be particularly difficult to deal with.

Many lawyers who appear before magistrates are young and inexperienced. It tends to be the training ground for young lawyers. They start out as very keen but anxious. As is the case with magistrates, the demands on lawyers can be heavy. In the rough and tumble of a magistrates court practitioners are commonly trying to find clients, take instructions, and juggle appearances for multiple clients in multiple courts. Sometimes briefs are thrown to them at the last minute by colleagues. Some are competent but overworked and under prepared. Some are incompetent through

It is hardly surprising that every judge or magistrate will become irritated, frustrated or even ill-tempered from time to time. There is a fair chance that every one of us has, at one point in our career as a judicial officer, attended a course directed at court craft, maintaining authority and control in a court room. It is part of our job to conduct the court in a way which achieves the efficient disposition of business while at the same time being fair and just. But there are limits to the patience of even the calmest magistrate.

Is This Really a Problem?

It is uncommon that this kind of improper judicial behaviour is brought to light officially. We hardly ever have the opportunity to observe other judges or magistrates in court. Sometimes the conduct of a judicial officer may become the subject of an appeal. From time to time there are formal complaints made, especially in jurisdictions where there is a judicial commission, a subject to which I will return.

But in general it is also very rare that we are told that we have done the wrong thing or stepped over the line. It is easy to understand why that may be so. Lawyers who appear in our courts are unlikely to complain to us, or about us, especially when the anonymity of the complainant cannot be guaranteed by formal complaint procedures or protocols. The likelihood of complaint is also affected by the power imbalance which led to the behaviour in the first place. There would be, I think inevitably, a strong perception that any complaint is not likely to be well received, and that if a complaint is made by a particular identified practitioner, it will affect the future relationship between that counsel and the magistrate or judge. They may even think that they are unlikely ever to get a fair hearing again.

So, from the fact that we do not hear much about it directly, it is very tempting to think that judicial bullying is not really a problem. Or, even if it is, it is a problem for someone else, and not me.

We all hear stories of how it used to be

Presented at the Australian Association of Magistrates Conference, 18 March 2021

in the old days, when judges would tear strips off those who appeared before them, maybe as some sort of training, or rite of passage, perhaps for no better reason than that it once happened to them when they were counsel. It is of course no longer acceptable, if it ever was. The Hon Michael Kirby AC CMG spoke and wrote in 2013 about judicial stress and bullying and of his observations of rude and unpleasant judges.1 He related the descriptions of Ian Barker QC of what he referred to as “a disgraceful display of judicial savagery” perpetrated by judges of the New South Wales Court of Appeal many years ago. Justice Glenn Martin wrote also in 2013, as a judge of the Supreme Court of Queensland, of a judge in that State who said to junior counsel, “You’re an idiot. Does your client know you’re an idiot?”2

Included in the remarks a Federal Circuit Court judge is reported to have made on one occasion to an unrepresented defendant were these:

“Do not ever interrupt me. Do not ever. You’ve been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I’m not putting up with your rubbish.”

and

“You interrupted me. What’s so important? What is so important that you would risk the wrath of the court in trying to tell me that there is something more important? Tell me what it is.”

The problem of judicial bullying obviously extends to the United States where there is a considerable body of writing about it. It seems to me that the judicial culture in that jurisdiction is, at least at some levels, quite different than here, but it is some indication of the widespread and international nature of the problem. An article published in 2012 in the Louisiana Law Review3 describes judges who (and I think we have probably all experienced this in our former lives) took pride in an ability to intimidate people and to cause fear amongst those who appeared before them. One such judge, in giving reasons, referred to “blithering counsel”, and to arguments which were “patently insipid and ludicrous.”

A quick visit to You-Tube will reveal judicial conduct in the United States of an even worse nature, including one judge inviting counsel out the back to fight in the corridor behind the court. Thankfully, we are not likely to see such conduct here, but leaving that aside, it is tempting, as I have said, to think that the sort of conduct I have been describing does not happen much. We like to think that we all know better.

However this proposition is not borne out by the response of legal practitioners in many jurisdictions when they are asked

about their wellbeing. Judicial bullying seems to be near the top of the list for matters of grievance. In the Victorian Bar 2018 well-being survey, 850 barristers responded and 59 per cent reported that they had experienced or witnessed judicial bullying. A very similar result was reported in the NSW survey in 2017. The same sort of response was generated in New Zealand and in the United Kingdom. The New Zealand survey in 2018 reported that 65 per cent of the respondents had personally experienced or witnessed bullying by a judge. In 2018, Lord David Neuberger, former President of the Supreme Court of England and Wales, said that there should be greater awareness of bullying across the legal profession. Some of these results have been reported in the Australian Law Journal in 2018.4

I accept the possibility that some of the respondents to those surveys might be unduly sensitive. They may have taken legitimate judicial criticism as bullying. It will always be the case that persons appearing in court, whether counsel or unrepresented persons, will experience some level of anxiety and insecurity before doing so. Nervousness about appearing is, if it is for the proper reasons, probably a good thing. It helps to focus the mind just as an exam or deadline does.

However, I venture to suggest that it could not be that the level of complaint I have referred to is explained by there being so many counsel who are insufficiently intelligent, competent or robust for the court environment. It must be that something is happening which leads to complaint. An article in the Sydney Morning Herald in 20135 reported Mark Tedeschi QC, then Senior Crown Prosecutor in NSW, as agreeing that belittling by judges was the greatest source of stress faced by advocates, and that his prosecutors were returning from court in tears or close to tears wondering how they were going to face having to return to court the following day.

It might be that we are not even conscious of how our conduct may be perceived by those on the receiving end. Even if it is only a matter of the perception of counsel (and I do not think it could be confined to that), it is something which we must grapple with. And I think it must be that some judicial officers still think that authority is best commanded through fear than by some more benevolent means.

Anecdotally I hear stories of judicial officers losing their temper and berating and belittling practitioners. This is an occasion for us all to reflect on how inappropriate it is.

Not bullying

Even judicial officers with a high degree of self-control and patience may

sometimes lose patience with rude or incompetent lawyers or especially difficult or disruptive unrepresented persons.

Magistrates and Judges, like every person, have human frailties. We all become grumpy, frustrated, exasperated or even abrasive at times. We can have an off day. I well know the feeling when, on a busy day, the business of the court is held up by a persistently difficult unrepresented person who will not get the message, or a counsel who is just annoying, for whatever reason. I feel the pressure building behind my eyes and my concentration lapses. Given the pressures of work, it would be unnatural if the strain and frustration of court life did not impact on us all from time to time.

I do not think that a simple expression of judicial irritation or frustration is bullying or an improper use of power. Sometimes judicial intervention, even forceful and stern judicial intervention, is necessary to achieve the efficient conduct of the court business generally and, to give a particular case direction and focus. At a broader level, Justice Michael Kirby pointed out that “with the type of personality that will show courage in the face of significant public pressure or private power sometimes comes a personality that is not always polite and courteous. We need our judges to be strong and to stand up against very powerful interests in our society.”

It is a necessary part of the work of a magistrate or judge to make fair and measured criticism of the conduct or work of counsel when that is called for. Sometimes criticism of the work or actions of others is directed through counsel. It is often necessary for us to be firm with counsel, to comment on or criticise improper behaviour, and to expect that those who appear before us display a reasonable standard of competence. It is sometimes necessary to deal firmly with unrepresented persons who are not happy with the rulings or decisions we make, or with our response to the irrelevant issues they wish to ventilate or causes they wish to pursue in the wrong forum. We are also entitled to expect courtesy and respect and react when it is not shown.

And yet all of these things are a matter of degree and what may be perfectly proper in some circumstances, crosses the line in others. And there are ways and means of achieving the desired outcomes without the improper use of power.

What is bullying?

One of the difficulties in addressing the issue of judicial bullying is specifying what it is. It is difficult to address if a judicial officer does not understand what it is or is unable to conceptualise the concept. There is no definition, but one of the things I hope to achieve in this paper is to at least suggest the type

of thing that it may be, so that a judge or magistrate may reflect on his or her conduct and recognise at least when it may have occurred, or better still, stop it from occurring.

In 2018 following the survey of Victorian Barristers, inappropriate judicial conduct was defined as conduct:

“… by a judicial officer, in his or her capacity as a judicial officer, that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person.”6

The Bar Council of England and Wales has published a Guide containing advice to the bar about bullying by judges. It incorporates the notion of the power imbalance which is the topic of this paper. It discusses what might be bullying:

“Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power such as can make a person feel vulnerable, upset, humiliated, undermined or threatened. It does not need to be intentional.”

The Guide continues:

“While all incidents must be judged in context, bullying involves behaviour such as personal abuse, sarcasm, contemptuousness, unreasonable demands, relentless criticism, intemperate language, demeaning behaviour, comments designed to embarrass or humiliate. It may also include questioning counsel’s competence or professionalism, or asking counsel to justify him/herself, in circumstances that are unfair.

However the Council’s website contains a section on harassment and bullying which says: ‘Bullying is not easy to define, especially as it is often a slow process of undermining or belittling behaviour which may go unnoticed by others.’

In a workplace context in Australia the Fair Work Ombudsman website states that a worker is bullied at work if:

• a person or group of people repeatedly act unreasonably towards them or a group of workers.

• the behaviour creates a risk to health and safety.

and that

• unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.

Examples of bullying are given including:

• behaving aggressively

• teasing or practical jokes

• pressuring someone to behave

inappropriately

• excluding someone from workrelated events or

• unreasonable work demands.

Not all of those examples will translate to the judicial context. However the definition of workplace bullying in the United Kingdom seems to me to be pretty close to the mark and reflects the abuse of power which underlies the Bar Council definition:

“offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied”.

So, there are many ways that a judicial officer may bully a practitioner by:

• shouting;

• deliberately saying things to embarrass or humiliate them;

• asking them to justify themselves in circumstances that are unfair;

• constant unnecessary interruptions;

• name calling;

• calling into question their professionalism in circumstances that are unfair;

• accusations of incompetence in circumstances that are unfair;

• using various facial expressions to demean or intimidate;

• imposing unfair and unreasonable timeframes;

• referring to things said by a counsel, questions in cross-examination or submissions for example, in a disparaging way, reducing the counsel in the eyes of his or her client.

Bullying can be more insidious. It can be through a snarling or condescending tone of voice. It can be by dismissive body language or facial expression - a roll of the eyes; a covert exchange of glances to the opposite counsel or to others present in court.

Of course the imprecise nature of the subject means that often the assessment of such conduct will be a question of degree. There will be a spectrum of conduct and the most difficult cases will be somewhere in the middle. Bullying may take the form of a continual pattern of small things, each of which viewed in isolation might seem innocuous. Sometimes it will be repeated blatant conduct. I think also that a single event, not repeated, can easily amount to bullying.

There is little point in improper use of power in court, other than to feed the ego of the perpetrator. It is, I would have thought, self-evident, that we are

more likely to get real assistance from counsel who is not cowered by fear, and so lacking in confidence as to feel unable to put submissions in the best way they can, or not at all, for fear of further humiliation. As Justice Michael Kirby observed, a person will “rarely give his or her best for a client, or the cause, or for the court, when subjected to undue pressure.”

What constitutes bullying also depends not only on the nature of the conduct but also who might be the target of the conduct. What might not be improper in some circumstances may be quite inappropriate in others. One would expect that the ability of counsel appearing in the High Court or a Court of Appeal to withstand robust judicial conduct is much greater. That is so because the power imbalance is not so great.

I have already mentioned the need to foster and encourage the younger and less experienced members of the profession. It is not the role of a magistrate to toughen up a young lawyer, even if it was part of the magistrate’s own experience and development. Allowance should be made for young practitioners. They should be, within reason, extended patience and courtesy, spared constant interruption or an unduly critical tone. Anecdotally, I hear of many, especially the younger, practitioners being lost to the profession because of the unreasonable demands it places on them. Inappropriate judicial conduct is frequently mentioned as one such demand. In serious cases, as Kylie Nomchong SC pointed out in her 2018 paper,7 it can lead to psychological stress leading to disorders such as depression and anxiety, or at least emotional exhaustion, as well as high levels of burnout and withdrawal from work. The articles I have read make reference to instances of suicide strongly linked to being bullied by a judicial officer in court.

A Duty to the Office and to the Community

Why is this important? Apart from the things I have already mentioned, the Chief Justice of New South Wales, the Honourable Tom Bathurst AC, reminded us recently of the need for the judiciary to be alert to the decline in the public trust of institutions. For members of the public to trust in the judiciary, they must trust in our competency, integrity and our commitment to do right to all persons. The Judicial Oath is to “do equal right and justice to all persons to the best of my judgment and ability and according to law.”8 Poor conduct by a judicial officer, whether a judge or a magistrate, reflects badly not only on that individual officer, but on the judiciary as a whole. As his Honour pointed out, it is for each of us to build trust in the institution by ensuring that “every litigant who leaves

the courtroom, regardless of whether they win lose or draw, feels that they’ve had a fair, independent and courteous go.”9

There is ever increasing scrutiny about the manner in which persons in authority, whether in politics, in business and industry, or in public institutions, go about their business, especially as it applies to health and safety in the workplace. The importance which the community places on ensuring the proper use of power is now so obvious that it goes without saying.

The Guide to Judicial Conduct published by the AIJA for the Chief Justices states:

“…the entitlement of everyone who comes to court – counsel, litigants and witnesses alike – to be treated in a way that respects their dignity should be constantly borne in mind. Bullying by the judge is unacceptable. It is worth remembering that many complaints to the Judicial Commission of New South Wales by litigants and their lawyers have had as their foundation remarks made by judicial officers in the course of the proceedings.”10

When a judge falls short of the standards expected of the judiciary by sarcastic comment, disparagement, rudeness, and obvious disrespect, the consequences can be on many levels:

• it can adversely affect the conduct of a particular case – by unjustifiably dissuading a party from tendering evidence or pursuing an argument;

• it can be extremely upsetting and damaging to the person on the receiving end at both a personal and professional level. The confidence and development of especially young lawyers, can be

seriously affected in circumstances in which the progression of those practitioners should be encouraged and fostered. Even some more experienced counsel are less resilient than others;

• the confidence of the client in the counsel is affected;

• the confidence of the client in the fairness and impartiality of the court is affected.

Perhaps most importantly, the failure of judicial standards must affect the confidence of the community in the fairness and independence of the judiciary. This at a time when the importance of an independent judiciary in the healthy operation of our democracy is of ever increasing importance.

Judges and magistrates have considerable power over lawyers and litigants. The very notion of judicial independence is based on the proposition that we have power to make decisions which bind persons from every level of society, large and powerful corporations and government. In the court environment we are referred to as your Honour. Everyone in court stands as we enter and leave. We bow to the court but the persons in the body of the court bow back. The practice of the court is that lawyers and litigants defer to us. We hear expressions like “may it please the Court” and “if your Honour pleases”, even after a ruling which is adverse to that party. We are entitled to command silence and respect from those who, in the circumstances, cannot speak back. We have the power to charge and sometimes arrest for contempt of court.

With such power comes responsibility. It is the case that a judicial officer is the

superior in the court. He or she has the power to conduct the proceedings. Thus, in proceedings in a magistrates court, it is to the magistrate to whom others look to conduct the proceedings with fairness and evenhandedness. That is why improper or inappropriate conduct from judicial officers, in particular, improper use of the power, is so problematic.

I think it is terribly unfortunate that judicial officers may misbehave in this way. We should be held to high standards of conduct. Judges have a duty to live up to their judicial oath. We must exercise self-control, patience and courtesy. When the duty is breached by a sarcastic comment, disparagement, rudeness, hostility, abuse, unfair criticism and obvious disrespect, then it is the community’s respect for the judiciary generally which suffers, because it exposes us all to contempt and a loss of confidence in the institution.

It is not enough that we believe ourselves to be fair and impartial. It is a necessary incident of the power we exercise over citizens that we be seen to exercise it fairly, impartially and courteously.

How Can We Stop This From Occurring?

I am not an expert on the analysis of judicial behaviour. I am not a psychologist. I suspect that I am as guilty as anyone of the occasional lapse of the nature I have been describing. However, could I venture the following suggestions?

• First, there must be knowledge, insight and self-awareness. If you were not already aware that judicial bullying is perceived as a problem by a significant percentage of those who appear in our courts,

then you now are so aware. I hope that, in future, something I have said may cause a light to go on when situations arise in court which may cause a reflection on judicial conduct.

• Remember, that you are the person in the court room with the power. Use it to diffuse rather than escalate conflict, even if that means adjourning for a few minutes to allow reactions to settle.

• Be conscious of the person you are dealing with and how your conduct and manner may affect them.

• Remember your obligation to build trust and confidence in the institution of the judiciary. Your conduct reflects on all of us at a time when scrutiny is, quite properly, at a high level.

• Perhaps something as simple as taking a deep breath, even smiling at the person you are engaging with, may help to return the exchange to a proper level.

• Take the opportunity for education and training on how high pressure situations in court might be appropriately dealt with.

In my experience, judges and magistrates who do not raise their voice, and command authority by dignified conduct, are the most respected. As I said at the outset, I do not see that there is ever a need for rudeness and overt discourtesy. This is not to say, as I have been at pains to point out, that there should not be full engagement with counsel to test propositions and, if necessary, put an end to time wasting and meritless submissions.

There will, regrettably, be occasions in which a person is temperamentally unsuited to judicial office. Justice Michael Kirby pointed out, and I agree, that by and large the legal profession gets to know judges who are unsuitable to judicial office either because of intellect, lack of judgment, or temperament.11 Those judicial officers will be the subject of unflattering chatter within the profession, to which the judge or magistrate will often be oblivious. There are those who will be bullies for no reason other than that they can. He or she will enjoy the sport. There will be magistrates and judges who enjoy the opportunity to display what they believe to be their intellectual superiority in a cruel and humiliating way, for the supposed enjoyment of the public gallery or other counsel. Others may substitute competence with aggression. I do not think that I can put it any better than as was expressed by Jeffrey Phillips SC when he wrote in 2004:12

“Something bullies love is an audience, so that they can show their

strength and worth to many, at the same time as inflicting pain on the victim. A common place for judicial bullying to occur is in court directions lists crowded with practitioners, where judges can be found playing to the gallery, humiliating and shouting at hapless, and usually junior, practitioners … In the judge’s eyes, it may have the desired consequence of enforcing appropriate case management, but on the other hand, it may have deep psychological effects upon the victim. Practitioners tell of people coming back from court distraught after a particular judge has bullied them. Many practitioners, as a consequence, will shy away from litigation, and some even leave the profession.”

I should acknowledge also a further paper written by Mr Philips in 2018 and delivered to New South Wales magistrates at a conference in 2018.13

What is the Remedy When Bullying Occurs?

The responsibility of judicial officers to not make improper use of power is underscored because, for very proper reasons of judicial independence, means of removal from office or discipline of judicial officers is limited. In serious and repeated cases, conduct may amount to abuse of public office sufficient to justify proceedings for removal. However, that is a high bar.

In a sense I am addressing these remarks to the wrong audience. As I have already mentioned we rarely see our colleagues in court. Magistrates always sit alone and so the occasion for intervention in the conduct of another magistrate when it occurs never arises.

If I were speaking to legal practitioners I would encourage those who perceive bullying behaviour to record it, get help and advice from senior and respected colleagues, and if necessary act on it.

But I would also acknowledge that one of the most troubling things about judicial bullying is that it is so difficult to address. That difficulty derives from the same power imbalance which is likely to have led to the conduct in the first place. Those who are the subject of improper judicial conduct are unable to fight back. The atmosphere of the court room will almost always be that the judge or magistrate is the person in authority, able to wield power and to demand deference. It is impossible to imagine that counsel who is the subject of improper judicial conduct will have the ability or fortitude to stand up to it there and then. He or she is likely to be overwhelmed by anxiety and uncertainty. He or she will already be on the back foot from what led the court to become difficult in the first place. They fear looking even worse in the eyes of the

court, their colleagues and their client. The chances of a fair hearing would disappear.

For much the same reasons it is most unlikely that the legal practitioner will feel able to approach the magistrate directly about it, even after the dust has settled.

If there were a colleague with sufficient seniority who witnessed the conduct, he or she may intervene in court in serious cases, or, more likely, seek a confidential meeting with the magistrate in chambers. There are always senior counsel who are willing to advise and assist.

If the conduct is sufficient to justify an appeal, which it has been on some occasions, then that is one means of redress.

It is open for a practitioner to make a complaint either directly, or through the head of the professional body, the Law Society or the Bar Association, or to the head of the jurisdiction. I would have thought that this would be a very desirable course if the Chief Magistrate or supervising magistrate could confidentially approach the offending magistrate with such concerns.

I think that, however justified or otherwise we may think that the complaint may be, or how defensive we feel about it, such complaints should always be taken seriously. Remember that there will generally be a transcript of the proceedings, although it will not tell of tone of voice or facial expressions or body language. John McKechnie QC, former DPP, Supreme Court judge and member of the Crime and Corruption Commission in Western Australia, wrote in 2019 of one judge he observed to turn his chair around and face the wall while defence counsel addressed the jury.

I referred to Lord David Neuberger earlier. His Honour suggested the involvement of regulators, appropriate complaints mechanisms and training at all levels as necessary to change the culture of bullying.

There are already Judicial Commissions in New South Wales, Victoria and South Australia. In each of those jurisdictions complaints can be made about the conduct of a judicial officer. The Commission will investigate and, if necessary, act on the complaints. Fear of complaint to and admonition by the Commission may deter repeat offenders. There is presently no Judicial Commission in Tasmania. I think it is inevitable that each State and Territory will eventually end up with a Judicial Commission in some form.

The welfare of the judicial officer

I have already addressed the demands that judicial bullying can impose on those who are the victim of it. For the final part of my presentation I want to

turn my attention to the perpetrator. Some are by nature, as I have suggested, unsuited to judicial office. They will have to live with themselves. However these days, I think that instances of this would be uncommon. More often improper conduct may mean not that the person is inherently unsuitable for office, but that there is something wrong in the private or professional life of the judicial officer. Improper use of power may be directly related to the wellbeing, or absence of it, of the judicial officer.

It is easy to understand how the wellbeing of judicial officers and the demands of the job to which I referred at the start of this paper are directly relevant to bullying behaviour. We may experience:

• Busy lists.

• A backlog of reserved judgments.

• A feeling, through lack of training or education, of a need to command authority in court by aggression or ill-humour rather than by other means.

• Problems at home manifesting at work.

• Perhaps drinking too much.

• We all have feelings, from time to time, that we are not up to the job, and that we have been promoted beyond our capacity. We experience self-doubt about competence, sometimes referred to as the

imposter syndrome. I experience it. I suspect that it is felt even by judges at the highest levels. It may be that a judge or magistrate may feel the need to be overly aggressive or demanding to make up for those conscious or unconscious feelings of inadequacy.

• Sometimes magistrates and judges who have been on the bench for a long time may become tired and jaded, and be less willing to make allowances for those who they perceive as being incompetent or time wasting.

My own personal experience is that the stress of judicial life does not approach the stress of private practice in litigation or as counsel, which was my background before becoming a magistrate and later a judge. Whether you agree with that or not, the factors I have referred to which may lead to improper conduct are things that can be addressed. Very often the conduct will not be intentional. Sometimes intolerance and impatience can gradually creep in to the manner in which a judicial officer will conduct a court. Talk to your colleagues. Ask for feedback if they are able to give it. There are programs which enable a judicial officer to have a review of their performance.

Ask for help or advice if you need it, with workload or counselling. There are services available to all of us for counselling or with a psychologist.

Gatherings like this are an ideal occasion to talk to others about how they are going, how they manage court lists and business. There are, I am sure, training courses available to those who look for them.

THE HONOURABLE JUSTICE ROBERT PEARCE Judge Supreme Court of Tasmania

1. The Hon Michael Kirby AC CMG 'Judicial Stress and Judicial Bullying' (Speech, Melbourne Wellness Conference, 21 February 2013) and article at (2013) 87 ALJ 516.

2. "Bullying in the courtroom", Justice Glenn Martin, (2013) 4 WR 16.

3. Douglas R Richmond, Bullies on the Bench , 72 La L Rev (2012).

4. "Judicial Bullying Revisited", (2018) 92 ALJ 575, 576 and (2018) 92 ALJ 943.

5. Sydney Morning Herald, 23 March 2013.

6. The Victorian Bar Council, Judicial Conduct Policy (Discussion Paper, October 2018).

7. Judicial Bullying: the view from the Bar, Kylie Nomchong SC, Judicial Officers Bulletin, November 2018, Vol 30 No 10.

8. Promissory Oaths Act 2015 (Tas), s 15.

9. 2021 Opening of Law Term Address, The Hon T F Bathurst AC, Chief Justice of New South Wales.

10. Guide to Judicial Conduct (Third Edition), Australian Institute of Judicial Administration, Nov 2017

11. Judicial Stress and Judicial Bullying, Kirby, (2013) 87 ALJ 516 at 521.

12. Of dinosaurs and bullying judges, Jeffrey Phillips SC, 30 Law Society Journal, December 2004.

13. Judicial Bullying, Jeffrey Phillips SC (2018) 8 WR 138

The war in Ukraine has invoked questions globally as to how those individuals responsible for the atrocities can be held accountable; in what forum and when?

The International Criminal Court, a bespoke Special Tribunal or domestically under universal jurisdiction – Tasmanian barrister and former war crimes prosecutor Regina Weiss breaks down the various avenues of bringing perpetrators to justice.

On 24 February 2022, the Russian Federation commenced what it labelled a ‘special military operation’ against Ukraine. Less ‘special military operation’, more ‘crime of aggression’ under international law. What followed in the ensuing weeks, unfolding before the eyes of the world, is breach after indiscriminate breach of international humanitarian law, with evidence of war crimes transmitted into living rooms and on social media platforms globally. The humanitarian catastrophe is shocking. Attacks on civilians, hospitals and other protected structures. Millions of displaced persons streaming into neighbouring countries. Children losing their lives in a war they did not seek.

In a crafty move to invoke the jurisdiction of the International Court of Justice (ICJ), Ukraine filed an application concerning a dispute relating to the “interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” viz. the ‘legal basis’ (as implied by the Russian Federation) for the 24 February invasion of Ukraine.

An Order was handed down on 16 March 2022. 1 The Chamber – which

AVENUES FOR ACCOUNTABILITY - BREACHES OF INTERNATIONAL LAW IN UKRAINE

REGINA WEISS

includes Australia’s own newly appointed Professor Hilary Charlesworth as one of its judges – ordered that:

1. The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;

2. The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above;

3. Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

Two judges dissented on order (1) and (2). The fact that they were of Russian and Chinese nationality paves the way for an uncomfortable discussion on the politicisation of the ICJ, although that is a conversation for another day.

Despite this, the orders deliver a strong message: stop the atrocities being

carried out in Ukraine. Whether Russia will adhere to those orders is doubtful, and at least at the time of writing, no indication of doing so could be seen. As peace negotiations continue with the hope of a ceasefire, questions are raised as to how and where those responsible for the atrocities against the Ukrainian people can be brought to justice.

The International Criminal Court

Despite neither Ukraine nor Russia being Member States of the International Criminal Court (ICC), Ukraine has declared acceptance of ICC jurisdiction under Article 12(3) of the Rome Statute. In fact, it first accepted the ICC’s jurisdiction on 9 April 2014 in the context of the Russian invasion and subsequent purported annexation of Crimea in 2013/2014. The Office of the Prosecutor already had a preliminary examination underway into the Crimea events when Russia attacked Ukraine on 24 February 2022. A formal criminal investigation relating to the Situation in Ukraine was announced by Prosecutor Karim Khan QC on 2 March 2022, triggered by a referral from initially 39 Member States (including Australia), and now 41

States. Within days, Prosecutor Khan had sent in a team to commence with collecting information and evidence. He joined them with his own boots on the ground on 16 March 2022. Prosecutor Khan has publicly declared that there are reasonable grounds to believe that war crimes and crimes against humanity have been committed in the Situation in Ukraine, and no doubt the drafting of arrest warrant applications pursuant to Article 58 of the Rome Statute will be considered.

The Prosecutor will present ‘crimebased’ and ‘linkage’ evidence to support his arrest warrants. The former will be plentiful, with eye-witness statements, documentary, forensic and hard evidence being collected. But as with many cases before the ICC to date, the latter is more difficult to gather. That is, evidence which would link Vladimir Putin and others in his inner circle as being criminally responsible for the war crimes and crimes against humanity in Ukraine.

If an arrest warrant is indeed issued for Putin, it remains dubious whether his arrest could be facilitated any time soon. The ability to arrest suspects is an on-going obstacle for the ICC, as it has no law enforcement arm of its own. Instead, it relies on the Member States to do so, in compliance with obligations found in Part 9 of the Rome Statute. In the past, non-Member States have also assisted in surrendering ICC suspects, for example when Bosco “the terminator” Ntaganda walked into the US Embassy in Kigali in 2013. Neither Rwanda nor the US are Member States yet cooperated with the ICC by transferring him to the seat of the Court in The Hague.

When the ICC issued an arrest warrant against Omar Al-Bashir, then-President of Sudan, in 2010 there was little prospect of his arrest. The international arrest warrant did hamper Al-Bashir’s ability to move freely to territories of ICC Member States (noting that he did travel to Uganda and South Africa despite the arrest obligations). ICC arrest warrants do not have an expiry date. As it happens, Al-Bashir was ousted from power by coup d’état in 2019. There are negotiations on foot for his surrender to The Hague, a prospect that seemed unthinkable only a few years ago.

At this point in time, the ousting of Putin from power does not seem likely, at least not in the immediate future. If an arrest warrant is indeed issued against Putin, the onus (legal or otherwise) remains with the international community to offer any and all assistance to facilitate the arrest.

A Special Tribunal for the Punishment of the Crime of Aggression against Ukraine

The ICC does not have jurisdiction over the crime of aggression in the context of the Situation in Ukraine because both

Russia and Ukraine would have to be Member States of the ICC for jurisdiction to be triggered. This major qualification on jurisdiction was vigorously debated and staunchly advocated for by countries including the UK before the crime of aggression was inserted into the Rome Statute, eventually entering into force in 2018. This condition has obstructed the Prosecutor’s ability to investigate the crime of aggression in Ukraine.

In an attempt to alleviate this loophole, a Combined Statement and Declaration was signed by prominent academics and dignitaries on 4 March 2022 at Chatham House, proposing the establishment of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine. There would be some complexities as to jurisdiction of said Tribunal, and one can be certain that it would not be an ad hoc tribunal in the vein of those established by the UN in the wake of the conflicts in Rwanda and the former-Yugoslavia in the 1990’s, given Russia’s position as a permanent member of the UN Security Council.

If such a Tribunal were established, one may question whether it should be limited to the Russia/Ukraine conflict, or whether it should indeed extend to other acts of aggression in modern history. The invasion of Iraq springs to mind as falling into the same category, with strikingly similar underlying facts and circumstances.

Universal Jurisdiction

On 8 March 2022, the German Minister for Justice announced the Federal prosecution office in Karlsruhe was opening an investigation into Ukraine. Germany has had plenty of success of applying universal jurisdiction. In a landmark decision in 2021, ISIS member Taha Al J was convicted in Germany of genocide, crimes against humanity and war crimes against Yazidis in Iraq. In 2015, Ignace Murwanashyaka and Straton Musoni were convicted of grave breaches of international law carried out in the Democratic Republic of Congo as president and vice-president respectively of militia group the Forces Démocratiques de Libération du Rwanda. Other countries including Spain, Sweden, Estonia, Poland, Slovakia and Lithuania have followed suit and opened investigations into the conflict in Ukraine. Under universal jurisdiction, an individual suspected of war crimes, crimes against humanity and genocide can be prosecuted locally if jurisdiction can be established, so long as there exists adequate domestic enacting legislation. Australia is no different and should prepare itself to do so.

There are legal avenues for bringing the perpetrators of the atrocities in Ukraine to justice. It is a long road ahead, and some of those roads lead to The Hague. Others are manoeuvred by the

global community, in a show of universal responsibility. In the spirit of optimism, justice will eventually be meted out, although when that will be is uncertain. For sure, this does not assist the innocent civilians being attacked, injured, killed and displaced in Ukraine this very minute.

It beggars the question, that with a sudden surge in global interest in the prosecution of war criminals, will this enthusiasm also extend to those grave breaches of international law simultaneously occurring in Palestine, Syria, Yemen, Afghanistan, Ethiopia and Somalia, to name just a few? As an international criminal law practitioner and general member of humanity, one can only hope.

REGINA WEISS Barrister

Derwent & Tamar Chambers regina.weiss@tasbar.com.au

From 2007 to 2016, Regina was a prosecutor with the ICC in The Hague, prosecuting war crimes and crimes against humanity. She remains on the ICC List of Counsel.

1. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation), 16 March 2022, General List No. 182.

The 16 member Council is the peak policy making forum for the Law Society of Tasmania. It makes decisions about policies affecting the legal profession and representations or comments on policy or legislation to government and organisations.

Council meets eight times annually to consider matters.

It has a five member executive which meets fortnightly.

The Council’s committees include:

• Property and Commercial Law

• Continuing Professional Development

• Criminal Law

• Employment Diversity and Inclusion

• Elder and Succession Law

• Pro Bono

• Litigation

• Family Law

• Wellbeing

President

Amanda Thompson

The Police Association of Tasmania

Tel: 6278 1900

amanda.thompson@pat.asn.au

Amanda was born on the North West coast of Tasmania and moved to Hobart to study a combined degree of Law and Arts with Honours at the University of Tasmania.

Amanda spent almost ten years in private practice in Hobart before recently moving to the Police Association of Tasmania. She has practiced in a wide range of areas including personal injury, workers compensation, insurance litigation, employment law, criminal law and estate litigation.

Amanda is honoured to be the first in house counsel to serve as President of the Law Society of Tasmania and the fourth female President in the Society’s 60 year history.

Amanda said, “The Law Society of Tasmania is a well respected organisation within the Tasmanian community. I look forward to being a strong voice for the Law Society and the profession as it continues its important work in the Tasmanian legal and wider community.”

Amanda intends to continue the important work done by previous Presidents and Councils of the Law Society to advocate for the attraction of lawyers to the State, but especially to the north and north west regions. Like her immediate predecessors, the improvement of mental health and wellbeing in the profession will be one of her key areas of focus.

The President’s Charity is the Ovarian Cancer Research Foundation.

The Verdins limbs provide important considerations for sentencing in criminal law matters when the defendant has impaired mental functioning at the time of committing the index offence and/or at the time of sentencing. The Verdins limbs include consideration of how the defendant’s mental health problems may be relevant to the sentencing process with respect to: moral culpability, the nature of the sentence and the conditions in which it should be served, general and specific deterrence, and the impact of imprisonment on mental health.

The Verdins limbs have provided scope for a broader range of mental health difficulties to be considered in sentencing, as prior to Verdins (2007), sentencing considerations were more restricted to defendants with diagnosed chronic and severe mental illness. The Verdins limbs have provided an avenue for consideration of the impact of acute mental health difficulties at the time of the offending and/or sentencing. This development has been important for the identification of mental health treatment and rehabilitation targets that may reduce the risk of recidivism, and provide a better outcome from a community safety perspective.

Until recently, the widely quoted case precedent of DPP (Vic) v O’Neill (2015) held that personality disorders do not constitute an impairment of mental functioning, and therefore should not mitigate an offender’s sentence or be considered in the context of the Verdins limbs. However, new case precedents have overturned this position (e.g., Brown v R 2020), and the Verdins limbs

THE VERDINS LIMBS AND PERSONALITY DISORDERS: THE IMPLICATIONS OF NEW PRECEDENTS IN CRIMINAL LAW

DR GEORGINA O’DONNELL

have been successfully applied in criminal law cases in Australia when the defendant has been diagnosed with a personality disorder. The new precedents have significant implications, given the diversity of criminal behaviour that is engaged in by personality disordered offenders, and the higher rates of personality disorder in prison populations when compared to the wider community.

The new case precedents in relation to the Verdins limbs and the inclusion of personality disorders do not automatically qualify all offenders with personality disorders to sentencing mitigation in accordance with the Verdins limbs. However, the precedents do invite the consideration of the chronic emotional and behavioural disturbances inherent to personality disorders in sentencing. By clinical definition, personality disorders manifest in patterns of cognition, emotional experience, emotional expression, and behaviour that are maladaptive and manifest across a range of personal and social situations. With respect to offending behaviour, these manifestations can present in many ways, including through interpersonal violence, stalking, property damage, and fire-setting.

Psycho-legal assessments can investigate what the evidence shows about the nature, extent and effect of any mental impairment experienced by the

defendant at the relevant time, and apply that knowledge to the application of the Verdins limbs. The relevance of expert evidence in such cases is highlighted by the new precedent of Brown v R (2020) which includes the following:

“An offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins. Statements to the contrary in O’Neill should no longer be followed. Whether and to what extent the offender’s mental functioning is (or was) relevantly impaired should be determined on the basis of expert evidence rigorously scrutinised by the sentencing court.”

The psycho-legal assessment of the nature, extent and effect of personality disorder experienced by the defendant at the relevant time requires consideration of the severity of the personality disorder (as such disorders are defined on a severity continuum), whether a causal link exists between the personality disorder and the offending behaviour, cogent evidence of the established personality disorder diagnosis and longitudinal patterns of behaviour, and consideration of community protection (e.g., prospective treatment responsivity and risk reduction issues).

It is helpful for experts providing psycholegal assessments of this nature to be briefed by the instructing legal counsel with collateral information such as: the defendant’s criminal record, mental health records (e.g., hospital discharge summaries; treatment provider reports), audio-visual copies of Police interviews with the defendant, Police body-camera footage of the defendant at the time of the index offence, prison health records from prior incarcerations, and any other service provider letters or reports from the community. The expert’s evidence is strengthened by the extent of longitudinal information available to them at the time of the assessment, and the more collateral sources of information, the more informed the resulting assessment will be.

The consideration of personality disorders in this context in criminal law raises numerous philosophical issues, such as the responsibility of individuals with personality disorders to seek and comply with treatment for their condition, as part of their community obligation to take care not to harm others. If it is the case that an offender has not complied with their responsibility to seek and comply with treatment, they may be held fully culpable for their offending behaviour despite their impaired mental functioning. However, the responsibilities extend beyond the individual diagnosed with the personality disorder to health and justice systems

that provide treatment and intervention services for individuals with personality disorder. This is an inherently problematic area, as there is a scarcity of resources in Tasmania to fulfil this responsibility. Expert evidence can investigate whether the defendant has had the opportunity to engage with appropriate treatment and has not complied, or whether treatment/ intervention services have not been available to them due to lack of resources and expertise.

It is also important to note that although some types of personality disorders are amenable to evidence-based treatments (e.g., Borderline Personality Disorder), there are other personality disorders that do not yet have a strong evidence base for successful treatment.

Finally, it is important to consider that Anti-Social Personality Disorder, and more rarely but relevantly Psychopathic Personality, are diagnoses frequently seen in offender populations due to the very nature of these personality types. By definition, Anti-Social Personality Disorder is characterised by a pervasive pattern of disregard for and violation of the rights of others, including failure to conform to social norms with respect to lawful behaviours, deceitfulness, impulsivity, irritability and aggressiveness, reckless disregard for the safety of self or others, irresponsibility and lack of remorse. Psychopathic personality is more complex and extreme in nature, but

can also be characterised by persistent anti-social behaviour, impaired empathy and remorse, interpersonal manipulation, impulsivity, and behavioural disinhibition. To date, the evidence-based literature regarding the treatability of these conditions is not convincing. Internationally, the primary intervention for individuals with these personality disturbances is incarceration in response to offending behaviour, and in extreme cases preventative detention.

It is more likely that personality disorders such as Borderline, Histrionic, and Paranoid will feature in expert evidence regarding the impact of personality disorders that may enliven the Verdins limbs, however it will be interesting to see how the new case precedents operationalise in this area of criminal law.

DR GEORGINA O'DONNELL Forensic and Clinical Psychologist

Dr Georgina O’Donnell is an independent Forensic & Clinical Psychologist based in Hobart. She specialises in psycho-legal assessments across jurisdictions, and provides independent assessments for criminal law, family law, child safety, and psychological injury matters state-wide.

On 18 March, I was honored to run a live webinar to some 80 Tasmanian lawyers from all over Tasmania thanks to the Law Society of Tasmania. Attendees joined from Burnie to Smithton; from home offices to Hobart, Devonport, Rosny and Launceston, and covered all forms of legal practice – large/ medium/boutique/sole legal practices; as well as the notfor-profit and public sectors.

In other words, we had a wonderful opportunity to explore this important topic – especially given how engaged and generous attendees were with their comments and input; and because I was able to present a comparison of what was on Tasmanian legal colleagues minds based on a past webinar in 2020 (as the pandemic first hit).

I encourage you to reflect on what your own experiences have been as you read this article (see the bolded Focus questions)

The webinar was based upon Alta Pete’s popular ‘Wellbeing, resilience and change’ workshop that we run for clients around Australia and covers:

• Why wellbeing, resilience and recharge matters;

• ‘Resilience reservoir drainers’ –stress, change, psychosocial risks;

• ‘Resilience reservoir fillers’ –Individual, Team and Virtual Team;

• An opportunity for Individual Reflection and Action Planning.

The Alta Pete guidance is summarised below, but since much of the value or ‘gold’ came from the contributions from

WELLBEING AND RESILIENCE IN THE FACE OF CHANGE JAMES FLETCHER

attendees, this has also been summarised below as italicised quotes

How

Would you

Describe

2022 in One Word?

When asked this question, colleagues used descriptors such as:

… Chaotic; Strange; Intense; Trying; Hectic; Unpredictable; Difficult; Unexpected; Novel; Varied; Claustrophobic … [what word would you insert here?]

Tip 1 – Take time to reflect on ‘wellbeing’ and why it matters to you, your team and the broader ‘system’ There are many wellbeing frameworks, but a popular favourite is Dr Martin Seligman’s PERMAH framework:

• Positive emotion;

• Engagement;

• Relationships (authentic ones);

• Meaning;

• Accomplishment;

• Health (including hydration, nutrition, sleep).

The data is clear as to why wellbeing

2022 Reservoir Drainers

Email – in particular the need to be ‘on’ all the time without breaks

Social media – especially the constant stream of bad news constantly available

Deadlines

Uncertainty

Lack of control

Overthinking and masking

Maintaining a work-life balance (e.g. family and career progress)

matters. Some studies estimate that stress costs the Australian economy $14.81 billion a year(!) and presenteeism up to $35 billion annually(!!), but we know that managing stress and pressures matters form our own experiences. Focus question: Consider a time when the PERMAH elements have been out of balance for you - what were the costs? I am willing to bet that it mattered for you, your clients, and possibly your firm and even the broader legal system.

Tip 2 – Know your ‘Resilience Reservoir Drainers’

In Alta Pete workshops, we encourage you to think of your resilience levels as being like a reservoir – there are things in life that drain that reservoir and things that top it up.

When I asked colleagues what some examples of reservoir drainers were, some examples given are set out below (note: I have included a comparison of what these were as stated in a similar 2020 workshop as an interesting point of comparison):

Focus question: What would you add to either list?

Even though some remain the same,

2020

Reservoir Drainers

Managing work from home amid distractions (including young children!).

Finding quiet spaces for smooth videoconference meetings.

Feeling socially isolated and missing human interaction.

Market penetration when traditional and online forms of advertising have fallen away.

Dealing with clients who themselves are feeling nervous.

Adapting to new routines and changes in the law.

Finding constant videoconferences tiring.

Client- or other workplace related- related challenges Dealing with the challenge of mental health in this new environment.

some have shifted. A common reflection is that change itself can be a reservoir drainer – including the fact that human beings tend to process change both emotionally and rationally (though this does not mean that reactions to change are always rational – in fact they are often quite irrational!).

Tip 3 – Invest your time in ‘Resilience Reservoir Fillers’ that work for you

The business case for investing in wellbeing is overwhelming. For example, some studies have found that for every $1 invested by workplaces in wellbeing will generate a $5.81 return!

Some things you can consider here include:

Individually

Mind – e.g. take time out for reflection (away from tech), planning, time by yourself or in nature.

Body – e.g. seek out good fuel for your body, keep hydrated, prioritise GP visits.

Rest – e.g. make sure you get sufficient ‘down time’ - daily, weekly, yearly.

Purpose, goal, mission – take time out to set some short, medium and long term career goals. A coach or mentor can help with this.

Workplace – set healthy boundaries; limit overtime and leave work on time where possible.

Connections with others – volunteering and re-connect with old friends.

Team/Firm level

Take time to really get to know each other (facilitated team building days and psychometric tools can be useful here).

Practice asking powerful questions (e.g. ‘how can I support you throughout this project?’, rather than just ‘how are you going?’).

Team protocols and charters (agreed ways of behaving and using tech, meetings etc) can be valuable.

In virtual teams

Ensure adequate training and access to technology.

Provide guidance for use of tech tools.

Regularly check on everyone’s ‘tech exhaustion’ levels, and consider alternative forms of communication.

Other wellbeing ideas from attendees (in no particular order): Individual

… Go to the gym, see my favourite friends and family, read a book, have an evening of no pressure activity like watching terrible tv; ‘Comfort food’; music; gardening; AFL or running; exercise - at the time isn’t ‘enjoyable’ but you feel great after; Brazilian

Jiu Jitsu; Fishing; Reading; Beer in the sun; G and Ts; Listening to the background music from the MMORPG DragonNest; walk to my local beach listening to 80’s hits; socializing; team sports; Gym – Fitstop; Seeing family and friends; Rewatching old time favourite tv series; Singing; Taking dog for a walk; cooking; mindless chores; holidays; movies; Yoga…

Team/Firm/Virtual

Debriefing; Friday drinks; getting coffee; Staff lunches; have an ‘Hour of Full and Frank’; Staff morning teas

Keep in Touch

I would love to hear your thoughts on this topic and feel free to email me at jamesf@ altapete.com.au

JAMES FLETCHER

Director, Alta Pete Consulting W: www.altapete.com.au

E: jamesf@altapete.com.au; T: 0403 687 685

1. Health and Productivity Institute of Australia, as cited by Comcare.

TASMANIAN WOMEN LAWYERS ASSOCIATION 2018 WILLIAM ROBERT GIBLIN AN AUTOCHTHONOUS JUDGE

THE HON. JUSTICE STEPHEN ESTCOURT AM

When Justice William Lambert Dobson was elevated to the role of Chief Justice of the Supreme Court of Tasmania on 7 February 1885, following the retirement of Sir Francis Smith, he was joined by Justice William Giblin. Dobson however, did not stay long with his brother judge.

As Dr J M Bennett observed in an article published in the University of Western Australia Law Review in 1977, entitled Sir Henry Wrenfordsley: A Journeyman Judge, Dobson, wished to take a year’s leave in England, almost as soon as he was appointed as Chief Justice and he nominated Giblin, to act in his place and nominated Wrenfordsley, who had previously been a contentious Chief Justice of Fiji, as an acting puisne judge on half salary. As Bennett writes “[t]he Tasmanian government agreed, as did the Colonial Office on the understanding (by them, but not by Sir Henry) that he would have no further claim upon the chief justiceship of Fiji or upon any other colonial appointment”.

Wrenfordsley arrived in Hobart in late February 1885, and was commissioned as a judge for one year from 6 March. His term was later extended by nearly two years to February 1887. In 1886, Wrenfordsley was the only judge sitting as Giblin had become ill. Bennett notes laconically “[f]ortunately for Tasmanians, there was little litigation then before the courts. Wrenfordsley’s command of the law had not improved in his travels: his habit of ‘playing to the gallery’ had become worse”.

Wrenfordsley also took a position as an acting judge of the Supreme Court of Victoria in 1888 and in 1891 he was appointed temporary acting Chief Justice

of the Western Australian Supreme Court. Later in 1891 he became Chief Justice of the Leeward Islands.

Giblin, like Smith CJ, was a former successful Premier of Tasmania, but Giblin’s judicial career, unlike that of Smith, was very brief. He died in office as a result of heart disease on 17 January 1887, aged only forty-six years.

Giblin was Tasmania’s first locally-trained Supreme Court judge, and as Acting Chief Justice he was Administrator of the Government in October-November 1886, thus becoming the first native-born Tasmanian to hold that office. According to Giblin’s entry in the Australian

Dictionary of Biography by E M Dollery, after his death, Alfred Deakin described Giblin as “remarkably impressive” and “too big for his colony”.

Giblin was born in Hobart on 4 November 1840, the son of William Giblin, who was a clerk to the Registrar of Deeds. His mother was Marion, née Falkiner. He was educated, in the beginning, at a school kept by his uncle Robert Giblin and afterwards at the Hobart High School, which had been established by the nonconformist Congregational Church as the answer to the Anglican school, Hutchins. He left school at the tender age of 13 and became a clerk in the law

firm of Allport and Roberts. He was subsequently articled to John Roberts of that firm.

Giblin was an active Congregationalist with a love of reading and a fine memory. At the age of 22 he was delivering lectures on literary subjects. He taught Bible studies for many years and there is plaque erected to commemorate that service at his old church in Elizabeth Street in Hobart, which is now the Korean Full Gospel Church. There is also a plaque dedicated to his work for the moral and social elevation of the underprivileged, at the former Congregational Church at 47 Davey Street Hobart. Giblin was also the driving force behind the

establishment of the Hobart Working Men’s Club in 1864 and was the President of the Club for twenty-three years.

On 4 August 1864 he was admitted as a practitioner of the Supreme Court and entered into partnership with John Dobson and subsequently with one of Dobson’s sons, Henry. The law firm was then known as Dobson and Giblin. His success in the courts was immediate and financially enabled him, on 5 January 1865, to marry Emmely Jean, daughter of John Perkins.

Political Career

Giblin publicly advocated the building of a railway from Hobart to Launceston for

lowering the transport costs of primary producers. This made him popular and in 1869 he was petitioned by hundreds of voters to stand for election to the House of Assembly. He was elected unopposed for the seat of Hobart Town and, after electoral boundaries were altered, he represented Central Hobart in 1871-76 and Wellington in 1877-84.

He served as Attorney-General under Sir James Wilson in 1870-72 and in Alfred Kennerley’s ministry in 1873-76. He joined the ministry of Sir Philip Fysh in August 1877 as Colonial Treasurer and Attorney-General, and was Premier from March to December 1878. From October 1879 to August 1884 he led a coalition government.

As Premier and Treasurer Giblin revived Tasmania’s finances, secured the adoption of an equitable taxation policy and initiated an active programme of public works. In November 1883 he represented Tasmania at a Convention in Sydney which led to the drafting of a Bill to constitute the Federal Council.

It is sad that Giblin was said to be worn out by these heavy responsibilities and that he accepted appointment as a judge in an endeavour to assume a less onerous role. As already noted, he died on 17 January 1887 before enjoying a real opportunity to demonstrate his doubtless capacities as a jurist.

Justice Giblin was survived by his wife, four sons and three daughters. His second son, Lyndhurst Falkiner Giblin, was a distinguished scholar, soldier and the first Ritchie Professor of Economics at the University of Melbourne.

THE HONOURABLE JUSTICE STEPHEN ESTCOURT AM Judge Supreme Court of Tasmania

THE TASMANIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (TASCAT): AN OVERVIEW

MALCOLM SCHYVENS

When the newly established Tasmanian Civil and Administrative Tribunal (TASCAT) officially opened its doors on 5 November 2021, many years of preparation to create a “Super Tribunal” and improve access to justice in Tasmania was realised.

What is TASCAT?

TASCAT was formed through the amalgamation of nine (9) former Tribunals and Board into one statutory Tribunal. It joins the existing seven (7) other “CATs” or “Super Tribunals” that already are in existence in each Australian jurisdiction. 1 The nine bodies amalgamated were2 the:

• Anti-Discrimination Tribunal (ADT);

• Asbestos Compensation Tribunal (ACT);

• Forest Practices Tribunal (FPT);

• Guardianship and Administration Board (GAB);

• Health Practitioners Tribunal (HPT);

• Mental Health Tribunal (MHT);

• Motor Accidents Compensation Tribunal (MACT); and

• Resource Management and Planning Appeal Tribunal (RMPAT)

• Workers Rehabilitation and Compensation Tribunal (WRCT)

Essentially, the work of the former Tribunals and Board has continued largely unchanged since TASCAT commenced, the primary difference being that each of the jurisdictions now come under the umbrella of one organisation with a leadership structure headed up by a President, supported by Deputy Presidents, and a Principal Registrar, supported by Deputy Registrars.

Unlike most Tribunal amalgamations that have occurred where various components of the Tribunal continue to physically exist in different locations and it taking many years to co-locate, TASCAT is in a much more fortunate position as all former Tribunals / Board were already housed together in purpose built and accessible premises located at 38 Barrack Street in Hobart. As with the amalgamated bodies, TASCAT will continue to sit across Tasmania. During the initial stages of operations the Tribunal will be reviewing the suitability of the premises used on a regular basis outside of Hobart.

TASCAT commenced operations with a total of 106 Tribunal Members (represented by 9 full time members and 97 sessional members). Some overall member statistics include: gender: 55% are female and 45% male; location: 78 (South); 14 (North);11(NW); and 3 (interstate); qualifications: Legally qualified member (40); Psychiatrist (10); other expertise (56).

Given the workload statistics of the Tribunals and Board amalgamated to form TASCAT, it is estimated that in the first full year of operations TASCAT will deal with upwards of 5300 matters and hold in excess of 5100 hearings.

The Objectives of TASCAT

The main objectives of TASCAT, in dealing with matters over which it has jurisdiction, should, and must, pervade all aspects of the Tribunal’s operations. To state the obvious, the objects play an integral role in guiding Tribunal members in their decision making roles. However, the objectives also guide Registry operations in matters such as the accessibility of the Tribunal’s website; and ensuring that the means by which the community can engage with the Registry are flexible to suit the needs of the breadth of our community who will engage with TASCAT’s services.

The objectives are contained in s 10 of the TASCAT Act and are self-explanatory:

10. Main objectives of Tribunal

(1) The main objectives of the Tribunal in dealing with matters within its jurisdiction are –

(a) in the exercise of its jurisdiction, to promote the best principles of public administration, including –(i) independence in decision making; and

(ii) natural justice and procedural fairness; and

(iii) high-quality, consistent decision-making; and (iv) transparency and accountability in the performance and exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with greater needs for assistance than others; and

(c) to ensure that applications, referrals, reviews and appeals are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation, conciliation and alternative dispute resolution procedures alternative dispute resolution processes, or compulsory conferences, wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

(f) to act with as little formality and technicality as possible, including by informing itself in the manner that the Tribunal considers fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

(2) In furtherance of the Tribunal’s main objectives, the Tribunal should, in relation to the conferral and exercise of the Tribunal’s jurisdiction, consult from time to time with the agencies, organisations or bodies that it considers appropriate.

In relation to the positive obligation in s 10(2) to consult from time to time with external stakeholders, a TASCAT Consultative Forum has been established.

Close to 30 peak bodies and agencies representing stakeholders were invited to be part of the forum. These include organisations such as: Legal Aid; The Law Society of Tasmania; the Mental Health Council of Tasmania; the Bar Association of Tasmania; Advocacy Tasmania; and the WorkCover Board, to name but a few.

It envisaged that the Forum will meet at least twice each year and the first meeting took place on 14 December 2021. The Forum, together with the annual reporting mechanism, will also provide an avenue for the Tribunal to comply with the obligation to be transparent and accountable by providing statistics on key performance indicators (KPIs).

TASCAT’s Structure

Akin to the existing CATS around Australia, TASCAT’s jurisdictions are allocated through a structure of Divisions and Streams (sometimes referred to as Lists in other CATs). There are two (2) Divisions of TASCAT, the Protective Division and the General Division, from which stem seven (7) Streams.

The Protective Division consists of two (2) Streams: the Guardianship stream (vested with the jurisdiction previously exercised by the Guardianship and Administration Board (GAB)), and the Mental Health Stream (vested with the jurisdiction previously exercised by the Mental Health Tribunal (MHT)).

The General Division consists of the remaining five (5) Streams: the AntiDiscrimination Stream (vested with the

jurisdiction previously exercised by the Anti-Discrimination Tribunal (ADT)); the Forestry Practices Stream (vested with the jurisdiction previously exercised by the Forest Practices Tribunal (FPT)); the Health Practitioners Stream (vested with the jurisdiction previously exercised by the Health Practitioner Tribunal (HPT); the Personal Compensation Stream (vested with the jurisdictions previously exercised by the Asbestos Compensation Tribunal (ACT), the Motor Accidents Compensation Tribunal (MACT), and the Workers Rehabilitation and Compensation Tribunal (WRCT)); and the Resource and Planning Stream (vested with the jurisdiction previously exercised by the Resource Management and Planning Appeal Tribunal (RMPAT)).

The Legislative Landscape

The legislative landscape for TASCAT is akin to other CATs. There is the TASCAT Act, the TASCAT Regulations, the TASCAT Rules and all of the “relevant Acts”3 and their subordinate legislation which provides the Tribunal’s jurisdictions. The key is being aware how each of these pieces of legislation interplay with each other.

It is worth noting that the TASCAT Act (not so much the Regulations and Rules) draws heavily upon the South Australian Civil and Administrative Tribunal Act 2013 (SA) which establishes SACAT, but with some significant alterations.

In many domains there has been intentional retention of provisions peculiar to an amalgamated Tribunal / Board. This intentional retention occurs through both extensive Stream specific Schedules to the TASCAT Act (See Sch 2 for the Streams within the General Division and Sch 3 for Streams within the

Protective Division) and through retained provisions in relevant Acts.

An example of this would be the issue of a party’s ability to be represented in proceedings before TASCAT. Whilst the TASCAT Act allows for a party to be represented as a matter of right,4 this right is subject to a different position as outlined in the schedules to the Act relating to each Stream5 or in a relevant Act.

This approach is due to the desire not to alter positions of policy in existence within the amalgamated Tribunal/ Board without appropriate community consultation having occurred. Many of these matters that may well benefit from harmonisation in future and may be attended to through further legislative reform allowing for such consultation to take place.

“Relevant Acts” and Division Schedules prevail

It is important to be aware of s 7A of the TASCAT Act:

7A.

Inconsistency with relevant Act

If there is an inconsistency between a provision of a relevant Act and a provision of this Act, the regulations or the Tribunal rules, the provision of the relevant Act prevails to the extent of the inconsistency

Similarly, s 59(7) of the TASCAT Act provides:

(7) The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provision

of this Act.

Accordingly, it is prudent to take a multiple step approach to ensuring the correct legislative position on jurisdictional matters. First, it may assist to look at the TASCAT Act to see if there is a position on the matter at hand. Then check the relevant part of the Division Schedule applicable to the Stream in question. In some cases, it may be necessary to then examine the Regulations or the Rules to the TASCAT Act. Finally, a review of the relevant Act and any subordinate legislation of the relevant Act may be necessary to ascertain finally whether anything is overruled.

This principle is common amongst the CATs as whilst it allows for an overarching position to be taken on an issue which applies to the whole of the Tribunal by default, it recognises the breadth of jurisdiction exercised by such Tribunals and the need for differentiation to be permitted to best suit the needs of proceedings in a certain Stream or List –“not one size fits all”.

The TASCAT Regulations are relatively minimal, primarily because the existing regulations to “relevant Acts” have been largely maintained. Any fees payable upon application have been retained in existing regulations apart from those applicable to the Resource and Planning

Scheme which were moved to the TASCAT Regulations.6

The initial TASCAT Rules were issued by the President and will subsequently be reissued as required by the TASCAT Rules Committee.7 The rules provide for, amongst other things : guidance as to when proceedings are commenced;8 identification of the parties to proceedings in the Guardianship Stream9 (replacing the former Practice Direction on the topic); guidance as to the granting or revocation of leave for representation where applicable;10 guidance as to the reckoning, extension and abridgement of time;11 requirements as to an address for service;12 the approved forms for documents13 and the registry’s ability to accept or reject certain documents; rules as to costs orders and a default assessment rate for costs at 75% of the Supreme Court scale;14 procedure as to the issue of a summons;15 and the circumstances in which a Registrar may constitute the Tribunal.16

Transition to TASCAT Resources

To assist practitioners who may regularly appear in proceedings before TASCAT, further information as to the ramifications of the amalgamation, covering issues such as “transitional proceedings” and legal representation entitlement

variations between streams, is available on the Tribunal’s website: www.tascat. tas.gov.au

MALCOLM SCHYVENS President TASCAT

1. Australian Capital Territory Civil and Administrative Tribunal (ACAT); NSW Civil and Administrative Tribunal (NCAT); Northern territory Civil and Administrative Tribunal (NTCAT); South Australian Civil and Administrative Tribunal (SACAT); State Administrative Tribunal (SAT – WA); Queensland Civil and Administrative Tribunal (QCAT); and Victorian Civil and Administrative Tribunal (VCAT)

2. See definition of “relevant Board or Tribunal” in s 3 of the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) (“TASCAT Act”)

3. See Sch 1 to the TASCAT Act

4. s 98 TASCAT Act

5. eg. See cl 7 of Pt 4 of Sch 3 relating to representation in matters in the Guardianship Stream

6. Reg 9 TASCAT Regulations

7. r 92 TASCAT Act

8. r 5 TASCAT Rules

9. r 7 TASCAT Rules

10. r 8 and r 9 TASCAT Rules

11. r 10 and r 11 TASCAT Rules

12. r 12 TASCAT Rules

13. r 14, 15, 16 and 17 TASCAT Rules

14. r 18 TASCAT Rules

15. r 20 TASCAT Rules

16. r 22 TASCAT Rules

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PARTIES AND ADVOCATES AS EXPERT WITNESSES IN TASCAT

RICHARD GRUEBER

Occasionally parties or advocates in planning appeals will also seek to give expert evidence. Their interest in the outcome of the appeal is a matter for weight rather than admissibility.

Most parties appearing in the Planning Stream of TASCAT are represented, but self represented parties are not uncommon. Occasionally a selfrepresented party or lay advocate will also seek to give expert opinion evidence where that person has expertise in a relevant discipline, such as architecture, planning or engineering.

There is an inherent friction between the roles of expert and advocate. This is reflected in the Expert Witness Code of Conduct in the Practice Directions, which describes an expert’s overriding duty to assist the Tribunal impartially on matters relevant to the expert’s area of expertise and observes that an expert witness is not an advocate for a party.

Experts who also appear as advocates risk blurring the roles. A common example is where they attempt to include submissions in evidence or evidence in submissions. It is common for experts to describe their understanding of provisions in a planning instruments in formulating opinions addressing those provisions, but it is not the role of an expert to tell the Tribunal how the law should be interpreted or applied to facts. That is the role of an advocate.

There is competing English authority as to the admissibility of evidence by an expert who might not be independent.

In Liverpool Roman Catholic Archdiocese Incorporated v Goldburg (No.2) [2001]

4 All ER 950 Evans-Lombe J refused to admit the evidence of a barrister called as an expert in a complex tax matter because he was a long standing friend of the defendant (also a barrister). His Honour applied a test similar to that of apprehended bias, saying “where it is demonstrated that there exists a relationship between the proposed expert and the party calling him, which

a reasonable observer might think was capable of effecting the views of the expert, so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be”.

In Factortame Limited & Ors v Secretary of State for the Environment Transport and the Regions (No.2) [2002] 4 All ER 97 the Court of Appeal formed a different view, in respect to evidence of an expert who was employed by one of the parties, that disinterest is not automatically a precondition to the admissibility of evidence, but still contemplated that an expert who has an interest in the outcome of the case might not be permitted to give evidence.

Experts who also appear as advocates risk blurring the roles.

Liverpool Roman Catholic Archdiocese Trust v Goldburg was considered by Pagone J in the Supreme Court of Victoria in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454. His Honour considered an objection to the admission of evidence of an accountant who was a member of a firm who had been the longstanding accountants of the defendant law firm, and who was also the brother-in-law of the plaintiff who was a former member of that law firm. He observed that an expert witness “has a special and important role…to assist the court by providing objective and unbiased opinions about matters that bear upon the determination which the court is called upon to make”. However, his Honour concluded that a biased witness does not impugn the independence of the court, particularly in adversarial proceedings where evidence can be tested. He considered that expert evidence should only be excluded where the court is satisfied that it is unsound and cannot provide probative material of value to determination of the issues. His

Honour treated the actual or perceived bias of an expert witness as a matter for weight not admissibility.

That decision was overturned on appeal in FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33, however the Court of Appeal determined that Pagone J was correct in his approach to admissibility of the evidence. Ormiston J.A. noted that it will also apply where the witness is a party. His Honour concluded a lengthy consideration of the authorities with the observation that “[h]owever desirable it may be, as a matter of common sense in the presentation of a party’s case, that an expert witness be seen to be independent, there is therefore no authority requiring this Court to hold that an “interested” expert’s evidence be rejected because of a “perception” that the witness might favour the party seeking to adduce that evidence”.

The weight given to opinion evidence by a witness who also an advocate will depend, like any expert, on the nature and extent of the witness’s expertise, the factual basis on which the opinion is expressed and the disclosed reasoning process behind the opinion, but it may also be influenced by interest. Parties who give opinion evidence would be wise to note the comment by Kefford ECJ in the Planning and Environment Court of Queensland in DVB Projects Pty Ltd v Council of the City of Gold Coast [2022] QPEC 40 that “an expert who adopts an advocate’s approach risks presenting evidence that is regarded by the court as unhelpful or self-defeating in the sense of the evidence not being reliable”.

RICHARD GRUEBER

Deputy President and Division Head (General) TASCAT

UNDERSTANDING GUARDIANSHIP IN TASMANIA ROWENA HOLDER

All adults have the right to exercise autonomy and make decisions about their own life. An adult is presumed to have mental capacity to make their own decisions. An adult who does not have capacity to make certain significant decisions can have their right to make those decisions removed through the appointment of a substitution decision maker that is a guardian or administrator.

In certain limited circumstances, the Tribunal itself, can make decisions for a person with decision making incapacity. Legal capacity, as a general proposition in guardianship, is considered to be decision-specific. That is, an adult at any given point in time may have capacity to do one thing and not another

The matters heard and determined in the Guardianship Stream are by their very nature significant and relate to personal matters such as where to live; what medical treatment a person may need or about their estate. These matters can be highly emotive and more often than not when an order is made to appoint a substitute decision maker, it constitutes an infringement of a person’s basic human rights.

The Guardianship jurisdiction has its foundation in the parens patriae (‘parent of the country’) jurisdiction, which concerns people who need protection of the law and cannot make decisions for themselves. In the 1980’s the guardianship jurisdiction began to move to specialist Tribunals to promote accessibility, speed, and expertise.

Guardianship jurisdictions are frequently referred to as a ‘protective jurisdiction’.

The primary functions of the Tasmanian Civil and Administrative Tribunal (the Tribunal) Guardianship Stream are

established by the Guardianship and Administration Act 1995 (the Act) which grants the Tribunal jurisdiction to hear and determine applications for guardianship and administration and also importantly, review of those orders. The Tribunal also has jurisdiction to consent to medical and dental treatment. The Tribunal is required to keep a register of any instruments of appointment of an enduring guardian. The Tribunal has powers to review an instrument of appointment of an enduring guardian and can give advice and directions to guardians (including enduring guardians) and administrators.

Under the Powers of Attorney Act 2000 the Tribunal has powers to review an enduring power of attorney or revocation of an enduring power of attorney, and can also give advice and direction to an attorney. Under the Disability Services Act 2011 the Tribunal has authority to approve the use of personal and environmental restrictive interventions for a person with disability. The Tribunal also has functions under Part 3 of the Wills Act 2008 in that it can order the execution of a statutory will for a person who lacks testamentary capacity and who has never made a valid will.

The Guardianship jurisdiction, both in Tasmania and other Australian States and Territories seeks to balance the need of providing necessary protection from abuse, exploitation and neglect with a person’s rights to exercise freedom of decision and action.

The person who is subject to the application (the ‘proposed represented person’) is the centre of the proceedings. Section 6 of the Act sets out guiding principles to be observed by anyone exercising functions under the Act, which focus on the person’s rights and to some extent reduce where possible the impact of the removal of a person’s human rights. These principles are - the means which is the least restrictive of a person’s freedom of decision and action should be adopted; the best interests of the person are to be promoted; and the wishes of a person are, if possible, to be carried into effect.

This means when a guardian and / or administrator is appointed by the Tribunal, the guardian and administrator must observe these principles. Further, section 27 of the Act provides that a guardian must act at all times in the best interests of the person under guardianship. Similarly, section 57 of the Act provides that an administrator must act at all times in the best interests of the represented person.

If the Tribunal appoints a guardianship and/or administration, the order will be time limited.

The Tribunal is required to hold a hearing in relation to a substantive application and review of order applications filed with the Guardianship Stream Registry.

Prior to November 2021 Requests for an Emergency Order pursuant to section 65 of the Act were determined without a formal hearing, which is permitted under section 65(4) of the Act. The Tribunal has changed its process so that Emergency Requests are now determined by a formal hearing. This process also applies to out of hours Requests. The Tribunal has taken this step to allow for the direct involvement of the person where possible, and the involvement of family or other supports.

On receipt of an application, the Tribunal will hold a hearing. Notice of hearing will be provided to parties and interested persons. The Act requires not less than 10 days’ notice of hearing be given to parties and any other person with a proper interest in the matter. The Tribunal sits and hears most cases in public, but given the sensitivity of the matters before it, may determine that proceedings should be closed.

In the vast majority of matters in the Guardianship Stream a three member multi skilled panel will hear and determine the Application. The Tribunal panel is usually made up of a presiding legal member, medical member or

psychologist and a community member.

At a hearing the Tribunal is under a duty to comply with the legal requirements of procedural fairness, that is to ensure it acts fairly and a person has an opportunity to be heard; to ensure tribunal members are impartial and there is no actual or perceived bias. While the Tribunal is not bound by the rules of evidence which allows for greater informality than courts, the common law rules of evidence assist when determining relevance of material and its probative value.

In accordance with the section six principle to ascertain ‘the wishes of the person’, the Tribunal’s pre-hearing processes and more informal procedure during hearings, support the person with the disability to participate in the proceedings and articulate their views and wishes where possible. The TASCAT Act 2020 allows for the person to be represented by any legal and advocacy representative. Family, friends or support persons can also attend the hearing, and where appropriate participate in the hearing proceedings.

The Act sets out who can be eligible to be appointed as guardian and/or administrator for a person. While the Act does not specifically state it, the Tribunal will consider the appointment of any family or friend of the person if they seek appointment first. The Tribunal needs to be satisfied the proposed guardian/ administrator meets the eligibility criteria set out in section 21 and 54 of the Act.

If the eligibility criteria is not met, the Tribunal, as last resort will appoint the Public Guardian or Public Trustee, or a trustee company within the meaning of the Trustee Companies Act 1953.

In relation to the hearing of guardianship and administration applications, the Tribunal can make a full or limited guardianship order and/or administration order. The Act states that a full order cannot be made where a limited order would suffice. In practice, it is extremely rare for the Tribunal to make a full guardianship order. If the order is limited, the guardian and/or administrator can only act within the powers granted to them.

If the Tribunal appoints a guardianship and/or administration, the order will be time limited. A guardianship and administration order can be reviewed before the expiry of the order. A review of an order requires a hearing be held to see if the person still has a disability; and is unable by reason of the disability to make reasonable judgements for him or herself; and continues to need an order. An order can be revoked if this criteria is no longer met, or if the criteria is met, the order can be continued or varied.

The Tribunal has an ongoing and important role to play in the protection and empowerment of people with decision making disability, to ensure such people are not left in situations of neglect, subject to elder or other abuse or at immediate and unacceptable risk.

While statutory reviews of orders are held, a non-statutory review can occur at any time if there is a change in the person’s circumstances. Regular reviews of orders is consistent with Article 12 of the United Nations Convention of the Rights of Person with Disabilities which concerns the legal capacity of people with disabilities and that all measures that relate to the exercise of legal capacity of persons with disabilities must provide for appropriate and effective safeguards. These safeguards include ‘…proportionality and tailoring to the person’s circumstances; applicable for the shortest time possible and regularly reviewed by an independent authority’ (Art 12(4)).

A guardian and/or administrator appointed by the Tribunal must furnish reports annually and at such times as the Tribunal determines. The Tribunal has recently reviewed many of its forms, including Guardian’s and Administrator’s reporting forms, financial statements and financial summary forms to ensure appropriate recording is occurring by all Tribunal appointed guardians and administrators, public and private, and these reports are then audited by a compliance officer of the Tribunal Registry.

On completion of a hearing of an application, a party to the proceedings or a person aggrieved by a determination of the Tribunal may by notice in writing request a statement of reasons. The Tribunal must within 21 days publish a statement of reasons. The Tribunal on its own motion will sometimes publish its reasons to assist parties in the understanding of the evidence before the Tribunal and what evidence the Tribunal relied on to make its findings and subsequent order. This is aimed at promoting a greater understanding of the Guardianship Stream jurisdiction and to promote the TASCAT objectives to be ‘accountable and transparent.’ Given the private and personal nature of the evidence at hearing the Tribunal redacts

all its decisions, which are published on Austlii.

Parties to proceedings in the Guardianship Division may appeal any decision made under the enabling legislation. Appeals to the Supreme Court may be made as of right on a question of law or with leave on any other question.

The Tribunal has an ongoing and important role to play in the protection and empowerment of people with decision making disability, to ensure such people are not left in situations of neglect, subject to elder or other abuse or at immediate and unacceptable risk.

ROWENA HOLDER

Rowena Holder is the Deputy President of the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal. Rowena was the former President of the Guardianship and Administration Board from August 2016 until the commencement of TASCAT. From 2014 Rowena was a member of the Mental Health Tribunal. Rowena has previously worked in private practice. Rowena is an accredited LEADR mediator and previously a family dispute resolution practitioner.

1. The Tribunal, after conducting a hearing can consent to medical or dental treatment for a person who does not understand the nature and effect of medical or dental treatment, pursuant to Part 6 of the Guardianship and Administration Act 1995. Similarly, the Tribunal, after conducting a hearing can approve the use of a personal or environmental restrictive intervention under the Disability Services Act 2011

2. Without limiting that general obligation, section 27(2) provides that a guardian will be acting in the best interests of a person under guardianship if the guardian acts as far as possible:

(a) in consultation with that person, taking into account, as far as possible, his or her wishes; and

(b) as an advocate for that person; and

(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and

(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgements relating to his or her person; and (e) in such a way as to protect that person from neglect, abuse or exploitation.

3. Section 57(2) states that without limiting subsection (1) , an administrator acts in the best interests of the represented person if the administrator acts as far as possible –(a) in such a way as to encourage and assist the represented person to become capable of administering his or her estate; and (b) in consultation with the represented person, taking into account as far as possible the wishes of the represented person.

Deputy President of the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal

Introduction

It is well known that many offenders sentenced to imprisonment have a history of substance abuse and many commit crimes whilst under the influence of alcohol and/or other drugs. The futility of sentencing offenders to imprisonment without addressing the underlying cause of the offending is borne out in recently released research which found that almost half of all Tasmanian offenders (47 per cent) return to prison within two years. Alarmingly, the same research found that over the last five years Tasmania has had the largest increase in offenders returning to prison within two years of any Australian jurisdiction.1

In 2007 Tasmania introduced drug treatment orders with its primary goal “to break the drug-crime cycle by involving offenders in treatment and rehabilitation programs”.2 Part 3A of the Sentencing Act 1997 (Tas) sets out the circumstances in which a drug treatment order may be made. Relevantly, a court may make a drug treatment order if satisfied that the offender has a “demonstrable history of illicit drug use” and “illicit drug use contributed to the commission of the imprisonable offence”.3 As well, the order may be made if the Court considers that, but for the order, it would have sentenced the offender to a term of imprisonment and would not have suspended the sentence, either in whole or in part.4

The advantage of a drug treatment order over other sentencing options including a suspended sentence is that it provides judicial officers with the ability to be actively involved in the treatment and monitoring of the offender with the court able to vary the order based on progress made, including adding or removing program conditions, varying conditions to adjust the frequency of treatment, the degree of supervision and the type or frequency of vocational, educational, employment or other programs that the offender must attend.5

A REVIEW OF DRUG TREATMENT ORDERS IN THE SUPREME COURT

BENEDICT BARTL AND KATHERINE SPROULE

Initially, drug treatment orders in Tasmania were restricted to summary offences or indictable crimes that were able to be determined by the Magistrates Court but were extended in 2017 to allow persons charged with indictable offences in the Supreme Court to also be referred.6 With the Sentencing Advisory Council currently reviewing the alternative sentencing options introduced as part of the State Government’s intention to phase out suspended sentences, it is useful to take stock of drug treatment orders in the Supreme Court and to consider whether further reform is necessary.

Drug Treatment Orders and Supreme Court Referrals

Over the last three years (2017/18 –2019/20) the Supreme Court has made around 13 referrals each year7 with eligible persons required to be assessed as suitable for a drug treatment order.8 Of those persons referred from the Supreme Court for assessment, 60 per cent were assessed as eligible and suitable and the drug treatment order was made.9

Of the 40 per cent of persons assessed as ineligible or unsuitable, a small number were ineligible because they had been convicted of sexual offences or offences involving the infliction of actual bodily harm that was not minor harm.10 The overwhelming majority were however rejected as unsuitable either by the assessor and/or the court for a variety of reasons including:

• an inability to recognise the significance of the offending;11

• continued re-offending whilst being assessed;12

• high risk of re-offending;13

• history of non-compliance with community-based orders;14

• Unavailability of suitable facilities and resources to enable supervision and treatment.15

Notwithstanding that persons may be both eligible and suitable for a drug treatment order, the court is still required to be “satisfied in all the circumstances that it is appropriate”.16 In Tasmania v Joseph17 the appropriateness of a drug treatment order was considered by Brett J in circumstances where the 23-year-old offender had “had an illicit drug problem for some years” and had committed armed robbery “as an act of desperation in order to obtain illicit drugs”. 18

Rehabilitation starts with a personal decision and commitment towards reform. If you are genuine in that commitment, there will be resources available to you, whether it is in or outside prison.

Brett J noted the focus of the drug treatment order was on the rehabilitation of the offender rather than meeting other sentencing aims such as deterrence and retribution:19

"A drug treatment order is a sentencing option which places emphasis on the rehabilitation of the offender. It is not without punitive effect because it will require, on the part of the offender, onerous application to the program put in place by the order, and carries with it the potential for activation of the custodial component of the order in the event of default. However, it is still an alternative to imprisonment, where imprisonment would otherwise be the outcome. If a drug treatment order is made, the court is making a choice

to place emphasis on rehabilitation as the primary sentencing aim in preference to other sentencing objectives such as general deterrence and retribution."

However, his Honour also observed that the “objective seriousness of the crime will affect the relative emphasis placed on competing considerations in the process of determining sentence” and “in order to be satisfied that a drug treatment order is appropriate in all of the circumstances, the court will need to be satisfied that the order will properly respond to the various aims of sentencing appropriate to the case”20 Importantly, after reviewing the relevant provisions of the Sentencing Act 1997 (Tas) his Honour concluded that as a matter of statutory construction “it would, in most circumstances, be inappropriate to make a drug treatment order if the custodial component will exceed two years” 21

On the facts before him, Brett J acknowledged Joseph’s history of substance use and that the armed robbery was committed in order to obtain illicit drugs, but was nevertheless “satisfied that the only appropriate sentence in this case is a significant term of imprisonment”.22 Joseph was thereafter sentenced to three years imprisonment.

Brett J’s finding that a drug treatment order would be inappropriate for sentences of more than two years was

affirmed in the Court of Criminal Appeal decision of Bell v Tasmania 23 and has subsequently been applied in a number of Supreme Court cases.

In a case of note State of Tasmania v Adam Halbwirth 24 a 31-year-old man pleaded guilty to one count of dangerous driving as well as a number of associated summary offences. He was assessed as eligible and suitable for a drug treatment order but in Brett J’s view the “extremely serious example of dangerous driving” warranted a term of imprisonment that “will exceed the maximum sentence appropriate for [a drug treatment] order”25. Halbwirth was sentenced to three years and two months imprisonment. Although Brett J was unable to impose a drug treatment order, he was optimistic that Halbwirth would continue to have access to rehabilitation services:26

Rehabilitation starts with a personal decision and commitment towards reform. If you are genuine in that commitment, there will be resources available to you, whether it is in or outside prison.

Sadly, despite Halbwirth’s best efforts he was unable to access rehabilitation services within the prison with the Parole Board of Tasmania recently observing that during his nineteen months in prison he “attempted to engage in therapeutic inputs whilst serving his custodial sentence. Unfortunately, his referrals for

Equips Addiction and Equips Foundation groups have been unsuccessful most likely due to resourcing issues in the prison”.27

In another case of note, State of Tasmania v Brook Targett a 26-year-old woman pleaded guilty to armed robbery and was thereafter assessed for a drug treatment order. After receiving the report, Brett J observed that Targett was “an ideal candidate for a drug treatment order” which he would have imposed if not for “structural legislative constraints”.28

I am satisfied that there is a need to encourage and support your rehabilitation, and that remains an important sentencing consideration, but given the structural legislative constraints imposed on drug treatment orders, I do not think that such an [order] is an available sentencing option in this case. It would be an available sentencing option if the law was sufficiently flexible to allow me to impose a drug treatment order as part of a composite sentencing mix, including some time in prison.

As his Honour Brett J observed in all three of the cases noted above, the construction of Part 3A of the Sentencing Act 1997 (Tas) meant that it was the legislature’s intent that drug treatment orders should be restricted to offenders being sentencing to imprisonment of two years or less. However, in cases where an offender was going to be sentenced to more than two years imprisonment, his Honour believed that a composite order in which both imprisonment and a drug treatment order was able to be imposed would see the sentencing aims of deterrence, retribution and rehabilitation achieved.

Although published a number of years before Brett J’s sentencing remarks were made, Tasmania’s Sentencing Advisory Council does not appear to recommend composite orders in circumstances in which a sentence of imprisonment is also imposed. In their Phasing Out of Suspended Sentences Final Report it was observed that the common law sentencing aims of parsimony and restraint in the use of imprisonment remain relevant to the sentencing discretion meaning that “imprisonment should continue to be a sanction of last resort” and “the reforms to sentencing in Tasmania should be guided by the principle that imprisonment should only be used when no other sanction is appropriate”.29

A Compromise Between Composite Orders and Imprisonment as a Last Resort

A possible compromise between Brett J’s proposed composite order and the Sentencing Advisory Council’s view that imprisonment remain a sanction of last resort is a reform introduced in the Australian Capital Territory and Victoria,

Image: Canva

namely the ability to impose drug treatment orders on persons who would otherwise be imprisoned for up to four years imprisonment. 30

In the Australian Capital Territory where the model has been in place since 2019, the drug and alcohol treatment order is available to persons with alcohol or illicit drug dependency and where eligibility is available to those who plead guilty to an offence other than a sexual offence or a serious violence offence.31 Successful completion of the drug and alcohol treatment order means that the remainder of the offender’s custodial sentence is replaced with a good behaviour bond.32 A review of the case law demonstrates that aggravated robbery, aggravated burglary and aggravated dangerous driving are all offences for which the ACT Supreme Court has been prepared to grant a drug and alcohol treatment order. 33

In Victoria, the Magistrates Court has been able to sentence persons to drug and alcohol treatment orders since 2002. However, the program was recently expanded to the County Court with the establishment of a pilot program, meaning that persons who are liable for a maximum sentence of up to four years are also eligible. Persons convicted of sexual offences and offences involving the infliction of actual bodily harm will remain ineligible and in the County Court a number of other offences including aggravated home invasion and aggravated carjacking also result in exclusion.34 Similar to the Australian Capital Territory model, completion of the drug and alcohol treatment order means that the person is able to remain in the community until the inactive custodial sentence ends.

The advantage of expanding drug treatment orders is that it reduces recidivism. In 2015 an evaluation of the Victorian Drug Court found a 23 per cent reduction in reoffending over the first 12 months post completion and a 29 per cent reduction in reoffending 24 months post treatment order. The evaluation also found an overall reduction in serious offences, including a 90 per cent reduction in trafficking offences and a 54 per cent reduction in assaults with a weapon.35 Similarly, a review carried out in NSW found that participants in the NSW Drug Court were less likely to be reconvicted than offenders given conventional sanctions.36 It is also worth acknowledging that successful completion of a drug treatment order not only reduces recidivism but also has positive flow on effects on police, court and prison resources.

Conclusion

In conclusion, the Supreme Court’s ability over the last three years to make a drug treatment order has ensured that

around 24 persons who would otherwise have been sentenced to a term of imprisonment have instead been able to access the treatment they need and thereby address the underlying cause of their offending. However, persons are continuing to be imprisoned despite the Supreme Court otherwise acknowledging the suitability of the drug treatment order. Legislative reform that expressly provides that drug treatment orders are available for persons who would otherwise be imprisoned for up to four years imprisonment would broaden the range of offending behaviour subject to the order whilst also reducing recidivism.

BENEDICT BARTL

Principal Solicitor

Tenants' Union of Tasmania

KATHERINE SPROULE Lawyer

E R Henry Wherrett & Benjamin

Benedict Bartl is a Policy Officer with Community Legal Centres Tasmania and the Principal Solicitor with the Tenants’ Union of Tasmania. Katherine Sproule graduated with a BA/LLB from the University of Tasmania in 2018 and a Graduate Diploma of Legal Practice in 2021 and is currently employed as a lawyer at E R Henry Wherrett & Benjamin.

1. There was an 18 per cent increase in Tasmanian offenders returning to prison within two years of their release. The next highest increase was Queensland at 10 per cent. As found at Productivity Commission, Report on Government Services 2021, Justice sector overview - Table CA.4.

2. Department of Justice, Community Corrections, Court Mandated Diversion. As found at https://www.justice.tas.gov.au/ communitycorrections/court_mandated_ diversion/intent_of_program (Accessed 14 June 2021).

3. Section 27B(1)(b) of the Sentencing Act 1997 (Tas).

4. Section 27B(1)(c) of the Sentencing Act 1997 (Tas).

5. Section 27H of the Sentencing Act 1997 (Tas).

6. See amendment to definition of “court” in section 27A of the Sentencing Act 1997 (Tas) following passing of Sentencing Amendment Bill 2016 (51 of 2016).

7. There were 13 referrals in 2017/18, nine referrals in 2018/19 and 18 in 2019/20.

8. Sections 27B and 27D of the Sentencing Act 1997 (Tas).

9. 24 out of 40 referrals were assessed as both eligible and suitable. Persons whose referral resulted in a different community-based order (including a deferred sentence) or a sentence in the Magistrates Court have been excluded. Interestingly, 75 per cent of women (6 out of 8) who were assessed were found eligible and suitable and the drug treatment order was made. This can be contrasted with a 56 per cent success rate for men (18 out of 32).

10. Section 27B of the Sentencing Act 1997 (Tas). Those offenders were State of Tasmania v Zachary Wright (comments on passing sentence) 5 July 2017 per Blow CJ; State of Tasmania v Cameron Clark (comments on passing sentence) 6 November 2018 per Estcourt J.

11. State of Tasmania v Erich Ungerhofer (comments on passing sentence) 28 March 2018 per Porter AJ; State of Tasmania v Jayde Jetson (comments on passing

sentence) 11 October 2019 per Porter AJ.

12. State of Tasmania v Gavin Cameron (comments on passing sentence) 6 February 2018 per Slicer AJ.

13. State of Tasmania v Lai Le (comments on passing sentence) 3 July 2017; State of Tasmania v Darren Slattery (comments on passing sentence) 18 August 2017 per Blow CJ; State of Tasmania v Nicholas Clark (comments on passing sentence) 4 March 2020 per Blow CJ.

14. State of Tasmania v Rebecca Dyett (comments on passing sentence) 12 July 2019 per Porter AJ; State of Tasmania v Glenn Brown (comments on passing sentence) 16 December 2019 per Porter AJ.

15. State of Tasmania v Nathan Scott (comments on passing sentence) 11 June 2020 per Brett J.

16. Section 27B(3)(a) of the Sentencing Act 1997 (Tas).

17. [2017] TASSC 23.

18. State of Tasmania v Benjamin Joseph (comments on passing judgment) 27 April 2017 per Brett J.

19. Tasmania v Joseph [2017] TASSC 23 at para. 29.

20. [2017] TASSC 23 at para. 31.

21. [2017] TASSC 23 at para. 34.

22. [2017] TASSC 23 at para. 35.

23. [2021] TASCCA 3 at para 32 per Martin AJ; Marshall AJ and Porter AJ in agreement.

See also State of Tasmania v Cameron Clark (comments on passing sentence) 6 November 2018 per Estcourt J.

24. State of Tasmania v Adam Halbwirth (comments on passing sentence) 6 December 2018.

25. State of Tasmania v Adam Halbwirth (comments on passing sentence) 6 December 2018.

26. State of Tasmania v Adam Halbwirth (comments on passing sentence) 6 December 2018.

27. Parole Board of Tasmania, Adam Halbwirth (8 May 2020). As found at https:// www.justice.tas.gov.au/paroleboard/ decisions-2020/halbwirth,-adam-michael (Accessed 6 June 2021).

28. State of Tasmania v Brook Targett (comments on passing sentence) 12 February 2019 per Brett J.

29. Sentencing Advisory Council, Phasing out of Suspended Sentences Final Report (No. 6: March 2016) at 9.

30. See section 12A(1)(b) of the Crimes (Sentencing) Act 2005 (ACT); section 18Z(1) (d)(ii) of the Sentencing Act 1991 (Vic).

31. See subsections 12A(1)(a) and 12A(1)(9) of the Crimes (Sentencing) Act 2005 (ACT).

32. Section 80ZA of the Crimes (Sentencing) Act 2005 (ACT).

33. For example, R v Jake Blackburn [2020] ACTSC in which the offender was sentenced to three years and six months imprisonment for a range of offences including aggravated burglary, theft, assault and aggravated dangerous driving; R v Patrik Pelecky (No 2) [2020] ACTSC 370 in which the offender was sentenced to four years imprisonment for 27 offences including aggravated dangerous driving and burglary; R v Crystal Parker [2020] ACTSC 38 in which the offender was sentenced to three years imprisonment for aggravated robbery; R v Charles [2020] ACTSC 39 in which the offender was sentenced to two year and one month imprisonment for offences including aggravated burglary with intent to cause harm.

34. Section 18Z(2B) of the Sentencing Act 1991 (Vic). These offences include aggravated home invasion and aggravated carjacking as well as certain offences against emergency workers, custodial officers and youth justice custodial workers on duty.

35. KPMG, Evaluation of the Drug Court of Victoria (Final Report: December 2014) at 4.

36. Don Weatherburn, Craig Jones, Lucy Snowball and Jiuzhao Hua, ‘The NSW Drug Court: A re-evaluation of its effectiveness’ (Crime and Justice Bulletin No 121, NSW Bureau of Crime and Statistics and Research, September 2008).

SYDNEY, MELBOURNE, BRISBANE & PERTH TOWN AGENCY WORK

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Brisbane Office - Mark Smith Level 2, 217 George St Brisbane QLD 4000

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REFORM IN THE LAND TITLES OFFICE

ROBERT MANNING

When I was appointed as Recorder of Titles in 2019, I saw this as an opportunity to review the focus of the Land Titles Office by bringing my experience in legal practice to the role. While the COVID-19 pandemic has been something of a road bump in progressing this review process, the LTO has been able to make a good start – with much to be proud of in 2022.

Last year the LTO developed a Bill which was subsequently passed by Parliament and came into effect on the 1st of January this year. The Land (Miscellaneous Amendments) Act 2021 has brought in relatively minor but much-needed changes to many pieces of land-related legislation, including the Land Titles Act 1980 and Land Titles Regulations 2012.

A major project for 2022 was the development and implementation of four new sets of regulations: the Land Titles Regulations 2022, the Conveyancing and Law of Property Regulations 2022, the Conveyancing and Law of Property (Building Title Plans) Regulations 2022, and Registration of Deeds Regulations 2022. These new Regulations replaced the previous versions on 28 November after over a year of hard work including wide-ranging public consultation and lengthy drafting processes. The 2022 Regulations include many improvements that remove outdated provisions and reflect current practice and industry standards.

While the 2022 Regulations and the Land (Miscellaneous Amendments) Act are an important start, I am keen to continue the LTO’s reform drive. This year there are three major activities for which members

of the profession may wish to keep an eye out.

The first is the ongoing project of reforming the Strata Titles Act 1998. After the feedback received from the first round of consultations, it has been considered best to split the reforms into three tranches, thus allowing early delivery of meaningful reforms while more complex issues will be the subject of more detailed research, analysis, and consultation. The first tranche will focus on reforms to introduce flexibility into day-to-day body corporate administration and management matters. In the first half of the year the LTO conducted targeted in-depth consultation. Based on that feedback, work has been undertaken on a new Bill which is currently intended to be open for public consultation and tabling in Parliament next year.

The second major activity is the ongoing work in preparation for the introduction of electronic conveyancing. This has included the recruitment by Land Tasmania of a dedicated Project Manager who is undertaking the development of an in-depth project plan for implementation.

Parallel with this, the third major activity is work on amendments to the Land Titles Act 1980 which would empower the Recorder issue directions in relation to the preparation and lodgment of land dealings. Initial directions will be for the purpose of aligning the requirements for paper conveyancing with those used in the National Electronic Conveyancing system. The additional security which these requirements provide, for example by verification of identity processes, will help to make the paper conveyancing process safer and more secure. By making our paper processes align as much as possible with electronic requirements, it will also be easier for the legal profession and the general public to make the transition in due course to electronic conveyancing should they choose to do so. The amendment Bill

is currently before Parliament and it is hoped directions will be made next year.

I encourage members of the profession to keep themselves informed about developments in the LTO and to get involved in the consultation processes. Feedback on our consultation from the legal profession is critical for the reforms to achieve their ultimate goal of improving life for practitioners who have to interact with these laws every day.

ROBERT MANNING

Recorder of Titles

Land Titles Office

Heritage & Land Tasmania

Robert.Manning@nre.tas.gov.au

In 2020, a bequest from an every-day pharmacist in Melbourne helped establish one of Tasmania’s largest private nature reserves. Thanks to a gift from David McGregor, the Tasmanian Land Conservancy was able to protect 11 threatened species by purchasing and protecting a beautiful 1,534 hectare property near Orford.

In 2020, a bequest from an ordinary pharmacist in Melbourne helped establish one of Tasmania’s largest private nature reserves.

It all started in June 2019, when Melbourne conservationists and Tasmanian Land Conservancy (TLC) supporters Bruce and Ann McGregor explained to TLC staff that they were looking for land to protect. Bruce’s father David had died and left most of his estate (acquired with his late wife Jean) to be devoted to securing and maintaining a parcel of land with high conservation values for the protection of endangered wildlife species and their habitat. Knowing the TLC’s excellent record for careful purchase and long-term management of priority conservation land, they thought the organisation would be well-placed to fulfil David’s wish.

TLC staff documented some priority areas, outlining the on-ground conservation values and connectivity to other protected land, and took the McGregors to visit three of these properties. It was one south of Orford on Tasmania’s east coast that caught their eye. The 1,534 hectare property is home to threatened and old-growth vegetation communities, threatened species and freshwater ecosystems. It also sits in a farming region and could have easily been bought and turned over to irrigated agriculture. The combination

BEQUESTS MAKE A HUGE DIFFERENCE FOR NATURE

ANNABELLE SWEETMAN

was compelling, and so the McGregors committed to protect the area, underpinned by David’s bequest.

‘Both Mum and Dad loved camping in the bush and wanted to retire to a place where they could see the mountains and the sea,’ said Bruce. ‘For decades Dad spent a lot of his spare time growing threatened plant species and planting them in his garden, around their farm and along waterways. He loved the small native plants, native birds and restoring gurgling creeks. This property not only helps TLC’s vision but also reflects Jean and David’s values.’

David worked as a pharmacist, and when he retired, he and wife Jean moved to Mansfield, beneath the Victorian alps. Most of David’s estate was tied up in the property, which was sold to realise his vision. Bruce and Ann could have used the bequest to conserve land in their home state but turned to Tasmania because they could protect land in better condition and at a lower price.

Speaking to The Guardian, Ann said the scale of the purchase showed what could be achieved for roughly the price of a house in a sought-after suburb in Melbourne or Sydney. ‘They were not multi-millionaires, by any means,’ she said. ‘Anyone who owns a Melbourne property could do it, really, or if not give a donation.’

John McLeod, philanthropy researcher and co-founder of JBWere Philanthropic Services, explains that across Australia bequests to charities are set to become more significant with rising house values and an ageing population. ‘Gifts in wills provide some of the most important support received by charities and are generally the most significant gift made by an individual. The donor has the benefit of that asset during their lifetime and can then ensure its usefulness to an organisation they know and trust potentially in perpetuity, all with the simplicity of adding a sentence to a will.’

The McGregors’ bequest has gone a very long way. The TLC’s Prosser River Reserve, as the property has been renamed, now protects 11 threatened

plant and animal species. Stands of old-growth blue gum are a haven for the critically endangered swift parrots that nest and feed here. The valley is scattered with critically endangered black gum and the 12km of river frontage is a hotspot for threatened flora, as well as being breathtakingly beautiful.

Iconic Tasmanian species have a safe home on the reserve: Tasmanian devils, eastern quolls, spotted-tailed quolls, eastern barred bandicoots, masked owls, grey goshawks, white-bellied sea eagles, wedge-tailed eagles and Wielangta stag beetles can all be found here.

The property is also a site of significant cultural heritage. This area was the home of the Payintaymirimina band of the Oyster Bay tribe. A road used by the band ran along the banks of liyamangina minanya (the Prosser River) and was known as makuminya. After colonisation, parts of that road were repurposed, laid with blue stone bricks by convicts and later known as the ‘old convict road’.

The surrounding landscape and its superb cultural and natural values, featuring many threatened species, are now protected thanks to the late David and Jean McGregor and their commitment to nature. This powerful bequest has enabled an extraordinary conservation legacy.

To find out more about the TLC’s Natural Guardians bequest program, visit tasland. org.au/bequests or email bequests@ tasland.org.au

ANNABELLE SWEETMAN

Planned Giving Coordinator

Tasmanian Land Conservancy asweetman@tasland.org.au

Mobile 0409 429 660

Risk Management

REFLECTION ON CLAIMS

The last two years have been challenging for the community and the Legal Profession, with the onset of a global pandemic.

Many firms were required to adapt their working environments with staff moving to more flexible work models that included working from home. In addition, practitioners were also required to adapt to new court processes with appearances and mediations conducted remotely via Microsoft teams. Despite the challenges and disruptions, I am pleased to say that the Tasmanian Professional Indemnity Scheme remains in good shape with an overall reduction in the current number of claims. The following article provides a summary of the types of claims that the scheme has managed and an overview of a significant claim that has been defended by the Scheme for over 18 years.

Overview of The Types of Claims and Notifications

The profile of the types of claims and notifications that the Scheme is managing has not significantly deviated from previous years. Currently, the transactional work of conveyancing and commercial law leads the way constituting 50% of the claims this year.

The types of transactional claims can be summarised as follows:

Commercial Law

• alleged breaches of fiduciary duty;

• conflicts of interest;

• failures to consider all legal implications; and

• drafting errors

Property/Conveyancing

• conflicts of interest;

• alleged failures to properly draft, execute or serve a document;

• failures to exercise, register or renew a right or option; and

• cyber fraud

Claims relevant to Wills and Estates, have increased slightly this year and can be summarised as follows:

• failures to properly draft;

• failure to have the client sign the notes and/or a Will;

• conflicts of interest;

• failures to consider all legal implications.

Litigation

• Claims relevant to Litigation are reduced this year and can be summarised as follows:

• missed limitation periods; and

• failure to consider all legal implications.

I am pleased to say that the Tasmanian Professional Indemnity Scheme remains in good shape with an overall reduction in the current number of claims.

Resolution of a Significant Claim

I am pleased to report that the Scheme has seen the conclusion of a long running claim that has been actively defended for over 18 years. The claim was successfully defended by the Scheme all the way to the High Court with the Applicant failing to succeed in an Application for Special Leave.

The background to the claim involved the Plaintiff who operated a nursing home in Hobart. On or about the 6 August 1997 the approval for the Plaintiff to operate the nursing home was revoked pursuant to s 44(2) of the National Health Act

The Plaintiff commenced a claim in the Supreme Court of Tasmania that was cross vested to the Federal Court.

The Plaintiff alleged that a number of Legal Practitioners ( five defendants in total, 4 insured by the Scheme) failed to advise on the steps available, including

injunctive relief, to prevent the revocation of the nursing homes approval. The Plaintiff subsequently claimed that it lost entitlement to Commonwealth benefits with respect of the residents of the nursing home and was effectively prevented from becoming an approved provider of aged care services because no prior bed approval.

The Scheme is now undertaking steps to recover costs that will see a significant reimbursement to the insurer.

This claim serves as an excellent example of the commitment of the Scheme and the engaged panel lawyers to defend those claims that are defensible and lack merit.

COVID- Impact on Claims

In my introduction I have briefly mentioned the impact of the pandemic on the claims landscape in Tasmania. Currently, the Scheme has not seen an increase in claims due to the pandemic. We have only had one claim relevant to issues associated with the pandemic. This claim arose from a conveyancing matter where a significant delay arose relevant to the execution of documents. The background to this claim involved one of the parties residing overseas and the delay in the postal service to deliver the documents due to the pandemic.

Recently, I attended our National Risk Managers conference and the feedback provided from other jurisdictions was that an increase in claims had been observed in a number of jurisdictions due to the pandemic. The types of claims that have been reported are as follows:

• Transactional regret: claims by clients who have entered into deals which they have come to regret

Many firms were required to adapt their working environments with staff moving to more flexible work models that included working from home.

alleging that their lawyer failed to alert them to or advise them about some aspect of the deal.

• Cyber Fraud: claims arising out of the transition of the workforce to working from home, often seen in smaller firms who have not had the IT infrastructure to manage the remote working arrangements.

• Litigation: The key issue in this area has been relevant to missed limitation periods.

Take Home Messages Arising From The Claims

It is never too late to undertake a review of your practice and risk management. Healthy risk management practices lead to better outcomes for clients, less stress for you and fewer claims under the policy.

Some suggestions based on the claims managed by the Scheme are as follows:

• Care should be taken when drafting any document. All documents should be checked and re-checked. A small error, a missing or a wrong word can lead to a poor outcome for a client and they will look to you to rectify or compensate them for their loss.

• Practitioners should be aware of all time limits that apply to any matter

that they are instructed in.

• Practitioners should ensure that they develop appropriate procedures within their respective firms when handing over a file that has been managed by another practitioner.

• Every practitioner should ensure that basic administrative routines including regular file reviews and reminder/resubmit systems are in place.

• If you are going to act for more than one party in any matter you must make sure that you are familiar with the Legal Profession (Solicitors’ Conduct ) Rules 2020 Rule 15 and comply with it.

• Practitioners should recognise and have a strategy to deal with any matter where they act for both parties or where a conflict occurs or emerges in a matter.

• Client communication and avoiding unnecessary delay for the client is important. Unhappy clients make complaints to the Legal Profession Board (LPB). The Law Society’s PII policy in Tasmania does cover a practitioner’s legal costs and expenses arising out of any legally compellable attendance at any investigation, examination

or enquiry. Those costs are only claimable from the date that a hearing is convened. All costs associated with the preliminary investigations of the LPB before a determination is made to convene a hearing are not covered. The claim is subject to an excess and the limit on any one claim is $100,000.

• Wills and Estates can be a complex area and only experienced practitioners should work in this area. All practitioners should have a key risk checklist that should be complied with on all Wills and Estate files.

• Cyber fraud, all firms should have a cyber fraud management policy in place and regular education for staff.

FLEUR DEWHURST

Lawyer

Professional Indemnity Insurance Scheme - Claims Manager

PO Box 79, Lauderdale TAS 7021

Tel: 0427 800 030

fleurcd@fleurdewhurst.com.au

Image: Adobe Stock

A significant issue faced by the refugee community in Tasmania is the separation from family members who often remain in insecure and volatile situations overseas.

Previously, there were limited services to assist refugee, asylum seeker and migrant background Tasmanians to reunify with their family members. Thanks to the Law Foundation grants program the Tasmanian Refugee Legal Service (‘TRLS’) in partnership with Citizen Tasmania is currently running a dedicated family reunification project to provide ongoing free legal advice and legal education to refugees and migrants residing in Tasmania, with the aim of bringing Tasmanian families together. The project will run over 12 months and provide further legal support for the refugee community in Tasmania affected by the Taliban takeover of Afghanistan, the war in the Ukraine and other conflicts around the world.

Disadvantage among Tasmanians from the asylum seeker, migrant, and refugee arrived communities is widespread, often arising from institutional, financial, cultural, societal, and language barriers. Disadvantage also arises from lived experience of trauma. TRLS clients often experience challenges in securing suitable, well paid and stable employment. Therefore, private legal services are financially inaccessible to many in this group.

TRLS is the only dedicated refugee, migrant, asylum seeker and humanitarian entrant legal service in Tasmania. TRLS addresses an accessto-justice gap that manifests from the unique circumstances of this cohort who would otherwise be without access to legal services.

The past 12 months has seen two of the largest scale humanitarian crises since World War Two, the Taliban takeover of Afghanistan and the war in Ukraine. In 2021, after the Taliban take-over

FAMILY REUNIFICATION PROJECT

DAISY KATEROS

of Afghanistan, TRLS was granted emergency funding by the Tasmanian Government to run the Afghan Project. The project ran from September 2021 to March 2021 and TRLS lawyers assisted Tasmanian families to lodge almost 100 Offshore Humanitarian visa applications for families affected by the crisis. The funding granted by the Law Foundation has allowed TRLS to continue this work for the broader refugee community in Tasmania.

To lodge a family reunification case the Tasmanian resident must have a close family member offshore (outside Australia) that they are hoping to bring to safety in Australia through the offshore humanitarian family reunification visa process. These two major world events have resulted in a 300% increase to TRLS’ caseload, and the service currently has over 150 open family reunification files in both the north and the south of the State.

A Family Reunion case will go through three main phases from pre-lodgement to outcome. The bulk of the legal work in a Family Reunion case is completed in the pre-lodgement phase where TRLS assist clients to lodge Offshore Humanitarian visa applications for family overseas. After the visa application is lodged, the Department of Home Affairs will complete a number of assessments to determine if the application will be sent to an Overseas Post. If the visa application is sent to an Australian Embassy overseas, the applicants may be required to complete an interview, further forms and various checks before an outcome is provided. TRLS will assist clients through this process which can take up to 2-4 years.

As well as providing a much-needed legal service for recent arrivals in Tasmania, the project aims to facilitate better-supported integration into Australian society by working to close the knowledge gap regarding legal information and legal aid. In given circumstances, there is a huge gap in knowledge for migrant and refugee persons as compared to other population groups. Having a refugee status can mean that there has been a hindrance to access to education, or even learning basic literacy.

Citizen Tasmania has set up and

facilitated events in the community for TRLS Lawyers and Citizen Tasmania Staff to provide information about migration options and legal processes. Given the unique experience of many refugees fleeing prosecution and life-threatening situations, it is imperative to create an awareness of political and personal safety through education on human rights and legal systems in Australia.

Citizen Tasmania and TRLS have already delivered legal education sessions to TasTafe students in the past few months.

In addition to addressing a gap in current service provision, the Family Reunion project was developed to improve the outcomes of resettlement for refugees. Many refugees living in Australia have been separated from family members by war and conflict in their country of origin and have been unable to reunite. Consequently, those refugees are unable to ever fully resettle and rebuild their lives as their family members remain at risk overseas.

Clients report an overwhelming sense of guilt that comes with being the one family member living in a safe place such as Australia. They also comment that they cannot enjoy or even concentrate on their new life because they are too worried about the people they have left behind. This project will enable these families to have the legal support they need to be able to reunify in Tasmania.

The outcomes of this project will be free legal advice, casework and legal education on the family reunification visa process for the refugee and migrant community who reside in Tasmania, with the ultimate goal of reunifying family members affected by war and conflict. The outcomes of the legal education component of the project will be to ensure that there is a sufficient understanding of available support around pathways to family reunification. Ultimately this project aims to reduce gaps in accessing justice for the refugee and migrant community in Tasmania.

DAISY KATEROS Lawyer

Tasmanian Refugee Legal Service daisy.kateros@trls.org.au

When the phone rings and you don’t want to answer it, a cold lingers for ages, you feel overwhelmed by demands on your time, you feel exhausted or you start to hate what you used to love doing, you may be experiencing burnout. I have visited the place known as ‘Burnout’. I walked straight in, sat myself down, washed myself out and took a long time to gather the energy to leave. It is not a place I recommend you go.

Burnout has become so prevalent that in 2019 it was recognised by the World Health Organisation a syndrome arising ‘from chronic workplace stress that has not been successfully managed.’ It is one of the reasons people leave legal positions to pursue other career options.

The 3 signs you may have burnout are when you feel:

• Exhausted or low in energy

• Resistance, cynicism or negativity towards your job

• As though you are not performing at your best professionally

Burnout comes to visit when you have been living without margins. You continue to cope as you stretch yourself thinner and thinner and have smaller and smaller margins for error. Slowly, burnout sneaks up and it may be only a small thing that finally sends you to the wall.

Burnout is caused by a combination of both your personality and the workplace you find yourself in. The biggest cause, according to the world leading expert, Christina Maslach, is the workplace. She uses the metaphor of taking a canary

BURNOUT CONTRIBUTING FACTORS

PETRIS LAPIS

into a coal mine. If the canary suffers, we go about fixing the conditions in the mine. We don’t tell the canary to do a mindfulness course, become more resilient or take up meditation.

Christina has found the 6 main contributing factors to burnout in a workforce are:

Workload: Research by the University College London found that when people work more than 55 hours a week, they have a 13% higher risk of having a heart attack and a 33% higher risk of having a stroke compared with people who work 35 to 40 hours a week. It is unhealthy for us to work too many hours a week. Strategies to help are to stop false urgencies on low priority items, have more administrative help, stop micromanaging, encourage people to have better work life balance and to regularly check in on people’s workloads.

Perceived lack of control: Micromanaging is one of the top three reasons people resign. People perform better when they have some control over their job and their workload and when they feel comfortable to make mistakes and to offer ideas.

Lack of reward or recognition: Most people are not seeking pay rises, so much as they are seeking to feel appreciated and respected for what they contribute. People feel less burnout when they are acknowledged for jobs well done, receive gratitude and positive feedback.

Poor relationships: According to a recent Deloitte’s Global Human Capital Trends Survey, a sense of belonging has become one of the most important human capital issues for organisations. 79% of their respondents said that fostering a sense of belonging in the workplace was important to their organisation’s success in the short term and 93% said that a sense of belonging drives their organisational performance. Good relationships at work (with colleagues and clients) mean we perform better, don’t look for jobs elsewhere and

take fewer sick days. It is the little things (the micro-agressions or micro inclusions from individuals) that matter as much as the overall culture in an organisation.

Lack of fairness: Unfairness from bias, favouritism, mistreatment, unfair compensation, different opportunities or workplace policies contributes to burnout. To overcome this, our workplaces should be inclusive, transparent and open in the way opportunities and rewards are allocated.

Values mismatch: If you don’t value the things your employer values, you increase the risk of burnout and your motivation to work hard and persevere will drop.

Christina has also found that some of us are more at risk of burnout than others. Those most at risk are people that are neurotic, introverted (if you do not get enough alone time) and perfectionists. The most significant of these three is perfectionism and interestingly, the professions with the highest rates of burnout attract perfectionists. A perfectionist is someone who has very high standards and is pre-occupied with extreme self-critical evaluation (which leads to extreme self-critical evaluation and judgment of others). If this sounds like you, instead of aiming for perfection, aim for a job well done.

If you are an employer or manager of a team, you can start making things healthier for your staff by addressing the six work related aspects outlined above. Your aim is to create an environment in which your team can naturally thrive and perform at their best.

What can you do to minimise the risk of burnout for yourself? Monitor your workload and the impact it is having on your relationships and your health. Learn to leave space for the things that really matter in life … one of them is you.

PETRIS LAPIS

Director Author Presenter

Mobile: 0419 334 204 Web: www.ArtisanofChange.com

2022 Admissions

• Philippa Atkinson

• Mahum Akbar

• Yun Yee Denice Chang

• Courtney Shaw

• Mathew Miao Zhi See

• Lilli Midgley

• Angus Smith

• Lily Pasanen

• Sarah Ikin

• Rohan Parker

• Molly Peters

• Panayiotis Kaproulias

• Muhammad Fawwaz Bin Abdul Aziz

• Dorrah Binte Hishammudin

• Alice Mutton

• Nicholas Kumar

• Lena Lashin

• India Beecroft

• Felix Craig

• Ari Ahearne

• Gemma Burgess

• Sophie Allardice

• William Burgess

• Thomas Cooper

• Alice Cox

• Braydon Broad

• Hayley Crack

• Abnash Sandhu

• Emily Hale

• Jessica Fitzpatrick

• Lewis Hickman

• Gina Goh Chia Yii

• Alvin Sin Hong Tan

• Hannah Fromberg

• Emily Hindle

• Naomi Foo Xiu Hui

• Janelle Zhu En Martis

• Timothy Lattimore

• Anna Hogan

• Matthew Iles

• Kyron Johnson

• Bridget Kay

• Kirrily Leader

• Kelsey Lewis

• Yi Feng Zacharias Lim

• Sean Lo Tzyy Shyuan

• Vinesh Loganathan

• Prue Mclardie-Hore

• Andonny Papastamatis

• Esther Songwen Tan

• Mollie Turner

• Adam Sheehan

• Domonique Pavlides

• Ng Png Yan

• Kalana Norton

• Caitlin Ferrier

• Samuel Barker

• Benjamin Ezekiel

• Georgia Ray

• Luke Phillips

• Holly Rheinberger

• Connie Edwards

Congratulations to the following practitioners who were admitted to the Supreme Court of Tasmania on 5 August 2022.

Photography: Tony Lomas

You are happy in your job. But let’s face it. It’s a job. A means to an end. But what if your dream job was right around the corner. What if an employer was proactively seeking their next superstar and that star was YOU? Would you be ready?

Here are some ideas on how to prepare yourself, fine-tune your personal brand and be job ready when your dream position comes knocking:

First things first – your CV. If you’re content in your current position (or even if you’re not), it’s likely you haven’t touched your resume in a while. But it’s time to blow the dust off and spruce it up. The resume is often your key chance to get your foot in the door. What does it say about you? Is it current? Are your most up-to-date volunteer and projects represented? What about ongoing education, presentations or additional training? Take some time with this one. Ensure the resume reflects you and your experience accurately.

Social media can make or break you. Gone are the days of separating your social and professional world. Employers are actively reviewing social media tools their candidates are using. A recent CareerBuilder survey stated that nearly 40 per cent of all hiring managers are screening candidates based on their online personas – and nearly 70 per cent of those candidates were ruled out due to questionable personal content online. Review your social profiles and delete any inappropriate photos or language or complaints about your current job or employer. Are your accounts representing a well rounded, polished professional with strong communication skills? Now is the time to manage your virtual reputation.

JASON ELIAS

Stay connected. Your references should be your biggest fans.

You’ve probably provided their contact information over the course of your career, but when is the last time you had a conversation with them? Are they aware of your current employment situation?

If it’s been awhile, it might be time to re-evaluate who you are providing as a reference. Are there more current or relevant contacts that can speak on your behalf?

Update your list. Give them a call. Make sure they are ready and able discuss your background and experience.

Be prepared to discuss your individual or team accomplishments.

It’s easy to get wrapped up in the day to day of doing your job, but when is the last time you reflected on your successes. Could you name a few if you were asked? It’s time to take stock of the individual positive contributions you’ve made in your roles. Make a list. Identify the outcomes. Have you led successful teams? The same is true of this scenario. Can you speak to successful team outcomes? Be prepared to do so. Future employers want to know that you’ve demonstrated successes throughout your career.

Strengths vs. Weaknesses (or Opportunities for Improvement).

Everyone’s got them.

Not unlike identifying accomplishments, being asked to articulate strengths and weaknesses is common in the interview process. Yet many interviewees have a difficult time pinpointing these areas. Be prepared to discuss them. In addition, have examples ready. Interviewers want proof. Can you validate these areas? How have you utilized your strengths or overcome your weaknesses? How do you, in fact, know these are true areas to highlight? While it’s not easy to expose some of these vulnerabilities, most employers value this level of transparency and self-awareness.

Continuous Improvement. It’s not just a cliché.

What are you doing to ‘improve’ yourself, meaning, what is your professional development plan? How are you expanding your skillsets? Too many candidates rely on their employers to provide and resource their professional growth. For many organizations, this simply isn’t a focus. Or they are cutting or shrinking these budgets. It’s time to recognize that gone are the days of employerfunded or directed growth and development. Be intentional. Own your career path and growth plan. You are in charge of your development, not your employer.

Be proactive. You probably have a job description. Do you follow it closely? Do you draw a hardline on tasks outside of your job? Or are you open to expand your skills outside of your defined role? An individual who is willing to take on additional responsibilities becomes a more desirable candidate every time. Not only does this approach highlight someone who is a team player, it also illustrates someone who is proactive, seeking to better themselves and their organisation.

When opportunity knocks, open the door.

You may have few chances in your life to change your trajectory. Don’t miss them.

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.

TASMANIAN

WOMEN LAWYERS ASSOCIATION

2018 THE DREAM JOB. ARE YOU READY IF IT KNOCKS ON YOUR DOOR?

Tucked away at the far end of the first floor of the Magistrates Court in Hobart sits a small office that every day plays host to many tales of outrageous calamity and misfortune. Occasionally the tales are hilarious. Sometimes they are of great foolishness. Mostly they are just sad.

You may know the office to which I refer. The only window is a glass wall perpetually closeted by aluminum venetian blinds. They are of the old dusty kind that, in addition to slivers of nervous faces and moving shadows, will occasionally let in some dappled morning light.

Inside the office, the walls close in on you as soon as you enter. A harbinger of the day to come… strict focus and very little room to move. Between the three chairs, the large desk and the oversized printer, the furniture-to-office ratio is high. So too is that of clients-to-duty lawyers.

Arriving at the court at 9:00am the many friendly faces of security are juxtaposed against the eerie quiet and sombre mood of the early arrivals. A calm before the storm? Unquestionably. The storms at the Courts of Petty Sessions always seem to blow in late.

The walk down Liverpool Street is a sweaty one – it is hard to find shade, and when I am on duty I have taken to carrying three water bottles in my bag for backup. Did you know that there is no drinking water available to duty lawyers?

By some sorcery, the walk down the length of the public foyer towards the duty office is longer than the one down Liverpool Street. As I do it, all the people sitting anxiously awaiting their fate look up and stare. I try to smile reassuringly, but also try to get a read of the room. I am anxious too. Will any of you be my clients today?

We received two-weeks of training from Peter Dixon. Mr Dixon is a fantastic teacher. I am grateful for his continued contributions to the development of young lawyers in Tasmania. I know my duty lawyer colleagues and many others in the profession are too. We are lucky to have him supporting us.

But nothing can properly prepare you for

THIRSTY WORK AND CHAOS THEORY: A DAY IN THE LIFE OF THE DUTY LAWYER

SCOTT ASHBY

2018

being a duty lawyer.

The day is chaotic, and it moves fast. Too fast? Not always, but sometimes. Magistrate C Webster has dealt with my client before we have even walked through the door. She came to the office not two minutes ago. I think she has a hearing impairment, and did she say something about a suspended sentence? I do not have her priors, but her name was just called over the intercom. She starts to panic.

I try to reassure her. We have got this. I close my eyes momentarily and... …Don’t forget to breathe.

I have learnt not to panic, but I am worried about this suspended sentence. Should I tell her that? She seems worried enough. We walk into the court. I lead the way. His Honour says something I do not fully understand. Often, I do not need to say anything in reply. The prosecutor shoots me a smile – she does not seem bothered by the suspended sentence. Mr Webster says something else. I turn to the client and give her the thumbs up. All good. You are free to go.

Sometimes all I can do is throw submissions up at the bench and hope they stick. Young man, driving, dumb... Some days it is the same thing repeated over again. Young man, driving, dumb… Do you even need to hear me say it, your Honour? Young man, driving, dumb... I am a young man, I am driving this plea, is what I am saying dumb?

Being a duty lawyer is thirsty work.

I am ready to do another plea. I tell my client to wait outside until his name is called. I silently slip into the court and take a seat at the back. Another man is alone on his feet, looking up towards the Chief Magistrate. He seems lost. She seems exasperated. I know what happens next.

The Chief tells him he needs to go and see the duty lawyer. I stand up. Your Honour, I am here. Her Honour seems relieved. I approach the man and ask him to please come with me. He still does not quite know what is going on. Do not worry mate, neither do I.

I have encountered this water shortage before – at the UTAS Law Faculty

Library where there was no place but the bathroom sinks to fill up a bottle. Those bathrooms reeked and there was always soap on the faucet. What is with the legal fraternity not watering young lawyers? We are all thirsty.

My other client is still sitting outside, he sees me walk out of court. Like many before him, he seems like a nice enough guy who has been doing some stupid things. He moves to get up, thinking it must finally be his turn. Not yet I am afraid mate, I need to spend some time with this other bloke. I will be back as soon as I can. We will get it done then. Thanks for being patient. It is going to take a while.

Some clients are ungrateful and uncooperative and rude, but a lot of clients are easy and forthcoming and appreciative. Social distancing protocols appear to be in place at the court, but I still cannot refuse an earnest handshake from a kind and forlorn stranger who is truly thankful to me for helping them out of a jam.

I suppose a water cooler might be too much to ask for. Perhaps a law firm interested in some pro-bono thirst quenching might like to donate one. That would be very much appreciated. It would certainly make it easier to speak in court, and I’m sure the Magistrates would prefer not to listen to the raspy voices of dehydrated duty lawyers.

SCOTT ASHBY

Hobart Community Legal

Service

2022 Co-President Southern Young Lawyers Committee

scott@hobartcommunity.org.au

The Duty Lawyer Program run at the Magistrates Court in Hobart in conjunction with Hobart Community Legal Service and the Tasmanian Legal Practice Course is an enormous asset to the Tasmanian legal profession. It is an essential service for some of our community’s most vulnerable people. It provides early-career lawyers with perhaps the best training and practical experience we can receive and is an experience no other employer can replicate. It challenges novice lawyers by throwing them into the deep end of the Magistrates Court to fend for our clients with very few resources and no prior knowledge about what is going to happen on any given day. It teaches young lawyers to distill issues quickly, think on their feet and advocate with confidence. And it provides help to people who often have nowhere else to turn.

TASMANIAN WOMEN LAWYERS ASSOCIATION

Ethics

"TWEETING" PERILS

There seems little doubt that modern Australian society has, over the passage of time, in significant ways espoused greater sensitivity to what some may describe as ‘difference’. In part as a result of statutory enactments, we have become more attuned, many would say, to the ills of discrimination, harassment or vilification on the basis of race, gender, religion, sexual orientation, etc.

The foregoing has coincided temporally with burgeoning avenues for the dissemination of a breadth of views and opinions. Prime amongst these, of course, is the Internet. With little more than a tap on a keyboard, a person can propagate his or her opinions to the world at large. Increasingly fractured global societies have spawned a wide variety of opinions, not always either supported by compelling evidence or devoid of illegitimate discrimination, harassment or vilification. This ‘democratisation’ to the disseminating of opinion has witnessed some of its greatest impact via the medium of Twitter and its progeny.

As members of society, lawyers are hardly immune from the above trends. As to the former, it is unsurprising to find professional rules that explicitly target the professional inappropriateness of a lawyer engaging in discrimination and sexual harassment in the course of practice.1 In line with this, the last decade or so has witnessed an increasing number of lawyers being the subject of professional discipline for, inter alia, behaviour involving sexual harassment2 and racial slurs.3

Beyond revolutionising access to legal materials and providing an avenue for marketing legal services, the Internet has proven a vehicle for lawyers (just like other members of society) to express opinions. One would hope that those opinions are well grounded in the facts, especially bearing in mind that many in

society will place greater credence in an opinion expressed by a lawyer (especially where it aligns with their existing views or prejudices).

Society’s espousal of greater sensitivity to ‘difference’ has temporally coincided with avenues to easily express opinions to the world at large.

Nor it is surprising that lawyers should pursue the practice of issuing Twitter (or the like) messages. It might be borne in mind that the brevity characterising Twitter posts, which satisfies many persons’ desire for information in bitesize chunks, can at the same time nourish an ignorance of the bigger picture / issue. Moreover, the very ease and informality of ‘tweeting’ can sometimes characterise its content as reactionary and not well considered or measured. (The same can be said of email communications but these do not risk immediate dissemination to the world at large).

Lawyers who exercise their freedom of speech via ‘tweeting’ secure no immunity from the professional (or legal) consequences of, say, sexist or racist comments. This remains so even if the ‘tweet’ is made in a personal capacity; after all, by reason of the status of their author, illegitimately offensive comments may cast a shadow over the profession as a whole.

From a disciplinary standpoint, this recently came home to roost for an English barrister as a result of his sexist and racist response, via Twitter, to another person’s ‘tweet’.4 The original ‘tweet’ came from a young black female student at Cambridge University as an open letter to the English Faculty, where she called for the faculty to, inter alia, ‘decolonize its reading lists and incorporate postcolonial thought alongside its existing curriculum’. Included was a suggestion for a ‘zero tolerance policy on the dismissal of race as a subject worthy of discussion/enquiry in essays’.

The barrister, a strong believer in the Canon of Western literature and culture, was upset by the open letter. This prompted him to ‘tweet’ a response in the following terms:5 ‘Read it. Now; refuse to perform [a specified sexual act] on shrill [racist descriptor] who will destroy an academic reputation it has taken aeons to build’. The Bar Standards Board alleged that the ‘tweet’ amounted to professional misconduct. The Disciplinary Panel agreed, ordering that the barrister be reprimanded and fined £1,000.

On the barrister’s appeal, Warby J declined to interfere with the Panel’s determination. His Lordship accepted that the barrister’s language would lower the profession in the public eye in departing from the standards expected of the profession: the promotion of equality and diversity, and the avoidance of language that is ‘racially charged and derogatory to women’.6 The lesson for lawyers: ‘think before you tweet’.

GINO DAL PONT Professor, Faculty of Law University of Tasmania

1. Legal Profession (Solicitors’ Conduct) Rules 2020 (Tas) r 47.

2. See, for example, PLP v McGarvie [2014] VSCA 253.

3. See, for example, Legal Profession Complaints Committee v in de Braekt (2012) 80 SR (WA) 134.

4. Diggins v Bar Standards Board [2020] EWHC 467 (Admin).

5. The offending language has been excised from this quote; interested readers should consult the case for the full quote.

6. Diggins v Bar Standards Board [2020] EWHC 467 (Admin) at [89].

There is scope for tension between these two trajectories.

Lawyers should accordingly take especial care when ‘tweeting’ opinions.

CHILDREN IN DETENTION

FEDERAL INTERVENTION

If ever we need a federal government to intervene in a human rights crisis in this nation, then it is now. There are almost daily headlines, including here in Tasmania, about the appalling abuse of children in detention centres and the preparedness of state governments, and the Northern Territory to cynically and callously play the ‘law and order’ card at the expense of some of the most vulnerable members of our community.

From Perth to Cairns the youth justice system is making the lives of those caught in it worse and ensuring the likelihood of them ‘graduating’ to the adult criminal justice system is high.

In Western Australia the Banksia Hill youth detention facility was exposed in a recent 4 Corners program which showed footage of, to quote the ABC, a restraint known as a fold up, “hogtie or "figure four", involve[ing] guards forcing a handcuffed child onto their stomach, crossing their legs behind them and sitting on them.” Incredibly, the minister responsible Bill Johnston claimed he did not know the practice was used and the WA Department of Justice has only now stopped a practice that is nothing less than a serious assault on a child. But that is not the only stain on how WA mistreats young people and children. In July this year 17 young people, of whom 12 are Indigenous, were shackled and transported from Banksia Hill to the adult maximum security Casuarina prison. The shackling was defended by the populist Mark McGowan, the State’s Labor Premier who refuses to contemplate lifting the age of criminal responsibly from 10 to 14, or even 12 which his Police Commissioner has conceded might be ok.

The gross breaches of the duty of care the WA government owes to the children it detains has been evident in the threat by Children’s Court Chief Judge Hylton Quail to cite it for contempt of court because the holding of children in the

Casuarina prison is state sanctioned child abuse. As Judge Quail observed on 21 October; "The depravation and solitary confinement is a form of child abuse inflicted on vulnerable and severely damaged children by the executive and the government, which causes short term and long term damage."

Then there is Queensland where Leanne Linard, the minister supposedly responsible for the care of children in detention, lauds widely criticised bail law reforms which has seen an increase in the number of children locked up. In a media release of 15 November, responding to a review of the laws by a former police commissioner, Linard said; “Our bail laws are among the toughest in the nation and it means more offenders are being remanded in custody, which means Queensland communities are safer.” Of course as Linard knows, increasing the number of children in detention equals increasing the chances they will end up in the adult prison system. The community is less safe and she knows it.

And then there is the Tasmanian minister responsible for Ashley justice Roger Jaensch who thinks that the practice of locking down children in the State’s notorious detention centre Ashley is to keep them safe. Mr Jaensch said this at the same time a United Nations Committee Against Torture report said it was “seriously concerned about … the practice of keeping children in solitary confinement, in particular at the Banksia Hill youth detention centre in Western Australia, Don Dale youth detention centre in the Northern Territory and the Ashley youth detention centre in Tasmania, which contravenes the Convention and the Nelson Mandela Rules.”

And let’s not forget the Northern Territory where the sickening child abuse that occurred at the Don Dale centre, and again exposed by 4 Corners in 2016, led to a royal commission. It is a case of plus ca change sadly. As John Lawrence SC, a formidable and indefatigable campaigner for human rights in the NT observed in June this year, “What is it going to take to shut this down? Is it really going to take a death?” Lawrence said. “I’ve visited the place scores of times over the last 30 years when it was an adult jail. But going in there and seeing children wandering around, and walking around with an 11-year-old escorted by a guard

- TIME FOR

is positively surreal and sick,” Lawrence told The Guardian on June 10. There is however a glimmer of hope in the NT with the government recently lifting the age of criminal responsibility from 10 to 12.

But there is a common thread to Australian attitudes to children and young people when it comes to dealing with anti-social and criminal conduct. It is for governments to put votes first by playing the tough on crime card, and only moving to stop routine, systemic abuse and cruelty of children in detention if a media outlet exposes it. The timidity over the age of criminal responsibility is an indicator of the mindset which state governments perpetuate in their determination to ignore smart justice solutions. They are addicted to harming children.

The Albanese government has a responsibility to lead on steering this nation away from punitive practices that are destroying the lives of children. A federal human rights law would be a good start but there needs to be a national best practice approach that unwinds the current legal framework of harsh bail laws, sentencing options such as jail and detention, and of course which ensures we lift the age of criminal responsibility to 14. An inquiry, similar to those which have been conducted in recent years by the federal government in the areas of institutional abuse, the aged care and disability sectors, needs to be initiated now. There are thousands of groups and individuals who can inform and drive change. The national Justice Reform Initiative of which I am a Tasmanian patron is one, as is the collective knowledge of lawyers, judicial officers, social workers, and researchers.

The future of children and their interaction with criminal justice is a national issue which requires a holistic approach driven by smart justice principles. The states and territories, with rare exception such as in the ACT, have failed vulnerable children. And as the daily headlines tell us, wholesale reform is an urgent priority.

GREG BARNS SC

Barrister republicone@ozemail.com.au

Superannuation

SUPER SECURITY DURING UNCERTAIN TIMES

Australia and the world currently face a level of uncertainty and challenge which has not been experienced for decades.

There is significant financial uncertainty, insecurity of employment, interest rate rises, increased cost of living and global conflict - all of which follow almost three years of the Covid-19 pandemic.

At a time of such multi-faceted personal and financial challenges, it can become even more difficult to maintain a focus on saving for the life you envisage for yourself and your family in retirement.

Fortunately, legalsuper has responded to these global and local financial challenges extremely well on behalf of its members and has plans and active strategies in place to continue delivering the best results possible.

legalsuper Performance Stands Up

Despite recent and current challenges, legalsuper has continued to deliver strong returns for members for the year ended 30 June 2022, with our MySuper balanced option ranked as the fifth highest performer according to independent ratings agency SuperRatings

This continues our ongoing record of delivering strong returns. Over the 10 years to 30 June 2022, our MySuper balanced returns exceeded the SuperRatings median by 0.4 per cent. This represents a decade of strong results, which help members save for retirement.

How we do it

A key driver of legalsuper’s sustained outperformance is our continued commitment to active investment management.

As a boutique fund, we are more agile than larger, more cumbersome funds and can more quickly make informed, innovative and timely investment decisions; avoid overvalued and exposed areas of the market; and seek out new institutional-quality investment opportunities in areas such as digital infrastructure and healthcare property.

While diseconomies of scale often plague larger organisations, leading to reduced quality of service across a broad customer base, legalsuper’s personalised service, organisational culture, operational agility and singular focus on Australia’s legal

community all combine to give us a strategic, competitive advantage over larger funds.

Take control of your super

While legalsuper performs well on behalf of its members, even better results can be achieved when members are actively involved in the stewardship of their own accounts.

More and more, members can have a greater say in how and where their contributions are invested and the degree of risk they feel comfortable with. In fact, legalsuper offers members 12 investment options, plus a Direct Investment option. You can read more about these options on our website here

Regarding investment options, it is worth remembering that many people are often more comfortable with higher degrees of risk (with possibly higher returns) earlier in life, after which, as they approach retirement or semi-retirement, they switch to a more conservative approach. This is another example of the benefit of being actively involved in the management of your super account. Everyone’s situation is unique so this, so this is a personal choice.

Working on – and in – the business

As well as our ongoing focus on maximising investment returns for members, legalsuper continues to work ‘on the business’ of improving our overall service and support delivery to members.

As part of this, earlier this year we launched the new legalsuper online MemberAccess portal, where members

can access their account details and make updates to their account all in a highly secure location that enables ease of navigation. If you have not yet used the new online MemberAccess portal, I encourage you to do so.

We have also recently completed a review of our insurance offerings to members and are in the process of implementing these changes, which we expect to communicate to members in early 2023. Insurance via your super fund is an incredibly important part of safeguarding your financial and personal future.

We are here to help

During these uncertain and particularly challenging times, legalsuper is here to help. If you would like to meet with us to discuss any aspect of your superwhether it be in relation to contributions, your investment options, insurance and fees or consolidating multiple super accounts into one account - our team is available for 1-to-1 consultations, offering tailored information and support. Contact us via mail@legalsuper.com.au or on 1800 060 312, 8am-8pm (AEST), Monday to Friday to book an appointment.

Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879, AFSL 246315. This is general information and does not take into account your personal needs. You should read the legalsuper Product Disclosure Statement and Target Market Determination available at legalsuper. com.au. Past performance is not a guide to future performance.

HOW TO REDUCE CHRISTMAS STRESS

Christmas is supposed to be full of joy but, for some, the holiday period represents a time of dread, loneliness, stress and anxiety...

If this is you, don’t worry, you’re not alone. According to health insurance company HCF, 71% of Australians braced for a stressful Christmas in 2021. This number was higher (80%) when the people who were surveyed were parents with children in the household. Those who are divorced, isolated, or have experienced a death in the family were also more likely to experience negative emotions over the festive period.

Furthermore, Christmas presents a dizzying array of anxiety-inducing demands; cooking meals, shopping, baking, cleaning and entertaining, to name just a few. Just talking about these seemingly endless to-do lists can induce anxiety! However, Christmas doesn’t have to be something you enjoy for an hour when everyone is taking a nap on Christmas Day afternoon. Here are strategies you can put in place to ensure your break isn’t something your dread.

1. Stick to a Budget

Christmas is an expensive time of year and can become a burden on your wallet and, ultimately, your mind. There are often gifts that need to be bought for friends, family and even sometimes co-workers. Then there’s the boozy catch ups and Christmas parties, and all the food shopping for Christmas Day. The very thought of paying for everything over Christmas can drive financial stressors.

To help alleviate this, try identifying what’s causing your financial pressure and plan ways you can reduce your spending. For example, you could suggest to your family and friends that you only buy gifts for the kids, or organise a ‘Secret Santa’ among the adults. You could also organise a BBQ in the park or a party at home where everyone contributes. Set a Christmas budget and stick to it.

2. Limit fFmily Conflict

Just because you’re related doesn’t mean your family members will all get along. Recently broken families and unresolved conflicts may contribute to Christmas anxiety. Family and relationship problems can be a trigger for anxiety.

To help with this, it’s important to set realistic expectations about what you expect gatherings to be like. Indeed, quite often the fabulous family reunion you envisaged doesn’t pan out as you hoped.

Plan how you will manage any feelings of anxiety or depression that may arise. If you have children, consider putting aside ongoing adult conflicts in their interest. Think about Christmas as a day for the kids and focus on enabling their happiness.

Finally, understand the triggers that set off family disputes. If that is politics, make a rule that Christmas lunch is a “no politics zone” and enforce it. Alcohol can often enflame family conflict too, so try not to drink too much at the gathering so you can better check your own emotions.

3. Manage Loneliness

If you know you are going to be alone a lot over the Christmas break, or if this is the first festive period that you’re experiencing without a loved one, it’s important to stay connected with your friends and family as much as possible. Even if you’re separated by distance, you can stay in touch with loved ones online or by phone or Skype.

Another way you can increase your social connection is to volunteer for a charity or help out at a community event. You don’t necessarily even have to help out! Whether it’s Christmas carols or local markets, getting out and about can help relieve loneliness.

Perhaps most importantly, make sure you make plans for Christmas Day in advance to avoid feeling depressed or stressed on the day. You could also make yourself a special breakfast, buy yourself a gift in advance so that you can enjoy it on the day, attend a local church service if that is your interest, or take a stroll through the local park to give yourself something to look forward to.

4. Don’t Abandon Healthy Habits

While Christmas is a time for overindulgence, overdoing it can add to stress and guilt. Gaining an element of control can help your mental health in this area. You can do this by having a healthy snack before big meals so that

you don’t go overboard on food or drinks. Including regular physical activity in your daily routine can help both your physical and mental health throughout the festive period, as can good quality sleep. Alcohol consumption is also something that can be difficult to control over Christmas, but limiting your intake can help reduce the likelihood of feeling overwhelmed.

5. Take a Breather and Find Time for Yourself

With work, social occasions and the family to look after, it can be hard to find a moment of peace. However, spending just 15 minutes alone, without distractions, may refresh you enough to handle everything you need to do.

Find an activity that you know will reduce your stress and clear your mind. Whether that be watching the cricket, reading a good book, listening to some music, or going for a walk. Any time to yourself is hugely beneficial to your mental wellbeing — especially during the crazy Christmas period.

Don’t Be Afraid to Ask For Help

If you feel isolated or lonely, seek out a community or social events. They can provide you with connectedness and support. However, if you do find yourself feeling persistently down or anxious, irritable, fatigued, overwhelmed and unable to face day-to-day tasks, don’t be afraid to talk to your GP or, contact our friendly team on 1300 687 327 who can put you in contact with an experienced counsellor.

Converge International exclusively provides free and confidential counselling services to Law Society members. Download the EAP Connect app and check the website at www. convergeinternational.com.au. Tel: 1300 687 237

INVESTMENT PORTFOLIOS

AND CONCENTRATION RISK

When it comes to investing, the main asset classes are cash, fixed interest, property, and shares.

Importantly, each asset class (and sub-asset class) has its own unique characteristics (e.g. categorisation, focus, liquidity, expected rate of return, returns, risk level, and time horizon).

Moreover, no one asset or type of asset provides the best performance over all time periods—they tend to rise and fall at different times depending on economic, political and market factors.

With this in mind, diversification, or spreading your risk, is a key risk management strategy used when constructing (and maintaining) an appropriate investment portfolio, whether it be inside or outside of super.

In broad terms, diversification may be thought of as ‘not putting all your eggs in one basket’.

Diversification can be applied by spreading your funds across asset classes, inclusive of a wide range of sectors, industries and geographical regions within each of these asset classes.

Let’s look at diversification in terms of shares for example. Shares can be classified into geographic regions such as Australian shares (domestic), US shares or Asian shares.

Shares can be further classified into sectors and industries. For example, in the Global Industry Classification Standard (GICS), there are 11 sectors, 24 industry groups, 69 industries, and 158 sub-industries.

For context, the GICS assigns a share (company) to a sub-industry, and to a corresponding industry, industry group, and sector, according to the definition of its principal business activity. Here are two examples below:

• Share (company) A

o Consumer Staples (Sector)

• Food and Staples Retailing (Industry group)

• Food and Staples Retailing (Industry)

• Hypermarkets and Super Centres (Sub-industry).

• Share (company) B

o Information Technology (Sector)

• Software and Services (Industry group)

• IT Services (Industry)

• Internet Services and Infrastructure (Subindustry).

So why is diversification an important strategy? By applying diversification, you can potentially reduce the volatility of your overall investment portfolio

returns and ensure there is not a concentration heavily weighted in one area. This may help reduce the impact of a downturn in a particular market, industry, or region.

Concentration risk is the increase in investment risk that can come from a lack of diversification e.g. too much of your portfolio concentrated in too few assets, sectors, industries, or geographical regions.

For ease of reference (and comparison with diversification), in broad terms, concentration risk may be thought of as ‘having too many of your eggs in one basket’.

An example of concentration risk can be found in recent data on self-managed super fund (SMSF) asset concentration, which was highlighted by the Australian Taxation Office (ATO). For example, at 30 June 2018*:

• 9.2% of SMSFs held 100% of their assets in one particular asset class.

• 30.1% of SMSFs held 90% or more of their assets in one particular asset class.

• 44.0% of SMSFs held 80% or more of their assets in one particular asset class.

• 56.7% of SMSFs held 70% or more of their assets in one particular asset class.

• 69.8% of SMSFs held 60% or more of their assets in one particular asset class.

• 84.5% of SMSFs held 50% or more of their assets in one particular asset class.

Also of note, the ATO highlighted that the average SMSF investor is highly concentrated in domestic investments (home bias)—and, in particular Australian shares, property and cash.

In terms of Australian shares as an example, not only is the Australian share market concentrated, it’s small by global standards, representing less than 2% of the world’s investment opportunities by market capitalisation.

Concentration risk in general can arise from the outset (intentionally or not) or over time through asset performance. In terms of the latter, an asset may perform

very well relative to other assets in your investment portfolio—leading to it representing a much greater percentage of your investment portfolio than before.

Concentration risk aside, if this isn’t monitored and acted upon accordingly when required, you can find yourself inappropriately invested e.g. invested with a level of risk that you aren’t willing and able to take.

One way to counter this can be through investment portfolio rebalancing. In broad terms, rebalancing is the process of rebalancing your portfolio’s asset allocation back in line with your chosen asset allocation strategy.

As discussed in our article, ‘Why rebalance an investment portfolio?’, there are several different types of rebalancing strategies that can be employed to counter concentration risk arising from asset performance:

• A time trigger – whereby rebalancing occurs at a predetermined time interval, such as monthly, quarterly, semi-annually or annually.

• A threshold trigger – whereby rebalancing occurs when an asset class moves outside a predetermined weighting tolerance range, such as +/- 5%.

• A combination of both – a time trigger and a threshold trigger.

Furthermore, how an investment portfolio rebalance is applied can be approached in several different ways:

• by investing additional funds to replenish asset classes that are underweight, or

• by selling asset classes that are overweight and buying asset classes that are underweight.

Moving Forward

When it comes to investing, it’s important to remember the fundamentals so you are invested appropriately—according to your financial situation, goals and objectives, now and in the future. With this in mind, diversification is a

key risk management strategy used when constructing (and maintaining) an appropriate investment portfolio, whether it be inside or outside of super.

Diversification involves spreading your funds across asset classes, inclusive of a wide range of sectors, industries and geographical regions within each of these asset classes. This can help to, for example:

• reduce the volatility of your overall investment portfolio returns

• ensure that there is not a concentration heavily weighted in one area, which may help reduce the impact of a downturn in a particular market, industry, or region.

*ATO. (2020). Self-managed super funds: A statistical overview 2017-18. Table 31: Asset Concentrations.

CHARLES BADENACH

Main Street Financial Solutions 6173 0070 or charles.badenach@mainstreetfs.com.au

North-West Young Lawyers Committee

In the latter half of the year, our social calendar saw us enjoying the annual NWYL Quiz night.

Our 2022 Quiz Night was hosted again by our knowledgeable quiz masters Julia Ker and Kirsten Abercromby. We congratulate Walsh Day James Mihal for taking out first place for a second consecutive year. We will seriously have to consider handicapping WDJM next year. The night wouldn’t have been the success it was without our sponsor, Dominos Ulverstone. We are very grateful to Jeremey and Danika of Dominos Ulverstone for their support.

As CPD coordinator, Jade Standaloft has ensured that we have had the opportunity to learn from some of the North West Coast’s most experienced and accomplished in our CPD lecture series. Together with thanking Jade for her efforts, we thank Magistrate Duncan Fairley, Matthew Verney, and Kirsten Abercromby who have all supported and been involved in our CPD program.

Within our CPD calendar, the executive committee took on the challenge of organising an in-person half-day CPD for the Family Law practitioners in the North West. We thank the Law Society for their

sponsorship of the event, along with our presenters, Mary-Anne Ryan and Matthew Verney. As a committee, it is very important to us that the North West profession have the opportunity to attend in-person CPD events and we hope this event (along with in-person CPDs for other practice areas) can be an annual occurrence.

The 2021/2022 year also saw the three Young Lawyer Committees come together to work on governance matters and key issues presently impacting young lawyers across Tasmania. This has included meeting with the Law Society Wellbeing Committee on a number of occasions to discuss a collective approach to wellbeing and we look forward to continuing this work moving forward. All three regions have also worked together with the support of the Law Society to draft a constitution to regulate our committees. The collective approach to the drafting has seen us work towards a state-wide membership definition that increases the eligibility of our members by increasing the post-admission experience. We hope that this change will assist with cohesion within the profession for young lawyers and begin to address the attrition rate for lawyers at the

5-year mark. We look forward to launching the finalised constitution towards the end of the year/early next.

The year would not have been the success it was without the tireless work of Callum Tregurtha, Sophie Warren, Jade Standaloft and Amy Cawston. I thank you very much for your work and your ongoing commitment to ensuring there is a welcoming community for young lawyers on the North West Coast.

As we move closer to the end of our year, which will be April 2023, I want to take this opportunity to encourage the North West profession to become more involved with the North West Young Lawyers. It is important that we maintain a community of young lawyers in the profession to welcome and attract graduates to the area. I encourage anyone who is interested in getting involved to contact us via email or via the Law Society

AMBER SCOTT President North-West Young Lawyers Committee

Northern Young Lawyers Committee

The Northern Young Lawyers Committee has had a busy 2022, enjoying a full social calendar for the first time in several years (thanks to COVID). Beginning the year with our mid-year long lunch, we held our annual trivia night and Meet & Greet in the middle of the year and ended 2022 with our annual Long Lunch.

The End of Year Long Lunch was an excellent event to welcome the many new graduates who joined us in Launceston in 2022 and thank our Committee members. We extend our

sincere thanks to Nick Terracall who spoke to us about mistakes, and how to handle it when we inevitably make a mistake. Nick continuously supports the Northern Young Lawyers and we thank him for his insight, honesty and support. We also extend our thanks to Rae & Partners for sponsoring our event and their ongoing support of the NYLC.

As we move our Committee year to align with the Society’s other committees, the 2022 NYLC will continue beyond November for the first time. I would like to take this opportunity to thank the 2022 Committee for their ongoing commitment to the NYLC. We have said farewell to a number of longstanding members in the last two years, taking with them significant institutional knowledge. Despite

being a relatively new group of young lawyers, you embody what makes Launceston great and I have no doubt the Committee is in safe hands moving forward.

I encourage anyone who is interested in getting involved to reach out via email or our Facebook page – Northern Young Lawyers Committee – and join us at our next meeting.

JESSICA STEWART President Northern Young Lawyers Committee

Northern Young Lawyers, the North-West Young Lawyers and the Society itself to produce the everenthralling Young Lawyers Committee Constitution.

This document has been many years in the making and finally and completely aligns the activities and governance of the respective young lawyer committee’s within the broader LST Committee structure. A lot of hard work from many people went into this document and the SYLC thanks all contributors across the State and the LST for their contributions.

SYLC also presented a number of successful CPD events in conjunction with the LST. We extend our most gracious appreciation to all members of the Committee who organised a CPD event and to all members of the profession who agreed to present a CPD topic.

SYLC would particularly like to thank Audrey Clarkson, who shared some insights from her experience preparing and presenting a CPD for the very first time.

Other SYLC activities and events continued successfully, highlighted by the Easter Long Lunch, Winter Quiz Night and the always entertaining Golden Gavel. We look forward to hosting these events in 2023 and welcoming a new intake of TLPC students to the local profession.

SCOTT ASHBY Southern Young Lawyers Committee President

Southern Young Lawyers Committee

Insights from Preparing and Presenting an Employment Law CPD

I must have been having a good day when I volunteered to write and present a CPD on employment law (regarding unfair dismissal and general protections claims). It’s not that I don’t think I am clever enough to both write and deliver a seminar to the profession, its just that these things take time out of an already busy schedule, and they are non-billable items sadly.

However, it was a good thing I volunteered to do the job because the experience was a happy one, I was glad that I managed to entice my colleague James Eddington to co-present with me, he is much more experienced than me and his anecdotal stories were particularly helpful.

In relation to the substance of the presentation, we covered the following items:

• Tips for junior lawyers working in this field;

• Key legal issues that arise in relation to unfair dismissal and general protections;

• How to prepare and file your evidence and respond to a claim including key timeframes and procedural requirements;

• How to prepare for conciliation and manage your client’s expectations;

• Usual settlement clauses and

agreements; and

• What happens if the matter does not resolve at conciliation (i.e. you proceed to a hearing).

Employment law is fertile ground for young practitioners out there yearning for advocacy experience because the Fair Work Commission dispute resolution process is relatively informal and accessible, therefore you will not need to necessarily panic about rules of evidence and procedure etc and you can instead focus on how to develop your skills as a negotiator and an advocate. I do think it is important to research your case well and if you can locate authorities to support your written material that will benefit you, I would take any opportunity you can to do a fantastic job, just as important will be your ability to stand your ground, be a fair and frank re-teller of the facts and narrate the strengths of your client’s case in a compelling way. Oh and it goes without saying, don’t get intimidated by the other side. It might be your first conciliation experience, but nobody will notice.

It has been reported that we have received a 4.8 star rating for the CPD seminar so I am feeling very positive about that. We have been asked to write another presentation in the new year, so watch this space. I do have a fetish for public speaking. If anyone else out there wants me to run a presentation contact me, although payment is preferable. My hourly rate is $280, minimum.

AUDREY CLARKSON Associate Page Seager Lawyers

In 2022 the Southern Young Lawyers Committee were able to achieve something no Tasmanian young lawyers committee has ever achieved before – which was to come together with the

Practitioners/Firms

• Lachlan Thompson has commenced at Integrity Commission Tasmania.

• Sarah-Jane Knott has returned to Page Seager from Parental Leave.

• James Eddington has commenced at Page Seager.

• Ellen Bennett has left Conveyancing. com.au and commenced at Archer Bushby.

• Shamitaa S has left Hall Payne Lawyers and commenced at Tasmania Legal Aid.

• Sophia Sadri has left Barry.Nilsson. Lawyers. and commenced at Page Seager LAwyers.

• Sarah Mead has left Tremayne Fay Rheinberger and commenced at Paula Sutherland & Associates.

• Callum Tregurtha has left Matthew Verney Lawyers and commenced at Clakre & Gee.

• Wan Kiang Cynthia Chua has left Page Seager.

• Mark Crosswell has left Murdoch Clarke and commenced at Page Seager.

• (Yvonne) Yuet Yen Wong has commenced at Conmoto Group.

• Kyron Johnson has commenced at Simmons Wolfhagen.

• Georgia Nesbitt has commenced at Barry.Nilsson.Lawyers.

• (Yvonne) Yuet Yen Wong has commenced at Conmoto Group.

• Irene Tiang has left Hobart Community Legal Service and now at Tasmania Legal Aid.

• Alinta Robinson-Herbert has left Tremayne Fay Rheinberger.

• Alvin Tan has left Tenants' Union of Tasmania Inc. now at the Office of the Solicitor General.

• Stephen Karpeles has commenced at Launceston Community Legal Centre.

• Meghan Thomas-Richards has commenced at Hobart Community Legal Centre.

• Roger Baker has retired from full time practice with Baker Wilson Davies Lawyers. He will continue in practise on a part-time basis for the next few months to complete some of his ongoing matters. Roger is retiring after 40 years in the profession.

• Ella Wade has left Page Seager and commenced at Hydro Tasmania.

• Stephen Karpeles has commenced at Launceston Community Legal Centre.

• Julie Melrose has commenced at Women's Legal Services Tasmania.

• Rebecca Edler has left Jonathan Smith Lawyers.

• Melinda Torney has left Rae & Partners and commencing at Simmons Wolfhagen.

• Mathew Calvert has left Paula Sutherland & Associates and commencing at Page Seager.

• Andrew Mead has left Baker Wilson

Davies and commenced at Paula Sutherland & Associates.

• Maree Nettlefold has retired from Butler McIntyre & Butler.

• Susan Gough has commenced at TasNetworks.

• Randall Barnett has commenced at Clarke & Gee.

• Taki Kaproulis has left Rae & Partners and commenced at Office of the Solicitor General.

• Ailsa Sypkes has left Tas Water and commenced at Blundstone.

• Imogen Cook is now a Principal at Ogilvie Jennings.

• Olivia Carmody has commeced at Women's Legal Service (Tas) Inc –Launceston

• Gabrielle McDonald has left Blumers Lawyers and commenced at Hall Payne Lawyers.

• Oliver Anderson has commenced at Hobart Community Legal Service.

• Oliver Carthew-Wakefield has commenced at University of Tasmania.

• Ann Swain has commenced at Spirit Super.

• Danae Harper has commenced at Dobson Mitchell Allport.

• Nella Watson-Lowe has commenced at Jacobs Family Law

• Rebecca McFarlane has left Department of Police, Fire and Emergency Management.

• Jason Allen has left Stirling & Rose.

• Joseph Kneipp has left Blumers Lawyers and commenced at Hobart Community Legal Service.

• Masika Morris has left Tasmanian Aboriginal Legal Service and commenced at Hobart Community Legal Service.

• Sarah Butler has left Tierney Law and commenced at Ogilvie Jennings.

• Rebecca Matthews has left Legal Profession Board of Tasmania and commenced at the Ombudsman and Health Complaints Commissioner.

• Joshua Downey has commenced at Abetz Curtis.

• Tiffany Tang has left Butler McIntyre & Butler and moved interstate.

• Glen Styles has left WMM Law and moved interstate.

• Joshua Downey has commenced at Abetz Curtis.

• Jodie Lee has commenced at Women's Legal Service Tasmania.

• Eilish O'Keefe has left Blumers and commenced at Simmons Wolfhagen.

• Deming-Brendan Wong has left Edge Legal and commenced at the Federal Court of Australia.

• Nicholas Cuthbertson has left Groom Kennedy and now interstate.

• Bryce Lewis has commenced at Commonwealth DPP.

• Danielle Price has commenced at Tasmanian Aboriginal Legal Service.

• Tessa Anne has commenced at Tierney Law.

• Nick Sweeney has retired from Page Seager.

• Chris Hill Lawyers closed effective 3 October 2022. Chris Hill has joined the practice of Simmons Wolfhagen, Launceston.

• The Cangelosi Firm new address 62 Main Road, Moonah, 7009. Postal address PO Box 426, Moonah 7009.

• Environmental Defenders Office has moved to 1st Floor, Suite 1-6, “Highfield House”, 114 Bathurst St, Hobart, 7000.

• Guy Abel has commenced practise as a sole practitioner at Abel Business Solutions, tel: 0429 195 923, guy@ abelsolutions.net

Firms Barristers

• Jackson Chambers new email p.foster@jacksonslaw.com.au.

• Matthew Verney, St Elmo Chambers, new email address matthew.verney@ stelmochambers.com.au.

FAMILY COURT CASE NOTES

by Craig Nicol and Keleigh Robinson

than an income stream – Double counting of pension as asset and future income

In Preston [2022] FedCFamC1A 157 (5 October 2022) the Full Court (Alstergren CJ, McClelland DCJ & Austin J) heard a husband’s appeal from final property orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia.

The trial judge ordered a 58.5:41.5 division in favour of the husband, treating the husband’s military pension as a capitalised asset.

The Full Court said (from [11]):

“It was impossible to commute the military pension … and neither party ultimately sought a superannuation-splitting order in respect of it … so the expert opinion evidence of it having a capitalised value of $638,109 … lost its utility.

“Although the … magistrate did not make a stand alone order dismissing the wife’s interim application for periodic spousal maintenance … it is evident his Honour intended to determine the wife’s application ( … ) ( … )

Property – High Court overturns declaration of a resulting trust – Presumption of advancement between husband and wife upheld

In Bosanac v Commissioner of Taxation [2022] HCA 34 (12 October 2022) the High Court of Australia (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) heard a wife’s appeal against a decision which held that she owned 50 per cent of a property on trust for her husband.

The Commissioner of Taxation was a creditor of the husband and sought a declaration of resulting trust over half of the wife’s property (“the Dalkeith property”). The wife argued that there was no basis to infer that the husband intended to have a beneficial interest in the property.

Kiefel CJ and Gleeson J said (from [35]): “There was a history of Ms and Mr Bosanac holding their substantial real and other property in their own names. Consistently … it was evidently the desire of Ms Bosanac to purchase the Dalkeith property and have it registered in her name alone. … These facts alone are sufficient to rebut any presumption that her interest in the property was attributable to the relationship of husband and wife …

( … )

[39] There was a history of the use of the properties held by each of Ms and Mr Bosanac in their own names as security for joint loans. … There was no evidence of the use of joint loans to acquire property which was then jointly held.

( … )

[41] … The history of the spouses’ dealings … might suggest a use of property to secure joint loans which might benefit either or both of them, but it does not support an inference that either intended that property be held jointly. ...

[42] The finding … that Mr Bosanac was a sophisticated businessman … [who] appreciated the significance of property being held in Ms Bosanac’s name is not unimportant. His Honour was correct to conclude that that understanding did not support an inference that Mr Bosanac intended to have a beneficial interest in the Dalkeith property”

Gordon and Edelman JJ provided a separate judgement as did Gageler J, all agreeing with the orders proposed by Kiefel CJ and Gleeson J. The High Court granted the appeal and set aside the declaration of a trust.

Property – Error in treating non-commutable military pension as capitalised asset rather

[12] … [T]he primary judge counted it as an asset at the capitalised value … even though she acknowledged neither party sought superannuation-splitting orders. ...

( … )

[14] … [H]er Honour concluded the husband had a significantly higher income-earning capacity than the wife … which in part stemmed from his indefinite receipt of the military pension …

[15] There was no need to ascribe a capitalised value to the military pension when no splitting order was sought in respect of it …

( … )

[17] Having been notionally counted as an asset in the balance sheet … the primary judge’s findings necessarily meant that the husband’s 58.5 per cent share of the assets and superannuation incorporates the military pension at its capitalised value of $638,109, even though he does not and never will have that capitalised sum available for his use.

( … )

[20] The primary judge’s methodology caused the military pension to be impermissibly counted twice – first as an asset and then as a source of constant income. …”

The appeal was allowed; the final order set aside, the court re-exercising its discretion ordering a 50:50 division of the asset pool; and costs certificates ordered for both parties.

Maintenance – Urgent spousal maintenance order discharged where considerable uncertainty as to husband’s capacity to pay maintenance

In Holman & Bates [2022] FedCFamC1A 141 (8 September 2022) Tree J heard a wife’s application for leave to appeal the discharge of an earlier, urgent spousal maintenance order.

The wife was diagnosed with a terminal illness in November 2021 and had been undergoing palliative care at the time of the hearing.

On 27 January 2022 the magistrate made an order for urgent spousal maintenance of $800 per week pending the interim hearing. At the interim hearing, the magistrate dismissed the urgent spousal maintenance order and transferred the proceedings to the Family Court of Western Australia.

Tree J said (from [14]):

[24] It seems clear that the … magistrate was not persuaded that the husband had capacity to pay spousal maintenance, but nonetheless went on to say that s 75(2) considerations would persuade him not to have made an order for spousal maintenance in any event. So construed, there was no conflation of ss 72, 74 and 75(2)(o) of the Act. ( … ) [39] … [T]here was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance, particularly given that both his income and expenses were expressly said to be estimates …

[40] It was for the wife to satisfy the primary magistrate of the husband’s capacity to pay, and the state of the evidence was sufficiently unclear that it was certainly open to the primary magistrate to conclude as he did, namely that he could not ‘make definitive findings as to what surplus, if any, the husband has over income and expenditure’ …”

The wife’s application for leave to appeal was refused; her Notice of Appeal dismissed; and she was ordered to pay the husband’s costs fixed at $5,000.

Procedure – Husband’s failure to adduce evidence-in-chief should not have precluded him from cross-examining wife and was a denial of natural justice

In Morgan & Valverde [2022] FedCFamC1A 133 (31 August 2022) Austin J heard a de facto husband’s appeal from property orders after a childless de facto relationship of 9 years.

The appellant failed to file and serve any evidence before the trial and the only evidence at trial was that of the respondent. Orders were made for a division 57.5:42.5 in favour of the appellant.

On appeal, the de facto husband argued that he was denied natural justice and procedural fairness.

Austin J said (from [18]):

“… [T]he appellant [has no] … reasonable complaint about the trial progressing without his evidence, given his protracted failure to file and serve [his evidence] … He was not merely late filing evidence. He did not file any evidence at all …

[19] … [D]uring the discussion which ensued about the need for the trial to proceed without further delay, the primary judge told the appellant he would not be able to cross-examine the respondent. Ostensibly, that was only because he failed … to file and serve his evidence-inchief. … ( … )

[35] The appellant had no absolute right to cross-examine the respondent – only an absolute right to a fair trial. However … it would be a rare case in which the refusal of a party’s request to cross-examine a material witness at final trial would not manifest the deprivation

of procedural fairness (Naparus & Frankham [2020] FamCAFC 32 …).

( … )

[37] Although the appellant did not specifically ask to cross-examine the respondent, he had already been told he would not be allowed to do so and, absent legal representation, he meekly did not contest the ruling. Denying the appellant the chance to cross-examine the respondent, at least without any adequate explanation for why and without giving him the chance to be heard about the ruling, denied him natural justice and was an error of law. ( … )

[40] Had the appellant cross-examined the respondent, it might have made no difference at all, but that is not the test. … It follows that the error was material and there is no option but to remit the proceedings for re-hearing.”

Property – Full Court sets aside property order in short, childless de facto relationship

In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for “just under three years”.

The parties purchased a property (“the B town property”), the de facto wife contributing 70% of the purchase price and the husband 30%.

The parties registered the B town property 70:30 in favour of the wife ([5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed that the intention of the payment was such that the B town property would be registered 50:50 between them.

As first instance, the Court ordered a division of 52.5% to the de facto husband and 47.5% to the de facto wife. The Full Court said (from [37]):

“ … [W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. … ( … )

[74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to reflect the parties’ contributions ... ( … )

[76] … The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A] n allowance must be made in [his] … favour for at least that sum. ( … )

[88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] … ”

Property – Court erred by making enforcement orders that substantively varied the parties’ rights pursuant to a registered arbitral award

In Lasso & Malaka [2022] FedCFamC1A 130 (23 August 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Act.

The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refinance a mortgage on an investment property. If the wife was unable

to refinance within 90 days, the husband had opportunity to pay the wife $325,000 and retain the property.

The wife obtained finance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.

The Full Court said (from [30]):

“Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …

[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … ( … )

[40] … The [first instance] … orders … substantially varied the terms of the decree … ( … ) [42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. ( … )

[60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power … ”

Children – Covid-19 – Risks of 9 year old being vaccinated or remaining unvaccinated favored neither party’s case – Anticipated social and indirect benefits of vaccination

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August 2022), Judge Eldershaw determined that a 9 year old child (“X”) should be vaccinated against Covid-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (“ATAGI”).

The Court said (from [56]): “ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. ( … )

[59] That said;

(a) There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

(b) Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified …

(c) … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

(d) This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision.

… ( … )

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.

[98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/ or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. ( … )”

Evidence – Trial judge’s enforcement of direction for single, consolidated affidavit material procedurally unfair where subsequent direction permitted reliance on multiple affidavits

In Krupin [2022] FedCFamC1A 136 (1 September 2022) Tree J (sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated trial directions were made on 6 November 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).

Those directions scheduled a trial that was also vacated. Trial directions were made on 7 September 2021 which permitted the parties to rely on all affidavits previously filed in the proceedings.

When the trial commenced, the primary judge insisted on compliance with the 2020 directions, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

Tree J said (from [35]):

“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit … ( … )

[37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). ( … )

[39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. …

[40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … ( … )

[45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.”

CRAIG NICOL

Editor, The Family Law Book

craig@thefamilylawbook.com.au and

KELEIGH ROBINSON

Co-Editor The Family Law Book

Accredited (in Qld and Vic respectively) as specialists in family law.

WRONGFUL DEATH CLAIMS: A PRACTICAL GUIDE

A POSITIVE EMANATING FROM THE PANDEMIC

CRAIG HOBBS

This textbook, written by Craig Hobbs, a former barrister at the Tasmanian Bar, was published by LexisNexis (late December 2020). The book was written during lockdown due to the pandemic between midMarch and mid-July 2020.

The book provides a comprehensive analysis regarding issues that will arise in particular cases focusing on the wrongful death legislation and ancillary civil liability, workers compensation and motor accidents compensation legislation and relevant case law applicable throughout the Australian jurisdictions.

Drawing on specialist experience in this area acquired over a period exceeding 30 years it will be an essential aid to legal practitioners at all levels of experience who are called upon to deal with fatality claims.

The judiciary will also find this resource of invaluable assistance when adjudicating upon fatality claims.

The work is intended as a practical guide, whilst at the same time dealing comprehensively with the theory and application of the theory in a practical setting.

Where appropriate, the book ventures upon a detailed analysis of areas of the relevant legislation and case law to give an insight into issues that may arise in particular cases, hopefully a resolution of those issues, or at least argument directed towards resolving those issues and, where considered appropriate, suggestions for legislative or judicial reform.

The remedy made available to dependants of deceased persons to maintain wrongful death proceedings commenced with the enactment in the United Kingdom of the Fatal Accidents Act 1846 (UK), since amended and now entitled the Fatal Accidents Act 1976 (UK). Ireland, Northern Ireland, Scotland and jurisdictions throughout the British Commonwealth, including the Australian states and territories, have followed suit

with legislation following substantially the UK model. As the Author’s Note indicates other jurisdictions include, for example, several countries in the African continent, in Asia and South East Asia, in the Caribbean, New Zealand, the Canadian provinces and territories (with the exception of Quebec) and many of the states comprising the USA.

Although this work focuses on the Australian jurisdictions, as will be noted from a consideration of the text, the development of the law in Australia has been significantly influenced by judicial decisions, not only in Australia, but in other jurisdictions outside Australia, most notably the United Kingdom, and elsewhere. Accordingly, the work will also be a valuable resource to legal practitioners and the judiciary in other jurisdictions which have comparable wrongful death legislation.

The Table of Contents include the following chapters where each subject is comprehensively analysed under various subordinate parts:

• Chapter 1 Introduction

• Chapter 2 Basic principles relevant to establishing liability

• Chapter 3 Investigating quantum

• Chapter 4 Components of claim

• Chapter 5 Benefits and gains

• Chapter 6 Assessment of claims

• Chapter 7 Death benefits payable pursuant to Workers Compensation legislation

• Chapter 8 Preparation of Particulars of Claim

• Chapter 9 Costs

• Chapter 10 Common law claim –grief – recognised psychiatric illness

• Appendices – Annotated precedents

The book has received both national and international accreditation from the following leading legal identities (all commentaries are included in the preliminary pages of the book – passages from those commentaries are included below):

Foreword by The Honourable Robert French AC, former Chief Justice, High Court of Australia (2008 – 2017):

… Mr Hobbs presents his book on wrongful death claims as a practical

guide to lawyers in the field. It is first and foremost that and a good deal more. …

For the practitioner entering into or new to the field as well as more experienced practitioners, this book provides what it promises, a practical guide going into, and beyond, the nuts and bolts of wrongful death litigation with a discussion of the authorities, commentary and discussion of areas for reform. It is likely to prove a very useful book and I commend it to practitioners, young and old, in this important field where human loss and grief intersect with the limited justice that the law provides.

Preface by Dr Paul Vout SC, Co-editor, Commonwealth Law Reports:

As an editor and co-author of several volumes of the Australian legal encyclopaedia The Laws of Australia, including on the topic of Torts, I sometimes find frustrating the need to traverse a wide terrain of legal principle, legislation and case law. The temptation to delve deeply into an area of law of particular importance or interest must be checked by the nature and purpose of the publication and by practical and commercial constraints. Craig Hobbs has suffered no such frustration in Wrongful Death Claims: A Practical Guide. This book provides … a very pragmatic guide to investigating, preparing and presenting claims for wrongful death pursuant to key legislation. … [The] book is as thorough as one could hope for. …

In short, Wrongful Death Claims: A Practical Guide by Craig Hobbs is simultaneously comprehensive and practical – a rare balance to achieve. It … is an invaluable tool for judges and practitioners, as well as an important reference for researchers, students and law reformers.

Review commentary by Professor Joachim Dietrich, Bond University, Editor, Torts Law Journal:

Claims for loss arising from the wrongful death of a close relative have been a significant source of litigation in the common law world since the passing of Lord Campbell’s

Act in 1846. Although it is a topic of major practical importance, it has not been the subject of much major commentary. This work by Craig Hobbs, a barrister with a wealth of experience in the field, addresses that gap. …

This book is an invaluable commentary that provides detailed analysis that will be of significant assistance to any practitioner working in the field and also to any academic with an interest in the law of tort damages. It is an impressive work and no lawyer working in the personal injury field should be without it.

Review commentary by James Goudkamp, Professor of the Law of Obligations, University of Oxford and Fellow of Keble College, Oxford:

Claims in respect of fatal accidents raise special issues. The relevant legislative arrangements are a prominent exception to the normal rule in tort law that only the victim of a wrong can sue. Fatal accidents claims also present unique and highly complex problems as a matter of practice as this book amply demonstrates. The work is predominantly focused on the position in Australia where the overlapping statutory regimes are sometimes controversial and stand out for special mention on account of their intricacy. However, the volume will also be of interest to judges and practitioners elsewhere. That is in part because the relevant legislation in most of the common law world is descended from that pioneered by Lord Campbell in England in 1846.

Review commentary by Michael Kent QC, London Bar:

So closely modelled on the Fatal Accidents Act 1846 (UK) are the equivalent provisions in many other common law jurisdictions examined in this book that practitioners in the UK will gain valuable insights and assistance from it—from the commentary and citation of authority as well as the useful precedents and practical guidance.

[T]he value of this work to the UK lawyer is that, even where there are differences in the statutory schemes, such as the disregard of benefits accruing to a dependent as a result of the death pursuant to s 4 of the Fatal Accidents Act 1976 (UK) (a blanket prohibition in England and Wales) the Australian cases still shed light on the correct approach to the prior question: what has the dependant lost?

Q and A with the author Craig Hobbs

Q: What were the circumstances which led to the writing of this book?

A: In March 2020 Tasmania was placed in lockdown due to the pandemic. Normally, in semi-retirement from 2017 and full retirement from mid-2019, I was spending a significant time away from my principal residence in Hobart and travelling interstate and overseas. I was away from Hobart for around 6 months in consolidated terms per annum. The pandemic brought this to an end. I therefore had time available to focus on writing the book between mid-March to mid-July 2020, whilst Tasmania was in lockdown.

From a legal perspective the primary motivation and catalyst was that I had acted as counsel in proceedings in Tasmania for three infants following the death of their mother due to medical negligence. The proceedings settled in late 2015. Had the case not settled, it was intended to seek to persuade the Supreme Court, as a preliminary point to be determined by the Full Court, not to follow the New South Wales Court of Appeal decision in Grosso v Deaton Several years later in mid-2019, after fully retiring, I again revisited the arguments I had intended to raise challenging this decision. I prepared an article outlining those arguments which was published in the Torts Law Journal in late 2019. I was intent on making those arguments available to the wider profession in the hope that another counsel would take up the challenge. However, I was concerned the readership of the Torts Law Journal would not be sufficiently wide so as to ensure this occurred. I therefore decided to write the book as a means of ensuring that ultimately the argument would be pursued. I think that will now be the inevitable result. I anticipate the issue raised by Grosso v Deaton will ultimately need to be resolved by the High Court. I am hopeful this occurs in my lifetime. The book comprehensively deals with this in Chapter 5 at 5.44 – 5.62.

Q: The book is clearly not limited to the contention raised with regard to Grosso v Deaton?

A: Correct, the book necessarily addresses far more than this particular issue. Interestingly, although the Fatal Accidents Act 1846 (UK), the model legislation, followed by most of the common law jurisdictions throughout the world, was enacted almost 175 years ago, yet there had been remarkably little in the way of commentary, particularly so, given the contentious issues that have arisen from time to time and which largely remain unresolved. As Professor Joachim Dietrich observes in his review commentary, my book addresses this gap. Having specialised in fatality litigation for over 30 years and in personal injuries litigation generally for the entirety of my career extending over 43 years, I felt that I had something useful to make available to

the wider profession. The assessment of damages in fatality claims is in all cases a very complex exercise. I perceived that there was a very real need for a commentary dealing with the practical aspects and application of the theory in a practical setting. Given the commentaries on the book I think I have succeeded in that task.

Q: There are 8 very helpful precedents in the appendices of your book – do you have a drafting tip for practitioners?

A: Always use your precedents as a baseline or guide only. They must always be carefully tailored to the facts of the particular case. For example, the provision of an accurate and informative statement of claim and particulars of claim to your opponent are in my view the most important steps in the adversarial process in wrongful death proceedings. These documents will set the stage for a positive outcome in settlement negotiation and at trial. Additionally, properly prepared, the documents are an obvious strategic ploy in demonstrating that you in command of your brief. Counsel should always prepare or at least settle both documents.

Q: From this point on?

A: Probably a second edition at some stage to accommodate developments in the law. I have also thought about perhaps writing a similar work addressing the practicalities of personal injuries litigation. However, personal injuries litigation is generally far less complex, settled and without the contentious issues that plague fatality litigation, where I saw a very real need for a textbook providing a comprehensive commentary that would be invaluable to all practitioners, regardless of experience, including the judiciary. As personal injuries litigation is less complex and generally not as contentious, senior and experienced practitioners in the field may possibly gain little from my own knowledge and experience. However, there are still many traps and pitfalls, and junior practitioners new to the field and those practitioners with only limited experience, would undoubtedly benefit from the practical guidance a comprehensive book would provide.

CRAIG HOBBS

Craig Hobbs LLB (University of Tasmania) (1976) formerly a Barrister practising at the Tasmanian Bar, now retired (2019). He was admitted to the Supreme Court of Tasmania in 1978 and the High Court of Australia in 1982. Although retired, he retains an associate membership with the Law Society of Tasmania and the Tasmanian Bar and maintains a keen interest in the development of the law in the area the subject of this book.

1. [2012] NSWCA 101.

2. Infants and Wrongful Death Claims - A Critique of the Decision in Gross v Deaton [2012] NSWCA 101 and the Need for Judicial Reform (2019) 25 TLJ 283.

Book Reviews

BOOK REVIEWS

Seddon on Deeds, Second Edition

Nicholas

Seddon

The Federation Press

336pp $165

Reviewed by Nikolas

Willing

“Lawyers love deeds. No-one else does.”Chapter 1, Introduction

Published in a smaller book format, the second edition of Seddon on Deeds is a highly accessible resource for any practitioner who often deals with the binding agreements. Those who only occasionally handle deeds will likely benefit more.

As with the first edition, the work is specifically in the Australian context. This overcomes the practical issue of most jurisprudence on deeds being based on English law. Appropriate references are drawn to both published Australian decisions on the subject, and Australian legislation. The author’s preface includes a link to a website that contains a regularly updated table of deed statutes.

The structure of the book is easily navigable. It follows the natural progression of any deed, from creation and execution to alteration, enforcement and discharge.

Seddon’s comments on when a deed ought to be used should not be underemphasised. Seasoned lawyers who regularly draft deeds are likely to find wisdom in some of the questions posed by the author. They may even be surprised. There is a particular discussion on the preference of contracts over deeds. This is understandable, as the book focuses heavily on ensuring compliance with standards.

A full chapter is devoted to the notoriously misunderstood subject of delivery. Less time is spent on the less common issue of alterations or variations.

One particularly useful part of the book is the chapter on enforcement and remedies. The need to enforce a deed is not particularly common, but the implications are specific and more complicated than a damages suit for breach of contract.

The chapter would assist any lawyer in advising their clients should the significant issue of pressing a deed arise. The chapter quite easily outlines both common law and equitable options.

The book comes complete with a useful index and list of cases.

Although not a subject of known interest amongst lawyers, the reviewer would recommend the second edition of Seddon on Deeds to any individual who comes across deeds in their work. It will undoubted improve the quality of your drafting and the advice that can be given to clients should a problem arise from a deed.

The Immigration Kit 10th Edition 2022 Mojtahedi A (ed) The Federation Press 864pp $ 145 Reviewed by The Honourable Duncan Kerr SC

For more than two decades the Immigration Advice and Rights Center (IRAC) has facilitated the publication of successive editions of The Immigration Kit under the subtitle “A Practical Guide to Australia’s Immigration Law”.

That subtitle is not immodest. Comprehensive up to date practical guidance is precisely what the tenth edition provides.

Until recently the bulk of professional work in providing immigration advice has been undertaken by non-lawyer migration agents. They, together with those exempted from having to register as such (self-represented applicants and their family members), remain the primary target audience for this book. The Immigration Kit however is not only of interest to those lacking legal training.

As Micheal Kirby in a foreword notes, whilst not a substitute for legal advice, the content of the Immigration Kit was commissioned by the IARC from a team of experienced lawyers. The information it provides is both comprehensive and relevant. The law it states is accurate to the time of its publication.

In the past, perhaps largely due to expensive and inconvenient MARA registration requirements, only a small minority of Australian legal practitioners have chosen to practice in immigration law; fewer, perhaps, in Tasmania. The few that have done so have often limited their practice to litigious work in judicial review proceedings where such registration was not required.

However, following the passage of the Migration Amendment (Regulation of Migration Agents) Act 2020, Australian lawyers holding an unrestricted practicing certificate no longer are required to register as a migration agent in order to provide migration advice in connection with their legal practice.

It is too early to assess what the impact of the 2020 changes will be but Australia is already a multicultural society and it is predictable that many lawyers will want to offer migration advice as part of the range of services they offer. For those contemplating doing so the Migration Kit will provide a clear and accessible practical introduction to an area of practice that has many complexities but which is important to many clients. A warning: lawyers who do not hold an unrestricted practicing certificate still need to register as a migration agent if they want to provide such advice.

No point of time reference book can obviate the necessity of checking that there has not been a change to the law. However the well organised structure of the book makes it simple to follow up to check whether there has been any alteration to the relevant provisions of the Migration Act 1958 or the regulations which are referred to.

Even accepting that immigration law involves a constantly evolving body of legislation and regulations the Immigration Kit provides a plain English introduction to the criteria needed to be achieved for for acquisition of citizenship or the grant of one of the various classes of non-citizen visas with the associated forms and fees required for such applications.

Practitioners contemplating providing immigration advice will be well served by this book.

Member Services – Book Reviews

A bequest to the Tasmanian Land Conservancy is a legacy that helps protect nature forever.

To find out more visit tasland.org.au/bequests

TLC’s Skullbone

“Bequests to charities are set to become more significant with rising house values and an ageing population. The donor has the benefit of that asset during their lifetime and can then ensure its usefulness to an organisation they know and trust in perpetuity, all with the simplicity of adding a sentence to a will.”

Plains Reserve. Photo: Loic le Guilly

John McLeod, philanthropy researcher and co-founder of JBWere Philanthropic Services